Tag Archives: State Bar

GUTTING THE UNDERBELLY OF THE BEAST – PART 8

(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:

Gruber, Runnels v Oregon State Bar, US D. Ore No 3-18-cv-1591 (Aug 29, 2018)

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”.

SOVEREIGN IMMUNITY

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 bond would have been revoked.  That “bond” is an insurance policy designed by “the system of things” to compensate the injured 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!):

Jury_Instructions_-_Misrepresentation

Jury_Instructions_-_Negligence

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?

 

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GUTTING THE UNDERBELLY OF THE BEAST – PART 2

(OP-ED, first posted: August 29, 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. 

It is hard to say how much we spend on the average for insurance coverage for a wide and varied range of issues.  I personally spend over $7,000 a year on insurance and I’m sure that others spend well more than that.   My CPA’s tell me that what you spend on ALL insurance is supposed to equal roughly 10% of your estimated gross income.  If you’re spending more than that, something might be amiss with your personal financial planning.

As a business, basic liability insurance for a small business like mine consulting firm runs about $350 a year.  I am sure that other larger firms are then paying into the tens of thousands for insurance coverage depending on their liability, which is based on risk assessment.  Remember, insurance companies are risk averse, which means they shy away from companies that might posit high-risk behaviors.  The insurance companies are in business to make money, not spend it paying claims on damages based on the imputed negligence of their insureds.  Insurance companies buy office buildings and other large real estate holdings because they can make a guaranteed income with a full list of tenants paying every month (as an example). Insurance companies ARE the financial guarantee (in large part) guaranteeing “right behavior” of their insureds.

WHERE THE COUNTIES FIT IN … 

Counties take in annual property taxes from every property owner registered within their databases, based on assessments of market values and mill levies (dollars per thousand times the estimated assessed value of the property).  By law, the counties are always in first lien position, because residency is a jurisdictional issue that was legally addressed by state legislatures long before mortgage liens were.  The law makes it easy for a county, over time, to take property away from those who refuse to pay taxes when they become due, whether ad valorem, non-ad valorem or special assessment in nature. Those of you who think you can put property back into the state of allodial title to avoid paying taxes can stop reading now. Those days are seriously OVER and you will lose.

Most counties are self-insured.  A lot of the pool of money that the counties rely on for self insurance purposes come from property taxes and go into a general fund.  Most counties (the larger ones in population) have Risk Managers.  Smaller counties generally employ County Executives, which do principally the same thing: damage control.  Counties generally enjoy sovereign immunity.  There is plenty of case law to back that up.  Sovereign immunity, by definition, is a judicial doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent. The doctrine stems from the ancient English principle that the monarch (or king) can do no wrong.  Ahhhh … but we all know on occasion the “king, or the king’s men … DO WRONG”!  Sadly, many of them have gotten away with it.

Counties are sued generally (as you will read about if you did your research like I did before writing Beyond End Game Strategies) for the acts of persons employed by the county.  Let’s say someone who works for the county is driving along and runs a red light and slams into your vehicle in an intersection.  Believe it or not, THIS type of suit against counties is more predominant than what I’m going to address in this and future articles.  Or a child falls into a public swimming pool and drowns because there was no lifeguard around to save him because the lifeguard was off making time with the female pool staff.  This could be construed as simple negligence, for which the county could be liable.

ATTORNEYS CAN BE HELD LIABLE FOR MALPRACTICE … BOTH OF THEM!

“Imagine if you will” (to quote the late Rod Serling, or “submitted for your approval”) … going after an attorney for malpractice.  Here’s one article posted on Lexology® you’ll probably want to read as a “concept piece”: Tripartite Relationship: Insurers suing panel counsel lawyers – lexology

I covered the foregoing on my recent radio show on WKDW-FM, 97.5, North Port, FL, streaming live at kdwradio.com.  You can hear it this Friday night (Aug. 31) at 6 pm EDT!  Click LISTEN NOW and wait for the program to start.

