Tag Archives: Al West

Foreclosure and your civil rights: A judge rules against you in spite of questionable land record documents … what to do next? (PART I)

(OP-ED) — This overview of cases involving civil rights abuses are the author’s opinions based on his legal research and are for educational purposes only and should not constitute any rendering of legal advice or seek to draw any conclusions of law. The first five points are discussed below:

The time at which a § 1983 claim accrues “is a question of federal law,” “conforming in general to common-law tort principles,” and is presumptively–but not always–“when the plaintiff has ‘a complete and present cause of action.'” Wallace v. Kato, 549 U.S. 384, 388 (2007); Manuel v. Joliet, U.S. Sup. Ct. No. 14-9496 (2017).

— As cited in McDonough v. Smith, U.S. Sup. Ct. No. 18-485 (2019)

This post is circumspect as to the discussion of the items postulated within the land record audit and forensics investigation conducted by the author and his team of researchers in Williamson County, Texas (2012-2013) and Osceola County, Florida (2013-2014), respectively. Anyone who has read through these 179-page and 758-page reports will realize that they are just that … the means to call out an injustice that should have come to light, but never did, during the period following the 2008 financial collapse. Over 10-million homes were taken through both judicial and non-judicial means … and this case, coupled with several others discussed in this post, culminate into what the author has determined is a potentially valid 42 USC § 1983 civil rights claim, which must be filed in federal court in a timely manner.

FALSE AND MISREPRESENTATIVE STATEMENTS

As both of the foregoing reports concluded, documents numbering into the tens of thousands poured into the land records of all 3,041 counties and boroughs across America, each containing false and misrepresentative statements that predicated the actions taken by the banks’ servicers. These documents were generally created under the orders of the servicers themselves and were generally executed by the servicers’ employees, posing as Assistant Secretaries, Vice Presidents or other “loan documentation” employees of the servicer, posing as representatives of the alleged Lenders “in an official capacity”, when in fact, many of these signers were $10/hour paid flunkies who sat around in cubicles and signing rooms, affixing their signatures and notarial seals by the hundreds … per hour, without reading or knowing of the contents contained within the documents as to their validity!

Better than 99% of these documents continue to litter these same land records to this very day and only about .001% of Americans are the wiser.

POINT #1: When the alleged civil rights infraction has occurred

In the McDonough v. Smith case, which was based on a New York State criminal action, the action came to rest in the hands of the United States Supreme Court, which decided on June 20, 2019, in a very narrow opinion, that the action taken by elected official McDonough against prosecutor Smith was untimely. The allegations were based on the alleged manufacture of evidence against McDonough by Smith, not once, but twice. Due to this prosecution (by Smith), McDonough was deprived of his liberty (put in jail) due to this allegedly manufactured evidence. From the foregoing statement that is highlighted in bold-faced type, you can clearly ascertain WHEN you get to file a civil rights-based lawsuit … AFTER your foreclosure has been completed against you and you’ve lost your property at sale.

POINT #2: It is assumed that you are taking notice of the offenders

In order to make this case in point, the author is relying on the assumption that anyone reading the audit and forensic examination will come to realize that not all is copacetic in assignment-land. It is the assignment of the mortgage or deed of trust that is posited here as “manufactured evidence”, to be relied upon for a “conviction”, even though the intended venue is the civil realm and not the criminal. However, the alleged criminal activity involving the manufacture of the documents, which generally appear years after the alleged transfer of notes into REMIC trusts or some other junk debt pool, which says it’s a trust but in reality is nothing more than a third-party debt buyer deceiving both the land recorders and the civil judges alike, is at stake here due to the reliance of its validity.

It is further assumed that every party involved with or “touching” that assignment from its inception to its recorded form and relying upon it thereafter in the taking of your home, knowing the statements contained within said assignment were false and misrepresentative, is McDonough in the civil realm. The documents predated a civil prosecution (foreclosure) and were manufactured as part of a suspected criminal act.

To make it more plain and simple, YOU, the homeowner, did not deceive the land record, the servicers’ employees did. Maybe the law firm acting on behalf of the servicer did by furthering the lie. Maybe the judge knew or should have known that the documents in the case in chief contained questionable statements; however, chose to ignore them for the sake of convenience in clearing off a packed court docket without giving the homeowner (or his attorney) a chance to prove that the prosecution’s case was based on false evidence.

