Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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      Litton Loan Servicing LP ("Litton" or the "Servicer") provided the
information set forth in the following paragraphs.

Litton, a Delaware limited partnership and an indirect wholly owned
subsidiary of Credit-Based Asset Servicing and Securitization LLC, also known as
("C-BASS"), will act as the servicer of the mortgage loans pursuant to the
pooling and servicing agreement. Litton was formed in December 1996. As of March
31, 2006, the Servicer employed approximately 938 individuals. The main office
of the Servicer is located at 4828 Loop Central Drive, Houston, Texas 77081.
Litton is currently a Fannie Mae and Freddie Mac approved servicer and an
approved FHA and VA lender with a servicing portfolio of approximately $49.45
billion as of March 31, 2006. Most of the mortgage loans in Litton's portfolio
are either subprime mortgage loans or subperforming mortgage loans. Litton is
servicing in excess of 200 securitizations for C-BASS and various third parties.

      Fitch assigned Litton its RSS1 residential special servicer rating on
November 16, 1999 and reaffirmed that rating in August 2005. The rating is based
on Litton's ability to manage and liquidate


nonperforming residential mortgage loans and real estate owned assets. This RSS1
rating is the highest special servicer rating attainable from Fitch, which
reflects Litton's proprietary default management technology, the financial
strength of its parent and the experience of its management and staff.

      In January 2001, Fitch assigned Litton its RPS1 primary servicer rating
for subprime and high loan to value ratio product and reaffirmed that rating in
August 2005. The RPS1 rating is currently the highest subprime primary servicer
rating attainable from Fitch for any subprime servicer, which is based on
Litton's loan administration processes including its loan set up procedures and
related technology, loan accounting/cash management and loan reporting. The RPS1
rating for high loan to value ratio product is based, in part, on Litton's focus
on early collection and loss mitigation.

      In March 2001, Moody's Investors Service, Inc. assigned Litton its top
servicer quality rating (SQ1) as a primary servicer of prime and subprime
mortgage loans, second liens and as a special servicer and reaffirmed that
rating in November 2005. The rating is based on Litton's ability as a servicer
and the stability of its servicing operations.

      In April 2001, S&P raised Litton's ranking from "Above Average" to
"Strong" for both its residential special and subprime servicing categories and
reaffirmed that rating in March 2006. The "Strong" rating is S&P's highest
possible rating for these categories. The rankings are based on Litton's
established history of servicing distressed assets for a diverse investor base,
technological improvements that have increased operational efficiencies,
management depth, and internal controls.

      As of the date of this prospectus supplement, each of the ratings
described above remains in effect with respect to Litton.

      From time to time Litton may acquire servicing portfolios from third
parties, which acquisitions may be significant in relation to Litton's current
portfolio. Litton does not believe that any such acquisition, if effected, would
have an adverse effect on its ability to service the mortgage loans in
accordance with the pooling and servicing agreement.

      On December 1, 2004, Litton and C-BASS closed a transaction with The
Provident Bank, pursuant to which Litton acquired the mortgage servicing rights
on a portfolio of mortgage loans with an aggregate principal balance of
approximately $8.5 billion in conjunction with C-BASS's acquisition of residual
mortgage-backed securities relating to certain of such loans.

      Once Litton starts servicing a mortgage loan it begins to collect mortgage
payments in adherence to the applicable servicing agreement and customary
industry standards. Litton's collections strategy enables collection efforts to
be focused on mortgage loans that represent the greatest risks within the
servicing portfolio and is intended to address potential collection problems as
soon as possible before they migrate into more costly delinquency, foreclosure
and REO status. Litton's servicing system is integrated with a predictive dialer
and phone switch to facilitate incoming and outgoing calls with mortgagors.
Outgoing calls range from an introduction of Litton as servicer to advanced
collection activities. Incoming calls are directed by the phone switch based
upon the status of the loan to the appropriate service representative.

