CONTRIVED IGNORANCE AND PLAUSIBLE DENIABILITY

David Luban of Georgetown University Law Center wrote an interesting article re the structure of Contrived Ignorance — involving complex business arrangements of all sorts — where in step one the party acting shields itself from unwanted knowledge, then in step two, performs actions which but for the lack of that knowledge, would be engaged in conduct subject to being interpreted as illegal, and or fraudulent, etc. In recent discovery responses, MERS’s response to the question: identify the Holder in Due Course of the Note–which note was attached–was “MERS has no information as to which entity is or has been the holder in due course of the subject Note”. Which begs the question: How can MERS then be acting as a bona fide assigner of interest–even as an intermediary for other parties–when they have no knowledge re the bona fides of the assigning party? Contrived ignorance indeed! On the Show today Charles and Bill will address how servicers are in some instances trying to pass themselves off in Bk court as the holder in due course of a note, without sufficient evidence, or any evidence in some cases. Also up for discussion: Use of deposition testimony testimony in prior cases involving the same witness, servicer or claimant.