POINT #3: The aspects of perjury and the subornation thereof

18 USC § 1621 (in pertinent part): “Whoever–having taken an oath before a competent tribunal, officer or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contract to such oath states or subscribes any material matter which he does not believe to be true … is guilty of perjury and shall … be fined under this title or imprisoned not more than five years, or both.”

18 USC § 1622 (in pertinent part): “a person convicted of subornation of perjury may be fined $2,000 and sentenced to up to five years in prison.”

Under the latter, there are five elements which must be proven: (1) that the defendant make an agreement with the person to testify falsely; (2) that the perjury was in fact committed by the offender; (3) the false statements of the perjurer were material to the outcome of the case; (4) that the statements were made knowing of their falsity; and (5) there must be proof that the procurer had knowledge that the perjurer’s statements were false.

This is one of the key issues presenting itself as to the “further than arm’s length transactions” involved in foreclosure so as to create plausible deniability on the part of the perpetrators. Much of this can be ferreted out in depositions, which California attorney Al West has seen first hand.

POINT #4: The recorded alleged false statements in the land record

From the fact patterns discussed in the two foregoing reports, which are shown here for your review (if you so choose) …

… it became obvious to the author (in compiling the data shown in each of the reports) that a fact pattern involving timely suspect behavior occurred at about the time of the prosecution of the foreclosure, despite the fact the alleged information contained within the assignments that showed up in the land records just prior to (or in some cases AFTER the foreclosure action was started) the foreclosure case had indeed occurred.

It should also be noted here that these reports were not indictments, but merely “call outs” to alleged misbehavior on the part of third-party document mills or deceitful acts authorized or carried out by the mortgage loan servicers themselves. In March of 2012, the servicers collectively told the states and the federal government they wouldn’t create suspect documents and record them in the land records anymore, but as history shows (as demonstrated by the audit and forensic examination), no sooner was the ink dry on that agreement, it was back to business as usual.

Thus, the chains of title have been presumedly corrupted by this behavior, which of late, has gotten more sinister in nature, covered up by recorded powers of attorney that appear to grant some sort of authority to misbehave in the drafting of such documents, with no one the wiser.

POINT #5: The statements made within the foreclosure process itself

The next set of documents that appear suspect in the prosecution of the actual foreclosure itself are shown to be that of the “affidavits” or “declarations” made by the servicer’s employee, attached in similar form to both judicial and non-judicial actions. The difference here is that the non-judicial action contains a recorded statement known similarly as “Notice of Default and Election to Sell” and “Notice of Trustee’s Sale”. In both instances, these recorded notices contain the alleged suspect statements, predicated by the suspect assignment, then followed by the alleged “Appointment of Substitute Trustee”, which is not “neutral” by any means.

The judicial aspect involves the filing of a foreclosure complaint and the sworn declaration that accompanies the complaint filing, assumedly from the lender’s representative, when in fact, it’s the servicer’s employee making the statements. These statements then find their way into the initial court case filing.

The second “whammy” is when the servicer’s employee, who has been assumedly “coached” as to how to testify, many times in mock trials at the servicer’s headquarters so that their testimony is groomed to become so believable that the homeowner’s attorney swears the employee is telling the truth, that this is where the suspect “open court subornation of perjury” indeed occurs because: (1) the person testifying has been educated by the servicer to become a professional liar; and (2) the person testifying is relying on the suspect manufactured documents created by others and recorded in the land records of the county the subject property is located in.

HOMEOWNERS CAUGHT UNAWARES

As history has shown us, when the foreclosure debacle first started to litter the courts with cases, 97% of the noticed homeowners “cut and ran” without even entertaining the options. Their “Come to Jesus” meetings were based on fear of a bad result, predicated by a string of unfortunate events, which forced them to simply pack up and flee. The banks and their servicers were counting on this … and they succeeded admirably.

The other 3% of homeowners attempted to retain unlearned attorneys, who were naive as to the trickery committed not only in the land records, but through the MERS® System of things and the illicit behavior of the foreclosure mills … and bad case law affecting homeowners. It took awhile for these defense attorneys to come to grips with what was actually going on … and by then, even the judges were led to believe that what they were doing was above board, when in fact, it was based on manufactured evidence that should have been brought to light beforehand.

And this is why the author and California Attorney Al West created:

The C & E on Steroids!