      Litton utilizes its proprietary technology to identify high severity
assets and develops specific loss mitigation strategies to apply to those
assets. As mortgage loans become delinquent, Litton first tries to determine
whether the mortgagor is facing a short term or long term series of issues that
created the default. If the default is created by a short term issue, repayment
plans or forbearance agreements may be negotiated so that the default can be
cured over the plan's specified period. However, if a long-term issue exists,
the mortgage loan is referred to Litton's loss mitigation department. If the
mortgagor has experienced a long-term event but wishes to continue to reside in
the home, a modification of the mortgage loan may be pursued. The modification
may include some or all of the following: a decrease in the interest rate, an
extension of the term of the mortgage, a reduction in certain amounts owed
(including unpaid principal or advances) and/or the capitalization of any past
due amounts. Consistent with the terms of the pooling and servicing agreement,
Litton may waive, modify or vary any term of any mortgage loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any mortgagor if in Litton's reasonable and prudent determination
such waiver, modification,


postponement or indulgence is not materially adverse to the certificateholders.
If the mortgagor either does not want to make or does not have the ability to
make monthly payments on the mortgage loan, Litton will attempt to pursue
programs such as short sales or a deed in lieu of foreclosure. These programs
are designed to assist the mortgagor in liquidating the mortgaged property while
decreasing Litton's liquidation timeframe and the associated liquidation
expenses with the goal of ultimately reducing cumulative losses. Litton has a
default processing in-source agreement for contract employees to perform certain
routine foreclosure, bankruptcy, and other default related functions under the
supervision of Litton's management personnel.

      For its mortgage loans with escrows, Litton provides full escrow services,
including property tax, hazard insurance, flood insurance and lender-placed
insurance services. Most of these services are provided through third-party
vendors that specialize in these service areas. Litton conducts the initial and
annual escrow analysis functions internally; Litton monitors escrow activities
on an ongoing basis.

      Litton does not, in general, have custodial responsibility with respect to
the mortgage loans.

      There have been no material changes to Litton's servicing policies and
procedures during the past three years. During such time, Litton also has not
been terminated as a servicer in a residential mortgage loan securitization due
to a servicing default or application of a servicing performance test or
trigger, has not failed to make any required advance with respect to any
issuance of residential mortgage backed securities and has not disclosed
material noncompliance with the servicing criteria applicable to any such

While the trustee says

 Using information set forth in this prospectus supplement, the Trustee
will develop the cashflow model for the Trust. Based on the monthly loan
information provided by the Servicer, the Trustee will calculate the amount of
principal and interest to be paid to each Class of Certificates on each
Distribution Date. In accordance with the cashflow model and based on the
monthly loan information provided by the Servicer, the Trustee will perform
distribution calculations, remit distributions on the Distribution Date to
certificateholders and prepare a monthly statement to certificateholders
detailing the payments received and the activity on the Mortgage Loans during
the collection period. In performing these obligations, the Trustee will be able
to conclusively rely on the information provided to it by the Servicer, and the
Trustee will not be required to recompute, recalculate or verify the information
provided to it by the Servicer.


      LaSalle and the Sponsor are parties to a custodial agreement whereby
LaSalle, for consideration, provides custodial services to the Sponsor for
certain residential mortgage loans originated or purchased by it. Pursuant to
this custodial agreement, LaSalle is currently providing custodial services for
the mortgage loans to be sold by the Sponsor to the Depositor in connection with
this securitization. The terms of the custodial agreement are customary for the
residential mortgage-backed securitization industry providing for the delivery,
receipts, review and safekeeping of mortgage loan files.


this is from the PROSPECTUS SUPPLEMENT to the so called trust for my loan.  I copied a few paragraphs just to make sure I'm not taking it out of context....I've read it a few times.  Is this pretty much saying they can't sign an affidavit of ammount due?  Any affidavit would have to come from the trustee? They clearly state that they are not the custdian to the mortgage loans.  How can they have personal knowledge?
My court of appeals already held that "a business cound not lay the proper foundation to admit the records of another business because the requesting business lacked the personal knowledge required to ensure reliability."

Like to hear a few thoughts
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William A. Roper, Jr.
Good Luck:

First, you are to be commended for looking closely at the PSA and registration statements for your mortgage trust.  This is a very good idea and may very well be the source of some valuable information for use iin your defense.

But I believe that the conclusions you have reached with respect to Litton's authority in respect of affidavits is erroneous.

Generally, the servicer has the authority under a PSA to act on behalf of the trustee in most matters pertaining to all borrower interactions in respect of the loan, to include receipt and application of payments and management of a froeclosure in the event of default.  Generally, execution of an affidavit of default is going to be amongst these responsibilities.

But there are, I believe two other areas where you are far more likely to have some success. 

First, there is nothing wrong with challenging the servicer to actually PRODUCE the mortgage servicing agreement.  You may be able to do this through a proper, timely request for production where the foreclosure is undertaken in a judicial foreclosure state.

