Bill Paatalo will discuss on the Show today how he is taking the fight to the Defendants in his Oregon case, previously discussed on the Show, which Defendants are now seeking massive attorney's fees, over six-figures. The same Defendants who managed to secure a judgment based on lack of subject matter jurisdiction, are claiming now this same Court has jurisdiction to bring an attorney's fee motion never raised in previous pleadings.

Charles Marshall will discuss how the ongoing institutional bias issues long present in foreclosure law cases is stubbornly creating a messy and patchwork terrain for borrowers to navigate in the COVID-19 era, with a focus on California. He will address this through an update of particularly the latest California-based coronavirus-related developments in court access, foreclosures, and post-auction evictions.

Government and business and banks are announcing various efforts to stave off a total economic  collapse. Moratoriums and have been announced.  Forbearance programs have been announced with little details as to how these programs will impact the average homeowner or renter. Publix just announced that it won’t charge rent to tenants in shopping centers it owns. 

 

But as usual the devil is in the details. Delaying foreclosure when it shouldn’t have happened in the first place is not the answer. We all know that the Lorraine Brown guilty plea to falsifying over 1 million documents led to a 50 state settlement which netted homeowners a $300 check and maintained the use of falsified documents.

 

Rahm Emmanuel former Chief of Staff to president Obama said that every crisis should be also taken as an opportunity. This is our opportunity to get things right so we come back stronger instead of weaker from this ordeal.

COVID-19 topics discussed on the Show today are as follows:

- How states are issuing both in judicial and non-judicial foreclosure states foreclosure and eviction moratoriums of various kinds;

- How borrowers can potentially bring in California declaratory or injuctive relief lawsuits if any notice of default (NOD) is filed against them at this time, on the basis that such an NOD per se violates Governor Newsome's order to 'shelter in place' statewide, which among other things probhibits public gatherings. This order therefore makes holding foreclosure auctions impossible in California, without violating this order;

- How states such as Calfornia are closing or limiting access to county recorders, and the implications this has for the recording of notice of defaults (NODs), and Notice of Trustee's Sales (NOTSs); - How court access both Federal and State is being heavily restricted and what this means for borrowers, from both a positive and negative point of view; - Bill will discuss the COVID-19 impact on forensic loan audits and the intel gathering he does in his nvestigative work on behalf of borrowers;

- Expanding on what Neil discussed last week in his own coronavirus update show, how legal procedure potentially will change in the coming months to accommodate a more virtual access to courts, legal procedure, etc, which will have impacts both positive and negative for borrowers;

We are at the beginning of an epidemic. As usual information has been scarce and only highly placed government officials and scientists are in possession of the real data, and analysis and projections. What we do know is that more and more local governments and businesses are leading the way to contain the spread of the Corona virus. Among those steps have been enforced  social distancing, closing malls, bars, restaurants, cruises and flights, and various forms of moratoriums on evictions, foreclosure filings, and other legal proceedings.

Neil hosts tonight show with tips on how to use this short window of opportunity to your advantage and some tips on how to avoid getting trapped into thinking that the foreclosure is gone. 

A good time to start the challenge is with each new statement or notice received from some third party claiming the right to administer, collect, service or enforce your debt. Starting early brings the best results. And the best results are when the homeowner wins the case.

Bill Paatalo discusses on the Show today a case out of the judicial foreclosure state of Kentucky, in which the Defendant has countersued the foreclosing 'Trust'--Chrisitiana Trust, A Division of Wilingmington Savings Fund Society, FSB. See Bill Paatalo's Blog post from March 5, 2020, and Neil's Blog for further case details, etc.

The attorney retained by the Servicer, Select Portfolio Servicing, tried recently to withdraw from the case, conceding on the record as a basis for the withdraw, that while he had contact with SPS, who retained and communicated with him re the lawsuit filed at the direction, ostensibly on behalf of the Christiana Trust (CT), CT disavowed having any contact with SPS re the mortgage loan at issue, and further stating that there is no legal entity attached to the lawsuit from CT.

