It all comes down to this: ASSUME NOTHING, CHALLENGE EVERYTHING. THE TRUTH IS THAT YOU DON’T KNOW ALL THE ASPECTS OF THE TRANSACTION IN WHICH YOU EXECUTED “LOAN DOCUMENTS” AND YOU DON’T KNOW IF THEY WERE “LOAN DOCUMENTS”. YOU ONLY KNOW THEY HAD A LABEL ON THEM AND YOU WERE EXPECTING A LOAN. THEY WERE LYING THEN AND THEY ARE LYING NOW.
“society exists for the benefit of its members and not they for its benefit.” Herbert Spencer
Spencer also fell into the trap that Karl Marx had correctly diagnosed: He applied and even invented the term of “social darwinism” to societies, arriving at the conclusion that eventually the fittest would run things and that was best.
In contrast, Karl Marx correctly identified management of business enterprise as inherently autocratic and thus based on the goodof the automcrats, rather than employees or consumers of their products and services.
The truth obviously lies in between. We live in a democoratic republic that is fueled by a form of capitalism that consistently favors those who generate and invest capital even if it means sacrificing the lives and property of millions. Government does not act to enfore guardrails even whent he need is the most obvious. But ti does attempt to provide social safety nets — the so called “entitlement Programs” that everyone pays for but nobody gets as intended.
In his vain attempt to remedy the obviious opportunities for moral hazard and exploitation, Marx limiited his options to one bteween military dictatorship and a “free society.” His mistake, was in his premise that free societies exist without government intervention.
Such societies have never existed and never will exist as long as humans maintain their current basic nature. Without correction and even punishment from government, societies run wild. Spencer and Adam Smith assumed that everything would be fine if we just got out of the way and let it run its course. All of human history amounts to a total refutation of that assumption. Things were never fine and nobody just let things run their course in a fair and objective way.
U.S. history has shown quite the reverse. Despite the clear pronouncements in the Declaration of Independence (unalienable rights) and U. S. Constitution (general welfare) history shows that government has had to work doubletime to keep society free. Leaving it to business and “free market forces” amounted to putting tigers on the outside of cages in which the rest of us inhabited. And, like clockwork, the “surprise” of a giant depression or recession occurred throwing people out of thieir lives, their homes, their jobs, and their families.
And the ultimate power of the people who consent to be governed must be exercised from time to time in order to maintain government’s guard rails to improve the attribtues of a free society that is promoted for all its members instead of a privileged few.
So the people are often drawn kicking and screaming into a fight that they never wanted to think about. So it is with the current epic increase in what is genereally labeled as “credit” transactions with consumers and homeowners.
Instead of carrying a Treasury Secretary’s warning that “this transction is mostly likely to cause you difficulties with your future retirement, vacation plans and healthcare access,” the government has become complicit in innumerable schemes that are plainly derived from autocratic edicts put into effect by private interests who have captured government oversight and regulation.
The proof is in the pudding. Extreme inequality is not the product of any person or company being more fit for the society, but rather the ability of such persons or companies to hijack the system, derail the attempts to fairly tax income, and defeat the forces of freedom including the delusional “free market.”
The obvious effects of autocratic edicts within a democratic republic and delusions of the free market (without governemnt guardrails and enforcement) is far from “free” and very far from enhancing the general welfare. The general public is comprised of individuals, none of whom has the sources, knowledge, training or licensing to understand, much less contest the attempts to oppress them.
But the best illicit plan is to let the “mark” con themselves. So the investment banks entered the lending marketpalce all dressed up like lenders (acting through intermediaries that were never disclosed) and consumers, lawyers, judges, regulators, and law enforcement all bought into the fraudulent representation of the “securitization” business plan.
Wall Street succeeded in the only business at hand — selling securities — while the rest of the world thought they were taking a risk in lending money for the “good of society.” It was never good and it was never real.
The consequence in this arena (so far) is that the entire burden of such regulation is left to individual consumers and homeowners by contesting claims in court that appear to be facially valid even though they are consistently substantively invalid.
If homeowners want to get the most out of their ivnestment in their homestead, they need to treat it in a business-like fashion, starting with protecting the asset against all claims, foreign and domestic.
The simple turth is that when confronted witht requriement to produce corroboration of the claim nobody can do it because the claim does not exist. But becuase the general consensus is opposite to what I write here you must employ whatever tactics and strategies are requried to encourage the judge to open up to the possibility that the opposition will not be able to prove their case agaisnt you — and that you should not need to prove anything. (It is their claim, not yours).
To do that, homeowners must acquire a working knowledge of legal and procedural law as practiced in federal courts and various state courts. Most lawyers are part of the erronrous consensus.
