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Editorial Comment: Hat tip to Weidner: The bottom line is that the pretender lender was prevented from introducing evidence of “default” and was further prevented from introducing evidence establishing the pretender’s right to foreclose.
The reason was a series of objections in which the shell game became apparent to the Judge and the Judge refused to play. In the end proffers of counsel for the pretenders are no substitute for the admission of evidence. Facts are different from evidence. Facts may exist, but unless they are accepted into evidence, the court may not consider it. So this Judge entered an order of involuntary dismissal (directed verdict, as the term is sometimes used, usually in a jury trial) and the homeowner won the case.
This is a precise example of why I say that there are no cases in which the facts in dispute are heard all the way through to a verdict. Once it gets to the point where the pretender can no longer fake their way around the judge, the truth is left lying on the floor — that the pretender has no idea whether there is a default, has no idea of the balance due under the mortgage, does not represent any real creditor and seeks to foreclose in its own name merely as the “holder” without ever disclosing any principal (because in most cases there is no principal).
When I say there is no principal I mean one of two things. Either the principal creditor has already received a a settlement and therefore has been been fully satisfied or the principal wants no part of any litigation in which it could be named as a counter-defendant for predatory or deceptive lending practices. Either way, the real creditor is never in the room.
It is at this point that cases go into the mode of what Matt Weidner correctly coined the term “cash register justice.” When it look like they have run out of options they dismiss the case and then hit the investor with a bill that is, like in a case recently reported, 140% of the actual loss. Where does the other 40% come from? Well of course it comes from any place the servicer can get it which is out of the payments received from borrowers whose notes specifically state that their payments should only be booked as payments to reduce their debt, and not for any other purpose.
And need we add that the request for modification would have left the investor with approximately 50% of the loan intact — which means the investor took a bath for 90% while the servicer got paid in full, the banks were always paid in full because they only used investor money to fund mortgages, and of course the banks also got to keep the bailout money, insurance money, and proceeds of credit default swaps and cross collateralization.
With the banks owning the service companies and the trustees and other “foreclosure specialist” companies, the banks get all the money coming in PLUS the house, leaving the investor with net losses far in excess of their initial investment.
Somehow Eric Holder, our Attorney General has arrived at the conclusion that this might not be illegal. Ask the investor how legal this is. Ask this homeowner who now has a clear shot at clear title through a quiet title action, with no mortgage, no note and no obligation.
As an add-on to what this very good lawyer did at “trial” I would say that the lawyer should have conducted a voir dire examination of the witness proffered by the pretender. The witness admitted only 18 months experience with PHH and no experience or knowledge as to the actual trail of payments. He further admitted that he had no direct knowledge as to how or why payments were posted in this case and implied that he had no knowledge as to whether the accounting was complete, which we all know means that the payments the actual unidentified creditor received was never shown nor intended to be shown in a court of law. The best the witness could pretend to know were the business procedures AFTER declaration of default with no knowledge of what happened before that or outside of the relationship between the borrower and the servicer.
The lawyer made his point but almost missed it when he showed that the paper presented did not have the name of PHH anywhere on it and instead had a name that was neither in the pleading nor the exhibits: a mistake often made by lawyers (but not by this one) was that once you get the pleadings and exhibits from the would-be forecloser and the chance to amend has expired, they have no right to introduce evidence contrary to their own allegations and exhibits. This lawyer correctly held the pretender to stay within the four corners of the complaint and the exhibits attached.
A Foreclosure Trial Transcript, Evidentiary Objections Made and SUSTAINED, Judgment for Defendant!
Author: Matthew D. Weidner, Esq.
I want to share with the class a transcript of a foreclosure trial where defense counsel rattles off the evidentiary objections, many of which were properly sustained by the judge.
Servicers have a very real problem proving their cases over proper and clear evidence objections….they just cannot link up their evidence from one servicer to another without real effort…and in some cases they will not be able to do it.
So this is a roadmap that shows how to do it correctly….bone up folks, work hard.
Fight like every single case represents the very fate and future of the entire American judicial system.
because every case does
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