The Pro Se Litigant and Today’s Court Systems …

It’s going to be an uphill battle unless you understand the forum you’re in!

From our friend and Foreclosure Defense expert Dave Krieger

(OP-ED)— This post is being initiated to stimulate your thought process as to what many perceive as the most hated, corrupt judicial system in America, especially in the foreclosure arenas around the country. This particular post is being offered to everyone equally, because we all benefit from the educational use of its ideas. 

Between 2009 and 2016, over 10.2-million homes were foreclosed on. In my estimation, roughly 99.9% of those foreclosures were illegal. Based on the information that continues to surface, many litigants are finding that:

1. Retaining an attorney cements them into a jurisdiction that results in profit for both the attorney representing them and their opposing counsel;
2. The assumption that all judges are “corrupt” only happens when you’re paying close attention to their tactics in the courtroom, which they run as they see fit, which includes prosecuting cases from the bench;
3. The judges, before they were elected and/or appointed, were and are still, members of the English Crown’s base of the State Bar Associations (otherwise known as the “good ‘ol boys’ club). This title (“Esquire”) puts them in a position of nobility and dishes out limited responsibility and the Bars invoke limited disciplinary actions for their misbehaviors as “officers of the Court”;
4. They do not understand what the term, “prosecuting a case from the bench” means. (Explanation: Asking questions that opposing counsel should be asking of you, on the witness stand or in deposition.) You are entitled, as a pro se litigant, to understand what that means and you are also entitled to figure out the appropriate response, which is your right under the law (administrative law).
5. They do not understand that the “U.S. Constitution” does NOT directly apply to their foreclosure proceeding. This is contract law, which is based on 1:10:1 of the U.S. Constitution (“ … the obligation of a contract shall not be impaired.”);
6. They do not understand that the very processes that the Courts abide by are created by legislative intent. There is enough evidence currently out there (and rulings by the U.S. Supreme Court) that judges cannot make laws from the bench (but they sure can help the other side win by letting them out-procedure you);
7. They don’t know the Rules of Evidence;
8. They don’t know the Rules of Civil Procedure used by every Court in the State the foreclosure case is being commenced in;
9. They don’t get that every Court can have its own “local rules”, which every litigant in said Court needs to abide by;
10. They don’t understand that “standing” applies in every foreclosure case. In other words, the other side’s right NOT to be there because they don’t own your loan and are not holders in due course; 
11. They definitely don’t understand what a “holder in due course” means, nor do they understand the basic tenets of negotiable instruments law (UCC Article 3); 
12. They certainly don’t understand that one shouldn’t use Comic Sans or other inappropriate fonts in their pleadings, or understand what margins and spacing rules are for (13-point Times or Times New Roman); and 
13. Lucky Number 13: They definitely do not understand HOW to object to statements made in the Court by opposing counsel OR the judge.

The foregoing should clue you in as to the obstacles that you must overcome and the infinite amount of research into areas of law with which you should have been aware BEFORE you signed that Note and Deed of Trust or Mortgage at Closing! 

Now that I’ve gotten through the basic “bitching” about what I see as the end result of ignorance of the law … let’s get into the “meat and potatoes” of the litigation process from a pro se standpoint:

1. You’re only as good in Court based on the amount of advance research and homework you’ve done (i.e., attending court hearings in advance to see HOW the forum operates prior to your “appearance” there);
2. You’re only as good in Court based on the amount of confidence you have in what your pleadings, arguments and objections state;
3. A big mistake pro se’rs make is going into Court expecting to win! If you go into Court with a “chip on your shoulder” (it’s called “entitlement”), you will definitely lose; 
4. Getting sworn affidavits may not be enough; you may have to subpoena witnesses who can testify as to the facts you’re trying to present … and they’d better be prepared to withstand impeachment on cross-examination (they need to be qualified);
5. Understanding and coping with the idea of being out-procedured by opposing counsel (they’ve been through 3 years of law school and passed the bar exam … where are you in all of this educational process?);
6. You forget that you’re in a contract, administrative court and you’ve forgotten to retain your own court reporter (one you’ve vetted to make sure they get everything on the record … because the most important thing you can do is: Make a Record;
7. You forget that when you appeal the lower court’s ruling, you can’t bring new evidence into what is considered a “de novo” proceeding;
8. How much have you attacked the other side’s position when you filed your original petition or responsive pleadings? 
9. Packing up and moving out of your home gives the mortgage loan servicers carte blanche to make millions in profits, while the REMICs get nothing! 
10. Now for the partial proof in #9, see here:

	Notice Of Filing Affidavit5.26MB ∙ PDF file
Download

So you see … it appears as if the Plaintiff (Ron Gillis) can now amend his Declaratory Relief pleadings to include PHH as a Defendant and depose them (or make them appear in court) to see exactly how much of the proceeds went to Deutsche Bank Trust Company Americas, as Trustee for RALI 2006-QS8 (which I guarantee NONE of the proceeds were given to either Douche or RALI! 

In other words, only HALF the battle has been won thus far, even if Kevin S. Parke can testify at trial. The other half of the equation comes when Mr. Gillis can discover whether DoucheBank or RALI got any of the proceeds and if not, why not? (HINT: The loan (a.) never made the trust; and (b.) receiving proceeds would violate the Internal Revenue Code, which would subject the REMIC to all sorts of civil and criminal penalties), which the IRS summarily chooses NOT to enforce anyway (that is, unless you were to sue the Commissioner after noticing him/her of their failure to prosecute wrongdoing … see 18 U.S.C. § 4). 

Mr. Gillis has been at this for over 16 years now and this declaratory relief action is post-sale, not pre-sale. Imagine the consequences if you were to discover what he has discovered BEFORE the servicer stole your house!

GROWING A PAIR …

I know. It’s a cliche. 

But it means a lot more if one were to actually come into the knowledge of what works in these kangaroo courts and what doesn’t. Pro se litigants should have the same courtesies afforded to them as the barristers they face off with in court. 

Unfortunately, the judge is usually connected to these esquires by membership of the Bar Association, so does that constitute a conflict of interest? Or could it be that the knowledge of the judge’s affiliation (nexus) with a State Bar Association also subject the County the foreclosure court is in to civil and/or criminal inclusion in future litigation (since the county pays the judge)? 

Remember, civil remedies are only available to those who seek them.

I go by the 100/50 rule here. 100% guaranteed that if your sit on your ass and do nothing, you will lose. 50% guarantee that you’ll get your day in court if you do something. That something … is either appropriately ANSWER the complaint to foreclose (in mortgage states) or FILE A SUIT to stop the foreclosure (in deed of trust states). 

Whether the judge likes you or not is not the issue here. It’s whether you have the knowledge and foresight to understand what and who you’re facing when you enter into their tribunal. 

Dave Krieger is a valued contributor to the Livinglies.me platform and the host of The Krieger Files, covering legal, financial and consumer issues, Monday-Friday, from 11 a.m. to noon Central time, on the Global Star Radio Network. You can hear and see the program live on TheKriegerFiles.com! The program repeats itself in its entirety for the next 24 hours until the new program is uploaded.

Posted in Corruption, foreclosure defenses, Uncategorized |