… because these declaratory relief actions should predicate the foreclosure action, not only creating delays, but to serve as a warning to those who would involve themselves in the chain of deceit involving the taking of a person’s property.

Sadly, 99.9% of all homeowners fail to understand this strategy, which could force a court to quiet title to any given piece of affected property and potentially cause a criminal action to be pursued against those committing perjury and suborning perjury in their sworn statements of record.

What most foreclosure victims also don’t understand is that the application of a civil rights action is also predicated on the denial of declaratory relief, which is the basis for the Cancellation & Expungement (C & E) Action.

Everything that the author has discussed in PART I is the “set-up” to what liability could be ascertained throughout the foreclosure case itself, which a person with some skill and knowledge could do the research on to identify the most likely culpable targets therein.

IN PART II the author will discuss the pertinent parts of various cases in which the courts have identified these misrepresentations and what part of “all is not lost” applies to you, even if you lose on appeal. Yes, there are administrative remedies which have to be exhausted if one is going to go after an attorney, a judge and/or the county that pays them … and how the counties insure themselves against liability … out of a self-insured risk pool.

IN PART III … the author will discuss the attack strategy in the realm of 42 USC § 1983 and 42 USC § 1985, focusing not just on the perpetrators of the phony documents, but also at the attorneys involved in the prosecution of the foreclosures and the judges and the counties that employ them when the judges make bad decisions (like Al West says the judges say to him when approached about the documents, “What else ya got?”), which could make them accomplices to perjury and the subornation thereof.

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FORECLOSURE DEFENSE 101

(BREAKING NEWS) — Registration for this year’s “foreclosure defense” basics workshop is now open!

THE FORECLOSURE DEFENSE 101 WORKSHOP

This workshop will be held online via a webinar format (GoToMeeting), which automatically records the entire 4-hour presentation so you can watch it over and over again after the workshop has ended!

The downloadable flyer contains the entire syllabus, which represents the tools you’ll need to fight a foreclosure, whether it’s judicial or non-judicial in nature! Plus, the registration form is also included (when you read the Registration Form, you’ll know why we’ve included it).

This live event is hosted by Clouded Titles author Dave Krieger, who will feature California attorney Al West (who Dave has co-authored two different books and DVD video sets with) and R. J. Malloy (Dave’s retired attorney co-host on City Spotlight – Special Edition on WKDW-FM), a 9-year-tenured law clerk for a former U. S. District Court judge! One better … Ron Gillis will also be joining us in studio (live from Florida) to discuss how he has been able to stave off a bank foreclosure on his home for over 12 years!

Plus … we’ll be covering courtroom procedures and protocols, which is something we didn’t normally cover in our previous classes … a new addition which promises to add some serious “spark” to your foreclosure defense campaign to stay in your home!

THE BIGGER PICTURE

The foreclosure realm is like one big sandbox. You’re in one corner. The judge is in the corner to the right of you. The foreclosure mill attorney is facing you in the opposite corner, while the sneaky mortgage loan servicer’s “witness” is hiding behind his COVID mask in the corner to your left. Once you know WHO your opponents are … it makes it easier to know when and where to “kick the sand”. In this author’s world, no one wants to “play with you” when you’re no fun to play with. No one likes bullies either … and that’s what the attorney facing you in the sandbox wants to portray, because they’ve got legal skills you don’t … yet. Our objective here is to keep the mortgage foreclosure mill’s attorney and his witness out of the sandbox (the courtroom) as long as possible … and when the time comes … how to kick sand in their faces (figuratively speaking of course)! It’s the only visual this author can really use to describe what you’re facing in today’s courts.

This author knows that retaining a foreclosure defense attorney is risky … and in this workshop, you’ll find out why that is so.

We will be providing you with extensive PDF files of court cases, diagrams, sample forms and pleadings and all the “stuff” you’ll need to study to empower you and your “game plan” while creating a Plan B exit strategy. The banks and their mortgage loan servicers would just love to see you out on the street, your valuables tossed to the curb by the Sheriff … something none of our online workshop guests want, especially with a virus running rampant.

In case you can’t attend the Saturday, October 24th online, 4-hour workshop, it will be available online at CloudedTitles.com shortly thereafter for your repeated viewing pleasure; however, we hope you’ll join us for the live event because you get to ask questions in our “chat box” about the tools we’ll be sharing during the event!

