TFH 6/16 | Perjury: Another Under Used Homeowner Weapon in the Battle Between Finality Versus Validity in Foreclosure Defense

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TFH 6/16 | Perjury: Another Under Used Homeowner Weapon in the Battle Between Finality Versus Validity in Foreclosure Defense

TFH 6/16 | Perjury: Another Under Used Homeowner Weapon in the Battle Between Finality Versus Validity in Foreclosure Defense

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

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Sunday – June 16, 2019

Perjury: Another Under Used Homeowner Weapon in the Battle Between Finality Versus Validity in Foreclosure Defense

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Faced with fake notes, fake endorsements, fake mortgage assignments, fake declarations supporting fake summary judgment motions, just about fake everything robo-signed and photo-shopped, homeowners in foreclosure proceedings continue to ask why they are nevertheless being evicted from their homes while crooked lenders are not being prosecuted.

The answer initially is found in English history, where land Lords and eventually Lord lenders were given broad powers in Law Courts, even to re-enter and evict upon claims of default and no matter how much homeowner equity remained in the property.

Later, English Equity Courts ameliorated to some extent the harsh judgments of its Law Courts, but almost all States upon joining the United States adopted English common law riddled with one-sided evidentiary protections favoring lenders.

American foreclosure laws, although written in terms of English mortgage laws, were informally ameliorated by local lenders who lent pursuant to a traditional mortgage model, where local banks had a vested interest in protecting properties in default and therefore grew to accommodate local homeowners to the fullest extent possible by modifying loan terms in what became known as “loan workouts” — the predecessor to what became now known as “loan modifications”.

The advent of securitized trusts, however, as our listeners know from our past radio shows, changed everything, eventually encouraging a wide spectrum of corruption, the underlying foundation of which has been widespread perjury as never before.

Perjury, the false swearing under oath in official proceedings, is shockingly commonplace today in foreclosure litigation, taking many forms: for example, service of process perjury, loan application perjury, note ownership and endorsement perjury, mortgage assignment perjury, notarization perjury, power of attorney perjury, declaration and affidavit perjury, default notice perjury, general ledger perjury, and attorney affirmation perjury.

Yet, securitized trust depositors, master loan servicers, collection loan servicers, trustees, and their foreclosure attorneys including big law and foreclosure mills are rarely, if ever, prosecuted for their false public office recordings, false foreclosures, false evictions, and false deficiency judgments, or even subject to meaningful criminal investigations, while their perjury driven misconduct continues virtually unchallenged in all American jurisdictions to this day.

It is not because this Nation lacks adequate perjury laws. It has more than enough, for example:

Perjury Generally, making false statements under oath to federal officials, is punishable by up to 5 years imprisonment, plus fines, 18 USC Section 1621, and in California if causing wrongful execution of death, is punishable as a capital offense.

Federal Loan Perjury, making false statements in loan applications, is punishable by up to 30 years imprisonment, plus fines up to $1 Million, 18 USC Section 1014.

Federal Court Perjury, making false statements under oath in judicial proceedings, is punishable up to 5 years imprisonments, plus fines, 18 USC 1623.

State Recording Office Perjury, filing and recording forged or false documents with a public office, is punishable by up to 9 years imprisonment, plus fines, for instance, in California, as criminal forgery, 470 PC, as criminal perjury, 118 PC, and/or as criminal grand theft, 487 PC.

State Notary Fraud, malfeasance in notarization is punishable by up to from 1 year as a misdemeanor to 3 years as a felony, plus fines, depending upon the severity of the misconduct and the harm done.

All States also have such Perjury proscriptions, often vigorously enforced except when involving foreclosure litigation. Again, why?

The answer historically may conceptually be found in the underlying battle between Finality and Validity discussed in recent Foreclosure Hour broadcasts, and the public policy considerations underlie each.

The simply fact is that unlike many other areas of the law, foreclosure litigation has remained unevolving, principally because of a strong body of otherwise outdated court procedures and antiquated caselaw, protected by powerful vested money interests overly represented in the United States Congress and in the Treasury Department, and due to a largely incompetent system of legal education in the United States ignoring foreclosure defense.

As a result, efforts to combat foreclosure perjury has met formidable opposition from a phalanx of Finality Doctrines.

