Tuesday, October 25, 2011

Lender negligence, admissible or not?

We've stated time and time again that the banks that lent the money throughout the real estate boom of the last decade were just as responsible for the real estate and subsequent economic meltdown as were the people they lent the money to, we've even gone so far as to label them the "unindicted co-conspirators" in many of the criminal mortgage fraud cases that we've discussed.

Some of you may remember the prosecution in the Plantation cops mortgage fraud case fighting tooth and nail to stop the defense attorneys from using the theory of "lender negligence" as part of their defense.   From one of the prosecutions motions...
...precluding the defendants from presenting evidence of, or argument referring to, 
  1. any lack of actual reliance by the victim mortgage lenders on the defendants’ misrepresentations
  2. any purported or actual negligence by victim mortgage lenders; or 
  3. the present foreclosure crisis and the Government’s action in seeking to resolve the foreclosure crisis, whether in opening statement, direct or cross-examination, closing argument or otherwise. 
I'm not sure what the f-ing big deal was about keeping the theory of "lender negligence" from the jury, what ever the case may be, the judge agreed with the prosecution and for reasons unbeknownst to me, the jury never heard a peep about lender negligence.  I had my theories about what went on and even went so far as to suggest that the judge may have been biased towards the prosecution.  Who knows what really went on here, what you would expect though is if that one federal judge rules a certain way regarding using the theory of lender negligence as a defense, wouldn't you think another federal judge would rule the same way in a similar trial?  I was researching the Ivanhoe Semester mortgage fraud case the other day and I came across another motion by the government to exclude lender negligence as a defense, here it is...

Motion in Limine to Exclude Lender Negligence Ivanhoe Smester

As the title of the motion says...
UNITED STATES' MOTION IN LIMINE REGARDING REFERENCES TO MORTGAGE LENDERS, FORECLOSURE CRISIS AND ANY GOVERNMENT ACTION DURING FORECLOSURE CRISIS
That's funny as shit, not only does the prosecution not want the jury to know about any lender negligence during the real estate meltdown, but they don't want to have the jury hear about anything the government might have done to help blow up the bubble either!  SWEET!  It's almost like they're asking the jury to ignore that closeted gay cross dressing family member during holiday gatherings, we all know that he/she is there but god forbid anyone mentions anything!


So what's the big deal here?  While Judge Cohn from the Plantation cops mortgage fraud case granted the governments motions and didn't allow the jury to hear anything about lender negligence and the role the banks played in the real estate and economic meltdown, the judge in the Ivanhoe Semester case, Judge Cecilia Alatonga, wasn't having any part of that bullshit, several months before the Plantation cops case went to trial, Judge Alatonga denied the government's motions and allowed the defense to use the theory of lender negligence as part of their defense.  At least in my opinion, that was the right thing to do, now, can someone explain why Judge Cohn didn't rule the same way? 

11 comments:

  1. When a person is on trail and looking at 20 years jail time they should be allowed to defend themselves against the so called victim banks. And anything that the victim did wrong should be allowed in. But that may lower the Prosecutions conviction rate. so keep it out.

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  2. The law is clear that the negligence of the bank is not a defense to a criminal charge of mail fraud and wire fraud. The federal criminal fraud statutes focus on the conduct of the accused and his/her intent to defraud. Any argument that the lenders were negligent and should have, could have, would have caught the fraud if they had been more thorough is really an argument that says the following: "Lender, please save me from my own fraud" and/or "catch me if you can."

    This lender-negligence argument is no different than saying that if a person runs into a convenience store to quickly buy something and leaves the car running, that a person who jumps in the car and takes off should not be prosecuted for car theft--of course, that is not what the law requires and such a person would be charged with car theft.

    With all due respect to Judge Altonaga's ruling, under any view of the current law, she was wrong. Of course, practically speaking, she had no need to worry about denying the motion because the government had no ability to appeal that ruling; and, of course, the defense is not going to object.

    This dynamic is often overlooked--the judge can allow all sorts of impermissible evidence practically speaking if its the government who seeks to preclude it. This is so because even if the defendant is acquitted double jeopardy has attached and the government has no recourse to appeal any of the evidentiary rulings. As such, the judge has no fear or worry about getting reversed for denying this sort of government motion even though it cuts to the heart of the proceeding's integrity. In short, the government relies on the judge following the law even if he/she doesn't agree with it.

    I would preface my comments by saying that it is based on what the law IS not what the law SHOULD BE. Certainly, the latter is an interesting discussion, but trial judges and lawyers operate on the law as it is at the time. Changes in the law are ultimately left to the appellate courts and to Congress.

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  3. In the plantation case the dirty brokers testified that the account reps working for the lenders taught them how to commit the fraud and that the borrowers did not know. So I ask, who has the intent to defraud?

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  4. And now the alleged "victim lenders" are not even victims anymore. They are now targets of the government!!! WTF!!! The Government doesn't even know what to call these lenders now. It's all good, just makes for some great arguments for the appellate courts!!! Let see which Judge gets mud in their face, my money is on Judge Cohn!!!

