FORECLOSURE: The Mediation Strategy

By Neil Garfield
LivingLies.me
 

The two things most overlooked by most lawyers for homeowners in litigation are discovery demands (and enforcement) and mediation. These strategies bring the real issue to the early attention of the court --- that the opposition is unable or unwilling to produce the corroborating evidence that the lawyer wants the court to simply presume to be true.

I stumbled upon the mediation strategy when I was in mediation in one case. The mediator asked us to state our appearances. I said said my name and that I was the attorney for the homeowner. The other lawyer stated her name and she said she represented OCwen. So I tried to help her (she was young) and prompted her to say that she represented US Bank (as trustee blah blah). She refused, saying her client was Ocwen Loan Servicing.

The voice on the hone was from a person who said he worked for Ocwen. Smelling blood in the water, I then asked the voice on the phone if he presented the Plaintiff US Bank. He also refused to say that and he said, somewhat absurdly that my question was inappropriate.

All mediation orders require two things. First the parties to the dispute must be present. Second, they must have full powers and authority to settle the case on whatever terms they deem fit.

So after several attempts to get either the lawyer or the "representative" of Ocwen to state their appearance for US Bank (i.e., the "trust") I then terminated the mediation and field a motion for sanctions because US Bank had failed to appear.

As usual the the court ordered us back into mediation and reinforced the order that the parties be present and authorized to consider any possible settlement. So on round two, someone did appear saying they represented US Bank, but the only thing he was authorized to do was to hand my client an application for modification. that is not settlement. That was neither an offer or acceptance and so it wasn't mediation or settlement. That caused a second round of my motion for sanctions, in which I explicitly stated my client was willing to make a cash offer.

So the court ordered a third round along with $1,000 per day sanctions if the lawyer and U.S. Bank failed to comply. We actually and a hearing at which the "representative" was explicitly asked by the judge whether the representative would have authority to consider or reject a cash offer to settle the case. The representative replied in the affirmative.

So then we went for the third time and this time the opposing attorney realized that he had to at least make an offer that might be accepted by my client, vastly reducing the amount demanded and extending out an interest free balloon for 20 years. My client responded that he accepted the deal, that he would pay off the full balance up front and that upon receipt of instructions from US Bank as to where to pay the money, he would wire the funds. In short his acceptance was better than the offer since they would not need to wait for the money.

The response was exactly what I had expected. They did not have the authority because this wasn't about any loan account. It was about the securitization infrastructure that was built up around the loan, referring to the "loan." And the kicker was that they refused to have US Bank even acknowledge the settlement much less issue instructions on how to pay US Bank.

The reason was obvious. US Bank was never intended to receive any money because it and no claim. And the judge entered a final judgment in which he arrived at the conclusion that the named Plaintiff did not have a case or claim. Almost all my objections to evidence were sustained.

This came up when I was corresponding with Gary Dubin, one of the best foreclosure defense attorneys I have seen or heard about --- now practicing in California. Like all successful litigators who represent homeowners his law license, as usual, is under attack. So get to him when you can.

Part of what we were talking about is represented below. Gary, like me, likes to get discovery demands out early when the strategy is to reveal that the lawyer prosecuting the claim against the homeowner has nothing to back up the claim other than false fabricated documents. He said that he and served US Bank (as trustee blah blah) with his discovery demands.

But that led to me to write about a strategy that I have mentioned before but never expanded. I call it the Mediation Strategy. I like it because more often than not, mediation is by court order and it comes early in litigation. Violating a mediation order creates the foundation for motions for contempt, for sanctions and even motions in limine (limiting the ability of the opposition to put  on evidence).

Of course when you say you have served US Bank you mean an attorney who says he represents US Bank. The truth is that US Bank never heard of the case, the attorney, the claim or anything about the alleged "loan." The attorney has never been hired by US Bank and has never spoken with or corresponded with US Bank. The attorney has no contract with US Bank. And the attorney never gets paid by US Bank.

Because if US Bank did know about it, that might give rise to a duty of care relating to some aspect of administration, collection, and enforcement of a loan account that does not exist. THAT is something that US Bank has emphatically denied when sued by investors. And it won on the basis of no duty to investors and no control over anything related to the referenced, and unowned, "loans."

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US Bank has a trust department and trust officers. But none of them are tasked with watching over any trust account maintained by US Bank. None of them know or are even permitted to inquire about the "portfolio" (consisting of nothing) that they do know they are named as trustee for. But it is not illegal to perform no trustee duties --- unless the trust is funded.

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These trusts, if anything is consistent, are never funded. The trust agreement (not PSA) always spells out that the trustee is a nominal trustee for title only on behalf of ONLY the investment bank and never the certificate holders. The certificate holders are NEVER beneficiaries of the alleged REMIC trust. There is no trustor, settlor, or res. It is a dba renting the name of US Bank N.A.

One thing I have successfully used is a mediation strategy in which I smoke out the truth. The mediation order ordinarily directly or indirectly (by reference to administrative order) requires the parties to show up, with full authority to settle the dispute. Settlement means settlement.

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So the person appearing as authorized to speak for the named claimant must have the authority to accept a cash offer. Usually, their maximum authority is to hand or send an application to modify. But if you make a cash offer watch what happens, And if you combine that with the requirement that US Bank acknowledges the settlement, watch again. In both instances, they squirm out. They can't take a cash offer because their job is to uphold the "securitization infrastructure." US Bank can't acknowledge because it would undermine decades of plausible deniability.

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None of that ever happens which leads me to file a motion for contempt and motion for sanctions. This has been largely successful but never guaranteed. In most cases, the lawyer appears along with an"appearance" by a person who identifies himself or herself as employed by the company that is claimed to be the servicer. But what usually happens is that the judge and the court record are filled with some obvious defects in the appearance and the foundation for evidence that the opposing lawyer would like to get into evidence.

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Upon questioning it sometimes happens that the lawyer showing up for mediation will acknowledge they are there for the servicer. but refuse to acknowledge that they are there for the named claimant (U.S. Bank).  And on further interrogation, the person from the servicer will not acknowledge that he/she is there for the named claimant (U.S. Bank). That is what led to my first, second and third motion for sanctions in one case that I eventually won. The judge reserved ruling on the motions for sanctions and in limine and then found there was insufficient evidence presented to support any claim by the named claimant and that it was virtually impossible for the named claimant to have ever owned a claim.