In my experience, it appears that the servicer and the foreclosure mill law firms will very often RESIST discovery and REFUSE TO PRODUCE the mortgage servicing agreement.  This can be problematic, as in the absence of producing this primary document -- the pooling and servicing agreement -- in conformance with the Rules, the plaintiff may be PRECLUDED from using this as evidence in court in support of the foreclosure.

It may be counterproductive for YOU to plead the PSA into evidence.  It may be better to demand its production by the servicer and then to seek to PRECLUDE its introduction when the plaintiff engages in discovery abuse and refuses to produce it.


This brings me to the second and far more important issue.  This involves preclusion of the affidavit of merit on the basis of hearsay.

I would particularly recommend to you my prior post:

"Personal Knowledge, Hearsay, Conclusory Averments and the Best Evidence Rule" (09/27/10 at 01:12 AM)


There are a variety of averments which appear in a typical affidavit of merit.  These include assertion that the plaintiff is the orner and the holder, an averment of default, occasionally the allegation that the plaintiff is the servicer of the loan as well as an allegation as to the purported amount of default.

As to most of the robo-perjurers, ALL of these averments are usually inadmissible hearsay.

Consider the various averments:

Ownership and Holdership
Whether or not the plaintiff is the owner or the holder is a conclusoin of law, NOT a fact.  The term holder is defined within Article 3 of the UCC and proper indorsement and delivery are required in order for an entity to become the holder.

The employees of the mortgage servicer NEVER have ANY first hand knowledge as to whether a particular investor is the owner and the holder.  They ONLY have second hand hearsay knowledge that some business records purport to represent that a particular investor is the owner or holder.

A timely and proper OBJECTION, preferably supported by an affidavit from an expert SHOWING that the servicer's employees would not have first hand knowledge together with a strong memorandum of law about the law of ownership and holdership ought to be effective in getting this conclusory averment excluded.

Averment of Default
Like ownership and holdership, the allegation of default is also a conclusion.  The servicer is generally on somewhat firmer ground generally in alleging default, however the allegation made by the particular affiant is usually impermissible.

An allegation of default is actually the assertion of a negation as to payment.  Lets put this another way.  IF you made a payment to Litton, the payment might have arrived by a variety of means and been processed by a variety of personnel.  A payment received and processed by ANY of these employees would show that the payment WAS, in fact, made.  And ONLY the affidavits of EVERY POSSIBLE employee that you HADN'T made the payment would really prove by direc t evidence with personal knowledge that no payment had been made.

How can any single employee testify that you didn't pay?

The answer, of course, is that the employee is stating a conclusion based upon a purported examination of the accounting records.

But any such conclusion is impermissible for two reasons.  First, the affiant is stating a conclusion rather than a fact.  The appearance within the accounting records of non-payment might be a fact.  Default is a conclusion.

But much more importantly, the person is not testifying based upon personal knowledge, the person is inherently testifying based upon hearsay, second hand knowledge obtained from the business accounting records.

There IS a permissible means of getting this information into the record, but servicers and the foreclosure mill law firms usually avoid this and instead rely upon perjured affidaivts.

The VALID approach is to use a business records affidavit, which is usually expressly permissible under the Rules, and to seek to admit the underlying business records themselves.

That is, it is IMPERMISSIBLE for the affiant to simply allege the conclusion that you are in default.  But it would be permissible for the affiant to authenticate copies of the business records showing the facts of default.

When the affiant claims personal knowledge of the facts recited within the affidavit and alleges default, the affiant is almost always committing perjury.

This is easiest to show by actually deposing the affiant.

Allegation that the Plaintiff is the Servicer
Similarly, the allegation that the plaintiff is the servicer of the loan is something that the affiant typically has NO KNOWLEDGE is actually true.  The fact of servicing is typically established by the pooling and servicing agreement or the FNMA/FHLMC seller and servicer agreement.  Most servicer employees have never seen these documents.

The typical robo-perjurer is simply making allegations once again making reference to business records which constitute hearsay.

Under the Best Evidence Rule, a party is required to use best evidence to establish the facts relating to written agreements.

The best evidence of the servicing agreement is the servicing agreement itself.  The affiant's conclusory testimony as to the fact of such a servicing agreement or what the agreement purportedly says is usually inadmissible IF YOU OBJECT.

Allegation As To Amount Owed
Like the allegation of default, any allegation as to the amount owed made by any single employee is almost always inadmissible hearsay.  The servicer usually prefers to use a false averment by the affiant as to the amount owed because this shields the actual accouting records from scrutiny, impeachment and refutation.

