(OP-ED, first posted: September 11, 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 my last episode (Part 5) of this series of posts, I talked about risk aversion and the creation of a paper trail. In this episode, I cover the “why” this becomes necessary.
DOCUMENTATION IN SUPPORT OF A CLAIM
The very first thing I look at (as a title consultant) is the chain of title, especially the warranty or grant deed (proof of ownership), the mortgage (or deed of trust) and any subsequent assignments coming against the chain of title. All of these documents (in certified form) become the initial evidence in support of any claim I may have against a law firm, a judge or any other party that put that false and misrepresentative information into the public record and then relied on it to steal my property. After all, in judicial states, where I see most of the atrocities committed, the foreclosure mill attorneys are the ones attaching these documents in their pleadings, as exhibits, or in the alternative, making reference to said exhibits, to be used as evidence to support their complaints to justify the foreclosure.
The pleadings themselves (in original or amended form) also become part of the evidence package in support of my claim, because they contain the language that relies on the false and misrepresentative statements where an assignment was posited or referenced therein as evidence in support of their claim. This package should include every single document placed within the court docket, including the index sheet … certified copies (and 1 plain copy for review).
You’re probably asking yourself where the promissory note comes into play here, because judicial states mandate you have to have the original note in order to foreclose. In non-judicial states, possession of the note is not required to foreclose; thus, all foreclosures are assumed to be legal unless otherwise challenged. This means that if you’re in one of the non-judicial states, you have to institute suit based on the chain of title you have, in order to start the paper trail. Thus, non-judicial state property owners are at a distinct disadvantage because they must spend the money filing a lawsuit to stop the foreclosure and obtain a temporary restraining order (TRO) and they are limited at best as to what is provable and what isn’t because the other side has not responded to the suit. You can’t make boisterous claims either, as you will be denied the TRO and that is what you’re seeking to shut down the foreclosure sale. You see, until the other side responds, they’ve created no paper trail you can assert contains false and misrepresentative statements, which is why I like using a C & E (an acronym for Cancellation & Expungement Complaint) “right out of the gate” if I realize I might not be able to make my mortgage loan payments any more. Waiting until the 11th hour to file one of these Complaints (in of itself) has been definitely proven to be a waste of time and financial resources. Filing a wrongful foreclosure action (before the fact) is also a waste of time and financial resources because the foreclosure has not occurred yet (and this is supported by case law). I mention all of this because your research becomes fundamental as part of creating the paper trail.
Any oral statements made in court have to be supported by some sort of record. This is why we have court reporters. Most pro se litigants and uneducated homeowners conveniently forget to retain a court reporter to document everything said in open court to their disadvantage. This means that with no court record, there’s nothing to take up on appeal or challenge because you’ve “stiffed” yourself out of a paper trail. Besides, having a court reporter has been shown to keep the judge honest. Don’t think that just because the county can afford to have its own court reporter there means you can simply rely on getting a copy of the transcript from the county’s court reporter. They are backlogged with work and will take their time getting anything to you, at a time when having a transcript of the proceedings might be timely necessary. This always works to the homeowner’s disadvantage. That is deliberate! Why? Because the county is using its own court reporter to “cover its own ass” and you can bet stuff will be left out of the record. Then it’s your word against the county’s. So, tis better to get your own court reporter! You need to create your own “timely paper trail” for future use and reference. This is not a traffic ticket we’re talking about here!
Discovery is vital whether or not you are doing a C & E (which allows you to do discovery of the party executing the assignment and the notary who acknowledged the assignment) or a full-blown complaint to stop the foreclosure. Discovery responses becomes part of your evidence package … and the “paper trail”! If you don’t propound discovery on the other side or at least the relevant parties (the ones who created the assignment), you’re on a sinking ship. All of the discovery (and the responses you get) become part of the paper trail.
