Dear Catherine:
I have followed your work for many years and appreciate the service that you have performed in presenting the information and analysis. It has been helpful to be able to source you when my clients, associates and personal contacts needed further clarification of my unconventional ideas and analysis. Those of us who have understood the situation from the early 90’s have sometimes hit the wall of disbelief. And I must also thank you for the perspective that I gained from you. Most importantly thank you for the hardship and risks that were involved in what you do.
As a way of giving back, I wanted to address something that a caller to [your recent radio] show asked. She was discussing the necessity of a creditor, mortgagee or servicer being required to produce original wet-signature contracts for a debt and/or obligation to be “valid.” I have a feeling that she was referring to credit card debt and what I have to say might help as I have verified that it happens the way that I am about to say. Maybe this information and perspective could help someone in your circle
of influence or audience.
A little indirect background and pleasant to read is a short piece from “The New York Times” entitled, “A ‘Little Judge’ Who Rejects Foreclosures Brooklyn Style,” August 31st , 2009.
To get to the point, in the Civil Court of the City of New York most consumer debt suits by creditors are handled with a bench trial (Attorney for the creditor, assignee or collection agency and defendant present themselves to a judge who decides the case.). What happens is that most of the time the judge relies on the word of the plaintiff’s attorney and there is a routine nature to the whole thing. I have even witnessed judges conducting themselves as if it is an inquest. In other words, the attitude is that the word of the attorney for the plaintiff is accepted as admissible as fact even though this does not conform to standards and practice or rules of evidence. Defendants that learn how to object for the record also realize that the judge will lean heavily towards the plaintiff. In addition, unverified evidence is deemed admissible over proper objections for the record. If defendants make motions for dismissal on grounds of absence of verification of the original contract perfecting the security or proving the contract existed or proof of sale or assignment of the alleged debt to the plaintiff, there is much difficulty prevailing.
Where am I going with this? If the defendant looses and has a judgment against him, he can appeal. What happens is quite interesting. All of the objections for the record and properly filed motions in the case file lead to a dismissal in many cases. The crux of what I am telling you is that the average citizen fighting the bankers is using a lower local court probably in most jurisdictions and meeting up with a witches’ brew of an overwhelmed court, political hacks, a collegial atmosphere, etc. The defendant that looses goes home with the tail between the legs not realizing that “real” law is practiced in the Appellate Divisions or other higher courts. There is some small cost here and it is a little intimidating, however there is a point to this. Precedents are being set and will be set there that are part of the reform of this aspect of the mess. And, self-represented defendants have to simply learn how easy it is to object for good reason and a few points on the rules of evidence. Then they can always appeal.
Finally, since there is a record of the lower court proceedings, it is possible to file ethics charges against judges when they display obvious bias and disregard the law.
Sincerely Yours,
A Reader