You have a RIGHT to CONFRONT, IMPEACH and REFUTE the evidence.  You may sometimes find that you aren't given an opportunity to do this when you fail to run discovery and to investigate the various claims using the discovery tools available to you.

But even where you fail to do discovery, the Best Evidence Rule suggests that the best evidence of the accounting records is the accounting records themselves.  An affiant's conclusory testimony as to what the accounting records say is NOT a valid substitute.

When the affiant states that the affiant has personal knowledge of the amount owed, this can usually be shown to be false by deposing the witness.  Unfortunately, your mere allegation that the affiant LACKS personal knowledge is UNLIKELY to be enough.  You need at least an affidavit from an expert witness SHOWING that the affiant is unlikely to have such personal knowledge and that the witness is committing perjury.


These are a few suggestions for further investigation and research.  PLEASE BEAR IN MIND THAT I AM NOT AN ATTORNEY AND THIS IS NOT LEGAL ADVISE.  Show these suggestions to your attorney and take counsel from your attorney as to the evidentiary rules in YOUR JURISDICTION.
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Thanks for the reply.  It was very interesting. 

This does raise a few other questions I have.

How is it even possible for a Trustee to proceed in a case without producing the PSA?  If I'm challenging your standing, it would seem that they would be REQUIRED to show the controlling documents for the trust.  My state requires that all Business Trusts foregin and domestic register and pay the fee to conduct business in the state (of course they haven't).  Again the controlling document states what kind of business the trust is allowed to do and it's purpose.   All they can do is make the representation as to what business they are involved in.  My family owns a business that is set up as a trust.  Before my mother can refinance, buy anything, ect....  any lawyer she talks to FIRST wants to see all the trust documents.  The banks require them also for loans.  My local rules require me to challenge Capacity in my answer, not motion to dismiss so I haven't brought up the Trust code yet.  Just getting my info together for my answer if it ever gets that far. 

Any thoughts? 

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Another great Post, Thank you again.  Just a quick question, I totally understand your position about deposing the witness to refute his personal knowledge testimoney about the facts, but if this is a motion for summary judgement and time is of the essence how would it be possible to set up a deposition in time for your opposition reply?
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I think you can set deposition date, then file Motion to Continuance for Summary Judgment Hearing,  based on the ground that the parties are still in discovery mode and there are possible triable issues discovered during the coming deposition. Usually Court will allow the Hearing to be rescheduled later.

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good luck litton

Is it possible to do a deposition pro se?  I was under the impression it wasn't.  Anyone have any idea on this?

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The problem here in NY is that there is very rarely a hearing, its all written motions.  And you wont know the person making the affidavit for the summary judgement until you receive it, and then I think you have 20 days to respond with your opposition.  Thats why your opposition better be great and shows that there are genuine triable issues of fact to preclude sumarry judgement. 

I really like Bills advice but I just dont see how I can apply it in the time frame I will have.
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good luck litton

The court system is getting worse and worse.  I was really under the impression that the guys in FL were getting a real bad deal with having to get permission to file documents and the good old rocket docket.  There is a lot of good case law in NY but I don't know if I would be real confident doing only written motions.  Do you go to a judge at all? 

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You never really see a judge, unless he calls for a trial.  And all of the case law from NY is mostly Schack and judges from Kings county.  But there decisions are not controlling on other judges.  And most of his decisions are ex-parte so there isn't many opposition motions to examine.

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William: that was an excellent post!!!

Thank you!

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William A. Roper, Jr.
Angelo said
Another great Post, Thank you again.  Just a quick question, I totally understand your position about deposing the witness to refute his personal knowledge testimoney about the facts, but if this is a motion for summary judgement and time is of the essence how would it be possible to set up a deposition in time for your opposition reply?

Apologies for taking so long getting back to you.  Others have made some excellent suggestions.  Permit me to somewhat expand and elaborate.
Ideally, you would have ALREADY used discovery to obtain some of the facts of your case.  One of the very most common interrogatories (which are mandatory disclosures when requested in a few places) are questions relating to the identity of fact witnesses, trial witnesses and expert witnesses.
For example, in Texas the Rules of Civil Procedure include Rule 194 "Requests for Disclosure", which includes this question which MUST BE ANSWERED WITHOUT OBJECTION:
"194.2 (e) [Disclose] the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case."

Note the additional provision precluding objection:

"194.5  No Objection or Assertion of Work Product.
No objection or assertion of work product is permitted to a request under this rule."

