You Don't Get Fire When You Pretend to Rub Two Sticks Together

Internet Store Notice: As requested by customer service, this is to explain the use of the COMBO, Consultation and Expert Declaration. The only reason they are separate is that too many people only wanted or could only afford one or the other — all three should be purchased. The Combo is a road map for the attorney to set up his file and start drafting the appropriate pleadings. It reveals defects in the title chain and inferentially in the money chain and provides the facts relative to making specific allegations concerning securitization issues. The consultation looks at your specific case and gives the benefit of litigation support consultation and advice that I can give to lawyers but I cannot give to pro se litigants. The expert declaration is my explanation to the Court of the findings of the forensic analysis. It is rare that I am actually called as a witness apparently because the cases are settled before a hearing at which evidence is taken.

If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services. Get advice from attorneys licensed in the jurisdiction in which your property is located. We do provide litigation support — but only for licensed attorneys.

See LivingLies Store: Reports and Analysis

Several people have asked about the extreme length, in their view, of the Expert Declaration I write. They are concerned the judge won’t read it because it is too long. Here is my answer to one Customer:

No I don’t think it should be shorter. How it is used is up to the litigant and counsel. But the normal way it is used is by filing a memorandum in support of the homeowner’s position citing and summarizing the lengthy Declaration together with case law and statutes. I submit the Declaration as fact and opinion with conclusions based upon logic — not as legal argument.

My experience is that it could be 3 lines and the Judge still won’t read it unless he hears oral argument that gets him to question his own assumptions. The declaration is not meant to argue your case. It is an explanation to enable the Court to understand what occurred, standards of industry practice and where there are factual defects in the position of one party or another. Getting the Judge to WANT to understand it is the job of the litigant and counsel. The USE of the Declaration is strictly up to the proponent. If it is used as a substitute for arguing a motion it will fail — and it should.

Properly used however, it turns heads around, as we have seen repeatedly across the country and especially in Florida where I am actually appearing as attorney of record. The biggest thing I see getting traction is that the Judges feel they have no choice but to let our pleadings stand and allow discovery once we say there was no underlying transaction between this homeowner and this party pretending to own the loan or any of its predecessors.

No actual loan transaction means the documents are void. Read yesterday’s articles on this Blog. The burden shifts to the forecloser to produce a chain of canceled checks and wire transfer receipts and instructions showing that they are in fact the owner of the loan not because of a presumption raised by the UCC but because they bought it fair and square from a party who truly owned it fair and square because there was consideration for the origination and consideration for the transfers. You don’t get fire when you pretend to rub two sticks together. You must have the two sticks and you must rub them together, along with breathing softly to increase the flame. And if one of the sticks is soaking wet, it is defective and will never produce a fire.

What the Banks appear to be doing quite successfully is keeping the argument on “holder” and “holder in due Course” when the argument should be over whether there was any underlying transaction to begin with.

Summaries I have seen include

– list of items of material facts that are in dispute

– list of defects in the chain of title

– list of discovery items outstanding seeking proof of actual transaction

– argument that this means the note and/or mortgage are non negotiable (see yesterday’s post) and therefore the claim of holder or holder in due course is meaningless since the transaction is not governed by the UCC.

– argument that there was no consideration for the loan from the payee named on the note and therefore no consideration for the deed of trust which is fatal defect in perfecting the encumbrance of the mortgage (deed of trust)

etc. 

Despite my confidence in the truth of the matters asserted and the rectitude of my conclusions and opinions in the Expert Declaration, it is still only a road map for the lawyer to consider which items, knowing the Judge and local prejudice and state law, will get the most attention and which items he wants to prepare the record on appeal. Some day the things I have written will all be common knowledge. That is already partially true. But the whole story is not common knowledge and that is where educating the Judge through skillful lawyering makes all the difference.

Posted in Corruption, Eviction, securities fraud |