Does Discovery Invite Fraudsters to Invent Backdated Documentation of Nonexistent Transactions?

I have divided the rules of evidence into two categories that are useful to homeowners seeking out a judgment or final order in their favor.

The two categories are primary evidence of a claim against the homeowner and corroborative evidence in support of the primary evidence. The banks want you to attack the primary evidence. I want you to attack the corroborative evidence.

The primary evidence is the case AGAINST the homeowner.

The attack on the corroborative evidence is the case FOR the homeowner.

The unfortunate truth about our judicial system is that anyone can win a completely fraudulent claim if they work the system correctly. But it is also true that anyone can successfully defend against a claim even if it is not fraudulent. 

The first category is primary evidence which is probably not what you’re thinking. Primary evidence is any document or testimony which on its face asserts the truth of the matter asserted. In foreclosure, the matter asserted is that the proceedings have been initiated on behalf of a claimant who has paid value in exchange for ownership of an unpaid debt owed by the homeowner to the claimant.

Examples of primary evidence that are currently used in foreclosure cases by lawyers representing Foreclosure Mills include assignment of mortgage, allonges that purport to endorse a promissory note, a copy of a promissory note, and payment histories that purport to establish a loan account receivable and its status.

Primary evidence consist mainly of an anchor from which the lawyer for the claimant will claim that he or she is entitled to the application of a legal presumption arising from the facial validity of the testimony or the exhibit.

So if the exhibit says for example that it is “for value received”, the court will ordinarily assume that value was received. Inherent in this presumption is the idea that there was something to buy and that something was sold. This reinforces the idea that the transaction with the homeowner was in fact a loan and that this loan was in fact sold into the secondary market and was securitized.

In the absence of any affirmative defense, denial, counterclaim or objection from the homeowner, the primary evidence establishes the prima facie case for the claimant, which means that the Foreclosure Mill is entitled to a foreclosure judgment or an order in allowing the foreclosure sale to proceed, following which there will be an eviction or writ of possession.

Defending against such claims is as much an art as it is the application of skills learned through education, experience and practice.

The typical layman approaches the case as a conflict between right and wrong. The experienced practitioner approaches the case as an opportunity to work the system. On Defense, the practitioner seeks mainly to discredit the case brought against his or her client. The successful practitioner does not try to overshoot by attempting to plead and prove facts supporting the idea that the entire securitization scheme is mostly or entirely a Ponzi scheme.

So the successful practitioner attacks the prima facie case by attacking the ability of the claimant to provide corroborative evidence for the facts that are currently presumed. Pursued successfully, this leads to an inevitable result: the Foreclosure Miil is unable to produce any of the corroborative evidence. And this is because no transaction ever occurred. You don’t need to believe that proposition; you only need to use it so that you can win.

But some people question the viability of pursuing a strategy that is based mostly on the pursuit of discovery demands on the grounds that it will only lead to the production of more fake documents.

That is possible but a real loan file will include an accounting ledger (not just a payment history) and source documents that can be independently confirmed. So if they are claiming to have made an entry on the general ledger that says we paid for this loan and now we own it as an asset, then there will be one or more source documents and corroborating documents that show that to be a true memorialization of what happened.

Posted in Uncategorized |