Now take a look at what happens when the disclosure is NOT MADE:

"193.6  Failing to Timely Respond - Effect on Trial
(a) Exclusion of evidence and exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a
named party) who was not timely identified, unless the court finds that:
(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.

(b) Burden of establishing exception.  The burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the witness. A finding of good cause or of the lack of unfair surprise or unfair prejudice must be supported by the record."


The Texas Supreme Court has held that this exclusion applies not only to trial, but also to summary judgment proceedings under the Texas Rules (affidavit testimony is only admissible in a summary judgment proceeding in TX when the witness is eligible to testify at trial.


In the unusual judicial mortgage foreclosure case I am litigating in Texas, I served a request for disclosure on the plaintiff in March 2007.  The plaintiff sought a protective order (despite the provisions in the Rules that NO OBJECTION IS PERMISSIBLE).  The motion for a protective order was denied in May 2007.  Still, the plaintiff did not answer the request for disclosure.

The plaintiff waited until more than seven months after the END of the discovery period (Texas has established Rules on how long discovery lasts UNLESS extended by court order) to file an amended motion for summary judgment which included an affidavit from a non-disclosed witness.

Therefore, in my summary judgment opposition, I OBJECTED to the affidavit based upon witness ineligibility.

* * *

So my first suggestion is to READ THE RULES.  Then, after that, READ THE RULES AGAIN.

I have repeatedly suggested that pro se litigants use discovery to obtain the facts of their case.

However, the foreclosure mill law firms very often engage in egregious discovery abuse.  They will object, evade, stonewall, and otherwise engage in illegal and unethical conduct.

In some instances, IF you have done a GOOD JOB with your discovery and KEPT REALLY GOOD RECORDS, you can use this misconduct to your advantage!


It is very often a good idea to ask the same or a similar question in more than one way.  Since the plaintiff is going to stonewall you anyway, you need to be ABSOLUTELY CLEAR that the plaintiff FAILED TO GIVE A RESPONSIVE ANSWER TO YOUR QUESTION.


In many places, the summary judgment rules provide an express mechanism to seek a continuance to conduct addtional discovery.  And IF you have been conducting some written discovery all along and then ask for more time to take some depositions or to ask additional follow-up questions, the court will probably allow this.  But if you wait until the very last minute and then ask for a continuance without EVER having conducted discovery AT ALL, then the court may very well decide that since you failed to exercise diligence in discovery, that no extension is warranted.

The Rules and the cases interpretting these Rules VARY from jurisdiction to jurisdiction.  YOU NEED TO FAMILIARIZE YOURSELF WITH THE RULE OF YOUR JURISDICTION.  NO ONE ELSE CAN DO THIS FOR YOU.


I think that Ann's suggestion that you schedule a deposition and then ask for an extension is a BETTER idea than just asking for an extension.  It also might be even MORE ideal to schedule one or more depositions to occur BEFORE the summary judgment proceeding and then put the plaintiff in the position of asking the court for a protective order.

If your summary judgment proceeding is this week, you are probably already out of time and if you didn't conduct any discovery at all, I would find it unsurprising if the court doesn't grant a continuance.

If you still have a couple of weeks, get the notice and subpoena out (CHECK YOUR JURISDICTION's RULES).  Put the plaintiff in the position of asking the Court for a protective order.  It is going to be really difficult to justify NOT letting you depose a witness that they want to use as an affiant.


As to your question about doing a deposition pro se, though I am unaware of a prohibition, I would NOT think that this would be a good idea.  Frankly, an expreienced attorney is going to mostly eat you for lunch objecting and obstructing the deposition.  For that matter, he will probably find a pretext to SUSPEND the deposition (taking the witness and leaving), putting you in the position of going to the Court seeking redress.  In the "he" said -- "she said" dynamic, you are going to find that the Court is going to tend to side with the attorney.

I think that it will probably prove difficult to find an attorney to represent you SOLELY for the deposition, but there may be one saving grace.  That is the fact that the affiant is very possibly located OUT OF STATE anyway.  So if you are seeking to depose a GMAC affiant (PA), a Bank of America affiant (TX) or a CitiMortgage affiant (MO or MD), you may very well be REQUIRED to take a deposition out of state.

So EVEN if you were represented by an attorney, HE would probably contract out taking the deposition to a local counsel in the place where the witness was located.  This would probably be more economic than having your attorney travel to one of these locations.

So it seems to me to be possible to engage the services of an attorney solely to take the out of state deposition WITHOUT this attorney entering an appearance in the case.  AGAIN, CHECK THE RULES OF YOUR JURISDICTION.


