[00:00.000 --> 00:07.440]  This is the Liberty Beat, your daily source for Liberty News and activist updates online
[00:07.440 --> 00:09.160]  at TheLibertyBeat.com.
[00:09.160 --> 00:13.720]  I'm Brian Hagen with your Liberty Beat for Friday, October 17, 2014.
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[00:44.360 --> 00:48.520]  In the news, the United Nations High Commissioner for Human Rights has warned that extreme quarantine
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[02:46.240 --> 02:50.840]  This is the Liberty Beat for Friday, October 16, 2014.
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[03:26.640 --> 03:54.960]  Thank you all for listening and Steve and I have been discussing something before the
[03:54.960 --> 04:02.120]  show and we want to talk about something Steve brought up once before.
[04:02.120 --> 04:10.960]  It's a case against L. Keller Mackie, he's one of the foreclosure mills and he got sued.
[04:10.960 --> 04:18.800]  Steve, will you kind of explain what went on there?
[04:18.800 --> 04:21.880]  Well maybe not.
[04:21.880 --> 04:24.200]  Steve must have had a glitch in his system.
[04:24.200 --> 04:31.600]  Well, it seems that the point is here, I'm here, I'm here, I'm sorry.
[04:31.600 --> 04:39.400]  Okay, you want to explain that Santiago Mackie case?
[04:39.400 --> 04:46.640]  Santiago v. Mackie, let's look at the date on Santiago v. Mackie.
[04:46.640 --> 04:52.200]  Randy and I had a discussion prior to the show in regard to this case.
[04:52.200 --> 05:00.600]  Now, I'd like to preface tonight's show by saying, yes, this is an appellate court in
[05:00.600 --> 05:01.600]  Dallas, Texas.
[05:01.600 --> 05:10.280]  It is Texas case law, however, when we cite statute, though it may be Texas, though it
[05:10.280 --> 05:15.480]  may be California, it may be New York, it may be Indiana, who knows, any one of the fifty
[05:15.480 --> 05:21.560]  in the union, anytime we cite statute, we would always encourage you to go to your own
[05:21.560 --> 05:28.840]  state statutes and find statutes in your code with similar language.
[05:28.840 --> 05:34.760]  Most states have very, very similar statutes.
[05:34.760 --> 05:40.800]  I almost called them laws, but they're not, let's not cross that bridge, Rubicon.
[05:40.800 --> 05:50.400]  But this is a case out of the Court of Appeals in the Fifth District of Texas at Dallas.
[05:50.400 --> 06:00.200]  I'm speaking of Luis A. Santiago and Linda A. Santiago, the appellants, Mackie Wolf versus
[06:00.200 --> 06:05.200]  Mackie Wolf, Zeintz and Mann, P.C., appellee.
[06:05.200 --> 06:17.640]  Cause number, 05-13-00620-CV, this was a civil case, it was a foreclosure case.
[06:17.640 --> 06:23.880]  And what I have before me right here, we could go through the appellants brief, but the appellants
[06:23.880 --> 06:32.600]  brief is covered very well in the Court's Memorandum Opinion, which I've got highlighted.
[06:32.600 --> 06:39.240]  Now, when Randy and I were talking earlier, we were talking about two different elements
[06:39.240 --> 06:41.800]  to the results of this case.
[06:41.800 --> 06:52.480]  I'm going to say that for the sake of tonight's show, I'm going to look uprange while Randy
[06:52.480 --> 06:55.840]  is going to look downrange.
[06:55.840 --> 06:59.920]  I'm going to look at the short of it, Randy's going to look at the political ramifications
[06:59.920 --> 07:00.920]  thereof.
[07:00.920 --> 07:05.680]  Okay, when I say the short of it, I'm going to stick pretty much strictly to the Memorandum
[07:05.680 --> 07:08.880]  and the opinion of the Court.
[07:08.880 --> 07:16.440]  And in the State of Texas, this is controlling case law, however, outside the State of Texas.
[07:16.440 --> 07:24.720]  Since this came from an appellate Court, this case can be cited in cases in other states
[07:24.720 --> 07:32.160]  other than Texas, though it will not control the Court in a sister state.
[07:32.160 --> 07:40.320]  The Court can and usually will if you request in writing that the Court take judicial notice
[07:40.320 --> 07:42.120]  of this case.
[07:42.120 --> 07:46.160]  The Court can and usually will take it upon advisement.
[07:46.160 --> 07:54.960]  It stands to reason that if one state's appellate courts have ruled on an issue one way, other
[07:54.960 --> 08:05.320]  state courts should probably, unless there's a statute that would suggest a different outcome
[08:05.320 --> 08:15.440]  or a different opinion, should rule the same way as the Court of Original Jurisdiction.
[08:15.440 --> 08:20.000]  So that be said, a nutshell of this case.
[08:20.000 --> 08:27.640]  You might notice the defendants here having PC after the name might be a law firm, yes.
[08:27.640 --> 08:37.240]  Mackie Wolf, Zeintz and Mann PC are one of Texas finest foreclosure mills.
[08:37.240 --> 08:46.520]  Now the crux of this, again the nutshell is that Santiago wanted to see the original note.
[08:46.520 --> 08:51.160]  Someone at Mackie Wolf said, come on down, we got it, come on, come on, bring yourselves
[08:51.160 --> 08:58.600]  down here, we'll just have us have us a little looky-loo here at this original instrument
[08:58.600 --> 09:00.720]  that being the note.
[09:00.720 --> 09:08.680]  When Santiago got to the location that Mackie Wolf, okay, just a second Steve, 3 guys 501
[09:08.680 --> 09:15.080]  use the Uniform Courses Code or Texas Practices and Remittance Code, is that the right one?
[09:15.080 --> 09:25.560]  This Commerce Code says if a creditor gives a presentment, which is a demand for payment
[09:25.560 --> 09:34.000]  to a debtor, and the debtor demands production of the original instrument, the creditor must
[09:34.000 --> 09:40.920]  make the original instrument available for inspection by the debtor.
[09:40.920 --> 09:46.720]  Otherwise, the debtor may see-saw payment without dishonor.
[09:46.720 --> 09:49.080]  I'll shut up now.
[09:49.080 --> 09:53.760]  No, that was an important point, that was an important point, and we're going to get
[09:53.760 --> 10:04.800]  to that because this memorandum opinion gives reference to the Texas Business Commerce Code,
[10:04.800 --> 10:11.720]  which is the equivalent of the federal UCC, pretty much, I mean, the language in the two
[10:11.720 --> 10:14.840]  don't vary by much at all.
[10:14.840 --> 10:21.840]  But the whole shebang here was that Santiago said, I want to see the note, and Mackie Wolf
[10:21.840 --> 10:25.120]  said, y'all come, we'll show you the note.
[10:25.120 --> 10:32.680]  They presented an instrument that was not even, it was a copy, okay, a copy.
[10:32.680 --> 10:38.200]  And it wasn't even certified.
[10:38.200 --> 10:41.320]  Claiming that was the original note, no, it's clearly not.
[10:41.320 --> 10:43.080]  It's a Xerox copy.
[10:43.080 --> 10:52.440]  What it was was a printout of an image that they had saved somewhere on a hard drive in
[10:52.440 --> 10:55.320]  the archives of their business.
[10:55.320 --> 11:01.760]  They printed it out, someone at Mackie Wolf, and said, here's the original instrument.
[11:01.760 --> 11:06.280]  Sorry, that's not the original instrument.
[11:06.280 --> 11:16.800]  What Santiago was claiming was that they presented that instrument, claiming it to be the original,
[11:16.800 --> 11:22.760]  and relying on Santiago to believe that it was the original.
[11:22.760 --> 11:25.600]  Whoops.
[11:25.600 --> 11:27.320]  Now let's get into this.
[11:27.320 --> 11:33.720]  Memorandum opinion, I'm sorry, let me back up.
[11:33.720 --> 11:40.920]  On appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court
[11:40.920 --> 11:46.200]  cause number, and you can go read some of the pleadings in the Trial Court, Trial Court
[11:46.200 --> 11:54.520]  cause number 296-01743-2013.
[11:54.520 --> 12:02.960]  Now memorandum opinion before Chief Justice Wright, that's WRIGHT, Justice Bridges, and
[12:02.960 --> 12:10.960]  Justice Richter, opinion by Justice Richter.
[12:10.960 --> 12:19.800]  Louise and Linda Santiago sued several entities involved in their home equity loan, and yes,
[12:19.800 --> 12:20.800]  this was a HELOC.
[12:20.800 --> 12:31.600]  It was not an original, but it would not matter if it was an original single mortgage or a
[12:31.600 --> 12:39.120]  REFI or a HELOC that is a home equity line of credit or a home equity loan.
[12:39.120 --> 12:43.520]  It wouldn't make any difference if somebody is presenting a copy of something saying,
[12:43.520 --> 12:45.600]  yeah, that's the original.
[12:45.600 --> 12:47.120]  That's the document that you signed.
[12:47.120 --> 12:48.120]  No, it's not.
[12:48.120 --> 12:53.760]  Anyway, we'll get to that.
[12:53.760 --> 13:01.000]  They were involved in, let's start over, Louise and Linda Santiago sued several entities involved
[13:01.000 --> 13:08.560]  in their home equity loan, and the law firm of Mackie Wolf, Zients and Mann, here after
[13:08.560 --> 13:16.000]  Mackie Wolf, after the Trial Court, granted the summary judgment in favor of Mackie Wolf
[13:16.000 --> 13:21.560]  on all of the Santiago's claims, and you're probably wondering what claims did Santiago
[13:21.560 --> 13:22.560]  have.
[13:22.560 --> 13:29.560]  We'll get to those in just a few minutes, but the Trial Court granted Mackie Wolf's
[13:29.560 --> 13:32.360]  motion to sever.
[13:32.360 --> 13:34.600]  We'll also get into that.
[13:34.600 --> 13:46.120]  In two issues, a pounce that is the Santiago's contend the Trial Court aired in granting
[13:46.120 --> 13:52.440]  Mackie Wolf's motion for summary judgment because, one, the Trial Court granted summary
[13:52.440 --> 14:02.600]  judgment on an unpled affirmative defense, and two, Mackie Wolf is not entitled to attorney
[14:02.600 --> 14:05.720]  immunity on this record.
[14:05.720 --> 14:13.680]  We agree that Mackie Wolf is not entitled to attorney immunity on this record, and reverse
[14:13.680 --> 14:21.360]  and remand the Trial Court's judgment pause.
[14:21.360 --> 14:30.720]  This was in regard to, as this paragraph stated, Mackie Wolf's motion for summary judgment.
[14:30.720 --> 14:31.960]  Motion for summary judgment.
[14:31.960 --> 14:33.200]  Let's go over that real quick.
