|Due Process of Law (Photo credit: sjrankin)|
|Foreclosure (Photo credit: LendingMemo)|
|English: Notice of Trustee's Sale, Foreclosure, Mortgage Crisis (Photo credit: Wikipedia)|
|Chief Judge Fargo (drawn by Brendan McCarthy) (Photo credit: Wikipedia)|
|English: Sign of the times - Foreclosure (Photo credit: Wikipedia)|
Posted on February 18, 2011 by Neil Garfield
SO 2+ FABRICATED NOTES OR ONE REAL?
“I think what Judges are missing here is that if a party could not plead or prove a judicial foreclosure they shouldn’t be allowed to proceed in a non-judicial procedure. The question is how to prevent that miscarriage of justice and due process. If disinterested parties who would be sanctioned for bringing the claim in a judicial foreclosure are allowed to proceed as the forecloser in a non-judicial action, we have a very clear procedural and constitutional problem in the application of non-judicial procedures.It converts a convenience for the inevitable and designed for judicial economy to a device for fraud wherein the courts, when they get involved, are made complicit in the fraud. A simple denial, like any in any judicial action, should be sufficient to require the forecloser to either commence judicial foreclosure or go away. At this point, with all the dismissals at trial and all the defaults entered once the borrower gets to the point where the Court allows discovery, it is pretty obvious that these mortgage problems cannot be adequately resolved without strict adherence to the requirements of due process, to wit: pleading and proof.” Neil F Garfield
I was in Federal Court yesterday providing moral and other support to a bankruptcy lawyer on three appeals. The other side made the usual arguments being dismissive of any problems with the foreclosure process and how the Judges should concentrate on the fact that the borrower had not paid — and not whether the payment was due — or whether the right person or company was claiming the payment (or the house)…. when out of the blue the Chief Judge of the BAP panel who frankly did not seem too friendly to the borrower, said ON RECORD something like the following (I’ll get the transcript and insert it later):
“Now hold up a minute. I sit as a presiding Judge in Bankruptcy Court In the State of [deleted] and on multiple occasions I have had on the same docket multiple parties each claiming to be holding the original note and each claiming the right to enforce it and each asking for a motion to lift the automatic stay. …….[and then the Judge sitting next to him said]“I sit on the same Bench in the State of [deleted] and I’ve had the same problem many times.”
AN ORIGINAL IS NOT NECESSARILY AUTHENTIC
After the recent revelations from the US Bankruptcy Trustee in another case showing that LPS has been involved in a pattern of conduct constituting systemically fraud in the creation of false “original documents” and after dozens of similar reports from state court Judges around country, I think we can comfortably say that there are three possibilities:
- In each case all of the pretender lenders had an “original note” created by LPS or some similar entity specializing in creating and fabricating false documents (one of which showed up in Virginia where the borrower had signed in black ink and the “original” had her signature in blue ink), and NONE of the “originals” was authentic.
- In each case, ONE of the pretender lenders had the authentic original note and the other pretender lenders had false “original” documents.
- In each case NONE of the pretender lenders had the authentic original note nor any right to have it in their poessession except as an accommodation to the creditor.
You will note that the pretender lenders are usually careful about saying they are the “holder” and not that they are the holder in due course and especially not that they are the owner of the note and never do they say they are the creditor. In short, they are playing words games with Judges who think they understand what is being represented and when the borrower’s attorney points out the discrepancy, the Judge views it as a technical matter that is meant to distract from the simple fact that the poor borrower hasn’t paid his debt —-
When in fact, the distraction has already occurred and a completely disinterested party is going to take the order of the Judge, even if it is just an order lifting the stay and use it in any further proceedings stating that the matter has already beenlitigated and decided against the borrower — despite the fact that there has never been any evidence introduced into the record, nor could there be, since there never was any evidential hearing or discovery.
Show me the note sounds good, but if they DO show it to you, even if your client is ready to admit it, do NOT allow it to be authenticated without being examined.
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