There are really only two forms of evidence which are admissible in a summary judgment proceeding.  These are affidavits and discovery responses.

If you haven't conducted any discovery, make sure that you have bolstered your defensive case by using strong, credible and truthful affidavits in your summary judgment response.  In some places, these must be FILED IN ADVANCE OF THE HEARING.  DO NOT MISS THE DEADLINE.  DO NOT EXPECT THAT YOU CAN TESTIFY OR GET OTHER EVIDENCE BELATEDLY INTO THE RECORD AT THE HEARING.  IF YOU DIDN'T FILE A TIMELY RESPONSE WITH THE REQUISITE EVIDENCE YOU WILL ALMOST CERTAINLY LOSE.

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If only the court system in Florida had any "legal" minds. There is no judge who will write brilliant legal opinions, no brilliant debate.

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I have started discovery with request for admissions, interrogatories, and request for production after I filed my amended answer.  They then filed the assignment of the mortgage, which I have forwarded to you aways back.  I then Filed my second amended answer, with a second round of discovery demands. 

I have been in the mandatory settlement conference part for the last 9 months, and was told that all action in the case is stayed while in the settlement part.  But they did respond(if you want to call them responses) to my first set of request for admissions.

One common response:
"Plaintiff objects to this request to the extent that it seeks to compel an admission of a fundemental material issue or ultimate fact that is disputed by the parties and the request is therefore, palpably improper and requires no response.  In addition, the interpretation of the documents at issue, including, but not limited to, the note and mortgage, is a question of law for the court to resolve and is not the proper subject for a notice to admit pursuant to cplr 3123"

Would these responses be a be an automatic reason for the judge to deny summary judgement because they have admitted into evidence that there are genuine issues or triable issues of fact.
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William A. Roper, Jr.

I cannot give you legal advice as to your particular case and the law as it applies to the facts of your case, but it appears to me that you are possibly confusing the distinction between the different types of discovery, what they are for and how they are intended to be used.

You really need to find a good legal text explaining the discovery process for your jurisdiction.  You also need to carefully read the Rules and the cases relating to the Rules.  This can be a very time consuming process and needed to be undertaken at the outset.  Now, it seems, you are behind the eight ball, so to speak.

As I mentioned in my prior post, Texas has a special discovery mechanism called a request for disclosure.  Many other jurisdictions do NOT have this mechanism.  But the origins of the request for disclosure are the emergence of a core set of interrogatory questions which the Texas Supreme Court recognized were NEVER to be subject to objection and which ALWAYS had to be answered.

Absent the existence of the request for disclosure, the discovery request would have been framed as an interrogatory to be answered under oath by the opposing party.

Interrogatories DIFFER from requests for admission in several respects.  Interrogatories must be answered under oath. 

Responses to requests for admission need not be sworn.  The core response to a request for admission is either "admitted" or "denied".  The responding party may interpose some objections and then answer.  The party might admit some part of the request while denying another part.  Matters "admitted" are deemed "judicially admitted" and no furhter proof of such facts need be presented in support of that issue or point.

If you are seeking witness identity, you cannot expect name os persons when the acceptable response is "admitted" or denied".  Instead, you need to ask a more open ended question, usually as an interrogatory.

The question might be something like:

"Identify all persons known to you to have knowledge of the facts of this case and the nature of their knowledge and understanding of such facts, giving complete contact information for such persons."

"Identify all expert witnesse . . ."
[I am confident that a capable attorney can IMPROVE on this language and the ideal language may VARY with your jurisdiction.  That is, it might be best to word the question so that it closely corresponds with some authority shown within a published court decision by an appellate court for that jurisdiction.]


In some places, you may be permitted to expressly ask the identity of the witnesses that the other side intends to call at trial.  But more likely, you will be limited to asking about the universe of persons with knowledge.

You can usually ask questions about the nature of records maintained by an entity and relied upon by its personnel in managing the matter at litigation.


You can also probably ask questions about persons with knowledge of particular facts.

Here are some examples from discovery propounded in a Texas case:

"INTERROGATORY 4: Identify with particularity the holder and location of the original alleged promissory note and original alleged deed of trust which [plaintiff] asserts forms the basis for its claim against the [defendant] giving a complete history of each and every indorsement of the alleged promissory note and assignment of the alleged deed of trust and showing the continuous chain of custody of each alleged instrument from the date of its alleged execution by [defendant] to the present time, showing the precise identities of each holder and the date of each Indorsement, assignment and/or other change in the custody and control of each alleged instrument."