[14:33.200 --> 14:35.160]  That is a dispositive pleading.
[14:35.160 --> 14:41.960]  That means it would dispose of a trial based on the evidence presented in the motion for
[14:41.960 --> 14:44.040]  summary judgment.
[14:44.040 --> 14:51.320]  Being a dispositive pleading, all the appellant or all the complainant would need would be
[14:51.320 --> 14:54.280]  what we call a centella of evidence.
[14:54.280 --> 14:57.720]  That's one thing to say, no, this needs to go to trial.
[14:57.720 --> 15:01.200]  It cannot be dismissed summarily.
[15:01.200 --> 15:11.400]  So, the motion for summary judgment was granted, however, Mackie Wolf was not entitled, as
[15:11.400 --> 15:18.960]  they say, and as the Court agreed, Mackie Wolf was not entitled to attorney immunity.
[15:18.960 --> 15:28.200]  Attorney immunity is something that an attorney enjoys, and this memorandum will get into
[15:28.200 --> 15:29.200]  this.
[15:29.200 --> 15:35.360]  And often the thing that an attorney will hide behind while breaking the law in the interest
[15:35.360 --> 15:40.280]  of pursuing and winning his client's case.
[15:40.280 --> 15:44.240]  You can't do that.
[15:44.240 --> 15:48.240]  Can't break the law and then say, hey, my client's entitled to something, and they do
[15:48.240 --> 15:49.840]  get into that.
[15:49.840 --> 15:55.760]  But to sever and remand.
[15:55.760 --> 15:58.280]  Okay.
[15:58.280 --> 16:06.520]  In the initial pleading, Santiago was making a lot of claims.
[16:06.520 --> 16:15.120]  Mackie Wolf wanted to sever these claims and argue them in a single or as a single issue
[16:15.120 --> 16:20.600]  outside, kind of like, almost like an inlocatory appeal, if you know what that is, an inlocatory
[16:20.600 --> 16:27.800]  appeal being an appeal that is on an issue or on a decision by a court prior to the rendering
[16:27.800 --> 16:29.800]  of a final judgment.
[16:29.800 --> 16:40.800]  So in the interim of this case, Santiago made several claims, Mackie Wolf wanted to sever
[16:40.800 --> 16:47.960]  those claims and fight them back into the state court as a standalone issue.
[16:47.960 --> 16:52.160]  We're going to leave the phones off for a little while.
[16:52.160 --> 16:54.720]  We'll get deeper into this when we come back, folks.
[16:54.720 --> 16:55.720]  Stay tuned.
[16:55.720 --> 16:56.720]  You're listening to Rural Law Radio.
[16:56.720 --> 17:00.800]  We'll be right back.
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[24:58.720 --> 25:10.720]  2. Intent that the document or other record be given the same legal effect as a court record
[25:10.720 --> 25:17.720]  or document of a court created by or established under the Constitution or the laws of this state
[25:17.720 --> 25:33.720]  or the United States or another entity listed in Section 37.01 of the Penal Code, uh-oh, now we're talking criminal.
[25:33.720 --> 25:47.720]  Okay. Evidence in that a valid lien or claim against real or personal property or an interest in real or personal property and three.
[25:47.720 --> 25:59.720]  Intent to cause another person to suffer. A. Physical injury. B. Financial injury. Or C. Mental anguish or emotional distress.
[25:59.720 --> 26:10.720]  Okay. Very quickly. Penal Code Chapter 37. Perjury or other falsifications.
[26:10.720 --> 26:16.720]  I like the sound of that. Read Point Zero One.
[26:16.720 --> 26:20.720]  Definitions.
[26:20.720 --> 26:23.720]  Okay. Point Zero One is all the definitions.
[26:23.720 --> 26:24.720]  Yes.
[26:24.720 --> 26:31.720]  Yeah, no need to go through that. So interstage left the criminal element.
[26:31.720 --> 26:41.720]  Okay. I guess we can stop right there because that is pretty much, and I'll read through this over the next break,
[26:41.720 --> 26:50.720]  but I don't think there's much more in here that you need to go on because the whole thing is based on what? Liability.
[26:50.720 --> 26:57.720]  Liability in all caps. Hold on. I suspect there was a typo.
[26:57.720 --> 27:12.720]  They put 37.01, and it should have been 37.10, tampered with a government document.
[27:12.720 --> 27:26.720]  Wait a minute. Okay. This is what I'm reading 37.01. Penal Code is straight from Section 12.002 of the CPRC.
[27:26.720 --> 27:33.720]  Then it's a typo because it should have been 37.10.
[27:33.720 --> 27:34.720]  Okay.
[27:34.720 --> 27:41.720]  It's going to fraudulent documents and 37.10 is tampered with a government document.
[27:41.720 --> 27:46.720]  We need to get that to our legislators and get them to fix that.
[27:46.720 --> 27:51.720]  Yes. Yes, yes, yes. Make a note.
[27:51.720 --> 27:56.720]  Make a note. Mack was on my forehead, so when I looked in the room, okay, I'm going to butt out now.
[27:56.720 --> 28:02.720]  Yeah. Do that in a Sharpie, indelible. You don't want that to wash off in the shower.
[28:02.720 --> 28:20.720]  Okay. So having knowledge, Mackie Wolf, that is, having knowledge that the document that they created and called the original would have been a fraudulent instrument because it is not the original.
[28:20.720 --> 28:37.720]  You cannot say that this Xerox copy or this printout of an electronic series of code, this representation is the original. It is not.
[28:37.720 --> 28:47.720]  In any way, shape, form, or fashion, it is not the original. So let's go back to, let's check our time first.
[28:47.720 --> 28:56.720]  Yeah, I've got a minute. Let's go back real quick to the memorandum opinion here.
[28:56.720 --> 29:07.720]  Eight days later, Mackie Wolf filed for a traditional motion for summary judgment on Santiago's conspiracy and defraud claim.
[29:07.720 --> 29:29.720]  In this motion, only one, the only ground asserted by Mackie Wolf that it was immune from liability for actions taken in its representation of Bonnie and Auckland in the foreclosure matter or in the foreclosure as a matter of law.
[29:29.720 --> 29:47.720]  Whoa. No, it's not a matter of law. They're going to this attorney immunity thing. We'll get right back on this when we come back from break.
[29:47.720 --> 30:00.720]  I won't give out the number yet because we're not going to take calls until Randy's through with the downrange perspective of Santiago V. Mackie.
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[33:18.720 --> 33:47.720]  Welcome back to Rule of Law Radio folks. We are going to leave the phones off until we've had the uprange and downrange perspective of Santiago Vista.
[33:47.720 --> 33:51.720]  Santiago Vista is a very, very important case.
[33:51.720 --> 34:01.720]  Anybody who has dealt with banks and even worse, banks attorneys needs this information.
[34:01.720 --> 34:07.720]  This will walk hand in hand with what Randy was discussing in last night's show.
[34:07.720 --> 34:17.720]  When you go to read the ethics code, what is it you say about reading the ethics code that it reads like a comic book?
[34:17.720 --> 34:19.720]  Oh yeah, lots of fun.
[34:19.720 --> 34:25.720]  Yeah, okay. Take last night's show and what Randy was recommending.
[34:25.720 --> 34:38.720]  Read the ethics code, not only the ABA but your states, your specific state rules or code of professional conduct.
[34:38.720 --> 34:55.720]  You will find so many rocks that you can throw at these guys and this case will ditch their sovereign immunity, ditch their attorney immunity if they break one law.
[34:55.720 --> 34:58.720]  All it takes is one.
[34:58.720 --> 35:08.720]  Okay. I'd written a note here in regard to the last paragraph that I read and I'm going to read that again. It would be too time consuming.
[35:08.720 --> 35:15.720]  But I would like for the listening audience to notice that Mackie Wolf was saying, hey, you can't sue us. We're immune.
[35:15.720 --> 35:23.720]  What did they not say? They did not say, hey, we didn't do that.
[35:23.720 --> 35:26.720]  We didn't do that.
[35:26.720 --> 35:29.720]  They didn't deny.
[35:29.720 --> 35:43.720]  That I think was a very, very crucial point that they did not deny having done anything unethical, immoral or illegal.
[35:43.720 --> 35:50.720]  They just said, oh yeah, well, okay. Well, the tacit implication is that yeah, we did it. So what? You can't sue us.
[35:50.720 --> 35:55.720]  We're immune. We've been vaccinated by the bar. Wrong. Sorry.
[35:55.720 --> 36:04.720]  Anywho, let's get back into this. Mackie Wolf contends bottom of page two beginning of the paragraph.
[36:04.720 --> 36:14.720]  Mackie Wolf contends all of the alleged actions it took were in the course of representing Bonnie and Awkwin in the foreclosure action.
[36:14.720 --> 36:30.720]  The cornerstone of Mackie Wolf's motion was the principle that an attorney is not liable to a third party pause, such as the appellants, the Santiago's, continue,
[36:30.720 --> 36:46.720]  for actions taking and advice given in representing a client. Importantly, Mackie Wolf did not allege no evidence grounds in its motion for summary judgment
[36:46.720 --> 37:01.720]  and did not address appellants' claims for negligent misrepresentation and violations of 12.002 of the Texas Civil Practice Remedies Code.
[37:01.720 --> 37:11.720]  Appellants responded, arguing that the attorney immunity does not apply to their claims after considering Mackie Wolf's...
[37:11.720 --> 37:19.720]  You're reading right from the opinion now, right? Right from the opinion, yes. Good, good, good.
[37:19.720 --> 37:29.720]  Yes, this is the court opinion. I am reading verbatim. Actually, I added a little bit there, the 12.002 period.
[37:29.720 --> 37:37.720]  I added the Texas Civil Practice and Remedies Code for clarification to get back verbatim.
[37:37.720 --> 37:47.720]  Appellants responded by arguing that the attorney immunity did not apply to their claims after considering Mackie Wolf's motion and appellants' response.
[37:47.720 --> 38:06.720]  The trial court granted Mackie Wolf's motion for summary judgment. Subsequently, the appellants' claims against Mackie Wolf were severed from the litigation, making the summary judgment final.
[38:06.720 --> 38:13.720]  The appellants' timely appeal. Now, let's go back over that right quick. There's a couple of key points here I'd like to cover.
[38:13.720 --> 38:29.720]  Let's go over that last one there. Upon severing that claim, it is the severance and remand of that one claim that made that summary judgment final.
[38:29.720 --> 38:42.720]  Okay, keep that in mind. Now, back here, appellants responded by arguing that the attorney immunity did not apply. Why?
[38:42.720 --> 39:09.720]  Well, let's go back up here and let's remember what should have been 37.01 of the Penal Code. Penal Code. This means that Mackie Wolf broke the law. They committed a criminal offense.