You must register in advance to get the link to the workshop the morning of the show, which starts promptly at 10:00 a.m., Eastern Daylight Time!

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FORECLOSURE DEFENSE 101 WORKSHOP NEWS! UPDATE!

(BREAKING NEWS, OP-ED) — The online webinar has been slated for Saturday, October 24, 2020 from 10:00 a.m. to 2:00 p.m.  Please email cloudedtitles@gmail.com for a Registration Form. 

The latest news articles (at least 20 of which this author has read) all indicate that the COVID-19-related foreclosure crisis will more than likely affect low-to-middle income homeowners who lost their jobs, including first-time homebuyers, single women and people of color who got federally-insured mortgage loans.

Despite all of the CARES Act help and moratorium extensions by the government, conventional mortgage loans were not part of the government’s intended program to stop the tide of foreclosures that are looming in the not to distant future.  Because the crisis affected the mortgage loan servicers the worst, they are least likely to start granting en masse forbearances on mortgage loans as there’s no way they can recoup their losses fast enough.

The next game plan would seemingly call for mortgage loan modifications.  This is where homeowners can restructure their loans using money they’ve been able to acquire over the short haul in an effort to meet qualification requirement payments that the servicers will demand in order to complete the loan mod. Should these modifications not happen in droves, it will spark another massive wave of foreclosures before the end of 2020.  In this instance, it appears that the banks and their servicers are looking to the government for some sort of mitigation plan (in other words, another bailout, mitigation plan is just a nicer way of saying it).

As to the equity position some homeowners may have, restructuring could include downsizing through liquidation.  Because loan delinquencies will show up on credit reports, it will become more difficult for evicted homeowners to find places to rent through the standard screening criteria.  They will be faced with having to pay larger security deposits and higher rent because of their presumed risk having to go through back channels in order to find shelter.  In many metro areas, mortgage loan delinquencies of 30 days or more were over 10%.  This figure is very comparable to what America was facing in 2008 as over 10-million homes were foreclosed on in the years that followed.  The housing crisis we are now facing could nearly match what we experienced between 2009 and 2015.

IN FLORIDA, WE PREPARE FOR HURRICANES

There are some exceptions to the housing crisis in areas of the U.S. that have stable rent and mortgage markets.  Most of Florida and much of Texas fall into those two categories.  These two states, which this author is using as an example, have no state income tax and lower sales taxes and less restrictions on business, which makes them more desirable to those living under current “Blue State” conditions.  In many markets in Florida, residential resale inventories are declining, which seems to indicate the opinion that the 1000-people-a-day migration to the Sunshine State is impacting the crazy real estate boom.

However, a lot of homeowners who currently reside in both states are hunkering down and choosing not to liquidate, mainly because they can afford to ride out the storm, much in the same way homeowners in Florida prepare for hurricanes.  If you’ve ever been to Florida during hurricane season or have seen pictures of the parking lot that Interstate 75 turns into when those who aren’t prepared or those in low-lying areas who are forced to evacuate take to the roadways to flee the storm’s path, you can get a fraction of a glimpse of how many homeowners aren’t displaced and are going to ride out the storm because they’re prepared.  It’s just something you do when you live in Florida.  The problem is, not all homeowners have the financial ability to prepare.  Even though there are a lot of affluent folk living the dream, there are those groups of individuals and families that make up the support base (lower-paying incomes associated with health care, retail, restaurant and maintenance-related employment) are the ones taking the hardest hit in managing rent payments, which are skyrocketing beyond their ability to pay.  This is why there is a need for affordable housing in Florida, which is why this author is now building steel SIPS homes (Structural Insulated Panel System), starting around 900 square feet.  The need here for affordable housing is so great, even the news media can’t ignore it:

An affordable home that can withstand a category 5 hurricane? This builder says he has the answer | News | yoursun.com

This is what you call PLAN B … 

Having alternative plans to move to safer, more productive areas is part of why you’ll see demographic shifts of migration around the country.  When the construction industry booms in one area, workers from around the country migrate there seeking to become part of the construction labor pool.  There are all sorts of retraining programs available, if you know where to look.  America has always been resilient no matter what.  Even in light of the COVID-19 snafu, Americans are bouncing back … but unfortunately, not ALL Americans are.  It’s that 10% that make up the exception to the rule that will spark the crisis.

