(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. This is the second discussion of three parts.
THE RULES OF THE GAME HAVE BEEN CHANGED
The issue of police brutality all boils down to the issue of perception of what law enforcement stands for … from both sides of the coin. When police make an arrest, they do so based on material facts surrounding probable cause. The behavior and demeanor of the accused and their right to justice is largely determined by the answers they give and the way they react to questioning by the arresting officers. We spend an inordinate amount of time watching television, where police officers are displayed as being the saviors against the wicked. Yet, in order for a criminal case to proceed, the evidence has to stack up against the accused. The evidence cannot be controverted or subverted with lies and deceit.
“We have repeatedly held, therefore, that an officer violates the Fourth Amendment by omission only if ‘it would have been clear to a reasonable officer that the omitted fact was material to the probable-cause determination. A warrant request violates the Fourth Amendment if the requesting officer knowingly, intentionally, or with reckless disregard for the truth, makes false statements in requesting the warrant and the false statements were necessary to the determination that a warrant should issue.’”
— Cited in Rainsberger v. Benner, 7th App. Cir. No. 17-2521 (Jan. 15, 2019)
And what does this have to do with civil rights, you ask yourself?
Because the Rainsberger case turned on the evidence, when it was discovered that the detective investigating the case (Benner) omitted exculpatory evidence and fabricated evidence wherein the probable cause affidavit was riddled with lies, undercut with the omissions that would have kept Rainsberger from being arrested in the first place … the outcome was that Detective Benner’s sovereign immunity privileges were stripped away by the Court because of his actions. That’s how this argument relates to foreclosures when brought into the civil realm.
The entire foreclosure scenario also deals with material fact, which is why the author brought the arguments within the Rainsberger case into this discussion. When material facts are distorted, manufactured or omitted, causing the homeowner to be unfairly prosecuted as to his right to be secure in his “persons and papers” as guaranteed under the Constitution, someone must be held accountable.
Since the 2008 financial collapse, numerous discoveries have been disclosed to the consuming public of deceitful acts committed by the banks and their servicers and third-party document mills. Unfortunately, with the changing of the rules in the way the “game is played”, moving cases to federal court have been reformed to the point that simply stating that “a person created a phony document used to steal my house” just doesn’t work anymore with the Supreme Court rulings in the Twombly and Iqbal cases. The author has included the following research for your education and understanding, as having proper knowledge of what to expect on the federal level, which should be put in the forefront in any anticipated civil rights actions that follow a foreclosure:
WITHOUT FORETHOUGHT: SUE! SUE! SUE!
It is problematic that over 90% of Americans do not understand their system of laws. In fact, criminals understand the legal system better than their enfranchised counterparts. When faced with legal action, the defendant homeowner either becomes despondent or angry. There is no in between.
The first objective is to lash out against every person or idea that contradicts one’s belief system, as flawed as it may be. The “entitled” believe they should stay in the house for free … that all of the foreclosure accusations are really the bank’s fault … yet the borrower obligated himself when he signed the mortgage documents, thus, creating a legal “can of worms” for himself. The finality of truth brings with it a reality check.
All semblance of logic goes right out the window in favor of emotion. This is one major reason this author created the Clouded Titles website and wrote the book by the same name back in 2009-2010 (officially released in December of 2010). In order to get in this game and play it well, emotion must be replaced with legal logic and right thinking.
If you’re like most Americans, you place blame on others for your own shortcomings. Shortcomings however do not replace mistakes. But what if you’ve been blindsided with facts you know not to be true? How do you cope then? Most Americans would let their emotions “out of check” upon realizing that the banks messed up their own paperwork and that now they (the homeowners) are paying for it!
CHAINS OF TITLE TELL STORIES … STORIES THAT DON’T LIE!
Without a doubt, the author’s previous PART I post disclosed that two independent examinations of the land records in Texas and Florida demonstrated the rampant use of false documents, one of which came to light in the U.S. Bank, N.A. v. Harpster case in Florida:
And this is not the only case either. In another Florida case, the bank’s attorneys came into court with not one but three different versions of what they claimed was the “new and improved” promissory note:
And on the witness stand, in another Florida case, Erica A. Johnson-Seck admitted to be a “robosigner”:
And the foregoing case found its way into a New York State foreclosure decision!
Sadly, a lot of homeowners run to bankruptcy court, thinking they can stave off a foreclosure. All this does is kill their credit scores to the tune of 450 points for up to 10 years! Even the federal Office of the Comptroller of the Currency calls bankruptcy “a stall tactic”. But what happens when the bank runs into bankruptcy court and lies about its “position” in the chain of title:
STEALING PEOPLES’ HOMES FOR FUN AND PROFIT!
The foregoing headline was spouted by a foreclosure defense attorney in Texas during a discussion of a workshop he attended that was held by foreclosure mill attorneys. One of the attendees, whose name repeatedly surfaced in the Williamson County, Texas Real Property Records Audit, Stephen C. Porter, appeared nervous because after the audit was released, he was exposed to the world as a “robosigning attorney”. This is where things get dicey for Mr. Porter, because this author looked up Mr. Porter’s Texas Deed of Trust and compared the signatures of the robosigned documents to those of Mr. Porter’s own mortgage note and they were unbelievably different from each other. In fact, it appeared as if the signatures may have been put there by his notary!
