(OP-ED) — The author of this post is not an attorney and none of this should be construed as legal advice but is put forward for educational purposes only.
No matter what defensive (or offensive) strategy is seemingly employed by homeowners (as borrowers), not only do we still get the same ‘ol, same ‘ol from bank attorneys (who actually represent the mortgage loan servicer and not the owner of the note themselves) as to their defamatory conjecture from “Your Honor, they (meaning the borrower) just want a free house!” … we still get the continued misrepresentation of the facts in a foreclosure action, whether it be judicial or non-judicial in nature.
In a judicial scenario, the arrogance is blatant. The attorney files the foreclosure action (generally employed by a foreclosure mill that gets paid a low winning bid dollar amount) and puts all of the same, standard “trash talk” about the homeowner (as the borrower), claiming the borrower is in default and that it (the client) is entitled to enforce the security instrument. This isn’t personal really. It’s a numbers game and if you’re a borrower who hasn’t made his payments in ages, it does not necessary mean that the burden of proof shifts to you, just because it’s your home and you’ve been served with papers which, nine times out of ten, contain pleadings that have notably false and misrepresentative statements contained within them. In a judicial state, it’s still up to the alleged claimant-Plaintiff to prove its case or go home. This is why the banks want everything changed to non-judicial in nature, so they don’t have to work so hard to steal people’s homes.
Instead, the borrower opts to defend his position by putting forward an answer and affirmative defenses to the Plaintiff’s assertions. The very act of this filing and anticipated response immediately gives the court jurisdiction to hear the matter before it (with an assigned case number and recorded lis pendens). At the point of the recording of the lis pendens, the borrower’s title is slandered (not the filing of the case with the applicable court). It is the notice of lis pendens that gives the world constructive notice of the proceedings against the property because it is the security instrument that the Plaintiff seeks to enforce. However, in a judicial state, the Plaintiff must possess the Note, or in the alternative, sufficiently demonstrate that it had the note, but lost it, and made every effort to find it, but couldn’t. Instead of looking for the note (or dummying one up out of nowhere like we know they do) and presenting a complete case, the arrogant bank and its lawyer press forward anyway and prey on the emotion of the court, backed by the reasoning that since they filed a complaint to foreclose, they must be the lender, right?
Generally, when the Plaintiff can’t produce the note, it produces an assignment of mortgage, which is generally “manufactured” by the mortgage loan servicer’s employees in favor of the servicer. Half the time, the assignment includes the language “together with the note”, which, if MERS is involved, is a physical impossibility because MERS cannot transfer something it does not own. This makes the assignment false and misrepresentative. Instead of questioning the tactics of the servicer, on many an occasion, the banks’ own attorneys just take it and run with it, or even worse, are complicit in its manufacture! This makes it even worse because the bank’s attorney (and law firm) would be suborning perjury, which, the last time I checked, was a felony. It’s even worse when they try to rely on the assignment to steal the house. It is the INTENT that is made known when the misrepresentations within the assignment are orally pontificated upon the court by the bank’s attorney in his arguments … thus, the arrogance of the bank is transferred to its lawyer, who can then claim reliance on the document because the attorney (or the “cover lawyer”, different from the attorney who filed the original pleadings) is now at greater than “arm’s length”position from the transaction and thus will claim plausible deniability (as in “I had no idea, Your Honor.”)
In a non-judicial setting, the scenario is much more deceitful. If the borrower doesn’t stop the proceeding with something factual that can be proven in court, followed by a temporary restraining order, it is assumed that whoever commences a foreclosure action against the property is going to get their wish because going to court is not required in deed of trust states, except in certain cases, which is why the arrogant banks keep trying to lobby legislatures to change their method of enforcing security instruments to non-judicial, because all non-judicial actions do not require a court’s approval and thus all foreclosure actions are deemed legal unless proven otherwise. This too is a numbers game of greater proportions because most homeowners in deed of trust states do not have access to competent foreclosure defense attorneys because “the system of things” does not warrant a board specialized attorney (in real property law or foreclosure defense) to come forward and shut the door on the foreclosure. Most attorneys in deed of trust states really don’t know how to defend against foreclosures but they sure know how to structure a business model to take a retainer, followed by monthly payments, making their newly-found client their newly-created annuity payment. This is great for business because it boosts cash flow. But, it doesn’t nothing for the homeowner (as the borrower) unless the homeowner has something in the chain of title worth arguing.
