(OP-ED) — The author of this post is hoping you are having a safe and peaceful holiday season … with an educational viewpoint as a belated gift … which has its own conclusions of law thrown in for good measure.
Here’s an interesting take on an older 2019 case, which by the way was just recently “Shepardized” only to discover it’s still “standing” and hasn’t been reversed and it has to do with what a witness knows and is able to testify to versus what that same witness doesn’t know. It’s a case out of Wisconsin (smile and say “Cheese!” Mr. Witness … you don’t know what you’re talking about and the court agrees with the homeowner)!
And of course, it’s not published! If the system of things were to allow every homeowner-favored case to be published, we’d actually learn something about how cases are won, not how they’re lost.
We spend all our time trying to prove a negative. Why not just dump that task on the witness?
From an analyst point of view, scroll down the foregoing PDF to the bottom of Page 7 (of 14) … where it says “DISCUSSION”.
Start reading at the second sentence … and when you get to the top o the second column of Page 8 (of 14), you will begin to see where Bank of America’s case begins to fall apart. The word ROBOSIGNER appears multiple times throughout this ruling. It’s nothing that the Court’s don’t recognize or want to hear … because most judges will pooh-pooh these allegations all day long. However, the fact remains that if you can catch the witness in a bald-faced lie, it makes your appeal that much more palatable to the higher courts if you can show the witness could … in no way … have had personal knowledge of a lot of the facts:
- Who had actual possession of the note and mortgage at the time of the foreclosure?
- How did the robosigner in this instance contradict himself in his testimony?
- What evidence did the other side (coming against the homeowner) fail to produce or establish?
- How could the lack of knowledge be used to beat up the other side’s argument that the witness was there only to assist the Plaintiff Bank to commit fraud on the court?
- How does the other side “dilute” its arguments by asserting that proving fraud on the court requires more than just a witness’s committing perjury?
- How does the Plaintiff Bank misuse case law in trying to get a court to side with it? (Another reason for research into each cited case!)
- Submitting a false affidavit to a court amounts to just the same as committing fraud on the court, right?
The Circuit Court dismissed the case with prejudice on one hand but dismissed the “judgment on the note” on the other hand, allowing the bank to have another “bite at the apple”. We certainly can’t give the homeowner a free house, now can we? Geez, I saw nothing in this case about filing a complaint against the law firm and the attorney of record with the state bar, did you? The attorney must have had some knowledge about the ROBOSIGNER … or was the attorney just too arrogant to recognize he was possibly suborning perjury on the court?
So we end the matter on a 50-50 split decision … Wells Fargo’s appeal was frivolous and the homeowners get denied their motion for attorneys fees and costs (because … and probably due to the rationale of the court systems in this country … they get to stay in their home just a bit longer without having to pay for it).
Of course this opinion won’t be published. Why would you even think that? We might actually learn something from unpublished opinions, right?
Look at the bright side. If they’re unpublished opinions, the other side won’t be so quick to study them.