However, not everyone has a Plan B yet.  This is why we’re doing the Foreclosure Defense 101 Workshop.  California Attorney Al West has agreed to join me for this 4-hour webinar.  This author is also talking to others who have been able to stave off foreclosure for over 10 years, through learning HOW TO fight the mortgage loan servicers and their attorneys in court.  This of course, would be an exception to the rule.

We have made this workshop affordable and much easier to attend, as long as you have access to a computer and an email address.  This author has already addressed the types of sample forms we’re going to make available, so for the sake of redundancy, we’ll stop there.  If you or someone you know is in trouble, best to forward this post to them and/or have them email us at cloudedtitles@gmail.com for a Registration Form.   Here is the syllabus of what we’ll be sharing in the workshop:

FORECLOSURE DEFENSE 101 SYLLABUS

UPDATE:  Next week, you will be able to register to attend through our shopping cart on the Clouded Titles website

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BOTH QUIET TITLE ACTIONS AND C&E ACTIONS ARE DECLARATORY RULINGS! UPDATE!

(OP-ED) — The author of this post is not an attorney and thus cannot give legal advice.  However, based on the research contained herein, one can share without retribution; thus, let this be for your educational value only! 

UPDATE … NEW IDEA!  (Please move to the bottom of the article to read my thoughts on this!)

One judgment appears to be a “cheap date”, while the other judgment isn’t.

Which one is cheaper to prove?  Why … the C&E of course!

The “C&E” should become part of everyone’s vocabulary these days.  I can give you over 500-million reasons WHY a C&E is important to every American property owner.  The main one is adverse condition of title to over one-third of every parcel of land in America!  That’s the biggest reason.

How can you consciously sell a piece of property to another human being when there is clear evidence of chain of title issues present, especially when “MERS” is involved?

The C&E has been in the forefront the entire time, albeit not exclusively.  Everyone knows that quiet title actions have been around for centuries. But … and I use this caveat succinctly: Quiet title actions are more than just a simple step in clearing title to a piece of land.  Like the C&E, both matters involve an evidentiary proceeding.  Both are rooted in declaratory relief.  Both require a certain amount of discovery.  However, the C&E requires less discovery because you’re only targeting one suspect document in the real property records, while the Quiet Title Action focuses on the entire chain of title, leading back to the document (usually the mortgage or deed of trust) that plagued the chain of title in the first place!

Back in the days preceding the first financial collapse in 2008, mortgage brokers and their title companies were so quick to file stuff in the land records that: (a.) they submitted the documents incorrectly for recording; (b.) they submitted MERS-originated documents to the county recorder knowing full well that the borrowers encumbering their property had no knowledge their loans were being securitized; and (c.) they did this knowing that a majority of the documents being recorded contained information on loans that were designed to default years later, causing a huge rash of foreclosure actions that plagued the United States from coast to coast.

I can tell you with a certainty (after having lectured to hundred of various county clerks) that a lot of clerks (recorders, registers of deeds, etc.) these days still don’t understand what MERS is and what kind of issues became predominant after MERS-related assignments are recorded.  I have been asked from time to time whether we should sue county clerks and recorders and my answer is “NO” (not just NO but HELL NO)!  These folks are generally elected officials that have a bond.  These folks unknowingly became victimized by the “MERS process” as much as the collective body politic affected by borrowing that was intended to be obtained from the secondary mortgage markets.

In The C&E on Steroids! Attorney Al West and I bring forward the reality of challenging documents through declaratory relief, especially the documents created from 2004 through today.

Yes!  These entities are still “manufacturing” bogus documents and causing them to be recorded in the land records all over the country!

And what’s even more astounding … MERS and its parent have absolutely NO IDEA that the MERS name was being used in these assignments!

The culprits … 

Mortgage loan servicers, third-party document mills and title processing services are the guilty parties!

Secondary to these groups of land record predators are the foreclosure mill law firms prosecuting the foreclosures themselves!

The potential targets … 

All of the above … depending where they’re located.

Again, The C&E on Steroids! describes WHO these targets are … WHAT prompted them to become targets  … WHEN they became targets … WHERE they got involved as targets and WHY they are targets  … and more importantly, HOW the “system” played us in letting them become targets!

Wouldn’t it be nice to know WHO your enemy is BEFORE engaging them in a legal battle? 

This is why is becomes important to understand the principal of declaratory relief.  It allows us to obtain discovery to get at the “root” of the problem.

