Knife or Spoon

Which instrument would you use in cutting your steak? While the spoon may eventually get the job done, the results will be sloppy and crude at best. Care must be taken to insure that the proper instrument is used at the correct time to achieve maximum performance for the desired results. The same can be said in articulating the arguments for a pleading or for oral arguments in an action before a court. Many times the use of improper terms and words give misdirection in the litigation of a case that is before the court. Admissions are given time and time again with no thought to the results of such stipulations. As one does not understand what is being stated; ignorance is no excuse under the law.

An improperly worded argument would have severe implications when being presented as the judge can only rule and articulate on what is presented to him. If one were to say i.e: My loan has been sold to a third party. What is actually being said within this sentence? Has one defined what the word loan is to mean? Are we talking about the Tangible Promissory Note? The Mortgage or Deed of Trust? The Intangible Obligation? One needs to have a clear and concise understanding that is expressed correctly and precisely. Do we actually know if what we are writing is what we are conveying to the parties that are reading our pleadings? This is a problem that needs to be addressed and corrected immediately.

A good place to start would be in using Specificity which has been defined as the quality or state of being specific and Particularity which is defined as; Attention to details: special care within your arguments. In stating facts and statutes an education in the understanding of your states equivalence of the Uniform Commercial Code as it applies to negotiable instruments would be a worthwhile investment. Along the journey of getting an understanding of issues that are being presented with and determining which actions to take, or not to take, it would behoove one to start reading and understanding past cases dealing with similar issues. While investigating these cases you will start to develop an understanding of what is being said over and over in these courts. Not much at all. What is being said is not what has happened in any way shape or form and yet these writings would have you believe otherwise.
The banks rely on fancy wordcrafting and misstating of information in addition to misdirection within the many and various types of arguments presented to the courts. It is this false information that gives way to bad precedence being set with bad case law and citations. In addition, many times the defense attorney’s or homeowners themselves give poor and misstated information, along with admissions and misdirection within the multifarious arguments that they are trying to articulate. In giving incomplete arguments with incomplete statutes, bad case is spewed forth and it is this bad case law that must be overcome and defeated with the correct arguments and correct statutes as they apply to the situations at hand in the foreclosure action.

We need to level the playing field and we can do so by learning. In learning we become better equipped to understand the rules. The rules have always been there. No one has bothered to look at the rules, let alone play by them. In understanding the rules you will then be able to hold the other parties feet to the fire. Those rules include Federal Rules of Civil Procedure and many other Rules i.e.: Rule 26. Duty to Disclose; General Provisions Governing Discovery. With learned knowledge you will be empowered to go forth and right the wrongs.


Joseph Esquivel
Mortgage Compliance Investigators
Copyrighted© 2013

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