[39:09.720 --> 39:29.720]  So, the immunity, they left that behind as soon as they committed a criminal violation. They left their immunity way behind them. Now, they're liable for everything, everything that they've done.
[39:29.720 --> 39:47.720]  So, standard of review. Next section, standard of review. We review the trial. We review a trial court's decision to grant summary judgment de novo. That means new trial or de novo as new.
[39:47.720 --> 40:05.720]  The site's case law right there, too lengthy. The standard for, I'm going to go ahead and omit all the case sites in this just for sake of brevity, but the standard for reviewing a traditional motion for summary judgment is well established.
[40:05.720 --> 40:25.720]  To prevail, the movement must establish that no genuine issue of material fact exists and it is entitled to the judgment as a matter of law. Let's go back. Here goes that, here we come to that scintilla of evidence.
[40:25.720 --> 40:45.720]  There's actually that phrase, all you need is a scintilla of evidence does not exist in law. That is a summarization of what, pretty much what I just read, to prevail the movement that is whoever is filing the motion for summary judgment.
[40:45.720 --> 41:10.720]  Their burden is to establish that no genuine issue of material fact exists. If there is, if there does exist one genuine issue of material fact, then you are not entitled to summary judgment and you must go to trial on the merits.
[41:10.720 --> 41:29.720]  Okay. That's why that's important to pick back up in the memorandum opinion. When reviewing a summary judgment, we take as true all evidence favorable to the non-movement.
[41:29.720 --> 41:52.720]  We also, and that's important to remember too, the non-movement being the, the respondent to a motion for summary judgment, I'll call it MSJ. We also indulge every reasonable inference and resolve any doubts in the non-movements favor.
[41:52.720 --> 42:19.720]  Oh, isn't that lovely, Mr. Kelton? Works for me. Works for me too. There's your, there's your nutshelled scintilla of evidence. Okay. So this, the Mackie Wolf should have been denied their motion for summary judgment and should have allowed the trial court to, or the appellate court to move forward on Santiago's claims.
[42:19.720 --> 42:41.720]  So a defendant may prevail on summary judgment by disproving at least one element of each of the plaintiff's claims or conclusively establishing all elements of an affirmative defense to each claim.
[42:41.720 --> 43:10.720]  Now, let's go back over that again. Those are two essential elements to prevail on a summary judgment. A defendant may prevail on a, on summary judgment by disproving at least one element of each of the plaintiff's claims or conclusively establishing all elements of an affirmative defense to each claim.
[43:10.720 --> 43:23.720]  Now, what was Mackie Wolf's affirmative defense? No, you can't sue us. We're attorneys. We got this immunity thing going on here. You know what you can wipe with that, buddy. Okay.
[43:23.720 --> 43:49.720]  Summary judgment on the basis of an affidavit, I'm sorry, on the basis of an affirmative defense is proper when the defendant has conclusively proved each essential element. I hear the music of their defense as a matter of law, leaving no genuine issue of material fact remaining.
[43:49.720 --> 43:56.720]  I hope we're getting something out of this, folks. We'll be right back after this brief message you're listening to Rule of Law Radio. Stay tuned.
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[46:42.720 --> 47:07.720]  To rule of law radio folks, thank you for tuning in this Friday night. I know you've probably got a lot better things to do than listen to me harp on about boring stuff like kicking attorneys in their back sides.
[47:07.720 --> 47:26.720]  For those of you who have nothing better to do, I'm glad you tuned in. Okay, let's pick up where we left off here. Left off on page 4 of the memorandum opinion in Santiago V. Mackie, Texas appellate court case.
[47:26.720 --> 47:47.720]  Now, let's pick back up where we left off. If the defendant establishes an affirmative defense which would bar the suit as a matter of law, the plaintiff must then present evidence raising a fact issue in avoidance of the affirmative defense.
[47:47.720 --> 48:00.720]  For example, facts which bring the matter within the expectation of defense to the defendant's affirmative defense.
[48:00.720 --> 48:17.720]  Now, I'm omitting, again, omitting a lot of case law citations there. Applicable law. Let's just kind of glance over the highlights here in applicable law. Applicable law.
[48:17.720 --> 48:44.720]  Texas law authorizes, and this is important to understand within the confines of this case. And you'll find that for anybody that's been up against some of these criminal bar cards will understand the importance of the leverage that one can gain by suing the bank's attorneys,
[48:44.720 --> 49:05.720]  the guys that you'd set across the court from. Texas law authorizes attorneys to, quote, practice their profession to advise their clients and to interpose any defense or supposed defense without making themselves liable for damages.
[49:05.720 --> 49:33.720]  I will mention that this is from Krugel V. Murphy, Texas appellate out of Dallas, 1910. This doctrine is often called, quote, attorney immunity and, quote, the purpose behind the rule is to allow an attorney to fulfill his duty to zealously represent his client within the bounds of law
[49:33.720 --> 49:49.720]  by fully taking advantage of the client's rights and defenses without threat of liability. Let's go back and revisit that emphasized part within the bounds of law.
[49:49.720 --> 50:14.720]  Right there. That's where you cannot break the law in the pursuit of your client's claims, Mr. Barkard. Can't do it. So it recognizes that the public has an has an important interest in loyalty, quote, loyalty, faithful and aggressive representation by the legal profession,
[50:14.720 --> 50:34.720]  quote. And if an attorney could be held liable for for statements made or actions taken in the course of representing his client, he would be forced to balance his own potential, his own potential exposure against the client's best interest.
[50:34.720 --> 50:57.720]  Therefore, an attorney, and here's another quote, an attorney's conduct, even if frivolous or without merit is not actionable as long as the conduct was a part of the discharge of the lawyer's duties in representing his or her client.
[50:57.720 --> 51:18.720]  Okay, this is important to understand as well. The attorney's conduct, even if frivolous or without merit. Notice it doesn't say even if he breaks the law, that was covered to the contrary, just above in the same paragraph, when the court said within the bounds of law, wasn't it?
[51:18.720 --> 51:29.720]  Okay. However, a lawyer's protection from liability claims arising out of the representation of his client is not without limits.
[51:29.720 --> 51:48.720]  Texas courts have recognized exceptions to the attorney immunity defense based on an attorney's fraudulent or malicious conduct, even if the even if the attorney's conduct was in the course of representing his client.
[51:48.720 --> 51:59.720]  An attorney can be held liable by the third party for actions that are not a part of the discharge of the duties to his client.
[51:59.720 --> 52:26.720]  As such, attorneys acting on behalf of their clients are not shielded from liability for their fraudulent conduct because fraudulent acts are entirely, here's another quote, foreign to the duties of an attorney, and quote, foreign to the duties of an attorney.
[52:26.720 --> 52:49.720]  Furthermore, an attorney is also liable if he knowingly enters into a conspiracy to defraud the third party in the course of representing his client, Randy Kelton. How many people does it take to establish a conspiracy?
[52:49.720 --> 53:15.720]  Two. Two. Two or more. Two or more. Yeah. Two or two. That's all it takes. So if many rules. And a conspiracy does not have to be conclusively proven because a conspiracy by its very nature is hidden.
[53:15.720 --> 53:21.720]  Therefore, a conspiracy may be implied from the facts.
[53:21.720 --> 53:26.720]  There you go. That's good to know.
[53:26.720 --> 53:54.720]  Thus, if the only grounds for summary judgment is attorney immunity and the plaintiff alleges claims that could arguably involve fraudulent conduct, the trial court should deny a motion for summary judgment based on attorney immunity as to those claims.
[53:54.720 --> 53:59.720]  So discussion moving on to the next point.
[53:59.720 --> 54:17.720]  Here, Mackie Wolf moved for summary judgment asserting that the affirmative defense of attorney immunity. Appellants argued on appeal that the summary judgment was improper because one, it was granted on an unplayed affirmative defense.
[54:17.720 --> 54:37.720]  Folks, that means you've got to plead a defense. That means you've got to put it in writing and submit it to the court. That does not mean that you can bring it in later, even though you didn't write it into your pleading, because then it calls for facts not in evidence.
[54:37.720 --> 54:47.720]  Or it calls for ruling on facts not in evidence. You can't do that. The court cannot rule on something that has not been placed before the court.
[54:47.720 --> 55:08.720]  So we begin with appellants claims that the summary judgment was improper because Mackie Wolf failed to plead attorney immunity as an affirmative defense and appellants expressly objected. Mackie Wolf contends that any complaint was waived.
[55:08.720 --> 55:28.720]  And additionally, that they were not required to raise the defense because the appellants did not, because the appellants did so in their third amended petition.
[55:28.720 --> 55:35.720]  Generally, an affirmative defense is waived if it is not pleaded.
[55:35.720 --> 55:51.720]  No. Though not specifically mentioned in Rule 94, I take it they're referring to, yes, Texas Rules of Civil Procedure, Rule 94.
[55:51.720 --> 56:11.720]  Generally, affirmative defense is waived if not pleaded. Though not specifically mentioned in Rule 94, immunity is an affirmative defense that ordinarily must be pleaded to avoid waiver.
[56:11.720 --> 56:23.720]  However, the defense may be invoked on appeal if the plaintiff's pleadings put the defense at issue in the case.
[56:23.720 --> 56:41.720]  That means you got to raise it to begin with. Here, appellants pled the defendant Mackie Wolf.
[56:41.720 --> 56:55.720]  If it was against you came about in subsequent pleadings, then you didn't have an opportunity in your original answer to raise that.
[56:55.720 --> 57:00.720]  I wasn't sure what they met there, and that sounds like what they were going through.
[57:00.720 --> 57:07.720]  That is, that's locked up with my knowledge.
[57:07.720 --> 57:25.720]  So here appellants pled that the defendant Mackie Wolf is an attorney or as an attorney should have known that the commission of fraud would or could not afford them attorney immunity or privity.
[57:25.720 --> 57:40.720]  And I agree. What case was it, Randy, that screws? But there's another one that goes to screws. Screws is kind of specific to a law enforcement officer.
[57:40.720 --> 57:56.720]  However, there are other lawyers. Lawyers are construed as officers of the court and of all people who can't claim they didn't know.
[57:56.720 --> 58:09.720]  And what screws says is if a public official violates the ruling of this court and he be saying he may not be heard to say he knows not what he does.
[58:09.720 --> 58:14.720]  And a lawyer is a quasi-public official.
[58:14.720 --> 58:18.720]  And he learned counsel for crying out loud.
[58:18.720 --> 58:32.720]  Learned counsel. He went to law school. Daddy put up a bunch of money for Junior to learn all this stuff down there at Harvard or Yale or UT Austin.
[58:32.720 --> 58:37.720]  I don't care. Correspondence course doesn't matter.
