Posted on September 27, 2011 by Neil Garfield
EVIDENCE IS DIFFERENT FROM INFORMATION
If you have petitioned a court to overturn prior rulings based upon the parties misrepresenting themselves as creditors you probably have met with resistance from the bench. The arguments seem technical and designed to get the borrower out of a legitimate debt even if you’ve said that you only wanted to find the real creditor so you could settle or modify the debt.
But if you come in with proof of forgery and fabrication of documents solely for the purpose of litigation, you have a different slant on things. And if you plead and prove the point convincingly, the Judge really has little choice but to consider your motion. In order to have the proof you need a lot more than evidence of probable robo-signing.
Robo-signing, even if it is self-evident because the name was Linda Green or some other highly publicized name that was signed on documents, is only a general statement. What you need is to plead and show that in your particular case the key documents were the product of forgery and fabrication.
It’s good to have confirmation that the pretenders were using robo-signing, since it points you in the right direction, but don’t expect the court to do anything for you just because you have proved or alleged that as a general practice, the pretender in your case was heavily involved in robo-signing.
And be very careful about introducing documents from a search or retrieval service that accompanies the results with conclusory statements like “the document is void.” Chances are they have neither the knowledge nor the credentials to survive cross examination or even inquiry. Those statements undermine the credibility of the facts being presented. It may look good to you but it won’t look good in court.
AND when you do establish that the key documents were not signed by the person whose signature appears on those documents, you will probably be met with an argument and possibly even proof from the person herself that she may have or in fact did give permission for her signature to be affixed to multiple documents. That is the point where good lawyering is required or you lose your key point.
The fact that the witness is possibly willing to testify that she gave her permission for her signature to be signed by strangers does not mean that she DID give her permission. Nor does it mean that the notarization of her signature was valid since the usual notarization confirms that the real person appeared in front of the notary and signed the document. And all of this belies the real point of who is Linda Green (or Pamela Campbell, etc.) and what authority did she have in the first place?
In fact, these robo-signing people were picked precisely because they knew nothing and had no authority to sign on behalf of any corporate entity. How do you know that? Corporation law will usually give you the answer along with the minutes of meetings of shareholders and directors. Sometimes even internal memos or the hiring documents will give you the answer. These people were picked because they were out of the loop and they were kept out of the loop. Their sole function was to sign documents as instructed without any discretion or even knowledge as to what the documents contained.
So your goal is to prove the forgery, prove the fact that her consent was not her consent but part of her instructions AFTER the the signature was affixed, prove that the notary was fraudulent, and prove the lack of authority. This gives you the edge.
We have been lucky here at LIVINGLIES in developing this strategy by virtue of the number of robo-signed names that are already in circulation and the strong capable work of some new investigators and analysts. In one case we found the signature of Pamela Campbell appearing on 18 separate instruments for different entities within the same time period just in Maricopa County, Arizona. Our investigator then went on a search fo documents and found one in California signed also by Pamela Campbell where the circumstances of the signature were such that it would mostly likely be her real signature as it was her application to a government agency. It of course didn’t match any of the 18 signatures already discovered and more importantly did not match the signature on the substitution of trustee in that particular case.
Based on the presence of actual evidence that does not require discovery from the pretenders, the litigant is petitioning the bankruptcy court to re-open her case alleging that the relief from stay was fraudulently, illegally and wrongly applied for and thus wrongly granted. She is also applying for sanctions, which under the applicable law appears to require the Judge to levy sanctions, and to make the fines high enough so that it “hurts.”
The same strategy could be applied in state court where the motion to overturn a fraudulent foreclosure sale would have some real teeth. This also provides grounds for filing an adversarial action in BKR court or state court in which the homeowner alleges the forgery and fabrication and then moves for quiet title against those pretenders, including the Trustee that was “substituted” and of course actions for damages for slander of title, theft, RICO etc.
Remember that evidence is different from information. It has a technical meaning determined by reference to statutes, common law, and the discretion of the presiding Judge. Consult with an attorney licensed in the jurisdiction in which your property is located before applying anything you get from this or any other site. And before you allege facts, figure out how you are going to prove them under the rules of evidence and the procedures of the court.
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor,Mortgage, securities fraud Tagged: | bankruptcy, borrower, countrywide, disclosure,foreclosure, foreclosure defense, foreclosure offense, foreclosures, fraud, LOAN MODIFICATION, modification, quiet title, rescission, RESPA, securitization, TILA audit, trustee,WEISBAND
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