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  5. lender negligence shouldn't it be called what is was. lender policies to close their eyes why their account reps showed brokers how to lie to get loans passed through and to put money in everyones pockets. It can be used for a defense if the banks employees are pushing/doing/and Encouraging fraud and then not doing anything to police their employees and loans. In the plantation case the fact that the bank then sold the loans on a 2nd market too make even more money sometimes the next day would show the real guilty parties. if the fraud is lying on the loans and the banks and the brokers put it their how can you want to go after buyers who didnt know. there are rules for banks too and if you dont follow them or break them you cant say "im a Victim of a crime" for shit your company did. if banks tell brokers raise their income and we can get it approved. Use a fake job and we dont call to verify. then guess what the bank is the guilty party not some guy who bought houses and paid the mortgages.

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  6. There was alot of things that the jury didnt hear in the second trail and even alot more in the first trail.

    1st you make the banks look like saints when what they were relly doing was criminal activity with their own employees.on not only these loans but all loans.
    NO sorry jury dosnt need to hear that

    2nd you are allowed to bring in different people from a persons past and show what a bad guy they are as much as the goverment wants.
    nothing criminal because oh wait none of these cops had a criminal history or a restraining order. but yet you cant show the lead witness who has done 1000's of counts of fraud has a crimal past and knows how to testfy for the goverment. cant say he was arrested for dealing drugs and being part of a gang that killed people for money and he was part of the homicede and was doing these loans while still working with the fbi.
    or that the lead investigators threatend witnesses to where they changed their stories because they were scared of going to jail if they didnt say what you wanted to hear.
    or maybe the lead agent who may not like cops after they had to give him a restraining order for beating his wife and the best part her saying "he said he would make up lies and make stuff up to get me arrested and he said they will believe him because his a cop" if he would do that to his wife why wouldnt he do it to a perfect stranger to get his big case that he has worked on for 2 years a conviction.
    jury doesnt need to hear that stuff.
    there are countless things like that that the jury did not get to hear and will never hear because it makes the weak case they already had even weaker. i feel bad for john and joe they got fucked but guess thats the only way to keep the goverments 90 percent conviction rate up.

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  7. The law is clear.... second comment:
    Sounds very intelligent where did you go to school Harvard! So let me see if I understand you. Fuck the consumer who paid all the payments! Fuck the consumer who made thousands in repairs! Fuck the consumer who sold the home at a loss! The consumer was defrauded once by brokers then again by the government, (who can't figure a fucking thing out.) and now they are victims of retards who think let me articulate on a blog to feel better about my position! See anyone who agrees with the government is an agent of the government. "Leave the government in control long enough it will turn on it's own people". It's only a matter of time until your boss is fired and a new idiot president gets in and gives you your new assignment of who to fuck! Good luck to you loser! You can't even think for yourself you can only do what they tell you. That means your a PAID WHORE!!
    You shit on the constitution, people like you just need someone to rape your family and then have a political connection to walk! That's exactly what happens to people who have the balls to come on this site and argue legal facts to try and show people how smart they are. Night paid whore I'm done with you get out haaaah!

    Thomas Jefferson

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  8. I should get some oxycodone illegally, sell it, make a profit, then blame the pain clinics and the drug manufacturers for their "NEGLIGENCE" when I get indicted. It's soo logical right?
    Perfect Strategy. Then my defense will be I was only smart and successful with my job, outside of that I was taken advantage of and raped in the butt by my two friends who handled all the paper work.

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  9. Better idea, I'll just run in marathons and be a low class loser who has shown way too much interest in a case that I have nothing to do with. I'll kiss the ass of some ex loser nobody cops and hang out with them so I can try to act cool and superior! Maybe I should just hang out around Holly Lane and because of all the bad things happening in this crazy county, I'll just start taking people out....... To dinner of course... and then I'll just plead guilty to temporary insanity take my 7-10 years and then I may have taught some arrogant asshole a special lesson on life and minding his own fucking business... Those who live in glass houses with orange tile roofs shouldn't throw stones. They may come crashing back through and hurt Someone.

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  10. Learn the case before you make a dumb scenario. The government’s wholes case and argument in the trail was the buyers inflated their income and put false jobs on their applications. That was 1 of the 200 pieces of paper they signed at closings. Then the mortgage brokers admitted they put the fake info on the applications and claim they told the police officers they were doing it. But when asked about the other 100 plus loans they lied on they stated those borrowers didn’t know. So selling drugs and then blaming the drug company is not anywhere near the defense in this case. But way to make a useless comment that we now get to trash because you know nothing about this case. But since you used drugs ill add a comment to that. If you went to a drug store and bought a generic bottle of drugs and it was filled with a name brand that cost 8 times the amount of what you paid. Should you be charged with stealing if you didn’t put the wrongs drugs in the bottle? But as you walk out the store you get stopped arrested and put on trail for grand theft. You never looked in the bottle but guess what you now can try and explain that to a jury cause the drug store employee says I did it but the guy new about it. but you had no clue.

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