(OP-ED, first posted: September 22, 2018) —
The writer of this post is a paralegal and consultant to attorneys on matters involving chain of title, foreclosures and document manufacturing. The opinions expressed herein are that of the writer’s only and do not constitute legal or financial advice. Any use of the theories or ideas suggested in this post is entirely at your discretion and will probably result in disaster without the proper legal help.
In the segment numbered “Part 7” of these successive posts, there was a boatload of case law wherein judges did the right thing. As you probably noticed from reading In re Wilson, it involved improper reporting of the posting of payments (all while the foreclosure was still being commenced). Another case (M & T Bank v. Smith) involved multiple manufactured promissory notes (after the fact) that could have not possibly happened the way the bank’s attorneys said they did. To that end, the judge did the right thing, by: (1) holding an evidentiary hearing; and (2) sanctioning the Marshall C. Watson Law Firm, noting that the Marshall C. Watson Law Firm has gained notoriety for filing false assignments in the land records! This is EXACTLY what I intimated was STILL GOING ON in the real property records, included in the OSCEOLA COUNTY FORENSIC EXAMINATION.
And sadly, these same attorneys that are representing the banks’ servicers went to the same law schools as the foreclosure defense attorneys seated at the opposing table. The “good ‘ol boy network” reaches up into the judiciary, because judges were attorneys at one point. Everybody who’s anybody knows somebody in the profession. Their relationships are more than cordial. Many of them run so deep that some foreclosure defense attorneys have tempered their aggressive behaviors, despite the fact they want to do the first thing by their clients (whether their clients know it or not). The bigger part of the problem is the one thing that all attorneys learn in law school: find some way to settle. When someone’s home is at stake, settling for less than a completely positive outcome shouldn’t even be on the table. In fact, it’s an insult to the homeowner’s intelligence (what was the lawyer thinking?). This is not to say that someone cannot rise up and call this chicanery for what it is: fraud on the court, compounded by felony components and ethical violations worthy of disbarment. This is what should have happened in every case posted in Part 7!
Aside from all of the arguments over the various issues you hear in the courtroom, the judges keep tabs on everything that’s said and they watch the clock fastidiously. You only get so much time, which is why getting all of your discovery done ahead of time is important, along with the intended depositions. This is all part of building that big, bad ass paper trail I talked about on earlier posts. The bigger the paper trail, the more evidence you have to help the affected insurance company either deny a claim or pay out on a claim!
Now we’re going to get even more serious …
The Oregon State Bar was sued by two of its member attorneys in U.S. District Court under 42 U.S.C. §§ 1983 and 1988. Read the 7-page Complaint here:
CASE IN POINT: THE DETAILS
Notice here that the Defendant is referred to as “a public corporation” established pursuant to Oregon Revised Statutes § 9.010 (imagine the liability there)?
Also notice that on the last page, the Oregon State Bar put out a press release that smacks of political overtones. Is this organization a State Bar or a political action committee?
And this is just the tip of the iceberg. By publishing that single-page ideologue, the State Bar hierarchy has just “positioned its own agenda”. And you wonder where judges get their agendas? Who put this “free house” crap in their heads in the first place? This is only part of the bullshit that has most Americans distrusting their judicial system. That is not a good thing under “the system of things”. Stuff like that leads to civil unrest (or hasn’t Congress noticed?) or civil disobedience. Hey wait! We’re already seeing that in America … just read the State Bar’s ideologue!
The State Bar Associations have errors and omissions insurance that can be challenged if they fail (as a public corporation) to do the right thing by the people and instead, push their own agendas on the body politic. I’m talking foreclosed homes by attorneys who lied in court and used phony assignments to bolster their claims of standing, created by servicers and their employees to steal private property because they didn’t do the paperwork properly when the loan was first executed (and potentially securitized). This makes the entire process liable (if not in the least, suspect), especially when the state bar (in this case, Oregon) sets a bad example by putting out political statements instead of remaining neutral and unbiased. Why not say something like most judges do in foreclosure courts (and I’m being really sarcastic here):
“When’s the last time you made a mortgage payment?”