[58:37.720 --> 58:44.720]  I was going to say Mackie sounds like Phoenix.
[58:44.720 --> 58:49.720]  Maybe. Maybe very well be. Or Cracker Jack.
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[59:58.720 --> 01:00:13.720]  This is The Liberty Beat, your daily source for Liberty News and activist updates online at thelibertybeat.com. I'm Brian Hagan with your Liberty Beat for Friday, October 17, 2014.
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[01:00:43.720 --> 01:00:52.720]  In the news, the United Nations High Commissioner for Human Rights has warned that extreme quarantine measures for Ebola patients could violate human rights and discourage reporting of the illness.
[01:00:52.720 --> 01:01:00.720]  Said Rayad Al Hussein said issuing criminal penalties for those who don't report is very likely to backfire by driving the epidemic underground.
[01:01:00.720 --> 01:01:07.720]  The statement came as President Obama issued an executive order that will allow the Pentagon to make use of reserve troops to tackle Ebola in Africa.
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[01:01:42.720 --> 01:01:52.720]  KXAN News is reporting the Georgetown man has not shown any symptoms of the virus, but has decided to separate himself from others, including his family.
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[01:02:45.720 --> 01:03:00.720]  This is the Liberty Beat for Friday, October 16, 2014. Check out the website at thelibertybeat.com and make sure you like us on Facebook. That's facebook.com slash the Liberty Beat.
[01:03:00.720 --> 01:03:20.720]  Welcome back to Rule All Radio, folks. Thanks for staying tuned tonight. We are at the top of the second hour, and I'm just going to pick up where I left off.
[01:03:20.720 --> 01:03:34.720]  For those of you just tuning in, we'll encourage you to go get this archive and look up these documents on the internet. We're going over why it's okay to sue the lawyers for the other side.
[01:03:34.720 --> 01:03:43.720]  This is Santiago V. Mackie-Wolf out of the appellate courts in Texas, Dallas.
[01:03:43.720 --> 01:03:50.720]  And when Steve is done, I'm going to discuss the entertainment factor.
[01:03:50.720 --> 01:04:04.720]  I like that, the entertainment factor. Yeah, this is where it'll get fun. This has got long-range implications, folks, and I really do appreciate everybody tuning in tonight.
[01:04:04.720 --> 01:04:13.720]  We are going to leave the phones off until both Randy and I are done. I don't have too much. I may take up another two segments unless I keep talking about how much time I'm going to take up.
[01:04:13.720 --> 01:04:22.720]  So with no further ado, let me find where I was. I was further down.
[01:04:22.720 --> 01:04:27.720]  At the end of the last segment, you were falling off the cliff.
[01:04:27.720 --> 01:04:37.720]  I was. I was. I can't remember what my last words were, but yeah, once I heard the beep, I thought, okay, just don't say anything else.
[01:04:37.720 --> 01:04:43.720]  But anyway, yes, I did kind of tiptoe off the edge of the cliff there. Anyway, glad you're back.
[01:04:43.720 --> 01:04:47.720]  And yeah, we landed on our feet, I think, maybe. Who knows.
[01:04:47.720 --> 01:05:04.720]  Anyway, to pick up where we're left off, an attorney in performing its duties to a client cannot either produce or present a counterfeit note to a third party claiming it is an original, then claim attorney immunity.
[01:05:04.720 --> 01:05:09.720]  That's a quote and quote from some case.
[01:05:09.720 --> 01:05:35.720]  Anyway, looking at the third amended petition, we find Mackie Wolf may invoke an affirmative defense of attorney immunity on appeal because appellants petition because appellants petition put the defense of attorney immunity at issue in the case.
[01:05:35.720 --> 01:05:42.720]  We overrule appellants first point of error.
[01:05:42.720 --> 01:05:45.720]  In the third.
[01:05:45.720 --> 01:05:57.720]  Yeah, sorry. In their second issue, appellants contend that the trial court aired and granting the summary judgment in favor of Mackie Wolf on their conspiracy to defraud.
[01:05:57.720 --> 01:06:10.720]  Negligent misrepresentation and statutory violation statutory violation claims based on the attorney immunity attorney immunity defense. Try to say that three times real fast.
[01:06:10.720 --> 01:06:24.720]  Appellants argue that the attorney immunity does not apply because they have alleged claims against Mackie Wolf, which are exceptions to the affirmative defense of attorney immunity.
[01:06:24.720 --> 01:06:32.720]  We start with appellants conspiracy to commit fraud claim of parents appellants.
[01:06:32.720 --> 01:06:48.720]  Third amended petition, which was the live petition at time at the time Mackie Wolf filed for summary judgment, included a conspiracy to defraud cause a cause of action against Mackie Wolf.
[01:06:48.720 --> 01:07:08.720]  In their traditional motion for summary judgment, the sole ground for Mackie Wolf argues the sole ground Mackie Wolf argues is that it is immune from suit under the doctrine of attorney immunity with regard to the claims because any alleged conduct arose from the
[01:07:08.720 --> 01:07:34.720]  representation of Bonnie and Awkwin in the foreclosure action on appeal. Appellants argue courts have recognized exceptions to Mackie Wolf's argument that attorneys have absolute immunity for actions taken during the representation of a client when an attorney
[01:07:34.720 --> 01:07:47.720]  participates in a fraudulent act act act in fraudulent activities that are quote foreign to the duties of an attorney and quote.
[01:07:47.720 --> 01:08:14.720]  We're consistent with our decision in Yoles and the court cited Yoles, I'm sorry, TOLES, is a case that was cited above that I omitted. We agree that attorneys can be held liable for fraudulent conduct such that attorney immunity does not apply to fraud or conspiracy to defraud claims.
[01:08:14.720 --> 01:08:29.720]  See, TOLES, blah, blah, blah, blah, blah, because of the summary judgment standard of review, we are not concerned with whether the appellants proved or provided evidence of their allegations.
[01:08:29.720 --> 01:08:57.720]  Instead, we must address whether Mackie Wolf is immune as a matter of law for its actions as alleged by appellants. Such alleged actions, if true, would not shield an attorney from liability simply because he or she undertook those actions in the course of representing a client.
[01:08:57.720 --> 01:09:02.720]  Where does it pick up here?
[01:09:02.720 --> 01:09:28.720]  Okay, this is kind of important. See, TOLES, holding that summary judgment by defendant attorneys that they could not be liable because their actions were taken during representation of a client was not sufficient to support summary judgment on claims for aiding and abetting breach of contract, I'm sorry, breach of fiduciary duty and conspiracy.
[01:09:28.720 --> 01:09:44.720]  Okay, in their motion, Mackie Wolf simply argued that the attorney is not liable to an adverse party under any cause of action for any conduct undertaken as an attorney representing a client.
[01:09:44.720 --> 01:10:09.720]  What hogwash? The court didn't say that I did. As this argument does not, as a matter of law, defeat a claim based on fraudulent conduct, Mackie Wolf did not show that they were not liable on appellants' claims that they conspired to commit fraud with Bonnie and Awkwin as a matter of law.
[01:10:09.720 --> 01:10:18.720]  Thus, the trial court should not have granted the summary judgment on the claim for that reason.
[01:10:18.720 --> 01:10:42.720]  We conclude, that being the three appellate judges, we conclude that the trial court did error in granting summary judgment for Mackie Wolf as to the appellant's conspiracy to defraud claim. Oh, baby, there you go.
[01:10:42.720 --> 01:10:48.720]  I think, in summation, that would be called the whole enchilada.
[01:10:48.720 --> 01:10:55.720]  Yes, sir. Yes, sir. That's what I've been waiting to get to right there.
[01:10:55.720 --> 01:10:57.720]  Santiago won it all.
[01:10:57.720 --> 01:11:01.720]  Right there. Right there.
[01:11:01.720 --> 01:11:17.720]  Now, I think I can finish this up real quick. Appellant's third amended petition also included claims of negligent misrepresentation and violations of section 12.002 of the Texas Civil Practice Remedies Code against Mackie Wolf.
[01:11:17.720 --> 01:11:41.720]  In its brief, Mackie Wolf argues that attorney immunity also bars appellant's claims for negligent misrepresentation and violations of section 12.002. However, although briefed on appeal, Mackie Wolf did not address the causes of action in their motion for summary judgment.
[01:11:41.720 --> 01:11:57.720]  A defendant cannot obtain, let me say it again, a defendant cannot obtain a summary judgment on cause of action, not addressed in its motion for summary judgment.
[01:11:57.720 --> 01:12:15.720]  Duh. Okay, we cannot affirm a summary judgment on, let me scroll down, on any ground not raised in the motion for summary judgment.
[01:12:15.720 --> 01:12:30.720]  More blah, blah, blah. Accordingly, we conclude that the trial court erred in granting summary judgment for Mackie Wolf on appellant's negligent misrepresentation and violations of 12.002 claims.
[01:12:30.720 --> 01:12:33.720]  There's another, there you go.
[01:12:33.720 --> 01:12:38.720]  We resolve appellant's second issue in their favor.
[01:12:38.720 --> 01:13:04.720]  Yahoo! Summary judgment was not proper as to appellant's causes of action against Mackie Wolf for conspiracy to defraud negligent misrepresentation and violations of section 12.002 of the Texas Civil Practice and Remedies Code.
[01:13:04.720 --> 01:13:13.720]  We reverse the trial court's judgment as to these claims and remand for further proceedings.
[01:13:13.720 --> 01:13:23.720]  Signed yours truly, Martin Richter, I think. Martin Richter justice assigned. The end.
[01:13:23.720 --> 01:13:28.720]  Well, they also granted them costs and fees.
[01:13:28.720 --> 01:13:31.720]  Yes. Do you want to get into that, the judgment?
[01:13:31.720 --> 01:13:34.720]  No. It's real brief.
[01:13:34.720 --> 01:13:35.720]  Okay, go ahead.
[01:13:35.720 --> 01:13:45.720]  In accordance with this court's opinion of this date, the judgment of the, the judgment of the trial court is reversed.
[01:13:45.720 --> 01:13:53.720]  This cause is remanded to the trial court for further proceedings consistent with this opinion.
[01:13:53.720 --> 01:14:11.720]  Last paragraph. It is ordered that appellant's Louise Santiago and Linda A. Santiago recover their costs of this appeal for the appellant's, from the appellant's Mackie Wolf, Zients and Mann.
[01:14:11.720 --> 01:14:24.720]  That means that these guys had to pay Santiago's legal fees or bill out. That was a good ruling.
[01:14:24.720 --> 01:14:36.720]  And let me, let me, let me caveat this. Folks, this reedifies what we've been saying for a long time.