Most homeowners don’t get that.  They think, “Okay, I’m going to get pissed off and sue everybody!”  They let their emotions get out of whack, failing to recognize the tools available to isolate and attack individual targets to further corrupt a chain of title to the point where a county court HAS TO quiet title title in order to comply with marketability statutes!

California attorney Tim McCandless was recently quoted as saying:

” … the more recent strategy of attacking the assignment of mortgage and seeking nullification of that instrument has met with some success and it should succeed, because you are attacking the facial and substantive validity of that specific instrument and not the entire mortgage or deed of trust. That strategy merely attacks the technical requirements for creation and recording of an an instrument affecting title to real property and attacking the substantive validity of the assignment by revealing that the debt was not transferred to the assignee by a party who owned the debt.”

The success in doing a C&E would seemingly “cut the legs out from under” the perpetrator of any future alleged foreclosure, right?  It would stand to reason that without an assignment being present in the chain of title, the mortgage loan servicer and its counterparts that were probably the culprits behind the very assignment they’re relying on as a tool in their foreclosure arsenal would be affected directly by the “lack of gunpowder” in their magic bullet.  The only thing they’re attorney will say is, “These people just want a free house, your Honor!” because they don’t have anything else they can say that will evoke the emotion of the Court to screw the homeowner one more time!

The beauty of this process is that it can be used at any time prior to foreclosure without bringing the mortgage loan servicer itself into the fray.  And it can be used in both deed of trust and mortgage states!  All 50 states have statutory mechanisms for declaratory relief.  All 50 states have rights to attack phony documents!

Further, there is case law out there that has taught us much in the way of educational value!  That case law is described in The C&E on Steroids! 

In fact, the case law Al West and I discuss in this book and the related course materials SHOW YOU validity past what attorney McCandless previously described!

And it all revolves around a simple and concise declaratory relief action. Yet, homeowners will continue to go out and make a “mountain out of a molehill” (go overboard in citing every cause of action under the sun, thinking they’re entitled to damages), when a simple action designed to knock these bogus assignments out of the land record create a precedent of bad behavior on the part of those who would undertake the illegalities of trying to steal your homes!  This is not a pipe dream process.  This process has been used countless times and has been successful because of the patience and effort put into drafting the proper complaint against the proper parties, isolating them in such a way as to keep the matter in county court!

Federal courts will generally NOT hear these types of cases.  Suing the wrong party in a C&E will get your case removed to federal court, where the judge is likely to dismiss it, because federal law has already declared declaratory rulings to be discretionary.  In state court, judges do not have that option.  They HAVE TO hear that complaint.  This is why Al West and I decided to get to the bottom of the root causes for doing a cancellation and expungement action and extrapolate the material into something useful for the average American consumer and put it into an 8-DVD/book weekend training kit. America has to know there is a remedy out there that can be used to attack phony documents!

If you don’t know your rights, you don’t have any!

UPDATE!:  While I was having a conversation with an aggrieved party, the thought crossed my mind as to the type of attorney that would be GREAT to utilize for the C&E when the opposing law firm is your target … 

Who can you think of that isn’t intimidated by prosecuting attorney misconduct and malpractice? 

Legal Malpractice Attorneys (they prosecute malpractice for a living!) … add that to your arsenal (just Google them … they’re out there)! 

I found at least a dozen in the Dallas-Fort Worth area alone! 

If your own attorney screws you in the process, it may be that your defense attorney is “working for the bank/servicer” under a silent agreement to feed you to the wolves.  Why not prosecute BOTH ends of malpractice if you’re going to attack one for failing to defend your case adequately.  

Just a thought.

 

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U.S. SUPREME COURT NARROWLY OPENS ANOTHER DOOR TO PUNISH FALSE EVIDENCE!

(BREAKING NEWS – OP-ED) — The author of this post is a paralegal and consultant to trial attorneys on foreclosure matters; deals in cancellation and expungement actions and chain of title issues and thus, the material discussed here, while appearing to be a “breath of fresh air” for homeowners fighting foreclosures, is still an opinion NOT to be considered legal, nor should it be construed to guarantee any type of legal outcome or advice.