At that point, it doesn’t matter what you say, the judge already has his mind made up, despite whether the banks’ attorneys are all accessories to felony conspiracy and fraud, along with a multitude of ethical violations that could get them disbarred (and potentially imprisoned) I am waiting for the day (and I think I’ll see it in my lifetime) when a judge gets his bond revoked and gets removed from the bench because he (or she) was warned of the felony components of the attorney’s behavior (for the bank) and ignored it … and didn’t do the right thing. The damage is suffered when the judge issues the final judgment of foreclosure. At that point, a sale date is set and all is lost unless somebody recants or the judge changes his mind.
And it’s all based on the phony assignments. Shouldn’t someone be held liable? I’m not talking about a corporate fine here either. I’m talking about prison time for the perpetrators of the documents!
MOTIONS TO VACATE
Lest the judge not have fair warning and be allowed to change his (or her) mind, based on newly-proffered evidence, the bank’s attorneys may end up losing more than their case. In fact, because of felony behavior, or any collusion with felony behavior (i.e., Oh, sorry I robbed that bank … I was only the getaway driver; here’s the money back) … fraud can pierce not only corporate veils, but all operating agreements sanctioned by the state to where the individual managing attorneys and partners are all personally liable to the homeowner. If it’s a major law firm, they’ll probably try to avoid filing an insurance claim, because the felony behavior would “come out in the wash” and the firm would never get insurance coverage again and would have to either self-insure or dissolve. And that, my friends, is how we take down a law firm … because they’re going to want to settle … but if there’s a class action of over 1,000 homeowners … who is going to cough up all that money to pay those 1,000 claims under statute? Someone is not only going “broke”, but the State Bar had better make sure they don’t commit felonies again (through disbarment). Now they get to figure out, with a felony involving moral turpitude, good luck getting a job at Wal-Mart. How would they pay off those $250,000+ in student loans? Boo-hoo! (sobbing) … NOT!
So the Motion to Vacate serves as a tool to make the court aware of the illicit behavior … and why. If the court ignores it, the judge and the county he acts in become participants in the fraud and felony behavior. This is when things get dicey. The “system of things” is going to try to draw a “fine line” as to whether the behavior was unintentional or malicious. This is why we need court transcripts! If the judge makes an “agenda statement” (i.e., “No one gets a free house!”; “When’s the last time you made a mortgage payment?”; or “You’ve lived in that house for free long enough!”). This type of speech not only promotes a specific “agenda”, it could lead to more sinister issues. AND …
No one to this point has thought to inform the county’s risk manager with the proper ammunition. Every pro se litigant that has tried going through the risk manager has failed miserably because they do NOT know HOW to properly “connect” with the person responsible for “damage control”.
All judges in every state enjoy this privilege. Unfortunately, many of them let it go to their heads.
States also enjoy this privilege. Isn’t that amazing how they get to legislate themselves this privilege?
Judges get to “play God for 5 minutes” in foreclosure court, not realizing the scenario may present itself to mandates that require them to “do the right thing”. Because they have “agendas” (“NO ONE GETS A FREE HOUSE!”), they are more quick to “step into the pile of shit” that is about to be created for them. They have to answer to a judicial review board. If it can be shown that a felony was committed, on top of multiple ethical violations … and the judge did nothing about it after being called out on those violations … their sovereign immunity is in jeopardy. Any judge reading this article should take to heart what I’m saying, because the counties are self-insured and most of its officials have to answer to voters. What if that class action also includes the judge (or judges) involved in the multiple felonies committed in hundreds of cases still applicable in their county? What if the statutes of limitation are tolled because of the ongoing behavior? Sure, it’s going to be a sticking point, but, the fact is, no insurance company or bonding company is going to shell out any legal fees to pay for the accessory criminal behavior of an attorney or judge in representing them (paying their attorney’s fees). The judge will not be able to get another bond, ever, because his or her would be revoked. That “bond” is an insurance policy designed by “the system of things” to compensate the inured for their losses. The “senior judges” that were brought out of retirement to preside over foreclosure courts could find themselves and their estate liable as well. In most states, personal injury judgments are NOT dischargeable in bankruptcy … especially when the parties were warned of potential felony issues and ignored them!