Depositions are a must! These are taken using a court reporter who writes down every single word that is spoken and many of them use video cameras (which is allowed) to take taped statements, which is even more intimidating. I find that going after the creator of the document, the executor of the document and the notary who acknowledged the document are vital to creating a proper paper trail (not so much the creator of the document, unless you’re trying to solidify that the law firm or servicer was involved in a civil conspiracy with the agents who executed the assignment). You’re only talking a minimum of TWO DEPOSITIONS here … the executor of the assignment and the notary who acknowledged it. What authority did they have to execute the document? Where is the notary’s bond? Is there even a bond? Can we attack the notary’s commission even though there is no bonding requirement? YOU BET! Attacking a notary’s bond (if there is one to go after) can be a source of cash flow to support your court fight. You can bet the other side will object to everything you ask for because they don’t want anything said on the record that can be used against them in court.
In all matters related to your case, PHONE CALLS DO NOT WORK! You cannot take phone calls into court! DO NOT CALL THE NOTARY! Do not contact the notary by mail! If you’re sending them a subpoena to appear at a deposition … their deposition … you do it through a process server … which is also a legitimate part of your paper trail! I have people who have contacted me who do exactly what I just suggested NOT TO DO. They scare the notary into hiding. When it does come time to serve them with a subpoena, they can’t be found. Duh! And these people actually think they’re doing the right thing? Seriously? What part of desperation is incorporated into stupidity? This is where you have to put your emotions aside and start thinking “common sense”.
THE EXPERT WITNESS AFFIDAVIT AND LIVE COURT TESTIMONY
I’m talking “expert witness attorney” here, not your average forensic loan or securitization auditor (who thinks they’re an expert witness). Why an attorney for an expert witness? Allow me to re-arrange your brain’s priorities through the following three reasons:
REASON #1: Litigation Consultant … your expert witness attorney can also serve as a litigation consultant to help you frame some damning discovery centered around statutory violations! This is important because using the stuff I mentioned previously in The Quiet Title War Manual has nothing to do whether or not you can challenge assignments because you’re not a third-party beneficiary. That is a bullshit banking argument that has nothing to do with the statute in question! The statutes speak directly to the recording of documents known to contain false and misrepresentative information! Separate the two distinctions in your mind because the borrower’s name is in the assignment; the borrower is a party to securitization (if that’s an issue) and because the document involves misrepresentations that may include “MERS” (in whatever form), which claim that Mortgage Electronic Registration Systems, Inc. had something to do with negotiating the instrument (the note), which runs contrary to what’s in the assignment, generally.
REASON #2: Personal Knowledge of the Facts … this happens when the expert witness attorney reviews all of your documents. He can testify as to their factual basis AND render a legal opinion … BOTH under oath and under penalty of perjury as a lawyer! This is way different than having a so-called “expert” that’s NOT an attorney testify as to anything factual … they can’t give legal opinions; otherwise, in doing so, their testimony could be impeached or effectively diluted under cross examination. Not only that … because the attorney who serves as your expert witness is sitting in the court (prior to giving his testimony), he actually gleans personal knowledge listening to the other side’s attorney further the false and misrepresentative information to the court … for which the damage is immediate (see In re Wilson, U.S. Bkpt Ct E.D. La No 07-11862, Memorandum of Law in Support of the United States Trustee’s Motion for Sanctions against Lender Processing Services, Inc. and the Boles Law Firm), which says:
“Untruthful statements made in bankruptcy proceedings undermine the integrity of the bankruptcy process. The bankruptcy system relies on the candor and accuracy of information presented by all parties, creditors and debtors alike. To ensure candor before this Court and to protect the integrity of the bankruptcy system, this Court should impose on Fidelity and Boles monetary sanctions and other non-monetary relief as this Court deems appropriate pursuant to its inherent authority to sanction abusive litigants coming before the Court, and pursuant to 11 U.S.C. § 105(a).” And from the following footnote, No. 16):
“Rule 9011 provides a 20 day “safe harbor” in which a party may withdraw the challenged written representations, unless they are contained in the bankruptcy petition. If the challenged paper is withdrawn, it would not be considered by the court in its decision making process. However, there can be no safe harbor for untruthful statements made in open court, because the harm that results is likely to be immediate.”
