Want to allege fraud? Not so fast
by Neil Garfield
Both homeowners and lawyers like to throw around the term “fraud upon the court.” But it actually ends up diminishing the credibility of both. There are several reasons why you should not allege fraud unless you have indisputable sold proof that the documents and/or oral arguments were filled with statements that were known to be false when they were made.
The reality is that homeowners do best when they attack the sufficency of the allegations, exhibits and evidence.
Due to recovery from some medical issues, I am taking the night off from the radio show. I submit the following in its place:
Both homeowners and lawyers like to throw around the term “fraud upon the court.” But it actually ends up diminishing the credibility of both. There are several reasons why you should not allege fraud unless you have indisputable sold proof that the documents and/or oral arguments were filled with statements that were known to be false when they were made.
First, it diminishes your credibility if and when you fail. So other grounds that should have been front and center get short shrift. Second, the only people who actually know the truth of the matter asserted are working for an investment bank that does not show up anywhere in the paperwork and which never appears in court. Everyone else claims plausible deniability even though you know that they know that they are committing illegal acts.
And third, you lift and shift the burden of proof to the homeowner on a claim that is essentially being made by the other side — ie., that you owe money to them. The burden of proof shifts because now it’s you making allegations and it increases or rises because on a fraud claim you must now prove your allegations by “clear and convincing evidence” not merely a preponderance. That is something close to beyond a reasonable doubt. You will never get there unless you get testimony or evidence from the investment bank bookrunner, which I doubt if you will ever see.
If you are going to allege fraud you need to be very specific. Charges that the documents or oral argument in the court were false do not suffice. You need to reference specific untrue statements on specific dates with reference to whether it was in writing or oral. And you need to state your grounds for charging fraud — and why these grounds were not raised before.
And you need to state that the parties knew that the statements made were false and that a specific party made them anyway for their own personal benefit and not to pursue a legal objective. Generally speaking in foreclosure cases this is impossible because the only party who knows with certainty that the statements were false is the bookrunner investment bank and they have not been in direct contact with you or with the court.
All other parties rely upon “plausible deniability” — i.e., that they were merely acting on information from a third party who was performing computer work or otherwise providing instructions. In most cases, this involves multiple parties who are channeling documents, data, and instructions from other parties. While there is plenty of room to allege that they should have known or must have known about the falsity of the documents, pleadings, and oral representations in court, there is no indication in court proceedings that such allegations have ever been sustained.
Both before and after litigation or judgment — and without having reviewed your case yet — there are some possibilities that you might want to consider with local counsel.
Appeal: If you still have time left on the calendar under the rules, you can file a notice of appeal and then an appellate brief. In most cases, such appeals are unsuccessful unless the Appellant narrows the issue down to a very specific violation of due process or other specific error by the trial court — and which is not supported by something in the record that allows for the trial judge’s action. The error must be something that if corrected could result in a different outcome for the case. The problem with this is that most clerks and judges on appellate courts believe that the appropriate outcome is foreclosure and sale. This occurs because the complexity of securitization hides detection of the innate PONZI scheme.
Petition for bankruptcy relief probably under Chapter 13 — automatically stops collection activity until the automatic stay is lifted. You will have the opportunity to challenge the motion to lift the stay in bankruptcy court and conduct limited discovery. There are cases in which the foreclosure mill backs off when confronted with a federal bankruptcy court ordering them to comply with discovery demands. Just remember that as infuriating as it is to hear blatant lies from the lawyer from the foreclosure mill, everything he or she says is currently regarded as protected under the doctrine of litigation immunity.
Independent action in state or Federal court to enjoin the parties (not the court) from further activities to administer, collect or enforce any alleged obligation from you on the basis that none of them are the owners of a loan account receivable due from you and none of them represent such a creditor. The benefit here is that you can name the investment bank and perhaps other parties. A well-drafted lawsuit will ordinarily survive a motion to dismiss.
Administrative process including at least one Qualified Written Request and at least one Debt Validation Letter under RESPA and FDCPA is one thing that the homeowner can do to track the lies. Failure to answer simple questions about the current status and location of the loan account receivable, ownership and rights to administer, enforce or collect on the alleged underlying obligation owed to the purported virtual creditor creates grounds for an independent state or Federal action for statutory damages, mandatory and prohibitory injunctions.
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