If the entire Supreme Court of the State of West Virginia can be impeached for felony misbehavior (embezzlement, unjust enrichment and misappropriation of state property), then what makes the judges in the foreclosure courts think they can get away with imposing their political agendas on homeowners when the banks and their servicers are feloniously culpable for fraudulent document manufacturing (or in the least, being co-conspirators to that effect)?
And no, this is NOT going to collapse the entire system of things. This “too big to fail” bullshit is nothing more than fear mongering. The “system of things” was created “By the People, For the People”.
Thus, if a class action lawsuit of affected homeowners went after just ONE LAW FIRM and its supervising attorney and its managing partners and took a judge along for the ride as well, especially if the judge had anything to do with the properties he issued orders of final judgments against, now THAT would be something! That would send a clear message that the “safeguards” that are in place in “the system of things” actually work!
C & E’s JUST BECAME MORE EFFECTIVE!
These same principles work outside of the realm of the foreclosure proceeding, especially when challenging phony documents or statements made in the pleadings of foreclosure mill attorneys that are false and misrepresentative. It doesn’t take a rocket scientist to figure out that an Affidavit from an Expert Witness Attorney who identifies the false and misrepresentative information, along with the ethical violations, will strike discord in the heart of the lawyer(s) bringing the foreclosure action. And you wonder why there are substitutions of counsel when things get dicey in a foreclosure case. Again, it has everything to do with something illegal happening behind the scenes that the foreclosure mills want to avoid exposure on. That makes the C & E (Cancellation & Expungement) action even more important!
C & E actions are declaratory in nature. They open up discovery like a Pandora’s Box. Once the court is notified of the statutory and ethical violations, it must do the right thing and hold a hearing to preserve the sanctity of the justice system. If ignored, the judge hearing the case deserves what’s coming because the entire “system” that’s supposed to be in place (in his Court) just went to shit! Then it’s no holds barred. His county is self-insured and would rather put him on administrative leave and attempt a crack at “damage control” and quietly settling out of court. Of course, this is why attorneys are taught to settle FIRST in law school. That way, they don’t have to air dirty laundry in front of the judge. Again, and I reiterate this with utmost sincerity, most Americans don’t trust the justice system as it is, which is why “the system of things” is in existence … it all involves insurance and who pays for the damage claims, if in fact they pay out anything (this work to the opposing party’s detriment, or it could work to your benefit … you don’t get both most of the time).
THE CONSPIRACY AND THE UNDERLYING TORT
Fraud is a tort. The elements of fraud are also expensive to prove. The elements of negligence however are not. KNEW OR SHOULD HAVE KNOWN … BUT FAILED TO ACT would seem to apply here. This is much easier to prove, especially if it was willful. Imagine getting discovery from one of the robosigners or the notary involved in the document creation, all singing like canaries to avoid felony perjury prosecution. What are the banks and their servicers (and title companies) going to do? Kill all the notaries so they can’t testify against them. Three words here: Remember Tracy Lawrence?
Misrepresentation is also a tort. Couple that with negligence and you have negligent misrepresentation. Go to your jury instructions to find out WHAT you have to prove to win your case … see here, see here (courtesy of the State of Tennessee, where MERS ain’t shit!):
Remember (from previous posts) that conspiracy is only actionable as a tort in certain states (by statute). In a majority of states, conspiracy, while not actionable, can be used to prove an underlying tort, through discovery, while exposing all of the parties involved, especially if a law firm is involved in creating the phony assignment being used to prove standing to foreclose on you! Yes, it costs money dammit! You want justice?