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Attorneys fail when they don’t know all the facts. They fail because they lack a specific understanding of a factual argument that involves significant due diligence, creativity, strategy and tactical deliverance. Now I don’t intend to offend but what does it say when Judges refuse to listen to the factual merits of ones case and lawyers refuse to introduce factual securitization and/or other loan relevant information to the court? Let me be clear on this position. Obtaining a securitization analysis or any factual analysis on a loan is not a scam. The scam or scam artist is the attorney who tells you securitization or other factual information is not important. Let me be more clear. There is only one reason why the courts reject securitization or any factual information used in a legal proceeding. The reason is, the lawyer presenting it failed to present it properly. The reason why securitization facts and arguments have failed across the State of Florida and other states in general is only because lawyers have failed to properly argue them. Factually this has been proven by attorneys in say New York, California and other places who have raised the same factual issues successfully and have caused the courts in those jurisdictions to render decisions in their clients favor. Fact in point, in New York, courts recognize New York Trust Law governs common law created REMIC Trusts, assignments filed after the closing date are in contravention to the Pooling and Servicing Agreement rendering the assignment void, the Trustee has no standing because it violated the terms of the Pooling and Servicing Agreement and so on. So if the argument is valid and effective in that state (which quite frankly is the home venue for all of this nonsense) and the many others across the land, why is Florida at such great odds?
Anyone who has been trained will tell you a very simple fundamental fact. There are those that are trained and those that are not trained. Learning is repetition, it’s an integral part of training. Like all training, there is a beginning to it. So riddle me this, how can any attorney feel comfortable saying getting all of the facts associated with the loan is not important? Gaining insight into securitized loan information is important because it tells you the life and roads a loan may have traveled. Knowing all the facts is good lawyering. Attaching an audit to the back of a pleading is lazy lawyering and here’s why. What is the logic behind admitting or alleging the loan was placed in the trust or is a part of the trust without knowing the facts about the trust which would include whether the loan was actually placed into the trust, is the trust actually real and existing etc.? It’s not about admitting the loan was a part of the trust. It’s about providing evidence the loan was not a part of the trust at the time it was supposed to be and raise the question of whether or not it is part of the trust now. It’s about letting the bank introduce information that the loan is, what the banks authority is based upon and using their information against them. Attorneys have been ineffective at this and because attorney’s have failed at this tactic and strategy, they’ve failed at educating judges. As a result, they now choose to downplay their failure to present the facts properly with statements like securitization audits are a scam etc. The reality is, Florida and other states where the courts are rejecting factual information is the result of bad lawyering which translates into bad case-law and a greater uphill tilt in the fight to prevail in the truth about the greatest robbery ever committed.
I won’t get into the suffering of homeowners vs. the suffering of wall street, the servicers, banks etc. What I will say is if judges have an impression of either bias toward homeowners, favorable toward the banks or vice versa, it will always be the result of the argument raised. Either that or judges have been paid off by the banks and are heavily engaged in corruption. It could certainly be a combination of both but I’d put my money with the wrong argument and lack of ability of the attorney. I am an advocate of factual information. I am not an advocate of conjecture or layman theory that cannot be supported factually. In that sense, any audit or other kind of report that is not factually sound is useless and is not worth the money. Indeed anyone can find out if their loan was securitized if that information or an indication of that information exist to point you in the right direction. But if that information is so easily ascertainable as some attorneys claim, why are they not making the research of that information a part of their defense practice? Isn’t it fair to say if the information is so easily accessible you should be including this information in your legal fees? Why don’t attorney’s purchase a user license at $2,000.00 a month per terminal for ABSNET or Bloomberg and incorporate the searching of loan information in their case preparation?
The point is this – IT’S NEVER ABOUT ACCESSING THE INFORMATION, IT’S ALWAYS ABOUT HOW THE INFORMATION IS USED! No matter how you twist and turn that argument, ultimately how information is used tactically and strategically is up to the attorney and if your attorney can’t succeed in using factual information then the problem exist only in one place, your choice in attorney. Indeed there may be over 95,000 attorneys in the State of Florida but that doesn’t mean they are any good let alone well versed in litigation strategy and tactics. Hate to put it out there like that but homeowners and good attorneys are running out of room to operate. They are now pressed into the corner of plaintiff’s coming in and simply saying they are the holder of the Original Note and that’s all that matters. All legal arguments are now thrown out the window.
Here is the only real argument left for attorneys.
- UCC 3 Holder vs. UCC 9 Holder – use the date in the complaint alleging the default and then the date of the alleged assignment. You will find that the assignment is always post default which means they took the note while it was in default. That places them as a UCC 9 Holder not a UCC 3 Holder. This is a backdoor to securitization because under UCC 9 they have to prove up the chain of assignments. Thus, if you have a trustee their authority as trustee comes from the PSA. Get them to introduce the PSA to prove up their authority and the backdoor has now been opened for you to use their own evidence (PSA) against their chain of note transfers because the PSA makes clear the note was alleged to have been sold from the Originator to the Sponsor to the Depositor who created the Issuing Entity and then sold it/transferred it to the Issuing Entity – the Trust. Now you’re back in legal argument mode with a stop sign on the “hey judge we hold the original note under 673″.
- Is the Original Note really the original? First we saw the epidemic of lost note counts from Stern, Watson and the other mills. They didn’t have the original notes. Then the Supreme Court unleashed the Residential Mortgage Task Force and the Florida Banking Association President stepped in with a Comments Brief to explain WHY the lost notes counts were occurring – BECAUSE THE NOTES WERE DESTROYED AFTER THE CLOSING DOCS WERE SCANNED IN COLOR! Today lost note counts are dropped and in ALL cases the ORIGINAL NOTE has now appeared. So what does that mean, the Notes weren’t destroyed and the Florida Banking Association lied? Of Course not! It’s the new fraud upon the courts people! It’s the new fabricated document! The Notes are fake people so factually prove the note is not the authentic original and the only thing the Plaintiff is in possession of is a color copy.
Here’s another important strategy – get the Plaintiff to introduce the PSA and securitization documents for you instead of you doing it. File a motion for a more definite statement asking to clarify who the Plaintiff is. Is it U.S. Bank or Deutsche Bank in their individual capacity, is it either as Trustee, is it the Certificate Holders, is it the Trust itself? Who is the actual plaintiff? This falls in line with capacity arguments. Once that PSA is introduced by them, now you can attack it properly and strategically.
Here’s another important strategy – remind the court about the requirements for a trust or any of its agents to conduct business in the state. In Florida for example they are required to file the Trust documents with the Secretary of State and pay the $350.00 fee. Foreclosure is the conducting of business for the purpose of facilitating the sale of the property for monetary gain. That opens up a whole other door that involves the courts jurisdiction, standing etc.
Fight hard lawyers… fight hard… don’t be shy to ask for help either. Shoot me an email and I will be more than happy to help you help others. Kids deserve to keep their bedrooms and family deserves to stay together.