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Strategic Depositions – Whose Feet Should You Hold To The Fire?

March 3, 2015

DISCLAIMER: THE CONTENT IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE MISCONSTRUED AS LEGAL ADVICE! Anthony Martinez is a Litigation Discovery Expert, Consultant and Strategist. Neither Anthony Martinez nor his firm AMA engage in the practice of law and only provide Case Management Consulting (“CMC”) and Legal Process Outsourcing Services (“LPO”) to licensed practicing attorneys. AMA will provide public information only and will not provide any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms or strategies.  If you are not an attorney, AMA encourages you to consult with a licensed attorney in your area regarding the statements made in this blog and the use thereof.

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The dynamics of foreclosure litigation are changing.  With the implementation of F.S. 702.015 and Fla. R. Civ. Pro. 1.115, fraudster plaintiffs have a greater burden to find themselves in a corner using fabricated documents or making false statements in a verified complaint.  Make no mistake, robo-signing still very much exists.  So does false statements about ownership, physical possession of the note, MERS, servicing rights and so much more.  These days the only documents you can comfortably get in a request for production is a copy of the documents they intend to use for trial.  A request for admissions is returned with a list of lies and a request for interrogatories is countered with objections of vagueness, over burdensome and not likely to lead to discovery.  So how do you get something tangible you can hold on to and actually use to create leverage in your case?  Consider strategic depositions of pawns the fraudster plaintiff is putting in front of you like the complaint verifier, the person that signs off on the certification of possession of the note and the person that signs an affidavit of indebtedness.  In other words, depose people that potentially lied and said they actually touched these documents prior to filing the lawsuit.

Here’s a great throw back question to opposing counsel that requires a little analysis when used so causally in foreclosure litigation.  Fannie Mae or Deutsche Bank etc. is the “investor”.  Here’s a question most attorneys never ask – Really?  What exactly does “investor” mean?  That question is actually relative to the allegation of default, what actually caused the default and who is the party that gets to declare it.  And that’s all outside of the “hey I am the holder under F.S. 673.3011 and that’s all that matters” approach of the fraudsters.  Consider what would happen if you knew the name of the Asset Manager of a particular Trust (easy to find by looking at a Distribution Report for a trust – contact me to learn more).  If you spoke with an Asset Manger of a trust they would tell you they don’t own anything – they are just a reporting agent and you must contact the Servicer of the loan for anything related to the loan.  What do you perceive the value of that information to be?  If you do your depositions right, the case outline and evidence to support it will ultimately be the Servicer – the party that actually hired the foreclosure mill law firm to file the foreclosure – is engaged in camouflaged equitable subrogation it would not be able to prove in a straight forward action against the borrower.  Stated another way, a fraudster servicer plaintiff would find it extremely difficult to prevail in a direct action against a borrower for money it (the servicer) lost in its own  contractual obligations under the wall street securitization scheme sandbox they got dirty in.

Foreclosure is a corrupted and eroded platform where fraudster plaintiffs can create a MERS assignment of mortgage say its together with the note or place a fabricated, undated stamp on a blank page of a note or allonge to create standing where none exists.  Take that coupled with a corporate witness who knows nothing about a loan – trained to parrot words like normal course of business or policy and procedure – and they will steal a families home right from under their feet.  Even worst, what fraudster plaintiffs have done on the foreclosure platform has morphed into a business model where you now see nothing but new servicing companies spawning everywhere claiming they are the servicer for some bogus trust and the court requires NO INQUIRY INTO THE PURPORTED TRUST AT ALL!  The court accepts the validity of the trust without proof despite Florida Statute requirements for a trust to conduct business in the State of Florida.  Who do you depose?  Here’s my list:

  • Complaint Verifier
  • Certification of Possession of Note Signer
  • Affidavit in Support of Summary Judgment Signers
  • Asset Manager of a Plaintiff Named Trust

You may also want to consider discovery as to the copy of the “policy and procedures” the fraudster plaintiff’s corporate witness will intend to rely upon in their parrot audition before the court.  In other words, also depose the corporate witness for trial and subpoena dues tecum the “policy and procedure” manual for production at the depo they intend to rely upon.  That will make for a great day of depositions.  You will find HEAVY resistance on turning that puppy over but just think what you get to exclude from testimony if they don’t turn it over.

What I have learned over the last 8 years in dedicating myself to foreclosure litigation is that to prevail in these arguments on motions to compel discovery, summary judgment, trial etc. is that you need to be a real litigator.  You can’t just be an attorney, you need to be a litigator – a salesman – trained in the art of convincing by artful and persuasive verbal combat.  If you’re an attorney that’s good at writing or good at research but your not good in the art of courtroom persuasion, you need to signup for my Webinars and Seminars.  There is no shame in perfecting an art and getting trained.  In this world there is only trained and untrained (quote by Denzel Washington in Man on Fire).  Which one are you?

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