Mr. Hill filed the motion to withdraw as legal counsel, because the countersuit filed by Defendant, led him to confirm with CT that he would legally represent them as a named Plaintiff on same counterclaims. Yet he literally could contact no one at CT who represented being connected to the lawsuit, and thus could not confirm retainer arrangements--re either the representation--or any retainer payment to cover his potential legal fees.

The Court did the right thing here, refusing to let him out of the case. We will discuss on the Show today what this means for borrowers around the country.

One aspect to this: How to use discovery to ferret out this type of situation, or a similar one, in foreclosure cases, either judicial or non-judicial cases.

Syllabus for Webinars Covered in Brief

 

What Trust? An overview of securitization

TILA Rescission

Why Lawyers Should Get Involved

You signed, didn’t you? Legal Presumptions

Absence of evidence: Discovery strategies and tactics

Objection! Lack of  foundation! Rules of evidence and objections

Illegal (wrongful) Auction Sale: Proactive litigation

You want me to leave? Defending Eviction and Unlawful Detainer

Bankruptcy and foreclosure

How do I prove? Understanding legal procedure

That’s wrong! How to figure out the truth. Investigation, affidavits and reports. 

But your honor! What to do with the truth 

$$$$$!: BUSINESS PLANS: For Paralegals and Attorneys: How to Make Money Defending Foreclosures AND Going After the Banks

Disgorgement remedies

Injunctive remedies -Prohibitive and Mandatory 

Q&A

Panel discussion

Watering Hole discussion, meet and greet, network

Appellate practice

Mediation, Modification and Settlement

David Luban of Georgetown University Law Center wrote an interesting article re the structure of Contrived Ignorance — involving complex business arrangements of all sorts — where in step one the party acting shields itself from unwanted knowledge, then in step two, performs actions which but for the lack of that knowledge, would be engaged in conduct subject to being interpreted as illegal, and or fraudulent, etc.

In recent discovery responses, MERS’s response to the question: identify the Holder in Due Course of the Note–which note was attached–was “MERS has no information as to which entity is or has been the holder in due course of the subject Note”. Which begs the question: How can MERS then be acting as a bona fide assigner of interest–even as an intermediary for other parties–when they have no knowledge re the bona fides of the assigning party? Contrived ignorance indeed!

On the Show today Charles and Bill will address how servicers are in some instances trying to pass themselves off in Bk court as the holder in due course of a note, without sufficient evidence, or any evidence in some cases.

Also up for discussion: Use of deposition testimony testimony in prior cases involving the same witness, servicer or claimant.

Tonight I am commenting directly on about one dozen submissions to me, mostly from pro se litigants who have submitted affidavits, declarations and exhibits only to have the judge completely disregard them as either not evidence or evidence having no weight. 

An affidavit is not evidence. Neither is a declaration. If you say that the trust doesn't exist, that is not evidence either --- because there is no foundation for your testimony. It's true that if the other side fails to object it might come in as evidence but the court will  give it no weight at all unless you say something more. 

Most affidavits and declarations are merely repeated denials that the claimant in foreclosure exists or that it has a claim that can be adjudicated in court. Theoretically that denial should be enough to shift the burden onto the attorneys for the claimant to prove their assertions. But the facial validity of documents raises legal presumptions that keeps the burden on the homeowner. 

Tonight's show is about how to shift the burden back to the lawyers for the foreclosure mill which is really not representing anyone in court.

On today's Show Charles Marshall will break down and break out analysis on the following topiics: Using unlawful detainer (UD) legal procedure to increase your leverage as a UD defendant through the filing where appropriate of

- motions to quash;

- demurrers (motions to dismiss);

- Federal Removals;

- bankruptcies.

Then Attorney Marshall will cover the issues that typically arise in setting up TRO ex parte hearings to stop non-judicial foreclosure auctions, including

- the need for a filed lawsuit; 

- typical notice requirements;

- timing issues;

- strategies to increase odds of prevailing.

The definition of insanity is doing the same thing over and over again and expecting a different result, Change your strategy, Change your tactics. Change your presentation and be mindful of the facial expressions and concerns expressed by a judge. That is what good trial lawyers do and it is what any pro se litigant must do if they are going to win.