On June 20, 2019, the United States Supreme Court opined (through Justice Sotomayor) in McDonough v. Smith (see the ruling here: McDonough v. Smith) that the 3-year statute of limitations for bringing a civil rights claim under 42 U.S.C. § 1983 does not begin to run until the case against McDonough was terminated.  All of the legal pundits have thus jumped into the argument, declaring that this ruling could also apply to foreclosure cases, while others say the ruling only applies to law enforcement officials acting under color of law.

The case surrounds an attack by McDonough (a New York county elections commissioner) against prosecutor Youel Smith for allegedly fabricating evidence (testimony) used to indict him before a grand jury.  The trial ended in a mistrial. Smith then allegedly elicited fabricated testimony again in a second trial, which ended in December of 2012, with McDonough being acquitted of all charges (of forging absentee ballots in a Troy, NY election).

Again, the Supreme Court (as it did in Obduskey) narrowly ruled on the matter.  In this case, it was the statute of limitations for bring a civil rights claim for deprivation of rights, ONCE THE CASE HAS CONCLUDED.  In short, this post’s author deems it necessary to posit that the intention of the Supremes was to indicate that one cannot bring an action (involving a foreclosure matter) until the case has reached Final Judgment.  Then, and only then, can the matter go “federal”.

In this case, McDonough was deprived of his liberty, because he was falsely arrested and detained; thus, depriving him of his liberty (because he was charged using false testimony, which he later discovered).  Thus, when acquitted, he brought the civil rights claim against the prosecutor.   This is where some in the legal community say that a deprivation of rights brought under “color of law” only applies to “law enforcement”.

However, was the prosecutor also an “officer of the court”?  For that matter, aren’t all attorneys licensed by their respective state bar associations “officers of the court”?   Courts address matters at law and in equity.  “In equity” clearly points a finger at foreclosures and that slippery slope we call, “phony assignments”, fabricated for use in getting a positive outcome for the bank’s servicer bringing the foreclosure action.

It’s bad enough that this case exposed wrongdoing by the prosecutor, but to say this doesn’t apply to fraudulent documents placed within the land records of all 3,141 boroughs, counties and political subdivisions across America is at best, only slightly diminished based on the violation of criminal statutes.   In this instance, the validity of the claims against McDonough, even though he was acquitted, are still claims.  There is no doubt that the false testimony was later discovered and applied to the case, resulting in a mistrial.  On the second go-round, these same factors resulted in an acquittal.

In this case, McDonough alleged Smith falsified affidavits, coached witnesses to lie and orchestrated a suspect DNA analysis to link him (McDonough) to relevant ballot envelopes.  Now … apply that to foreclosure mill lawyers, who are also “officers of the court” in relying on suspect assignments that could be shown to contain false and misrepresentative information, in order to wrongfully obtain a final judgment of foreclosure (in a mortgage state); or in deed of trust states, to claim their Trustee’s Deed was valid and forthright … obtained without blemish.

The question in this case is WHEN the statute of limitations began to run.

The case mentions nothing about applying civil rights claims to foreclosure actions.

You can be sure that the bank’s attorneys will bring this up if you attempt a 42 U.S.C. § 1983 (or § 1985) claim against the attorney, an officer of the court, for allegedly bringing forward (relying on) evidence later shown to be false and misrepresentative.  Further, the attorney for the bank/servicer brings forward (through his/her own mouth) continued disparaging remarks about the “deadbeat homeowner”, to elicit an emotional response from the judge, who then pronounces judgment in the bank’s favor, because, well, we can’t let phony documents stop “the system of things” from screwing homeowners out of their properties now, can we?

Prosecution of a foreclosure is an in rem action that sounds in equity, while the introduction of fabricated evidence (the phony assignments and affidavits produced in tandem with the foreclosure complaints) smack of “common-law malicious prosecution”, defined in this case, as deprivations of a “Constitutional right”, caused by the prosecutor’s malfeasance (of office) in fabricating evidence.   When applying this to foreclosures, is an “officer of the court”, appearing on behalf of any entity, political or otherwise, still an “officer of the court”, bound by the same code of ethics as criminal prosecutors?

This case was a criminal proceeding, not a civil matter … but …

Another argument for the legal pundits to say this case only applies to “law enforcement”; however, on the back end of the ruling, the following statement appears:

“The better course would be to dismiss this case as improvidently granted and await a case in which the threshold question of the basis of a “fabrication-of- evidence” claim is cleanly presented. Moreover, even if the Second Circuit were correct that McDonough asserts a violation of the Due Process Clause, it would be preferable for the Court to determine the claim’s elements before deciding its statute of limitations.”

