Tag Archives: Bell Atlantic Corp v Twombly

THE MINDSET OF SOME FEDERAL JUDGES IS DISCONCERTING …

(OP-ED) — 

It scares me when I have spent hours upon hours doing research into the behaviors of the American federal judicial system and after fully digesting the U. S. Supreme Court cases of 07-1015_Ashcroft v Iqbal and 05-1126_Bell Atlantic Corp v Twombly et al … I find it a bit disconcerting when I talk to attorneys about their experiences in federal court and they tell me that suicide would be a better alternative.

From recent white papers I’ve read on the subject, legal scholars have pegged the federal judiciary as nothing more than glorified “case managers” … and the most recent article posted by the American Bar Association confirms my suspicions when I read that judges now want to eliminate discovery in cases involving less than $500,000!  The average homeowner’s residence in this country is less than that sum, so what does that say for your due process rights in courts of limited jurisdiction, which the federal courts are?

If this was not a significant assertion, made by a 3rd U.S. Circuit Court of Appeals judge at a Federalist Society panel last month, I would have dismissed the white papers I read as speculation backed by demonstrative case law.

(Hon. Thomas Hardiman)

This judge received applause for his remark to the panel when he said, “If I were to do something unilaterally, I would probably institute a new federal rule that said all cases worth less than $500,000 would be tried without any discovery.”   Another 6th Circuit judge, Hon. Amul Thapar, another judge said to be on President Trump’s short nominee list to the Supreme Court, said that clients and their lawyers would both be happier if they could get to trial more quickly, to which Hardiman added that because vanishing jury trials in federal courts are more common, judges have put increasing reliance on alternative dispute resolution, stating, “How many clients win, and the judgment they earned was less than the fees they paid their lawyer?  That’s a Pyrrhic victory.”

What then does that say for the idea that banks are so willing to remove foreclosure cases to federal court because they already are aware of the outcome (a 12(b)(6) dismissal)?   Yet, homeowners are so eager to file cases in federal courts using federal questions and statutory violations like TILA and RESPA, when the actual damage suffered has yet to be determined.

Other judges attending the panel discussion also noted that federal rules already require that discovery be “proportional to the needs of the case”. Others stated that “discovery is a key element of our current adversarial system, often leading to obtaining evidence of legal violations via admissions in sworn testimony, smoking-gun documents or memos that demonstrate wrongdoing.”

While the federal system has apparently recognized abuse in the discovery process, their roles as case managers appears to be expanding so they can rid their dockets of garbage lawsuits, citing one means of doing so is by implementing a civil Brady Rule, which basically promotes the idea that in civil litigation, the parties would have an affirmative obligation to turn over discovery, even if it’s harmful to them!  Under the status quo, such damning evidence might get buried under a pile of evidence like “a needle in a haystack”.

This would imply (at least to me in my non-lawyer mindset) that I’m not going to get a fair shake in any federal court anywhere in the United States of America because everyone’s simply looking to find ways to chuck my hard work … case in – case out … by applying case management standards, mediation and when necessary, applying the “big stick” of sanctions if I insist on my due process rights to discovery.

It’s no wonder the banks play their crooked games in state court.  They know they’ve got a “back door” if the homeowner responds with removal to federal court or comes forward in the state court action with something that could hang the banksters and their lawyers out to dry. When threatened, the bank’s lawyers remove the case to federal court, because most cases involve an out-of-state lender and/or servicer and an amount necessary to sustain diversity jurisdiction ($75,000).  This is why class actions are starting to be frowned upon at the federal level.  Boutique law firms can get rich off the backs of our dilemmas!  Examine the number of FCRA and FDCPA actions being filed singularly versus class action and you’ll see what I mean as to the treatment they get.  And these are statutory violations that mandate federal district level filings!

Lazy man’s way out, I say!

If no one wants to get to the truth, why do we keep supporting this federal justice system by electing folks who nominate and vote them into permanent judicial status, giving them loads of inherent power, when you can’t get a fair shake?   What a waste of tax dollars!

It’s a Catch 22 of “feeding the monster” that at a point in time will devour us! This is why I advocate keeping your cases on the “local level” and letting “the system of things” do what it’s supposed to do.

 

 

 

 

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HAWAII SUPREMES TELL U.S. SUPREMES TO PISS OFF … AND OTHER STUFF!

(BREAKING NEWS — OP-ED) — The author of this post does not posit legal advice here.  It’s is food for thought for your own educational value! 

Honolulu … Gary Victor Dubin has done it again!   This time, it’s a rehash of the Reyes-Toledo case “perfected”!

Bank of America, NA v Reyes-Toledo et al, Hi Sup Ct No SCWC-15-0000005 (Oct 9, 2018)

I know it’s a week old case, but it’s worth the commentary because of something the Hawaii Supreme Court basically told the U.S. Supreme Court (who basically came up with their own “plausibility” pleadings scenario when they ruled in Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal.  It basically gave attorneys that represent the banks the opportunity to get 12(b)(6) dismissals of foreclosure cases simply by removing them to federal court and citing the two foregoing cases, which basically … in layman’s terms … requires a pleading to contain facts that are totally “fact”, enough to substantially prove their case.  That also meant (in Hawaii) that their “Notice” pleadings weren’t sufficient.  In the foregoing ruling, the Hawaii Supremes said otherwise!   That is significant for homeowners living in Aloha because the judicial foreclosures commenced there (because Hawaii is a mortgage state) get to review cases that have minimal allegations instead of having to write a non-fictional “book” every time an attorney had to answer or file a complaint to shut down the other side’s foreclosure attack.