In an attempt to simplify the clash between Finality and Validity, think of the battlefield as a chessboard.

On one side are the Giant protectors of Finality: for example, Stare Decisis, Res Judicata, Claim Preclusion, Collateral Estoppel, Laches, Waiver, In Pari Delicto, Conclusive Presumptions, Prospective Application, Rooker-Feldman, Mootness, Detrimental Reliance, Statute of Limitations, Statute of Repose, Materiality, Limited System Resources, the Rule Ritual, and Binding Precedent.

And on the other side are the Giant protectors of Validity: for example, Perjury, Fraud, Due Process, Reconsideration, Personal Jurisdiction, Subject Matter Jurisdiction, Standing, Illegality, Obstruction of Justice, Unconscionability, Duress, Adhesion, Inadequate Legal Representation, Retroactive Application, Estoppel, Mandamus, Certiorari, Prohibition, and Public Support.

These competing Giant doctrines tug and pull at each other before and after foreclosure judgments are awarded, (1) protecting the status quo versus (2) conforming foreclosure laws and procedures to existing truths and realities, reminiscent in many ways of earlier legal battles in American law regarding a woman’s right to vote, a laborer’s right to unionize, and a minority’s right to unsegregated equal educational opportunities.

Yet, so far a homeowner’s right to fair treatment has lagged very far behind.

Please join John and me this Sunday as we identify and emphasize the heretofore neglected perjury rampant in foreclosure litigation today and make the case for criminal prosecutions to trigger needed Validity reforms.

Gary

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GARY VICTOR DUBIN
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Email: gdubin@dubinlaw.net.

Host: Gary Dubin Co-Host: John Waihee

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One Response to “TFH 6/16 | Perjury: Another Under Used Homeowner Weapon in the Battle Between Finality Versus Validity in Foreclosure Defense”

  1. Sandy says:

    As I understand it, there is no civil remedy for litigation misconduct, including perjury or spoliation of evidence. That contradicts common sense, but it’s based in the adversarial nature of our judicial system and the duty to diligently represent the client.

    I am ready to test attorney deceit as a statutory weapon, as it’s provided in my state as a criminal statute. Last count I knew, 12 states had statutes that single out attorneys for deceiving the court or the opposing party, or collusion to deceive, or to receive money for which the attorney has never been held accountable. Attorney deceit is usually chargeable as a misdemeanor. But the kicker is, if convicted the deceiver is liable for treble damages, which can be recovered in a civil suit. (The states I can recall right now are New York, Louisiana, and Oklahoma.) Here is an ABA Journal article about it:

    http://www.abajournal.com/news/article/lawyer_may_be_sued_under_attorney_deceit_statute_for_lawsuit_misrepresentat/

    I am very busy writing bar complaints, for all the fraud and deceit in home mortgage foreclosures. The attorneys violate Rule 8.4 (a-d) every day, nationwide. I want to see how a bar complaint for Rule 8.4 (c) violations and the attorney deceit statute complement each other.

    Homeowners who have been harmed by deceit and fraud need to file bar complaints. No time limitation applies for bar complaints, and they can be filed from anywhere, against any attorney. People who have already been forced out of their homes can and should file a bar complaint against the attorneys participating in title and equity theft.

    Just keep in mind that a bar complaint is not retrying the case; and professional discipline is not a means to punish the attorney who violates the rules. It is strictly about protecting the public and the integrity of the bar and the legal profession. (That’s the theory … don’t laugh!)

    Also check into the victim’s fund that is available to those who prevail in a bar complaint. I just read that the fund can award up to $300,000 in New York.

    I’ve spent the last few weeks studying the Rules of Professional Conduct and I just can’t see how they can avoid professional discipline, because tons of fraud, deceit and misrepresentation are preserved in court documents, which are self-authenticating. If we all work together, we can get corrupt lawyers disbarred—whether they represent the plaintiff or the defendant.

    My heart goes out to all who have or are fighting theft of their homes. None of us pledged all future equity when we signed the mortgage; we pledged only the loan amount.

    Best to everyone. You can get through it! Mine ran for more than 6 years and I’m still here…albeit, barely. 🙂

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