[01:14:36.720 --> 01:14:52.720]  Do not expect to prevail at the trial court level. The trial court is there only as a place for you to leave a footprint on your way to appeal.
[01:14:52.720 --> 01:14:56.720]  I cannot stress that enough.
[01:14:56.720 --> 01:15:19.720]  Anytime you go to court, particularly against a banking institution, expect and prepare for appeal every time, every step of the way, whether it be an appeal, post judgment, or an interlocatory appeal.
[01:15:19.720 --> 01:15:22.720]  Prepare for appeal.
[01:15:22.720 --> 01:15:27.720]  Always expect the judge to rule against you out of hand at every turn.
[01:15:27.720 --> 01:15:30.720]  At every turn.
[01:15:30.720 --> 01:15:35.720]  If he doesn't, wonderful. But if he does, you're ready.
[01:15:35.720 --> 01:15:37.720]  Yes.
[01:15:37.720 --> 01:15:55.720]  Well, I can't say every time I want to say every time because that's what history shows. But history also shows that there are some pro says there are some debtors that do prevail at the trial court.
[01:15:55.720 --> 01:16:00.720]  There are some who prevail even before an issue gets to trial.
[01:16:00.720 --> 01:16:04.720]  But they are very, very rare cases.
[01:16:04.720 --> 01:16:12.720]  And let me qualify. I'm not in this saying that the judge will rule against you out of hand at every turn.
[01:16:12.720 --> 01:16:16.720]  I'm saying you should prepare for that.
[01:16:16.720 --> 01:16:17.720]  Absolutely.
[01:16:17.720 --> 01:16:25.720]  If he rules in your favor, wonderful. But if he doesn't, you're not at a loss. You're already prepared.
[01:16:25.720 --> 01:16:37.720]  Yes. So that's your incentive to draft your pleadings, put your evidence on the record in preparation for appeal.
[01:16:37.720 --> 01:16:50.720]  Just write everything as if it were already, it's a given that it's going to the appellate court, whether it be a trial to Novo from the new trial from the justice or going to your state court Supreme Court.
[01:16:50.720 --> 01:16:59.720]  We'll be right back after these brief messages you're listening to rule the law radio. We'll get with Randy's long range view right after this.
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[01:19:24.720 --> 01:19:28.720]  Well,
[01:19:28.720 --> 01:19:35.720]  Ain't gonna fool me with that same old trick again.
[01:19:35.720 --> 01:19:40.720]  I was blindsided, but now I can see your land.
[01:19:40.720 --> 01:19:46.720]  You put the fear in my pockets, took the money from my hand.
[01:19:46.720 --> 01:19:55.720]  Ain't gonna fool me with that same old trick again.
[01:19:55.720 --> 01:20:07.720]  Ain't gonna fool me.
[01:20:07.720 --> 01:20:09.720]  Welcome back to Rural Law Radio, folks.
[01:20:09.720 --> 01:20:13.720]  Thank you for staying tuned on this beautiful Friday night.
[01:20:13.720 --> 01:20:17.720]  I know the bugs are out there, but I'll tell you what.
[01:20:17.720 --> 01:20:20.720]  If there's ever a time to go camping, this is it.
[01:20:20.720 --> 01:20:23.720]  So, no further ado.
[01:20:23.720 --> 01:20:34.720]  Now that we have taken an uprange view of Mackie Wolf, of Santiago v. Mackie Wolf,
[01:20:34.720 --> 01:20:37.720]  let's go to Randy and get the political ramifications,
[01:20:37.720 --> 01:20:43.720]  the downrange view of this Randy.
[01:20:43.720 --> 01:20:44.720]  Okay, when...
[01:20:44.720 --> 01:20:46.720]  This is gonna cost him.
[01:20:46.720 --> 01:20:49.720]  Oh, this is gonna cost him big time.
[01:20:49.720 --> 01:20:57.720]  When Steve first brought this up, I was absolutely thrilled
[01:20:57.720 --> 01:21:07.720]  because we're dealing with these foreclosure mill attorneys who are making an absolute fortune at all of our misery.
[01:21:07.720 --> 01:21:16.720]  And they come into court with just absolute garbage documentation, and the banks don't care.
[01:21:16.720 --> 01:21:21.720]  The banks appear to have pretty well bought and paid for the judges.
[01:21:21.720 --> 01:21:26.720]  I was gonna say, for the most part, the courts don't care either because they're bought out.
[01:21:26.720 --> 01:21:34.720]  Yeah, these big banks have a lot of not only money to push around in campaigns,
[01:21:34.720 --> 01:21:41.720]  but also a lot of political clout because of the guys higher up that they've helped buy into office.
[01:21:41.720 --> 01:21:45.720]  I know that sounds cynical, but that's just experience.
[01:21:45.720 --> 01:21:50.720]  The only ones who trust the courts are the ones that's never had anything to do with them.
[01:21:50.720 --> 01:21:55.720]  And that's not to say there are not some honest judges out there,
[01:21:55.720 --> 01:22:00.720]  but even the honest judges are subject to the political pressures.
[01:22:00.720 --> 01:22:03.720]  Nobody can get away from it.
[01:22:03.720 --> 01:22:07.720]  Okay, we don't like it. We gripe and complain about it.
[01:22:07.720 --> 01:22:13.720]  But in the end, it's there. It's always been there. It's not gonna go away.
[01:22:13.720 --> 01:22:19.720]  So let's figure out how to understand it and how to use it.
[01:22:19.720 --> 01:22:25.720]  What this ruling did was change everything.
[01:22:25.720 --> 01:22:30.720]  You know, we get on here and we warn proceeds.
[01:22:30.720 --> 01:22:39.720]  Be careful about the pleadings that you filed because you could get us some really, really bad law passed.
[01:22:39.720 --> 01:22:46.720]  And we've had proceeds get bad law passed or bad case law passed.
[01:22:46.720 --> 01:22:53.720]  That's exactly what Mackie did to the foreclosure meals.
[01:22:53.720 --> 01:22:56.720]  He may have cut their throats.
[01:22:56.720 --> 01:23:04.720]  And I'm almost certain that Mackie is not the one who prepared and filed this document.
[01:23:04.720 --> 01:23:06.720]  It's one of his lawyers.
[01:23:06.720 --> 01:23:08.720]  When's document?
[01:23:08.720 --> 01:23:15.720]  The response to the suit and the summary judgment motion.
[01:23:15.720 --> 01:23:17.720]  Got you.
[01:23:17.720 --> 01:23:30.720]  These were so inept. It's incredible that Mackie did not argue in the alternative.
[01:23:30.720 --> 01:23:33.720]  You always argue in the alternative.
[01:23:33.720 --> 01:23:37.720]  You have to or you build a losing case if you don't.
[01:23:37.720 --> 01:23:45.720]  It's like what we're saying about always prepare, expect the judge to rule against you.
[01:23:45.720 --> 01:23:54.720]  So you lay out all of the issues that you can and you argue the first one and then in the alternative, you argue the second one, in the alternative, the third.
[01:23:54.720 --> 01:24:04.720]  So had Mackie's lawyers give the court something they could exercise discretion on,
[01:24:04.720 --> 01:24:08.720]  they probably could have skated by this one.
[01:24:08.720 --> 01:24:12.720]  The court of appeals, they're pretty well bought and paid for as well.
[01:24:12.720 --> 01:24:23.720]  But these guys shot themselves in the foot and didn't leave the court of appeals in the wiggle room.
[01:24:23.720 --> 01:24:33.720]  They argued that we have immune immunity even when we commit crimes for our clients.
[01:24:33.720 --> 01:24:37.720]  How on earth can a court approve that?
[01:24:37.720 --> 01:24:41.720]  Now the district court thought it was just fine.
[01:24:41.720 --> 01:24:46.720]  As far as he's concerned, they could come into his court and present fraudulent documents.
[01:24:46.720 --> 01:24:48.720]  He did not care.
[01:24:48.720 --> 01:24:50.720]  And he's a Dallas judge.
[01:24:50.720 --> 01:24:55.720]  When it comes times for elections, we sure would be working on him.
[01:24:55.720 --> 01:24:57.720]  But he didn't care.
[01:24:57.720 --> 01:25:00.720]  But when it gets up to the court of appeals,
[01:25:00.720 --> 01:25:04.720]  their decisions can be cited by other lawyers.
[01:25:04.720 --> 01:25:07.720]  So what are they going to do?
[01:25:07.720 --> 01:25:13.720]  They're going to say, oh yeah, it's okay for lawyers to present fraudulent documents.
[01:25:13.720 --> 01:25:17.720]  Then the whole system crumbles around them.
[01:25:17.720 --> 01:25:20.720]  Then why have laws against it?
[01:25:20.720 --> 01:25:25.720]  Why have laws against law?
[01:25:25.720 --> 01:25:26.720]  Exactly.
[01:25:26.720 --> 01:25:28.720]  It's against the law.
[01:25:28.720 --> 01:25:34.720]  If you do anything you want to, look at the appeals court.
[01:25:34.720 --> 01:25:39.720]  Even if they're bought and paid for and they want to rule in Mackie's favor,
[01:25:39.720 --> 01:25:43.720]  they understand this is a pool full of sharks.
[01:25:43.720 --> 01:25:48.720]  And they're going to grab any leverage they can.
[01:25:48.720 --> 01:25:57.720]  If we pass this case law, we will undermine everything.
[01:25:57.720 --> 01:26:01.720]  This will create one incredible mess.
[01:26:01.720 --> 01:26:06.720]  And the courts would completely lose all credibility.
[01:26:06.720 --> 01:26:13.720]  Mackie left the court of appeals no way to rule in their favor.
[01:26:13.720 --> 01:26:18.720]  That's why I look at this and say, how dumb can these guys get?
[01:26:18.720 --> 01:26:20.720]  Great dumb.
[01:26:20.720 --> 01:26:27.720]  Did they not consider that the courts are going to rule against them out of hand at their return?
[01:26:27.720 --> 01:26:30.720]  Where did you go to law school guys?
[01:26:30.720 --> 01:26:33.720]  Anyway, they made a mess for the lawyers.
[01:26:33.720 --> 01:26:44.720]  Now, if you've been foreclosed on, go to the county recorder and pull those documents.
[01:26:44.720 --> 01:26:51.720]  And it doesn't take a rocket scientist to look at those documents and find the problems with.
[01:26:51.720 --> 01:26:57.720]  Now, here's the problem the foreclosure bills have.
[01:26:57.720 --> 01:27:00.720]  They make their money by doing these foreclosures.
[01:27:00.720 --> 01:27:07.720]  The bank comes to them and gives them a property to foreclose on.
[01:27:07.720 --> 01:27:22.720]  Well, under law, any documentation filed with the county recorder concerning claims against this property are in the public record.