(I just told you the Expert Witness Attorney would be there to hear all of the “immediate” misrepresentations.) This is an actual case where Wells Fargo Bank got hit with a $1.3-million sanction!
This is an attorney, namely, the Bankruptcy Trustee, reporting misconduct! He is telling the other side (through his memorandum, they’ve been given fair warning to recant what they’ve placed into the court record). If you didn’t catch that so far … let me make sure to clarify this in the following “reason”:
REASON #3: Rule 8.3 – Reporting Professional Misconduct … this is a mandated state bar rule (how many foreclosure defense attorneys actually follow it?)
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
The foregoing mandates (which is what “shall” means, not “may”) are put there to hold attorneys accountable to report misconduct. What forensic loan auditor or securitization auditor is mandated by the Bar’s own rules to to this? Come on, think? Where’s the mandate?
(long pause, heavy sigh) Come up with one yet? Didn’t think so.
This means that when the expert witness comes into personal knowledge of the facts that the other side’s lawyer has committed felony perjury by making false and misrepresentative statements in open court, he has a mandated duty (for which the State Bar must listen) to report the other lawyer’s misconduct!
This also means that if the judge hearing your case doesn’t give a shit and let’s this scumbag attorney for the bank say whatever he wants and get away with it and hands your property over to the bank AFTER your expert witness attorney advises (through a legal opinion) that the other side’s lawyer, in both pleadings and exhibits and oral statements made, has committed misconduct, not only is the judge exposed and now at risk, but the county he is employed by may also be “on the hook”.
At least bankruptcy judges have the decency to “do the right thing”. I recently noted the results of the Sundquist ruling in California. Sundquist-Memo-Opinion
A lot of this depends on how “stacked” your paper trail is and what evidence of misconduct you were able to actually PROVE (not just assert).
EXPOSED RISK FACTORS
BTW, for those of you “Patriots” out there … a majority of the judges’ oaths of office I’ve seen were actually recorded in the public record in the county they serve in! This is important to recognize the WHY you’d want a certified copy of their oath of office. THE PAPER TRAIL! It’s proof he/she (as a judge) is serving IN THAT COUNTY!
Most counties are self-insured. The county has either a County Executive or Risk Manager who handles their claims because of something an employee did wrong. Who would think to tag a judge? After all, aren’t the judges bonded? What happens if the bond is attacked, challenged and successfully revoked? The judge can’t sit on the bench, right? He will probably be placed on administrative leave while the county investigates what happened. But that’s not all the county has to worry about.
As a result of the trial or hearing (whether it be evidentiary or just one of those 5-minute “rocket docket” style pieces of crap), there are two other complaints that must be reported … a complaint on the lawyer to the State Bar that can discipline him … and a complaint on the judge to the appropriate judicial authority. More paper trail to show the County … to give them fair warning that they need to step up or face the consequences!
ALL OF THIS HAS TO BE DONE BY THE EXPERT WITNESS ATTORNEY … WHO IS MANDATED TO “PULL THE TRIGGER”! PRO SE LITIGANTS (who think they know more than the expert witness attorney) WILL ONLY F**K THIS UP IF THEY TRY TO DO IT THEMSELVES (calling into the county or the bar or the judicial review board and whining about their silly little issues, or filing crap judicial misconduct complaints, which is how the major insurance players in this game will view their cheap efforts to avoid having to pay for an expert witness attorney). I put this part in the back end of this post as a caveat, because it’s the expert witness attorney who has the “big stick of dynamite with the short fuse” … NOT YOU!
It gets better … stay tuned for another round of insight into the insurance game in the next segment! The title companies are also in this up to their ears (among other places)!