The foregoing statement came from the dissenting opinion of Justices Thomas, Kagan and Grouch.  If we were to apply that standard, and deep-dive into the elements of the cause of action itself, then we would have to squarely apply the law (42. U.S.C. § 1983) as it was written:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

The foregoing federal law specifically says, any “person”.  Does that single out “law enforcement”?  Or does it mean, a foreclosure mill attorney too?
Notice how the word “citizen” in line 2 of this statute is in lower case.  Now, now … you Sovereigns that think that everything that starts with a Capital “C” means you and anything that doesn’t, does not apply to you … this statute applies to everyone.  That’s what our Founding Fathers and Congress intended for it to mean … ANYONE living within the jurisdiction where the crime was committed that was used to deprive (steal) their property.  If you’re going to maintain that Sovereign crap, you’re going to lose anyway.  Federal judges can apply state law too.  And they do.
Now … let’s examine the C&E as it applies here (and to those pesky assignments). 
If you do your homework in applying the foregoing statute, it clearly says you have “redress”, except when the action is brought against a “judicial officer” acting in their “judicial capacity”.  That could mean a foreclosure mill lawyer or a judge presiding over a foreclosure court.  BUT … and I mean to be clear here … it only applies if you brought an action for declaratory relief and the judge, knowing full well there was an issue with the document you allege is phony, and told you to piss off!   Then, it would appear that a “declaratory decree” (as described in the foregoing statute) “was violated”, NOT that it wasn’t available.  The C&E is rooted in (inter alia) a declaratory relief action.
This is why folks who recognize the viability of the C&E are buying up our DVD training kit and learning what’s involved in a C&E!  Understand that bringing this action, whether in an original petition or as a compulsory counterclaim (which in certain instances involving a foreclosure in the judicial realm becomes radically necessary), involves the issuance by a judge of a “declaratory decree”.  The right to bring a declaratory judgment action is available in state court.  If a judge is so inclined as to tell you that you can’t bring this action, when in fact it was available, does not appear to discount the applicability of this statute, to sue the judge for telling you to piss off.
The federal court would have to determine that: (a.) you are a citizen as described in the statute; (b.) this is a suit in equity and at law (if a tort was in play); (c.) a final judgment was issued against you that (d.) relied on a false document; and (e.) you brought a claim for declaratory relief and were told to piss off or that that kind of relief wasn’t available when in fact, it really was … THEN … AFTER THE FACT (that’s when the “damage” was done) … you have a right to bring the action in federal court.
The U.S. Supremes may have opened a narrow door for you (3-year statute of limitations) to reverse what happened; however, can you imagine the costs involved?   Given the heightened pleading standards invoked by the rulings in Iqbal and Twombly, you can’t just amble into court with lame-ass pleadings and expect to get anywhere.  You have to bring your action with “all your ammo” on the table.  You need hard proof.  Declaratory rulings can be utilized in federal court as well.  Even though federal law makes it “discretionary”, if you were to couple that cause of action with a claim for tortious “slander of title” (under state statute) and 42 USC § 1983, then you might have something plausible to go on.
A 42 USC § 1985 claim only applies to conspiracies involving multiple actors and would be harder to prove, unless you were suing the law firm, the robosigner and the notary who acknowledged the document.  The effort would be more expensive because you have more parties to serve and more pleadings and answers that have to be drafted and served.
The matter of “injunctive relief” may be hard to fathom in unwinding a foreclosure where the title to the property was transferred and sold to a third-party buyer.  Hence, you may only end up with “damages” as the result of the improper taking based on fraudulent documents.  Again, just walking into court and telling the judge the assignment is fraudulent doesn’t prove anything.  You have to do your due diligence and build a case.  You have to target the right individuals in order to procedurally succeed in the matter.

The C&E (cancellation and expungement) action is a game-changer (like this case), if properly utilized.  This is why attorney Al West and I put the training kit together.   You can view that kit on the Clouded Titles website shop and get one for your very own.  Heck … go ahead and share it with your attorney.  Everyone needs to know what we know.   We actually give you proof that it works!

And no … my response to this ruling is not an opportunity to push my training kit … however, 42 USC 1983 does in fact talk about declaratory relief issues, which is what C&E’s are couched in.  Something has to matter.  Otherwise, why fight at all?

 

 

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