"INTERROGATORY 5: Fully narrate, describe and explain how [plaintiff] obtained a copy of the alleged promissory note, alleged deed of trust and alleged warranty deed with vendor’s lien which form the basis for your [suit against defendant], showing with particularity the date and place such copy was made, the source document used as an original to make such copy, the persons making such copy and the disposition of the original or copy from which such copy was made."

"INTERROGATORY 9: Identify every person having possession, custody or control over the alleged promissory note and alleged deed of trust from the date of [purported execution] to the present date, showing with particularity such person’s name, employer, usual place of business, residence, telephone number, e-mail address and other contact information.”

* * *

Note that the first of these requires the party to identify how the plaintiff came to be the purported holder and pins down allegations about WHEN the purported indorsements happened.

Note that the latter two require the identification of person with custody and control of both the original and COPIES of the purported instruments.  IF AN AFFIANT IS GOING TO CERTIFY TO THE COURT THAT A PURPORTED COPY IS A TRUE AND EXACT COPY, THE AFFIANT WOULD HAVE TO BE IN POSSESSION OF BOTH THE ORIGINAL AND THE COPY.  If the affiant is NOT identified in BOTH Interrogaries 5 and 9, then either (a) the affiant wasn't properly disclosed and the affidavit must be EXCLUDED or (b) the affiant cannot validly claim personal knowledge as to the authenticity of the copy.



The POINT is to ASK for identity of persons with knowledge of the facts of the case generally, to ask for the identity of persons with knowledge of PARTICULAR FACTS, and to ask for the identity of intended fact or expert witnesses (as permitted).

The responsive answers to these interrogatories (or requests for disclosure) will show you who you may need to DEPOSE.  Unresponsive answers may preclude the unidentified witness from testifying.  BUT YOU WILL PROBABLY HAVE TO OBJECT TO THE ADMISSIBILITY OF THE TESTIMONY AND IN A SUMMARY JUDGMENT PROCEEDING YOU WILL PROBABLY NEED TO TIMELY PROVE BY AFFIDAVIT AND DISCOVERY RESPONSES THAT THE DISCOVERY REQUESTS WERE PROPERLY SERVED BUT NOT PROPERLY ANSWERED.

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I have interrogatories still outstanding and many of the same questions that you have posed in your post.  Like I said earlier, they haven't responded to those yet because of the stay.  But thank you for the heads up, I was under the impression that request for admissions was a stronger disclosure tool. 

And I totally understand that you are not a lawyer, I have retained counsel, but I am just trying to learn as much as possible to make sure he is approching my case correctly.

Thanks again, for the friendly chatter.
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wished i had seen this before my trial. BTW i did find the actual signature of David Spector. All is possible to those who seek.

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Just returned from a court hearing wherein the defendant to a demurrer tried to get the judge to agree, YES or NO that he would hold this hearing according to his oath of office. The judge was very vague and continued to say "He had signed an oath of office" and then proceeded to ask the Defendant what his position was on the Demurrer. However, the Defendant held his ground and insisted the judge say yes or no to the demand that he adhere to his oath of office in this case. It went several more rounds and the judge REFUSED to say yes or no. The judge struck his gavel and denied the Defendants demurrer without any hearing.

Thus, my friends, the court was directly inferring that it is a commercial court intent on foreclosing illegally on someone's home as a matter of income to the trustee and lender with the court's blessings. All this irrespective of the law and in fraud by the county recorder's office (owned by the banks) and fraudulent notary signatures... determined by a licensed forensic loan/trust auditor. The court refused to hear any Defendants evidence or testimony.

Welcome to Roman Civil Law.

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August 2010

Participants talked about self-represented (pro se) litigants and the challenges they present to the justice system. 

Among the topics they addressed were the number of pro se litigants engaged in civil litigation, providing free (pro bono) representation, case management, and programs set up by courts to provide legal advice. 

Videotaped testimony from several people familiar with self-representation were shown.

1 hour - 42 minutes

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Quick Study


Just returned from a court hearing wherein the defendant to a demurrer tried to get the judge to agree, YES or NO that he would hold this hearing according to his oath of office. The judge was very vague and continued to say "He had signed an oath of office" and then proceeded to ask the Defendant what his position was on the Demurrer. However, the Defendant held his ground and insisted the judge say yes or no to the demand that he adhere to his oath of office in this case. It went several more rounds and the judge REFUSED to say yes or no. The judge struck his gavel and denied the Defendants demurrer without any hearing.