Such is the case in South Carolina, where a MERSCORP attorney has allegedly testified under oath (in a deposition) that MERS cannot act for a “non-functional entity” (which means an entity that has gone out of business and years later, all of a sudden uses MERS (through the actions of the servicer’s own employees or another third party) to cover up the chain of title and bring the note and mortgage or deed of trust from the originating, out-of-business lender, to the present tense, in an attempt to allow whatever party comes in with a claim against the property, to foreclose on it. Apparently, this same testimony allegedly worked on a case in New Mexico as well, allegedly. I use the word “allegedly” here because there’s no attached “oral transcript” or “order” from either court to validate the claims made by attorney Jeff Barnes, who goes into court pro hac vice (a guest of the court, using the resident attorney’s bar license) to help the homeowner (who is paying major dollars to both Barnes and the resident lawyer) get out of their foreclosure jam.
I find it odd that a post, dated October 29, 2018, on Barnes’s website, would make such statements without completing the grandstanding against MERS by actually including “hard evidence” in the form of a transcript or order, don’t you think? In the New Mexico case, it wasn’t a slam dunk, however, it appears, without verification, that most of the borrower’s affirmative defenses would be sustained based on this new admission of MERSCORP’s own lawyer. If one wanted to really make themselves appear “credible” with their “victory lap”, don’t you think one should brandish the sword they used as the weapon of choice? (I put this in here for you Game Of Thrones fans!) But, seriously, wouldn’t that make logical sense? So we could read HOW the defeat occurred?
But wait, that would make the grandstanding (to get more business obviously) more plausible and less arrogant, right? We can’t have THAT now, can we? We need to further our business model and leave borrowers in the dark, only to surmise that somewhere out there, a MERSCORP attorney was indeed deposed and testified that his client has no right to transfer the note (something I’ve been saying for years) because MERS has no interest in it. Factually, even if such an order or transcript WERE included, do you really think most borrowers would know HOW to take what they’ve learned from it and apply it to their own scenario? Not hardly. Not in today’s court systems.
It should be noted that the claim was made (in Barnes’s website post) that a deposition was taken, which means the only way you’re going to get damning information to shut down the banks’ arrogance, it to get damning information by conducting a deposition. This is where the rubber meets the road with foreclosure defense attorneys because great discovery wins cases and if your attorney is “lacking” when it comes to getting the right set of facts out of a deposition, you’ve lost not only your home but all those financial resources you could have used to move onto PLAN B. Pro se litigants rarely, if ever, conduct a deposition, let alone a proper and complete one.
In sum, you’re either going to fight the bank’s arrogance with provable facts or you’re not. The system of things supports more than just an affirmative defense against the bank’s lawyer because of the misrepresentations in his pleadings. It supports a bar complaint. I don’t see too many foreclosure defense lawyers putting forward bar complaints based on false and misrepresentative pleadings from foreclosure mill attorneys, do you? (This is why we focus more these days on “the system of things” and how that plays out!)
And somehow, the good ‘ol boy network seemingly continues to survive.
NOTE: If you want to hear multiple scenarios explained about why our voting system may be all f**ked up (especially in Florida with the recent negative spotlight put on it), listen to Dave Krieger tonight (6 p.m. EST) on WKDW-FM’s City Spotlight – Special Edition, just by clicking on this link and then clicking on LISTEN NOW! Joining Dave and co-host R.J. Malloy as their guests are North Port, Florida City Commissioner Jill Luke and outgoing City Commissioner Linda Yates.