Ocwen is a Bad Player

The application of legal presumptions and presumed exceptions to the hearsay rule has been leading courts across the country to conclude and assume facts that are opposite to the truth of the matter asserted by parties seeking to foreclose on loans. The courts are quite literally taking the word of a thief about what happened and disregarding all the circumstantial evidence that casts not only suspicion on the evidence, but creates a virtual presumption of lack of credibility — that the testimony from robo-witnesses and the documents entered into evidence must be closely scrutinized and in cases of doubt, the party seeking to introduce facts as evidence must be required to prove those facts without presumptions.

One is left to wonder how bad Ocwen needs to be before everything that comes from it — in testimony or documents — is subject to suspicion. In any other circumstances no litigant would rely on evidence from a bad player like Ocwen, much less allow foreclosing parties to enjoy the privilege of legal presumptions and exceptions to the hearsay rule. Since it is more appropriate to view proffers of information from Ocwen as suspect, rather than carrying a presumption of validity and authenticity, it follows that they must be required to prove every matter asserted with actual evidence rather than avoiding the facts by convincing judges to rely on legal presumptions and presumed exceptions to hearsay rules.

The moral of the story is that a motion in limine, objections to hearsay, and objections to the application of legal presumptions should be aggressively pursued.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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See http://www.huffingtonpost.com/entry/ocwen-financial-gets-no-respect_us_59a5cd69e4b0d81379a81be6

The general rationale for rocket dockets and the attitude of judges in foreclosure actions can be summarized as follows: (1) the foreclosure is inevitable (2) due process for borrower defenses carries little if any weight and (3) banks are the primary source for information on the loans and foreclosure.

So continuing with that line of thinking foreclosures went through the judicial system like poop through a goose. Rocket dockets were financed by the banks, bottlenecks were rampant and homeowners were left holding the bag on what was clearly a fraudulent scheme requiring the forced sale of property — in order to have at least ONE document (a court order) that would give rise to the presumption of validity as to everything that had transpired before the Final Judgment of Foreclosure and before the forced sale at auction.

Now if the judiciary had been doing its real job — providing a venue for blind justice — they could have stopped the foreclosure tsunami in its tracks.

Even in uncontested cases, the foreclosure should be denied in most cases because the foreclosing party does not have facts to back up its allegations. That is because they are an intervening party with no connection to the alleged loan, nor the foreclosure for that matter. As a foreclosure attorney I was sent packing, even in uncontested foreclosures, if I didn’t have proof that I was representing the owner of the debt, that the payment history and balance was kept by the creditor or some party authorized to represent the creditor. If the courts had required actual facts instead of presumptions the foreclosures would have stopped dead in the water.

Foreclosure is not inevitable. Even the threat of it must be as a result of some default by the actual borrower that causes financial injury to the creditor. There can be no injury if the alleged creditor is relying upon the status as “holder” without alleging and proving that the agent has received authorization from the actual party who paid the last money for the funding of the original loan or the successor to that party. Courts have not required even the allegation that the named foreclosing party has suffered injury or that the foreclosing party actually represents the actual creditor.

It is only if the court starts with a bias that the origination and subsequent transfers actually happened within the chain of parties supposedly in the chain of title, that the court could or would conclude that due process is a nuisance and that borrower defenses are without merit, even if the court is required to hear them. Again, if actual proof of actual facts was required, this would never happen. Most of the cases where borrowers have been  victorious have been silenced by seal of confidentiality for which Ocwen and others have paid substantial money to prevent the news from getting out into the public domain.

Using the banks or BlackKnight as the primary source of information is just plain absurd. But it happens because the complexity of false claims of securitization is so great that judges rely on the culprits to explain what happened and disallow challenges from the homeowner — except in cases where they don’t automatically believe the banks and servicers. But is also true that most of the “foreclosure defense” lawyers commit the same error. They start with the premise of a valid loan and the premise that foreclosure is and should be inevitable.

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