Here's the text of a brief going on file in one of the cases today.
Plaintiff’s counsel created a twelve-page paean to the billable hour in its response to Intervenor’s previous motion. The reply mainly covers cases cited by Defendant as if they were being briefed for certiorari to the Supreme Court or made into a mini-series, and yet manages only one paragraph in a dozen pages on the only subject that matters:
The Plaintiff in this case did not bid on the property in question, did not buy the property at the sale and is lying or suffering from some sort of surreal malady if it claims it did.
The only response that the research wing could manage to contrive to this seemingly highly relevant point – a statement so important that it comprised its first contention in their Statement of Uncontroverted Facts – is that the deed itself is prima facie evidence of the facts recited therein.
“Prima facie evidence” is such evidence which, although not compelling a verdict for the party whose contention it supports, "is sufficient to satisfy the burden of proof to support a verdict in favor of the party by whom it is introduced when not rebutted by other evidence." State, et. al v. Hogg, 466 S.W.2d 167 (Mo.App.Spr. 1971). See also Cavic v. Missouri Research Laboratories, Inc., Mo.App., 416 S.W.2d 6, 8-9(4); City of Jackson ex rel. Hoffmeister v. LaChance, Mo.App., 372 S.W.2d 479, 482; 32A C.J.S. Evidence § 1016, l.c. 624-625.
Prima facie evidence, then, is not dispositive. It is merely a presumption that may be rebutted, just as any other evidence may be rebutted. In this case, for example, an actual video of the sale itself, with no mention of Plaintiff and successful bidding by another entity entirely, is enough to rebut the prima facie presumption, and establish another presumption: That the Successor Trustee lied or at least was somehow radically mistaken when making the deed, and that the Plaintiff has no standing whatsoever to bring this action (N.B.: Intervenor would note that the Plaintiff made the same “mistake” on the same day with at least one other property).
Intervenor would also note two additional points:
1. The Statement of Uncontroverted Fact as raised by Plaintiff was not that the property was conveyed by deed to Plaintiff; it was that the Plaintiff had purchased the property at the foreclosure sale. In other words, the importance to the Plaintiff and its learned counsel was not the deed itself, but the purchase, which Intervenor can rebut at the place and hour of Plaintiff’s chosing (Intervenor respectfully submits a drive-in movie theater, but will gladly settle for a courtroom).
2. The Plaintiff in this matter has been seized with crippling bouts of memory loss in this case before. Despite the phalanx of letters written by Intervenor’s wordy counsel, and his annoying presence at the sale, Plaintiff’s counsel (whom, it should not be forgotten, has showed up in this same movie as the servicer, servicer’s counsel, MERS, Successor Trustee, bidder for the servicer, Plaintiff and Plaintiff’s attorney) miraculously forgot that they should name the only person living in the house, to whom they were familiar with as being a fiduciary named and signing on the Deed of Trust. Intervenor should have been named and served as an original party, but for the bouts of senility on the other side of this action.
The Motion for Summary Judgment is frivolous, and should be denied.
Wednesday, 3 August 2011