Thus, my friends, the court was directly inferring that it is a commercial court intent on foreclosing illegally on someone's home as a matter of income to the trustee and lender with the court's blessings. All this irrespective of the law and in fraud by the county recorder's office (owned by the banks) and fraudulent notary signatures... determined by a licensed forensic loan/trust auditor. The court refused to hear any Defendants evidence or testimony.

Welcome to Roman Civil Law.

Your Defendnat friend really showed that Judge, -R-!  And he only lost his house to make this very important point.  I want to be just like him and show the Judge that I can make demands which have no valid basis in law and show my disrespect of the Court, even if it costs me my house!!
P.S.:  Can your Defendant friend recommend a good homeless shelter
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William A. Roper, Jr.
good luck litton said
How is it even possible for a Trustee to proceed in a case without producing the PSA?

Candidly, pleading the PSA or demanding that the plaintiff produce the PSA can be a double edged sword.  Very often, court rules permit a party to resist production in discovery of those documents which are public records.  It might not hurt to ask the plaintiff to authenticate the PSA, to help ease admissibility, but I do NOT think that it is usually in your interest to put the PSA into evidence.

Making a capacity argument in addition to the standing argument is usually very sound.  But there are going to be some LIMITS to the effectiveness of this argument.

Very often the business corporation act of the jurisdiction where a judicial foreclosure takes place is going to expressly exempt from a foreign registration requirement those incorporated firms which only own real property or mortgage debt in the jurisdiction.  Generally, national laws and U.S. Constitutional provisions relating to interstate commerce are going to tend to preempt state laws regulating foreign business corporations.


Also, I believe that national banks are usually expressly exempt from registering as foreign corporations.  (Verify this.)  Most mortgage trusts have a national bank as the trustee.

Notwithstanding, there are at least two ways that I have seen mortgage trusts run afoul of corporation laws, creating capacity problems.

First, in some instances an assignment forgery purports to belatedly assign the mortgage from a defunct entity to the plaintiff.  This has two implications.  First, the assignment itself is probably a nullity.  But another problem can arise where the original Lender was incorporated as a foreign corporation and then let the foreign registration lapse.

In some places, an unregistered foreign corporation not only is precluded from access to the courts, but these laws also occasionally prohibit the assignee of an unregistered foreign corporation from bringing suit.  This provision is necessary to prevent an unregistered entity from getting around the corporation laws by simply assigning the cause of action to another entity that is properly registered.  CHECK YOUR JURISDICTION'S LAWS.  IF YOU CAN SHOW THAT THE ORIGINAL LENDER WAS INCORPORATED AS A DOMESTIC OR FOREIGN CORPORATION AND THEN LET ITS CORPORATE CHARTER OR FOREIGN REGISTRATION LAPSE, THEN YOU CAN ARGUE THAT THE BELATED ASSIGNEE CANOT SUE ON AN ASSIGNMENT OUT OF THAT ENTITY.

Another different problem is presented where the registration statement of the mortgage trust acting as plaintiff represents that the trust is going to be incorporated.  I HAVE FOUND A NUMBER OF MORTGAGE TRUSTS THAT ARE SHOWN WITHIN THE REGISTRATION STATEMENT TO HAVE BEEN INCORPORATED IN DELAWARE, BUT WHICH SEEM NOT TO BE INCORPORATED.

Now there is really nothing particularly WRONG with a trust not being incorporated. In fact, very few trusts ARE incorporated.  But where the registration statement SAYS that the trust is going to be incorporated, then this can create another issue.

You might consider asking a couple of discovery questions about this, such as asking whether the trust represented to the SEC, the public and its certificate holders that it would be incorporated (referencing the statement within the registration statement).  Then ask them to admit that they are NOT actually incorporated as shown.  You might find ways to ask some other tough questions about this.

But bear in mind that most jurisdictions have limits on the number of interrogatories and requests for admissions and you do not want to use your precious discovery questions unless there is a good reason based upon your jurisdiction's laws to believe that this might get you some defensive traction.   

Overall, with respect to the PSA and capacity, you need to carefully read the law and cases and then proceed with a plan in mind as to HOW your discovery or your defense is going to help immunize you to summary judgment.

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This message thread also includes some useful discussion by Mr. Roper.  I think this may be where t found the material about the Texas Rules which he posted in another thread.  Mr. Roper has discussed these issues before.

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