Can the judge overseeing the case be removed??

[ManicMangaManiac]

Hi gang!
Here is my question: I live in Kansas, a judicial foreclosure state. My foreclosure trial is scheduled for the 23rd of this month, but I got an inkling of how the judge overseeing my case is going to rule -- in favor of the plaintiff. For one thing, he ruled earlier this year that copies of the note could be introduced into evidence.

Secondly, he asked me during a hearing in which I had filed a motion for a continuance if I could make payments on the mortgage, which I cannot since I'm unemployed and was denied unemployment benefits. I tried to explain this to him, but he didn't seem interested in my explanation.

My intuition tells me that this judge doesn't "get it" about the plaintiff's not having possession of the original note or the legal standing to foreclose on me. I therefore don't feel that he would rule in my favor, even though WF, the trustee, doesn't have possession of the note or legal standing to foreclose. My loan was securitized and sliced and diced and sold off as asset-backed securities to Wall Street investors. The subsequent transfers of my note were never recorded with the county register of deeds (surprise, surprise!).

I want to know if I can possibly file a motion to have the judge removed from my case and another, more impartial one substituted? Or can I move my case out of county court into the state court?

What I've done very recently is rescind the loan with OOMC/AHMSI (TILA violations) and also sent a demand to Wells Fargo Bank to produce the original note. I did this latter action this past spring, but WF's attorneys ignored the request.

Your input on removing the judge or moving my case out of district court would be MUCH appreciated!!! You are all the best!
Sally

[so-cal-gal]

Originally Posted by ManicMangaManiac

Hi gang!
Here is my question: I live in Kansas, a judicial foreclosure state. My foreclosure trial is scheduled for the 23rd of this month, but I got an inkling of how the judge overseeing my case is going to rule -- in favor of the plaintiff. For one thing, he ruled earlier this year that copies of the note could be introduced into evidence.

Secondly, he asked me during a hearing in which I had filed a motion for a continuance if I could make payments on the mortgage, which I cannot since I'm unemployed and was denied unemployment benefits. I tried to explain this to him, but he didn't seem interested in my explanation.

My intuition tells me that this judge doesn't "get it" about the plaintiff's not having possession of the original note or the legal standing to foreclose on me. I therefore don't feel that he would rule in my favor, even though WF, the trustee, doesn't have possession of the note or legal standing to foreclose. My loan was securitized and sliced and diced and sold off as asset-backed securities to Wall Street investors. The subsequent transfers of my note were never recorded with the county register of deeds (surprise, surprise!).

I want to know if I can possibly file a motion to have the judge removed from my case and another, more impartial one substituted? Or can I move my case out of county court into the state court?

What I've done very recently is rescind the loan with OOMC/AHMSI (TILA violations) and also sent a demand to Wells Fargo Bank to produce the original note. I did this latter action this past spring, but WF's attorneys ignored the request.

Your input on removing the judge or moving my case out of district court would be MUCH appreciated!!! You are all the best!
Sally

You really need to check this out with attorneys in your state. Given that you are unemployed, contact Legal Aide and request that they refer you to a contract or real estate attorney. Ohio has 2 cases in court currently on on matters regarding modifications and the attorneys for both of those cases are from Legal Aide.

Good Luck!

[Fedup]

MMM,

If you are living in Kansas, the Supreme Court in Kansas has aready ruled on this matter "against" MERs in trying to foreclose. There is precedent here.

Do a google search i.e. "produce the note or show me the note" and you'll find the decision of the Kansas Supreme Court, here's a link for you also.....

Show Me The Note - KS Supreme Court Slaps Down MERS Foreclosures - Democratic Underground

Gary

[so-cal-gal]

Originally Posted by Fedup

MMM,

If you are living in Kansas, the Supreme Court in Kansas has aready ruled on this matter "against" MERs in trying to foreclose. There is precedent here.

Do a google search i.e. "produce the note or show me the note" and you'll find the decision of the Kansas Supreme Court, here's a link for you also.....

Show Me The Note - KS Supreme Court Slaps Down MERS Foreclosures - Democratic Underground

Gary

To properly present this, I believe a local attorney should still be utilized, and why not try for one that can be hired on a sliding scale based on income? Sometimes you have to be aware of the local 'system' even when citing what has already been decided by the Kansas Supreme Court. BTW, has that ruling in Kansas been challenged yet and taken to any higher court? It would be interesting to find that point out also.

A local attorney could determine if the current judge should be avoided or if it is simply a matter of presenting the pertinent facts by an attorney. Unfortunately, some judges can be biased against listening to anyone who is not represented by an attorney. Perhaps that was the problem with the previous hearing. I'd hate to see this case affected by that when there appears to be legal basis to have the borrower prevail.

I'm not saying I know the legal system or courts in Kansas, even though it IS my home state. I moved away when I was 20.

[ManicMangaManiac]

So-Cal-Gal,
Your suggestion about contacting Legal Aid is a good one, but unfortunately for me, they can't help because they are out of funding and I've tried just about every avenue I can possibly think of, only to smack into a brick wall. I even tried the University of Kansas' legal clinic (they have a very good law school) but the supervising attorney said she was not qualified or knowledgeable about foreclosure cases to be of any real assistance, so that was yet another brick wall....