The substance of this is based on negligence (negligent behavior).  Now, imagine this being applied to foreclosure defense attorneys who fail to perform as expected (and required).  Imagine further going after the other side’s attorney for bringing a false and misrepresentative document into a foreclosure case, relying on it and making similarly subjective, misrepresentative statements in open court, allowing the court to step all over your rights in handing your property over to the bank’s mortgage loan servicer.  Why isn’t your attorney paying attention to the false and misrepresentative information on the assignments when this is the “keys to the kingdom”?   If your attorney has knowledge about the falsity of such a document, he is bound by the Professional Code of Conduct to report it.  Have you ever heard of an attorney that has done this?   I’ll let you answer that question yourself because I can’t think of one.

When a complaint is filed with the State Bar (of any state), they supposedly have a duty to examine the complaint for its legitimacy.  THIS IS NOT SOMETHING YOU SHOULD DO AS A PRO SE LITIGANT!  YOU ARE NOT A BAR-LICENSED ATTORNEY!  YOU HAVE NO CODE OF PROFESSIONAL CONDUCT YOU HAVE TO ANSWER TO OR FOLLOW!

Subsequent to filing a claim with the State Bar, the E & O policy of the attorney and his law firm is researched and located and contacted.  Either a claim will be paid out upon the formal filing of a complaint or in the alternative, claims for attorney representation in front of the state bar could be denied, which means the attorney “is bleeding green”.   This is “the system of things” operating in reverse because here … you weren’t paid a benefit, but the attorney was denied a benefit, which was a detriment to him.  If the insurance company is allowed to sue to recoup what it has paid out in damages, then they’ll go after the law firm, etc. and make them “bleed green” … this is assuming you suffered a damage (post-foreclosure judgment, loss of home, loss of equity).  Once a judgment is obtained, a Motion to Vacate is the only thing that sets the stage for any subsequent action.  YOU CANNOT DO THIS YOURSELF!   YOU ARE NOT DEFENDING A TRAFFIC TICKET HERE!  PRO SE LITIGANTS WILL END UP LOSING THEIR HOME, IN JAIL OR THE SUBJECT OF A HEFTY FINE, OR BOTH!  You did not learn any of this in civics class!  They don’t teach this stuff in high school OR college for a reason.  They don’t want you to know “the system of things” and how it works.

LIABILITY … AND WHY THE BANKS ARE NOT EAGER TO TRANSFER TITLE ON FORECLOSED HOMES … 

Let’s take the case of the 2-year-old toddler who accompanied his parents into their new (resale) home in Tampa, Florida.   The home they just acquired was situated next to a foreclosed home.  There were clearly signs in the windows denoting that the property had been foreclosed on or was about to be.  Like most busy parents in the middle of unloading a moving truck, they lost track of the toddler.  They found him floating face down in the pool of the foreclosed home, which was not covered up properly, and efforts to revive him failed.  Of course, despite the foreclosure on the property, the bank claimed it wasn’t liable because the homeowner’s name was still on title and he was required to pay for insurance and bore all of the responsibility for anything happening on the property.   Sadly, this happens a lot (as to the lack of title transfer) with foreclosures, until the banks find a bona fide purchaser.  So in my mind, the homeowner, despite the fact he’s vacated the premises, he’s still liable.  If the hazard insurance, which covers personal liability, isn’t maintained or isn’t in place at all because of a lapse in coverage, the homeowner then becomes solely and financially liable to the parents of the deceased child.  This is why banks won’t transfer title right away after seizing a property.   In fact, in California, you aren’t even buying the property in foreclosure!  You’re buying the lien!  How many of you know that?  This would make Trustee’s Deeds a complete sham!  Why isn’t anyone attacking the validity of Trustee’s Deeds based on California law?   Lack of knowledge, I suspect.  Those of you reading this for the first time wouldn’t have a clue as to where to turn to next, so don’t even try.

Title companies are also risk averse and won’t allow transfer until things are “buttoned up” … or so we’ve been told.  This is where more illicit document manufacturing occurs.  But it gets even better because licensed operators (attorneys, law firms, notaries, debt collectors, insurance companies, title companies) are all responsible to a higher authority!  Stay tuned!

 

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