In the foregoing instance, the Hawaii Supremes told the Hawaii Appellate Court and the Circuit Court, “You BOTH got it wrong!”

First, understand that the entire merger scenario presented by Bank of America, N.A. is false.  It did NOT happen that way.  Every time Countrywide Home Loans is mentioned (in any form), Bank of America conveniently neglected to mention Red Oak Capital or any other entity involved in the actual acquisition of Countrywide Home Loans, Inc.  That in of itself is false and misrepresentative and Bank of America had to have relied on an Assignment of Mortgage that was “manufactured” to create standing in order to bring its claim in the first place!  Therefore, B of A’s attorneys should be brought up on charges to the Hawaii Bar and either get heavily sanctioned for wasting the Court’s time or face disbarment for committing repeated ethical violations!  Yes, Hawaii does have “Misconduct” as a section in its Rules of Professional Conduct that mirror the ABA’s own set of rules.

Page 3 of this 44-page Ruling clearly cites how the Appellate Court applied the “plausibility” standard set by the U.S. Supreme Court, when in fact, Hawaii has its own set of pleading standards!  Page 4 at Paragraph 2 REJECTS the plausibility standard.  If this doesn’t send a clear message to all of the Circuit Court justices in Hawaii, nothing will.  In fact, this Ruling should be shoved up every one of their asses until they “get it”!  Otherwise, the system of things could see to it that each county in the State of Hawaii “pays dearly” out of its own coffers and each circuit judge is removed from the bench.  This is why we have Appellate Courts (because Circuit Judges do not always, in fact almost always, DON’T DO THE RIGHT THING!) and in this case, the Appellates applied the wrong standard as well.

As to where MERS is concerned … I don’t believe that any Court in the land has been tasked with having MERS and its representatives answer to HOW an agency relationship was established and HOW MERS had any right to transfer a mortgage loan, given the fact that on its own website (owned now by ICE), MERS declares that it has no interest in loans and doesn’t take any monthly payments.  Only one judge in Florida (that I am aware of) did the RIGHT THING in knocking out a servicer’s phony document from the land records because MERS never gave any rights to HSBC Bank USA N.A.!  How then can MERS transfer interests it doesn’t have?  It’s the phony document scam again.  It always has been.  And the banks’ attorneys keep relying on these phony documents to foreclose and no one does the right thing to expose the document for what it is and hold the attorneys liable.

You see, great discovery is like an enema.  It’s supposed to help flush out the shit!   Can I be any more succinct than that?

The problem is, MERS hardly answers any of the discovery propounded against it.  And now that MERS is owned lock, stock and server by the parent company of the New York Stock Exchange, how much of a conflict of interest is there in our court systems now?!?!?!?!?!?!?!?!?  MERS and its counsel seemingly don’t believe they have to answer any of the discovery served upon it.  If it does, it’s with an objection.  Homeowners would rather waste thousands of dollars plying discovery on MERS rather than go after the notary and the executor(s) of the phony document that contains the false representations the bank’s attorneys keep relying on!   It’s no wonder they’re losing!  Sadly, in one particular case I’m personally aware of, an attorney was paid $6,000 (by his client) to take the depositions of a notary and a robosigner that clearly lied on the assignment … and he took the money and spent it and did nothing.  In fact, the attorney didn’t even plead the phony document was phony!  When you have homeowner’s attorneys that can’t or won’t do their jobs properly, you wonder how homeowners are getting wins at all!

Such was the case in Alabama.  The attached case made its way to the 11th Circuit Court of Appeals.

Jackson v Bank of America NA, 11th App Cir No 16-16685 (Aug 3, 2018)

Needless to say, the attorney for the homeowners in this case is in real trouble!  To my personal knowledge, this is not the first case he’s had that has been mishandled or improperly filed.  (Let’s see what the 11th Circuit does!)

The foregoing represents a sheer waste of homeowner money and resources.  The foregoing represents a delay game gone wrong.  The foregoing represents clear attorney misconduct.  The foregoing represents an opportunity for a federal appellate court to really mete out a severe punishment hefty enough to put the attorney out of business for good without even having to bring him on on State Bar ethical violations!

The irony of the fact that both cases involve Bank of America NA … and they ended up with different results.

The system of things worked superbly in one instance … and clearly failed in the other.  Ah, the “learning curve” we all must face.  At least the Hawaii Supreme Court appears to have its stuff straight!

For those dealing in Bank of America merger issues, it’s all going to be about the assignments and all of the false and misleading statements contained within them!  Chase isn’t much better with its self-dealing assignments.  Sadly, title companies and the U.S. government are all “in bed” with them.  This is what happens when we move away from the truth and the liars are allowed to get away with it.  They get arrogant and believe they can keep doing the same thing over and over again.

History Repeats Itself … get ready for another round of subprime mortgage lending … a New York attorney just sent me the linked article.  Read it and weep.

SUBPRIME MORTGAGE LOANS BACK ON MARKET … 

Listen to Dave Krieger on City Spotlight – Special Edition on WKDW-FM, 97.5 FM, every Friday night at 6:00 p.m. Eastern.  This week, Dave will be discussing the attached article with co-host, R. J. Malloy (retired attorney and former Clerk to a U.S. District Court judge), along with Jacob Gil regarding Florida’s Amendment 2 campaign.  If attorneys and judges are listening to Dave’s show, you should too!  In fact, over 7,000 listeners dial us up every week on kdwradio.com from all over the globe!  Knowledge is power!

 

 

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