[01:27:22.720 --> 01:27:29.720]  And everybody has imputed knowledge of everything that's in the record.
[01:27:29.720 --> 01:27:42.720]  I was in a court in Collin County and it was a Washington Mutual note that J.P. Morgan Chase picked up.
[01:27:42.720 --> 01:27:51.720]  And I told the court, your honor, I have a warranty deed on this property and a quick claim deed and J.P. Morgan has nothing.
[01:27:51.720 --> 01:28:00.720]  And the lawyer said, well, your honor, everybody knows that J.P. Morgan picked up all of the assets of Washington Mutual.
[01:28:00.720 --> 01:28:09.720]  Well, your honor, I don't know that and you don't know that because that's not before this court.
[01:28:09.720 --> 01:28:13.720]  What's before this court is a warranty deed in my name.
[01:28:13.720 --> 01:28:23.720]  And the judge said, well, Mr. Kelton, this is like August, Mr. Kelton, how long has that warranty deed been there since March?
[01:28:23.720 --> 01:28:27.720]  And the lawyer said, well, your honor, that warranty deed is fraudulent.
[01:28:27.720 --> 01:28:30.720]  I said, yeah, well, maybe it is.
[01:28:30.720 --> 01:28:34.720]  But it's in the record and it hasn't been challenged.
[01:28:34.720 --> 01:28:39.720]  So you may not construe it as fraudulent.
[01:28:39.720 --> 01:28:47.720]  And then he said, well, your honor, my client buys a lot of properties and they don't have time to go through the records on every one of them.
[01:28:47.720 --> 01:28:54.720]  And the judge leaned over the bench and said, what did you say?
[01:28:54.720 --> 01:28:57.720]  Yeah, I saw that one coming.
[01:28:57.720 --> 01:29:00.720]  Did you really say that to me?
[01:29:00.720 --> 01:29:03.720]  You moron?
[01:29:03.720 --> 01:29:20.720]  But what they've done now is create a situation to where if the lawyer subsequently tries to foreclose on one of these cases and there's something wrong with the documentation in the public record,
[01:29:20.720 --> 01:29:24.720]  now I can come back and sue the lawyer.
[01:29:24.720 --> 01:29:28.720]  So now the lawyer is in a spot.
[01:29:28.720 --> 01:29:35.720]  I sue him. He gets two suits against him. He's going to lose his malpractice insurance.
[01:29:35.720 --> 01:29:42.720]  And he's likely to be sued for stuff that's already passed and gone.
[01:29:42.720 --> 01:29:46.720]  If he has malpractice insurance, a lot of times they don't.
[01:29:46.720 --> 01:29:47.720]  Exactly.
[01:29:47.720 --> 01:29:50.720]  That means he comes out of his behind.
[01:29:50.720 --> 01:29:59.720]  Randy Kelton, Steve's Kidmore, Rural Law Radio. I'm going to open the phones in the next segment, so we'll be right back.
[01:29:59.720 --> 01:30:07.720]  Fishing is a wonderful pastime. It's a terrific way to bond with family and get in touch with nature.
[01:30:07.720 --> 01:30:11.720]  But there's a scary kind of fishing you'll want nothing to do with.
[01:30:11.720 --> 01:30:14.720]  I'm Dr. Catherine Albrecht and I'll tell you more in just a moment.
[01:30:14.720 --> 01:30:20.720]  Privacy is under attack. When you give up data about yourself, you'll never get it back again.
[01:30:20.720 --> 01:30:25.720]  And once your privacy is gone, you'll find your freedoms will start to vanish too.
[01:30:25.720 --> 01:30:30.720]  So protect your rights. Say no to surveillance and keep your information to yourself.
[01:30:30.720 --> 01:30:33.720]  Privacy, it's worth hanging on to.
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[01:30:43.720 --> 01:30:46.720]  Fishing spelled with a pH isn't very sporting.
[01:30:46.720 --> 01:30:50.720]  The goal is to reel in personal information and compromise your accounts.
[01:30:50.720 --> 01:30:53.720]  The pH in fishing stands for phony.
[01:30:53.720 --> 01:30:59.720]  Fishing scams involve impersonating legitimate organizations like banks and the bait is usually a phony email.
[01:30:59.720 --> 01:31:05.720]  A fishing email may ask for account information or provide a link to an official looking website, but don't fall for it.
[01:31:05.720 --> 01:31:09.720]  Never email your bank account number, your user ID or passwords.
[01:31:09.720 --> 01:31:17.720]  Legitimate companies won't ask you to, and it's best to enter a website address directly rather than clicking on an email link to check an account or make a purchase.
[01:31:17.720 --> 01:31:21.720]  Accidentally typing data into a fishing website could cost you thousands.
[01:31:21.720 --> 01:31:27.720]  I'm Dr. Catherine Albrecht. More news and information at CatherineAlbrecht.com.
[01:31:30.720 --> 01:31:35.720]  This is Building 7, a 47-story skyscraper that fell on the afternoon of September 11.
[01:31:35.720 --> 01:31:37.720]  The government says that fire brought it down.
[01:31:37.720 --> 01:31:42.720]  However, 1,500 architects and engineers have concluded it was a controlled demolition.
[01:31:42.720 --> 01:31:45.720]  Over 6,000 of my fellow service members have given their lives.
[01:31:45.720 --> 01:31:48.720]  Thousands of my fellow force responders have died.
[01:31:48.720 --> 01:31:49.720]  I'm not a conspiracy theorist.
[01:31:49.720 --> 01:31:50.720]  I'm a structural engineer.
[01:31:50.720 --> 01:31:52.720]  I'm a New York City correction officer.
[01:31:52.720 --> 01:31:53.720]  I'm an Air Force pilot.
[01:31:53.720 --> 01:31:54.720]  I'm the father who lost his son.
[01:31:54.720 --> 01:31:57.720]  We are Americans, and we deserve the truth.
[01:31:57.720 --> 01:32:00.720]  Go to RememberBuilding7.org today.
[01:32:00.720 --> 01:32:04.720]  After work, I'm so tired that I want to be left alone to sleep.
[01:32:04.720 --> 01:32:06.720]  Hey, listen to me!
[01:32:06.720 --> 01:32:07.720]  Who are you?
[01:32:07.720 --> 01:32:11.720]  I knew years ago when you felt healthy and young and everything worked on your body.
[01:32:11.720 --> 01:32:12.720]  Do you remember that?
[01:32:12.720 --> 01:32:14.720]  Yes, I wish I felt like that now.
[01:32:14.720 --> 01:32:19.720]  You can feel like that again with a new micro plant powder formulation called iodine now.
[01:32:19.720 --> 01:32:24.720]  It cleans the entire body from head to toe and feeds the body what it really needs.
[01:32:24.720 --> 01:32:27.720]  You'll be in a better mood and you'll find more drive in your romantic life.
[01:32:27.720 --> 01:32:28.720]  Really?
[01:32:28.720 --> 01:32:31.720]  I gotta try iodine now and feel good again.
[01:32:31.720 --> 01:32:37.720]  It also protects you from radiation, heavy metals, fluoride, chlorine and bromine including cancer and most major diseases.
[01:32:37.720 --> 01:32:38.720]  You'll be amazed.
[01:32:38.720 --> 01:32:40.720]  You can be your own doctor.
[01:32:40.720 --> 01:32:43.720]  I want to keep you out of the hospital and off pharmaceuticals.
[01:32:43.720 --> 01:32:45.720]  Wow, why are you so nice to me?
[01:32:45.720 --> 01:33:11.720]  Because I'm you, you're out of shape and I need a better looking future.
[01:33:11.720 --> 01:33:19.720]  Okay, we are back.
[01:33:19.720 --> 01:33:22.720]  Randy Kelton, Steve Skidmore, Ruev Law Radio.
[01:33:22.720 --> 01:33:25.720]  What was it you were saying before we came back in?
[01:33:25.720 --> 01:33:27.720]  Hold on, I'm waiting on my blot.
[01:33:27.720 --> 01:33:29.720]  Yeah, we were.
[01:33:29.720 --> 01:33:34.720]  I was talking to my producer and he had already hit the button.
[01:33:34.720 --> 01:33:38.720]  Okay, but I stumbled up the cliff this time.
[01:33:38.720 --> 01:33:40.720]  You stumbled on to the cliff?
[01:33:40.720 --> 01:33:44.720]  Yeah, we're talking about the politics.
[01:33:44.720 --> 01:33:58.720]  Now we have the lawyers in a position to where for the last seven or eight years they've been prosecuting these foreclosures with faulty documentation.
[01:33:58.720 --> 01:34:06.720]  And the problem is, is they have imputed knowledge of all the documents in the public record.
[01:34:06.720 --> 01:34:21.720]  They can't come to the court and say they did not have knowledge that the documentation on which they performed the foreclosure or prosecuted the foreclosure was not fraudulent because they have imputed knowledge of everything that's in there.
[01:34:21.720 --> 01:34:35.720]  And when I do an evaluation of the documentation in the public record, the fraud is the problems with the documentation is really, really easy to find for the most part.
[01:34:35.720 --> 01:34:41.720]  Now, I have a bunch of really subtle stuff that I look for that's been doing this a long time.
[01:34:41.720 --> 01:34:44.720]  But for the most part, I never get to that.
[01:34:44.720 --> 01:34:47.720]  I never need to get to that.
[01:34:47.720 --> 01:34:53.720]  I look in the record and I find all of these assignments.
[01:34:53.720 --> 01:35:00.720]  Assignments by MERS to a third party of the security instrument.
[01:35:00.720 --> 01:35:15.720]  But the problem is, is the original lender objection your honor, he was not a party to that transaction therefore has no standing to argue any issues of the assignment.
[01:35:15.720 --> 01:35:20.720]  I can get there really easy.
[01:35:20.720 --> 01:35:44.720]  What I do is file a quiet title action against the security instrument and maintained that the holder of the security instrument prior to transferring his claim to any other party ceased to exist and thereby abandoned the claim.
[01:35:44.720 --> 01:35:51.720]  And MERS is going to come running in and say, oh, no, no, no, no, no, we have this assignment.
[01:35:51.720 --> 01:35:55.720]  And I perform the assignment as an agent for MERS.
[01:35:55.720 --> 01:36:01.720]  Now they have presented this document to the court as evidence of their standing.
[01:36:01.720 --> 01:36:11.720]  Now I can challenge the validity of the document and sue the lawyer for filing it or presenting it.
[01:36:11.720 --> 01:36:13.720]  That's their problem.
[01:36:13.720 --> 01:36:19.720]  Now I can go after the lawyer, essentially with impunity.
[01:36:19.720 --> 01:36:27.720]  So the lawyers now they're not getting a free ride and they've been getting a free ride.
