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Pity the Poor Judges

(image: safari_vacation/flickr)

(photo: safari_vacation/flickr)

Now that the 49 State AG settlement has immunized manufacturing evidence, forgery and perjury, it’s going to be a lot tougher to be a judge. After all, how can you ever rule on a motion based upon affidavits and documentary evidence if it’s now OK to lie and to manufacture phony documents?

Will judges need to take courses in document forensics in order to rule on simple motions? Or will courts become even more clogged, because each affiant must be made to appear and confirm their own knowledge of the evidence in their affidavits or even that their own signature appears on the document? Will every motion now necessitate a mini trial?

This settlement corrupts the court system completely. That or it bogs it down to a point where the cost of litigation, no bargain to begin with, will become out of reach of all but the billionaires.

Think about it, if every bit of testimony on every matter, including pre-trial motions, must be had live and in court to avoid perjured and forged documents; the costs of litigation increases by orders of magnitude.

In that case, this settlement screws the banks themselves. Honest judges will no longer be able to accept their motions for Summary Judgment in foreclosure cases and will be forced to make the banks produce the affiants in court to testify from their own knowledge. Since these affiants are usually nowhere near the states where their affidavits are used, the travel costs alone will make the cost of foreclosing on an average house prohibitive.

No, I don’t think the formerly hold out AGs are playing eleventy dimensional chess. They sold out, got played, whatever. Yet most judges didn’t become judges because they wanted to deliberately mete out injustice. Most judges don’t want to give a verdict to a party that lacks standing. Most judges don’t want to see the judicial branch held in the same dismal light as Congress and many of the state legislatures.

Time and time again, when things have gone crazy in the legislative and/or executive branches, it has fallen to the judicial branch to set things back on course. We see that with judicial rejections of regulatory settlements that render the settling agency a joke and expose its corruption by regulatory capture. We see that with judges who force the affiants to come to court to testify from their own knowledge [those are the foreclosure cases that tend to get dismissed].

The alternative is for the judges to acquiesce to allowing forged and perjured documents in their courts. This creates its own momentum. If it’s OK to use forged and perjured documents in mortgage contract cases, then why not in other contract cases? Docx and LPS can expand their business model. If it’s OK in contract cases, what about other kinds of cases? How about opening up a new robo-signing operation to manufacture false business records to give criminal defendants alibis?

Instead of a lost promissory note affidavit as we currently have, how about a lost surveillance tape affidavit? It could say something along the lines of “at the time defendant is alleged to have committed the murder, our surveillance tapes show him to have been working the fry-o-lator at Y burger franchise in X city. That tape has been lost or taped over, but before that happened, the undersigned viewed that tape and can confirm the defendant’s alibi.”

There you go. Alibi affidavits on demand, courtesy of your lucrative robo-signing document mill. The possibilities are endless: forged wills, forged bills of sale, forged identity documents (ending the problem of undocumented immigrants). You name it, if it can be proven in court by affidavit or assignment or allonge, you can do it with phony documents.

Which makes me wonder, what was Shepard Farey THINKING? Why in the world would he plead guilty to manufacturing evidence, for Preet Bahara, no less, who goes around bellyaching about how hard it would be to prosecute these kinds of cases, when all he had to do was cite the DOJ lead role in immunizing manufactured evidence? Maybe he didn’t want to establish himself as a bank?

BTW, that last link takes you to a panel discussion at NYU Law School with Lanny Breuer, Neil Barofsky, Elliot Spitzer and Mary Jo White. It’s over an hour, but soooooo worth your time.

WAIT A MINUTE! I just thought of something, if it is now acceptable to use forged and perjurious documents in foreclosure cases, DOCX, LPS and the other document mills have a huge new market available to them with homeowners. If forged and backdated allonges and assignments are OK, so too should be forged Satisfactions of Mortgage. Once the homeowner obtains a forged SAT from a document mill and files it with the county clerk, in theory, shouldn’t their foreclosure case be dismissed?

I take it all back, those state AGs really did provide meaningful relief for homeowners, at least for homeowners willing to commit fraud on the court. Now to pry my tongue out of my cheek.

CommunityMy FDL

Pity the Poor Judges

(image: safari_vacation/flickr)

(photo: safari_vacation/flickr)

Now that the 49 State AG settlement has immunized manufacturing evidence, forgery and perjury, it’s going to be a lot tougher to be a judge. After all, how can you ever rule on a motion based upon affidavits and documentary evidence if it’s now OK to lie and to manufacture phony documents?

Will judges need to take courses in document forensics in order to rule on simple motions? Or will courts become even more clogged, because each affiant must be made to appear and confirm their own knowledge of the evidence in their affidavits or even that their own signature appears on the document? Will every motion now necessitate a mini trial?

This settlement corrupts the court system completely. That or it bogs it down to a point where the cost of litigation, no bargain to begin with, will become out of reach of all but the billionaires.

Think about it, if every bit of testimony on every matter, including pre-trial motions, must be had live and in court to avoid perjured and forged documents; the costs of litigation increases by orders of magnitude.

In that case, this settlement screws the banks themselves. Honest judges will no longer be able to accept their motions for Summary Judgment in foreclosure cases and will be forced to make the banks produce the affiants in court to testify from their own knowledge. Since these affiants are usually nowhere near the states where their affidavits are used, the travel costs alone will make the cost of foreclosing on an average house prohibitive.

No, I don’t think the formerly hold out AGs are playing eleventy dimensional chess. They sold out, got played, whatever. Yet most judges didn’t become judges because they wanted to deliberately mete out injustice. Most judges don’t want to give a verdict to a party that lacks standing. Most judges don’t want to see the judicial branch held in the same dismal light as Congress and many of the state legislatures. (more…)

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Cynthia Kouril

Cynthia Kouril

Cynthia Kouril is a former Special Assistant United States Attorney in the Southern District of New York under several different U.S. Attorneys, former counsel to the Inspector General for the N.Y.C. Department of Environmental Protection where she investigated threats to the New York City water supply and other environmental crimes, as well as public corruption and fraud against the government, former Examining Attorney at the N.Y.C. Department of Investigation and former Capital Construction Counsel at New York City Parks and Recreation.
She is now in private practice with a colleague whom she met while at the USA Attorney's Office. Ms. Kouril is a member of the Steering Committee, National Committeewoman and Regional Coordinator for the New York Democratic Lawyers Council, a member of the Program Committee of the Federal Bar Council and a member of the Election Law Committee at the Association of the Bar of the City of New York. She is active in several other Bar Associations.
Most important of all, she is a soccer mom.