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For decades State and Federal Courts throughout the United States have been robotically applying one set of evidence rules to foreclosure cases and another set of evidence rules to all other civil cases.
Those who have been listening to our radio show know why, because the Courts until recently have applied the traditional mortgage lending model of the neighborhood banker, oblivious to how the hidden secondary securitized trust banking system works.
But that is becoming no longer the situation in many Courts, as Courts are starting to ask what we have referred to on past shows as retired Hawai’i Kona Judge Ronald Ibarra’s threshold question “How Does He Know?” when confronted with a foreclosing plaintiff’s “evidence” in support of foreclosure.
Courts are designed to sort out the true facts of each dispute and apply the law accordingly. Each side presents its “facts” in the form of testimony and documents, and the trier of facts, which in foreclosure cases is the Judge, decides.
Thanks to the adoption by many Courts of (1) the “Standing at Inception” Rule now requiring proof of possession of the promissory note and the right to enforce it at the time a foreclosure lawsuit is filed, and (2) new scrutiny of a foreclosing plaintiff’s firsthand evidence supporting its burden of proof as to loan default and standing, homeowners have been increasingly prevailing in foreclosure cases by challenging a foreclosing plaintiff’s evidence.
In Hawaii, for instance, those highly beneficial checks on foreclosing plaintiff’s false evidence attempting to support its right to foreclose are known as the Reyes-Toledo and the Mattos evidentiary rules, and any new listeners unfamiliar with those decisions of the Hawaii Supreme Court should listen to those past broadcasts found on our website at www.foreclosurehour.com.
Yet, as could be expected, foreclosure attorneys are now responding by attempting to misrepresent other rules of evidence to our Courts to justify nevertheless getting around their new Reyes-Toledo and Mattos evidentiary responsibilities.
On today’s show, time permitting, we examine the following ten ways in which foreclosing attorneys are now seeking to sidestep Reyes-Toledo and Mattos requirements and how you can effectively counter them by understanding how these ten evidentiary traps, as it were, can be avoided and exposed in court in the context of securitization:
- The Verified Complaint Trap;
- The Judicial Notice Trap;
- The Qualified Witness Trap;
- The Custodian of Records Trap;
- The Self-Authentication Trap;
- The Real Party in Interest Trap;
- The Negotiable Instrument Trap;
- The Attorney Witness Trap;
- The Mortgage Follows the Note Trap; and 10. The Securitized Trust Standing Trap.
Gary Victor Dubin
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Licensed in California and Hawaii