[01:36:27.720 --> 01:36:32.720]  The courts have pretty well been protecting them.
[01:36:32.720 --> 01:36:40.720]  But there's something we know and everyone who's listening to us knows is the lawyer has a weakness.
[01:36:40.720 --> 01:36:43.720]  He has a bar card.
[01:36:43.720 --> 01:36:47.720]  He has a bar card, civil litigation.
[01:36:47.720 --> 01:36:59.720]  If you sue a lawyer and get a claim against it and he can't pay the claim, that could well get his bar card jerked.
[01:36:59.720 --> 01:37:02.720]  He has to be responsible.
[01:37:02.720 --> 01:37:15.720]  That's why a lot of attorneys carry E&O insurance, malpractice insurance, a lot of this is available in many, many, many cases.
[01:37:15.720 --> 01:37:22.720]  Due to the cost of this insurance, a lot of attorneys don't get it.
[01:37:22.720 --> 01:37:31.720]  That means when they do get a judgment against them, goodbye house, goodbye boat, goodbye fancy car.
[01:37:31.720 --> 01:37:47.720]  Oh, mom's going back to her mom, your wife's going back to her mom with the kids because she just realized that she married a doorknob that's not capable of providing her with the lifestyle that she had recently become accustomed to.
[01:37:47.720 --> 01:37:49.720]  So guess what?
[01:37:49.720 --> 01:37:53.720]  Oh, and you're going to look real good in an orange jumpsuit too.
[01:37:53.720 --> 01:37:56.720]  Meet your new roommate, Bubba.
[01:37:56.720 --> 01:38:02.720]  Bubba likes these soft little boys like you.
[01:38:02.720 --> 01:38:18.720]  So where I'm going here is if you've been foreclosed on or if you're looking at foreclosure, go to the county record and take a close look at the documentation.
[01:38:18.720 --> 01:38:24.720]  See if there is an assignment of the security instrument by a lender who's already out of business.
[01:38:24.720 --> 01:38:39.720]  See if there is a appointment of substitute trustee by someone who is not named in the record as having authority to make a claim against the property.
[01:38:39.720 --> 01:38:49.720]  Well, while I'm talking, Steve, will you pull up Texas government code 51901C?
[01:38:49.720 --> 01:38:51.720]  Well, 901C.
[01:38:51.720 --> 01:39:06.720]  This is an important code because it defines what a fraudulent document is from the perspective of documents filed in the public record.
[01:39:06.720 --> 01:39:20.720]  So this particular application of the term fraudulent is not the same as it would be used in making a claim of fraud.
[01:39:20.720 --> 01:39:29.720]  In making a claim of fraud, you have to claim all of the elements and then provide evidence to establish all of the elements.
[01:39:29.720 --> 01:39:32.720]  This particular definition is different.
[01:39:32.720 --> 01:39:36.720]  I can paraphrase it, but I always get it kind of wrong.
[01:39:36.720 --> 01:39:48.720]  My paraphrase is not as elegant as the wording in the statute, but it essentially says that any document filed in the record affecting title
[01:39:48.720 --> 01:39:58.720]  by someone who is not named in the record as having authority to file something against the title is fraudulent.
[01:39:58.720 --> 01:40:08.720]  Now, it doesn't mean they're trying to defraud somebody, but the document is presumed to be fraudulent on its face.
[01:40:08.720 --> 01:40:13.720]  I think the code actually says it's presumed to be fraudulent.
[01:40:13.720 --> 01:40:15.720]  So if you go to the court...
[01:40:15.720 --> 01:40:17.720]  I've got it here if you want to hear it.
[01:40:17.720 --> 01:40:18.720]  Yes.
[01:40:18.720 --> 01:40:20.720]  Okay.
[01:40:20.720 --> 01:40:29.720]  I've got to read 51901A before I can get to C.
[01:40:29.720 --> 01:40:49.720]  51.901A of Texas government code states as follows, if a clerk of the Supreme Court, clerk of the Court of Criminal Appeals, clerk of the Court of Appeals, district clerk, county clerk, district and county clerk, or municipal clerk,
[01:40:49.720 --> 01:41:13.720]  has a reasonable basis to believe in good faith that a document or instrument previously filed or recorded or submitted for filing or for filing and recording is fraudulent.
[01:41:13.720 --> 01:41:23.720]  If a clerk shall, one, if the document is purported...
[01:41:23.720 --> 01:41:25.720]  Is a purported judgment or...
[01:41:25.720 --> 01:41:26.720]  We don't need to do that.
[01:41:26.720 --> 01:41:27.720]  Okay.
[01:41:27.720 --> 01:41:28.720]  Let's see.
[01:41:28.720 --> 01:41:41.720]  For the purpose of this section, a document or instrument is presumed to be fraudulent if, one, the document is a purported judgment
[01:41:41.720 --> 01:41:56.720]  purporting to memorialize or evidence and act and order a directive or process of A.
[01:41:56.720 --> 01:42:11.720]  A purported court or purported judicial entry not expressly created or established under the Constitution or the laws of the state or of the United States or B.
[01:42:11.720 --> 01:42:28.720]  A purported judicial officer, yeah, purported judicial officer of a purported court or purported judicial entry described by paragraph A.
[01:42:28.720 --> 01:42:42.720]  Two, the document or instrument purports to create a lien or asserts a claim against real or personal property or an interest in real or personal property.
[01:42:42.720 --> 01:42:58.720]  And A is not a document or instrument provided for by the Constitution or the laws of this state or of the United States.
[01:42:58.720 --> 01:43:13.720]  It is not a document or instrument provided for by the Constitution or the laws of this state or of the United States or of the United States or of the United States.
[01:43:13.720 --> 01:43:29.720]  Both a letter of honor or a letter expressed consent or agreement of an agent, fiduciary or other representative of that person or C.
[01:43:29.720 --> 01:43:41.720]  Is not an equivalent constructive or other lien imposed by a court with jurisdiction created or established under the Constitution or laws of the state or the United States or three.
[01:43:41.720 --> 01:43:47.280]  reports to create a lien or assert a claim against real or personal property or asserts
[01:43:47.280 --> 01:43:54.280]  or an interest in real or personal property and the document or instrument is filed and
[01:43:54.280 --> 01:44:00.320]  filed by an inmate or on behalf of an inmate will be right back, stay tuned.
[01:44:00.320 --> 01:44:04.000]  You feel tired when talking about important topics like money and politics?
[01:44:04.000 --> 01:44:05.000]  Sorry!
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[01:46:15.720 --> 01:46:19.320]  Welcome back to this beautiful Friday night here on Rule of Law Radio.
[01:46:19.320 --> 01:46:26.440]  Folks, we're going over Santiago v. Mackie Wolf and this is a court case, folks, from
[01:46:26.440 --> 01:46:34.800]  Texas Appellate Division in Dallas that is going to sink a lot of legal boats if used
[01:46:34.800 --> 01:46:36.800]  appropriately.
[01:46:36.800 --> 01:46:44.440]  So I just had just enough time to finish up the definition of a fraudulent document or
[01:46:44.440 --> 01:46:56.240]  instrument pursuant to Texas Civil Practice Remedies Code 51.901C as in Charlie.
[01:46:56.240 --> 01:47:02.360]  And Randy, if you'll tie that all back together with your previous point, we will go to Mr.
[01:47:02.360 --> 01:47:06.000]  Jeff in Maryland after you tie it back together.
[01:47:06.000 --> 01:47:07.000]  Okay.
[01:47:07.000 --> 01:47:09.880]  That's why I paraphrase it.
[01:47:09.880 --> 01:47:13.920]  It is kind of long, but the crux of it is.
[01:47:13.920 --> 01:47:23.080]  Let me explain this, 51.901C, yeah, 51.901, 2 and 3.
[01:47:23.080 --> 01:47:31.520]  They are the last statutes in the Texas government code and they were passed by the legislature
[01:47:31.520 --> 01:47:37.640]  to stop the Republic of Texas from filing these liens against public officials.
[01:47:37.640 --> 01:47:45.200]  Define Republic of Texas in this context, because there's a Republic of Texas being
[01:47:45.200 --> 01:47:51.560]  the du jour republic under which Texas was first established and replaced by the state
[01:47:51.560 --> 01:47:52.920]  of Texas.
[01:47:52.920 --> 01:47:55.280]  Define Republic of Texas in this context.
[01:47:55.280 --> 01:48:03.800]  If you enter the Capitol building and walk into the retunda and look down, you'll see
[01:48:03.800 --> 01:48:08.040]  an emblem there titled the Republic of Texas.
[01:48:08.040 --> 01:48:10.720]  That's not the one I'm talking about.
[01:48:10.720 --> 01:48:20.240]  I'm talking about a group of legal reform advocates who advocated, who maintained that
[01:48:20.240 --> 01:48:26.640]  the government that was now in place was an illegal government and they intended to replace
[01:48:26.640 --> 01:48:30.080]  that government with one of their own.
[01:48:30.080 --> 01:48:41.040]  And using the uniform commercial code, they established a procedure for filing, for establishing
[01:48:41.040 --> 01:48:47.560]  liens against whoever they wanted to, they used a commercial process.
[01:48:47.560 --> 01:48:54.080]  And apparently the commercial process they used was technically legal, but it's kind
[01:48:54.080 --> 01:49:12.320]  of like some of the strategies they used with the IRS, like the 1099, what was that, OID.
[01:49:12.320 --> 01:49:15.800]  They used it and it worked, but it wasn't designed for that.
[01:49:15.800 --> 01:49:21.440]  And they took the IRS a while to figure it out and then they went after everybody that
[01:49:21.440 --> 01:49:22.440]  used it.
[01:49:22.440 --> 01:49:29.440]  Yeah, there's a woman still doing a nine-year stretch in federal pen for wirefrog and mailfrog
[01:49:29.440 --> 01:49:37.360]  over that, but yeah, the commercial redemption and the 1099 OID do not try to blend them.
[01:49:37.360 --> 01:49:39.480]  They will wind you up in jail.
[01:49:39.480 --> 01:49:47.280]  Yes, and what the Republic of Texas was doing was technically legal.
[01:49:47.280 --> 01:49:53.200]  So they had to find a way to stop this and they passed these laws for that purpose.
[01:49:53.200 --> 01:50:01.040]  That's what those references to a supposed court or a supposed judgment, all that was
[01:50:01.040 --> 01:50:02.680]  going to stop the Republic of Texas.
[01:50:02.680 --> 01:50:10.560]  Well, the problem is, when I look at these statutes there, as you go on to 903, 903 is
[01:50:10.560 --> 01:50:14.720]  absolutely unconstitutional, but they didn't care.
[01:50:14.720 --> 01:50:17.080]  They wanted to stop the Republic of Texas.