All of this of course, leads up to the discussion of the intent to defraud … the homeowner, the land records and the judge. This author believes that all foreclosure victims deserve their rights to due process and that any “officer” of the court, which an attorney is, should lose their “sovereign immunity” if they omit, lie or cheat their way through a foreclosure and steal someone’s homes using false documents which they themselves may have had a hand in!
It’s just that when homeowners win, they become like electricity, seeking the path of least resistance and crawling back into their comfort zone. They have no interest in follow-through to see that the party or parties creating the phony documents, which still continue to litter their chain of title like a hooker with AIDS, are brought to justice.
The time to attack these phony documents is BEFORE the foreclosure starts, not AFTER! In the Harpster case, the attorney at least had the gumption to research the assignment and talk to the bonding agent and obtain an affidavit which stated the notary did not have a valid commission at the time David J. Stern’s own secretary (Cheryl Samons) executed the assignment.
ALL IS NOT LOST IF YOU CHOOSE FOLLOW-THROUGH … WIN OR LOSE!
In a recent foreclosure case decided in a Mississippi Chancery Court, the judge, who is covered by the State’s risk pool as to her liability, gave the defendant homeowner 7-1/2 minutes to present his case and despite the best evidence presented in that amount of time by the homeowner:
- The judge decided he’d had enough time because (as she previously announced to the court) the judge had to leave to go to her daughter’s volleyball game;
- After making her ruling, the judge commented that it must be rough “looking through rose-colored glasses, having lived in a $274,000 home for free for over 5 years.” This clearly indicates bias;
- The other side’s attorney’s complaint was deficient, partly due to mismarked and improper exhibits that the judge refused to allow to be stricken from the record when objected to; and
- Given the judge’s social calendar, it’s obvious she cared more about not being in court versus simply making snide remarks when the evidence presented supported the case actually going to trial.
This is where the system of things HAS TO “kick into high gear”.
After seeing and hearing the results of this case … and here goes the “if it was me” diatribe, the author would:
- File a complaint with the Mississippi Judicial Review Board against the judge.
- File bar complaints against the three attorneys who “touched” the case, because they inadvertently and purposefully omitted evidence which would have pointed a finger directly at law firm involvement in the manufacture of an assignment used to give the plaintiff (LSF9) standing.
- File a Motion for Reconsideration in a timely manner (10 days), citing those things that the judge failed to take into account before making her decision (all administrative appeals and alternative moves must be taken before proceeding to filing a State Tort Claims Act action).
- The timetable for the due process violation (under the McDonough v. Smith case), according to the U.S. Supreme Court decision, begins to run when the final adjudication has taken place.
Could the homeowner have won his case (or in the alternative got his matter set for trial) had he retained counsel to defend his home? Maybe. That is a story for another day because it involves unwrapping the mindset of why homeowners (and the public at large) don’t trust attorneys.
There is some room for argument here that the damage would actually occur when the home is sold and the homeowner is evicted, but my non-lawyer take here is that the judge’s ruling set the clock in motion because it represents a final decision for which other actions (eviction) could follow.
AS TO THE JUSTICE SYSTEM, JUDGES SHOULD PAY FOR MAKING BAD DECISIONS RESULTING IN CIVIL RIGHTS VIOLATIONS!
Attorneys have errors and omissions policies. Robosigners are supposed to be bonded and have errors and omissions insurance naming them as a “covered party” in order to be a robosigner for MERS. Judges have bonds. Some judges have bonds with their own respective counties. Other state’s judges are paid by the state to be a judge, which means the State’s own “risk pool” (a big pile of money which pays out damages for provable civil rights violations) is ripe for the picking. Those who have the fortitude to file a 42 USC § 1983/1985 action may have the opportunity to realize justice when it’s used to get an attorney disbarred, get a document manufacturer prosecuted or get a judge tossed off the bench for aiding and abetting felony perjury.
The proof must come “in the pudding”. One cannot simply wave an alleged phony document around in front of the judge without implicating the parties that were involved in creating it. Justice is never served unless you can reach into the pudding, the likes of the Harpster case or better, and bring up the evidence required to show you were deprived of your due process rights by the Court and its officers. In the Harpster case, the judge who ruled in favor of the homeowner (Hon. Lynn Tepper, the author believes) was driven or “persuaded” to leave the bench by the political judicial hierarchy, because she was a fair judge and recognized fraud on the court for what it was. This judge did not simply take the bank’s word for anything, given the proof that was provided … stuff that this author has been sharing from an investigative standpoint for years.
This shows you how much “control” the banks have over the court systems in this country and why it’s likely a judge may be the culpable party in siding with lies by the attorney for the servicer. No one likes a liar. Liars deserve to go to jail if they participate in the thievery of stealing someone’s home using evidence that is manufactured or conveniently altered or omitted in what appears to be the commission of a crime.
And THAT is where the criminal justice system intertwines with the civil justice system. And if anything, police brutality should be the least of our concerns when “the system of things” is tainted with bias.
And this is exactly the reason WHY the author elected to do an online Foreclosure Defense 101 Workshop … because right thinking is called for here.
Stay tuned for PART III