EDITOR'S NOTE: Just take a second to think about that. Simple question. Ordered into mediation, the respective parties must have someone who is a decision-maker at the mediation or it isn't a mediation. A discussion and "ill get back to you" is not a mediation. It is a conversation. Asking the lawyers if their "clients" are aware of the mediation and that the lawyer is at the mediation representing them would seem to be a no-brainer. But it isn't. The lawyers get nervous and angry when challenged on that very simple question. Why?
I think I know why, and most of the evidence I can lay my hands on would seem to corroborate this. The lawyer is there just to be there and make it appear that the party he says he is representing is complying with the order that sent them to mediation. Note that they must be ordered into mediation because all they want is the foreclosure.
Before securitization, the norm WAS that a bank would try any kind of possible workout before it went to the extreme remedy of foreclosure because there was nothing else they could do. Go to any CLE seminar for lawyers on workouts and you'll hear the same thing. Figure out a way to make this work, to bring it back alive even if it is worth a little less because foreclosure will yield the least amount of recovery to the Bank. Now foreclosure is the first order of business.
The answer to Matt's question is "NO." Because the parties the lawyer is stating that he is representing have not retained him in that case. In fact, they don't even know the case is pending. In fact, they don't care. The real parties in interest in the current wave of foreclosures are the lawyers and the servicers. Every other party has their name used in vain because they are being paid to shut up. The servicer is calling the shots through layers of companies that are "foreclosure specialists." The lawyer will say anything he must to maintain the appearance of the existence of a client and his authority to represent them.
It is fundamental that nothing is accepted in court without either evidence or stipulation from the other side. Usually the stipulation that the client exists and that the lawyer is authorized to represent the client is tacit --- accepted by the Judge as inferred from silence. I have previously said that the moment the attorney opens his/her mouth you should be objecting because you challenge whether or not the lawyer actually has the authority to represent the client. I now think you should go further.
In addition to demanding that the lawyer prove his/her authority to represent the client, you should object based upon whether the client exists, and if they do exist whether the client is aware that the case is pending. And if they are aware the case is pending whether they are aware that the hearing was scheduled.
As for existence, here are some examples of clients that do not legally exist:
1. Americas Service Companies --- it is a division of Wells Fargo. If wells Fargo is not named then there is no entity named and the lawyer has no client.
2. Wells Fargo, Trustee --- unless a trust is specifically identified, then the client doesn't exist. If Wells Fargo is not claiming they are in court for themselves and that they are only in court to represent a trust, then the caption and the pleadings must state that. This would be an actual entity: "Wells Fargo, as Trustee for ABCDE Trust, a common law trust organized and existing under the laws of the State of Delaware" [I can't say I have seen that wording on any of these "Securitized" debts]. NOTE: In discovery you might find out that there is no such trust registered in Delaware and that the trust does not conform to the requirements of Delaware Law as a common law trust. If that is the case, the trust does not exist. And therefore there is no client becaus e Wells Fargo was ONLY there as representative of the "trust" which has now been shown not to exist.
- Deutsch ...., Trustee for Series KL6897 Certificates 2007R: No trust mentioned or described and no other form of legal entity mentioned or described. The entity does not exist and therefore the lawyer has no client. A fictitious entity can perform no legal act.
4. US Bank, as Trustee relating to Series JP99-2223 2009BA Certificates: No trust mentioned and the wording seems to state that there isn't any trust. Certificates are not people and a group of certificates does not make a group of people much less a company, corporation, trust or partnership. The entity does not exist and therefore the lawyer has no client. A fictitious entity can perform no legal act. The words "relating to" would seem to say that "we know what a trust is, and there isn't one. But we are here representing the certificate holders but we are not going to name them even by description. We are just going to mention the certificates." That doesn't cut it in any court.
5. Let me put it this way. If you hire a taxi, are you expecting him and his car to take you to the airport or are you willing to accept his license (without him and his car) that is just a piece of paper that will levitate you like Aladdin's magic carpet? Fictitious entities have no more reality than the tooth fairy ---only this one takes your teeth, your money and your home. And a lawyer stating that he represents the tooth fairy does not make the tooth fairy real nor does he have a client or any reason for being in court except to trick you and the Judge.