[01:50:17.080 --> 01:50:23.880]  The problem is, now we get to use them on the, so another, a bunch of real criminals,
[01:50:23.880 --> 01:50:28.960]  which are the banks, the Republic of Texas were really trying to fix something they believed
[01:50:28.960 --> 01:50:31.600]  to be wrong.
[01:50:31.600 --> 01:50:36.200]  I wasn't happy with the way they went about some of the things they did, but they were
[01:50:36.200 --> 01:50:41.880]  genuine in their attempt to positively change things.
[01:50:41.880 --> 01:50:46.720]  The banks are not, but we get to use them on the banks.
[01:50:46.720 --> 01:50:51.320]  For every action there is an equal and opposite reaction.
[01:50:51.320 --> 01:50:52.320]  Exactly.
[01:50:52.320 --> 01:51:04.120]  Now we get to use that to go back after these lawyers and change the whole dynamic.
[01:51:04.120 --> 01:51:06.920]  Now we get to turn the politics against the lawyer.
[01:51:06.920 --> 01:51:13.040]  Now the lawyer, his only consideration is not how much money can I get from the bank
[01:51:13.040 --> 01:51:16.160]  for representing this case.
[01:51:16.160 --> 01:51:23.680]  Now, what level of liability do I incur?
[01:51:23.680 --> 01:51:25.600]  Not just now, but in the future.
[01:51:25.600 --> 01:51:31.920]  I talked to Jack McClung, who was a lawyer for Chase Bank, and we had filed a quiet
[01:51:31.920 --> 01:51:37.520]  title action, and I talked to him and told him that if he would agree to negotiate with
[01:51:37.520 --> 01:51:40.320]  me, I'd drop that quiet title.
[01:51:40.320 --> 01:51:43.160]  He said, you could just refile it at any time.
[01:51:43.160 --> 01:51:47.160]  I said, sure I could, but I don't really want to, I'd rather make a deal with you and
[01:51:47.160 --> 01:51:50.280]  make all this go away.
[01:51:50.280 --> 01:51:57.920]  You really ought to make a deal with me because you have problems with the public record.
[01:51:57.920 --> 01:52:02.960]  What you're likely to have is some shyster lawyer digging in the records next month
[01:52:02.960 --> 01:52:09.560]  or next year and finding what I found, going to the borrower, getting them to hire them,
[01:52:09.560 --> 01:52:12.600]  and they're going to come back and sue you away from Sunday.
[01:52:12.600 --> 01:52:16.040]  I know they're going to be doing that because I'm doing seminars, show them how.
[01:52:16.040 --> 01:52:24.280]  I think you are, but that's the risk that they're looking at.
[01:52:24.280 --> 01:52:31.560]  You take these lawyers that the foreclosure mills hire and use up and toss out, they find
[01:52:31.560 --> 01:52:36.960]  out about this, they get to come back on the foreclosure mills and not just what they're
[01:52:36.960 --> 01:52:44.560]  doing now or tomorrow, but the last four years.
[01:52:44.560 --> 01:52:50.960]  At one point in time, 2007 to 2008, if you were a lawyer, the place to be was in foreclosure
[01:52:50.960 --> 01:52:52.360]  for the banks.
[01:52:52.360 --> 01:52:55.480]  That's where all the money was.
[01:52:55.480 --> 01:52:56.480]  That's about to change.
[01:52:56.480 --> 01:53:04.520]  There may still be money there, but now there's a political element much more serious than
[01:53:04.520 --> 01:53:06.600]  the money they would make.
[01:53:06.600 --> 01:53:09.040]  Thank you, Mackie Wolfe.
[01:53:09.040 --> 01:53:13.160]  What's your opinion on that, Mr. Jeff?
[01:53:13.160 --> 01:53:14.160]  I'm not sure.
[01:53:14.160 --> 01:53:15.160]  I have to consider that.
[01:53:15.160 --> 01:53:23.720]  I had a few questions for you about the Santiago versus Mackie Wolfe, though, if I may.
[01:53:23.720 --> 01:53:24.720]  Absolutely.
[01:53:24.720 --> 01:53:25.720]  Please do.
[01:53:25.720 --> 01:53:33.680]  Who was appointed substitute trustee in that mortgage or de-addressed?
[01:53:33.680 --> 01:53:34.960]  We haven't seen.
[01:53:34.960 --> 01:53:40.000]  I think you said it was Mackie, and Mackie, you did that a lot earlier.
[01:53:40.000 --> 01:53:43.120]  And who appointed him?
[01:53:43.120 --> 01:53:45.320]  Doesn't say.
[01:53:45.320 --> 01:53:47.720]  It's a good question, but it doesn't say.
[01:53:47.720 --> 01:53:52.280]  I can't answer it because it's not raised in the pleading that I'm...
[01:53:52.280 --> 01:53:54.640]  We just read the memorandum opinion from the court.
[01:53:54.640 --> 01:54:00.120]  We do have the appellants brief, but we don't have anything or I don't have anything from
[01:54:00.120 --> 01:54:04.240]  the trial court in regard to any pleading.
[01:54:04.240 --> 01:54:07.960]  So we were absent that knowledge.
[01:54:07.960 --> 01:54:08.960]  Okay.
[01:54:08.960 --> 01:54:16.560]  Well, here's the thing, if you go and pull half a dozen or a dozen of these remicks and
[01:54:16.560 --> 01:54:23.480]  read through them and go to the section on trustee definitions and duties, which if you
[01:54:23.480 --> 01:54:28.640]  read that section, what you find out is the trustee and the remick...
[01:54:28.640 --> 01:54:32.480]  That would be found in the PSA, Building and Servicing Agreement.
[01:54:32.480 --> 01:54:36.560]  It's a separate definition of the trustee, but yeah, it probably is.
[01:54:36.560 --> 01:54:37.560]  Yeah.
[01:54:37.560 --> 01:54:38.560]  Okay.
[01:54:38.560 --> 01:54:39.560]  Hang on.
[01:54:39.560 --> 01:54:42.720]  Let's specify which trustee we're talking about.
[01:54:42.720 --> 01:54:51.040]  We're not talking about the trustee for the current deed of trust who did the foreclosure.
[01:54:51.040 --> 01:55:01.720]  We're talking about the trustee who purports to represent the trust as the holder.
[01:55:01.720 --> 01:55:10.520]  The mortgage, the remick, real estate mortgage back, the conduit, yes, thank you.
[01:55:10.520 --> 01:55:11.520]  Investment conduit.
[01:55:11.520 --> 01:55:12.520]  Yes.
[01:55:12.520 --> 01:55:16.800]  Well, if you read the definitions and duties, what you discover is is that the trustee can't
[01:55:16.800 --> 01:55:23.680]  know nothing and can't do nothing, and the only person who can appoint a substitute trustee
[01:55:23.680 --> 01:55:27.640]  in the mortgage is the trustee of trust.
[01:55:27.640 --> 01:55:31.320]  How do you do that?
[01:55:31.320 --> 01:55:40.360]  Good point, because the trustee of the trust is the successor or a sign, or he's a successor.
[01:55:40.360 --> 01:55:45.200]  And he can't do squatting, he can't know squatting.
[01:55:45.200 --> 01:55:51.280]  The way I read the deed of trust, the Fannie Mae Freddie Mac Uniform Instrument, I think
[01:55:51.280 --> 01:56:01.600]  it's Covenant 23, that authorizes the lender to appoint a substitute trustee.
[01:56:01.600 --> 01:56:08.160]  Now in the document, there is a reference to successors and assigns, but there's not
[01:56:08.160 --> 01:56:16.760]  a reference to successors and assigns in the authorization to appoint a substitute trustee.
[01:56:16.760 --> 01:56:21.440]  There's only a reference to the lender.
[01:56:21.440 --> 01:56:27.600]  So all of that, I think, bears looking into.
[01:56:27.600 --> 01:56:34.760]  I agree that Jeff and I, he talked to me about that once before, and that was a really interesting
[01:56:34.760 --> 01:56:35.760]  issue.
[01:56:35.760 --> 01:56:42.000]  Will you explain how the trustee or why the trustee doesn't have this authority?
[01:56:42.000 --> 01:56:47.160]  Yeah, let me break in there just for a second.
[01:56:47.160 --> 01:56:53.280]  I was going to ask that when you say that the trustee can't do squat, objection, move
[01:56:53.280 --> 01:56:55.240]  for more definite statement.
[01:56:55.240 --> 01:57:01.440]  Well, you actually have to read the definitions and duties of the trustee as they are written
[01:57:01.440 --> 01:57:02.680]  within the remit.
[01:57:02.680 --> 01:57:10.160]  Out of the dozen or so that I have read, I have yet to see one where the trustee could
[01:57:10.160 --> 01:57:18.160]  actually know anything or do anything other than too cold, and that's it.
[01:57:18.160 --> 01:57:24.240]  Okay, I'll buy that, I've read the same.
[01:57:24.240 --> 01:57:29.720]  Okay, so I think that bears looking into and some consideration.
[01:57:29.720 --> 01:57:38.560]  If the trustee is given no power, how is this still a trust?
[01:57:38.560 --> 01:57:44.240]  If the trustee has a, the trustee, okay, think of who the trustee's fiduciary duty
[01:57:44.240 --> 01:57:45.740]  lies.
[01:57:45.740 --> 01:57:47.240]  It's to the investors.
[01:57:47.240 --> 01:57:51.200]  Well, he doesn't have any duties, that's the problem.
[01:57:51.200 --> 01:57:59.080]  Generally in a trust some property is moved into the trust and the trustee is given legal
[01:57:59.080 --> 01:58:03.240]  title over the property to hold for all parties, concerned parties.
[01:58:03.240 --> 01:58:06.640]  Yeah, but that's holding, that's nothing else.
[01:58:06.640 --> 01:58:07.640]  Exactly.
[01:58:07.640 --> 01:58:14.440]  So, he's not authorized, he's not required to keep, to protect the property, to keep
[01:58:14.440 --> 01:58:17.280]  it safe and protect it from all claims.
[01:58:17.280 --> 01:58:20.800]  He's protected and keep it safe, but he can't do anything.
[01:58:20.800 --> 01:58:30.160]  In other words, his allegiance is to the investors in the remit, not to the servicer, not to
[01:58:30.160 --> 01:58:33.160]  the homeowner.
[01:58:33.160 --> 01:58:34.720]  Jeff, stay there.
[01:58:34.720 --> 01:58:36.000]  We've got a break coming up.
[01:58:36.000 --> 01:58:42.600]  512-646-1984 will put you in right behind Jeff and Maryland folks.
[01:58:42.600 --> 01:58:50.280]  You're listening to Rural Law Radio, stay tuned, we'll be right back after this message.
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