I may have one more card to play but given my lack of success thus far, I'm not really optimistic. I really want to get this judge removed or move the case into the state court system. I guess I can call the county courthouse and find out if either one of these strategies is possible. And yes, I do know about the landmark ruling issued by the KS Supreme Court against MERS, so I may end up citing that as an argument in court.

At any rate, I am NOT letting Wells Fraudgo get their way!!!
Sally

P.S. BTW, I don't believe the Landmark National Bank vs. Kesler case has been challenged in court as the ruling by the KS Supreme Court came down earlier this summer, so it's a very new ruling......

[so-cal-gal]

Originally Posted by ManicMangaManiac

So-Cal-Gal,
Your suggestion about contacting Legal Aid is a good one, but unfortunately for me, they can't help because they are out of funding and I've tried just about every avenue I can possibly think of, only to smack into a brick wall. I even tried the University of Kansas' legal clinic (they have a very good law school) but the supervising attorney said she was not qualified or knowledgeable about foreclosure cases to be of any real assistance, so that was yet another brick wall....

I may have one more card to play but given my lack of success thus far, I'm not really optimistic. I really want to get this judge removed or move the case into the state court system. I guess I can call the county courthouse and find out if either one of these strategies is possible. And yes, I do know about the landmark ruling issued by the KS Supreme Court against MERS, so I may end up citing that as an argument in court.

At any rate, I am NOT letting Wells Fraudgo get their way!!!
Sally

P.S. BTW, I don't believe the Landmark National Bank vs. Kesler case has been challenged in court as the ruling by the KS Supreme Court came down earlier this summer, so it's a very new ruling......

Awe shucks, Sally. I was hoping that with that existing decision and an attorney to do the arguing, that you had a chance without having to possibly tick the judge off.

[ManicMangaManiac]

So-cal-gal,
I am mad enough about this whole @#%&*! situation that i just might end up ticking the judge off, but you know what? I almost don't care what he thinks because I know he's wrong if he rules in favor of Wells Fraudgo. If that happens, I will appeal and take it to the state courts.

Where in KS did you grow up, by the way? I live in Olathe....and so does a celebrity who got foreclosed on in March--Willie Aames, the former star of "Eight is Enough" and "Charles in Charge". As a matter of fact, the house he lost is near mine, but in a more upscale neighborhood. Last I heard, he's still living in Olathe, but renting a modest apartment and studying to become a financial advisor -- imagine that!!

I am going to make some calls today and find out if I can possibly have the judge removed from my case, or move it out of district court. Wish me luck. I will come back here to this thread if I have anything to report!
Sally

[LUEser]

60-245a (Subpoena of a Business) subsection d may help a little with a stubborn judge not wanting to hear the "produce the note" argument.

One thing you have to consider is whether or not Discovery is allowed at the district court level. If that's the case, you have a lot at your disposal to hit their attorneys with. Interrogatories, Requests for Admissions, Requests for Production of Documents.

You also have the motion to compel on your side since the attorney blatantly ignored your request for docs that are pertinent to your argument. But statute alone doesn't always help, as you probably know. Rulings from other courts can serve as persuasives, and rulings from higher kansas courts should be considered precedent.

Also check out K.S.A 60-269 (New Trial) specifically subsections a (the grounds) and b (the timeline to motion).

Ch 60 Article 4 (Rules of Evidence) may also help your "original note," though you'd have to scour through it to see where exactly it says copies of business records are admissible as well as the special circumstances where original documents are warranted.

As far as changing judges goes, that's in Ch 20. (District Courts)
Specifically KSA 20-311d
KSA 20-311d: Change of judge; procedure; grounds.

Pay particular attention to subsection b(5) which is the required affidavit for change of judge. it probably wouldn't be a bad idea to get a grasp on 20-311(a-f) just to be on the safe side if you're strongly pushing for removal.

Doing a quick search for caselaw supporting removal of a judge from a case I came up with Hulme v. Woleslagel
http://johnsoncountykansascourts.net...Woleslagel.pdf

But it looks like you'll have to invoke a writ of mandamus to the supreme court of Kansas arguing your case for the bias of the judge. You can find mandamus in KSA 60-800 et seq.

Disclaimer** These statements are not legal advice and should not be construed as such, they are given solely for academic or research purposes.

[so-cal-gal]

Originally Posted by ManicMangaManiac

So-cal-gal,
Where in KS did you grow up, by the way? I live in Olathe....and so does a celebrity who got foreclosed on in March--Willie Aames, the former star of "Eight is Enough" and "Charles in Charge". As a matter of fact, the house he lost is near mine, but in a more upscale neighborhood. Last I heard, he's still living in Olathe, but renting a modest apartment and studying to become a financial advisor -- imagine that!!
.....

Sally

Family has been in KS from the days of homesteading. Great-grandparents all homesteaded in Ellis County. I was born in Hays, grew up on a farm in Rooks Co., nw of Stockton, but graduated from high school in Hays. I have family in Osborne and Phillips counties in addition to the extended family in Ellis, Rush and a few other counties there.

Luckily my case is not one where I have to go the 'produce the note' route. I have breach of contract (my mod) and breach of the AG agreement as grounds. Before all is said and done, I'll probably have a forensic audit done to see if they pulled anything with the original contract too. I'm in no hurry now. Nice Preliminary Injunction has stopped the foreclosure.

The judge was probably giving the defendants a STRONG hint when he commented in court that he EXPECTS to see me win the suit.