And they should employ all available adminstrative remedies, since that is the only way that the agencies will be politically embarassed enough to do something about the assymetric balance of power and assymetric results. The 2008 meltdown and the one currently underway produced extreme profits to the largest investment banks while everyone else went broke. The decision to make innocent homeowners pay for the crime was nothing short of bizarre, but it continues.
So in an effort to bridge the information gap I publish these articles that, while dry, they provide the background (foundation ) for a successful challenge to claims against them for payment of money and forced sale of the largest asset they will ever own. You, the hoemowner, have a duty to yourself your family and your society to stop people from making false claims of losses and the making innocent consumers and homeowners pay the price.
It all comes down to this: ASSUME NOTHING, CHALLENGE EVERYTHING. THE TRUTH IS THAT YOU DON’T KNOW ALL THE ASPECTS OF THE TRANSACTION IN WHICH YOU EXECUTED “LOAN DOCUMENTS” AND YOU DON’T KNOW IF THEY WERE “LOAN DOCUMENTS”. YOU ONLY KNOW THEY HAD A LABEL ON THEM AND YOU WERE EXPECTING A LOAN. THEY WRE LYING THEN AND THEY ARE LYING NOW.
In jury trial, the Judge, the prosecuting lawyer (Plaintiff’s counsel), and the Defense Counsel attempt to reveal the biases of the jurors. We ask what the juror already knows, how he knows it, and what he thinks about it.
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Ultimately the question is whether the juror has already formed an opinion of the outcome of the pending case. If the juror is not open to hearing both sides, the juror is automatically disqualified from serving on the jury.
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This article aims to explore ways in which we might make the same inquiries and establish baselines and doctrines that would ensure the same objectivity from jurists as we do from jurors.
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I hasten to add that the goal here is NOT to add fuel to the false fire that judges intentionally get wrong in foreclosure cases. They are not. The issue I address here is that judges are ignorant and don’t know it, PLUS they think they know things that are not based on any empirically corroborative evidence.
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Let’s get specific. Walking into a courtroom, Judges think they understand that securitization and mortgage-backed securities are exactly what they already know — that debts are sold to many investors, each of whom has an equity stake in the debt, note, payments, and lien issued by the homeowner.
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As I have shown in thousands of articles and cases where I was victorious against false foreclosure claims, the judges are wrong. The truth is that most lawyers and even homeowners believe that description of “Securitization.” So not only does the judge proceed on false premises, he or she has no reason to think otherwise because nobody is presenting an alternative explanation.
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In plain language, it is inconceivable for anyone to believe that what started out as a loan transaction (or at least labeled as a loan traction) could not result in a debt that could be later enforced through foreclosure procedure. Starting out from that premise, it is easy to see why foreclosures are rubber-stamped by the millions.
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The investment bank’s playbook usually uses the statute of limitations in particularly pernicious ways. When the homeowner realizes that he or she might have been an issuer in a securities scheme rather than a borrower in a residential loan transaction, large expanses of time have elapsed. Even after receiving an explanation from an investment banker like myself, they still don’t understand it. Many of my clients who benefited from winning their cases still don’t understand why they won.
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The issue frequently boils down to whether or not the homeowner should be barred from bringing a claim that he should’ve known about earlier. The judge is correct that the bare facts were revealed earlier The interesting part of this is that the judge’s ignorance corroborates the narrative that the homeowner could not have known of the significance of those facts until someone with expertise could explain it.
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So the bottom line is that the judge is saying that even if the entire foreclosure was fraudulent, and the wrong party got judgment, and we now have both the facts and the appropriate interpretation of the facts that were concealed, the judge is going to allow the perpetrator of the fraud to keep the spoils of war.
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The next step is the filing of a notice of appeal, but only if we think we have a reasonable chance of success. The challenge here is that none of the judges believe the defense narrative proposed in favor of the homeowner is even possible.
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So the gravemen of any appeal probably needs to track the “actual innocence” doctrine governing criminal law. The judge, in this case, can accurately state that the record displays a high probability of compliance with due process. We might take issue with that, but I think the focus of any appeal should be that the judge is required to maintain impartiality.
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I think that what we are asking for is an expansion of due process to include a fair and impartial look at the ability of the judge to understand the mechanics of securitization and whether it produces a viable, enforceable contract — and perhaps whether it requires information by the court either on motion of a party or sua sponte by the court itself.
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If there was a possibility that the prior proceedings were the result of a fraud perpetrated on the court, and the result was the loss of the Homestead, it seems to me that an impartial appellate court might state that the trial court should have allowed the case to proceed, perhaps with a high standard for the burden of proof.
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The obvious problem is that the homeowner will never be able to prove anything other than the fact that the opposition cannot produce a single witness (employed by the claimant) who will attest to the claim attributed by counsel to the designated claimant.
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If the proceedings were to continue, the opposition would continue stonewalling and would be demonstrably unable or unwilling to produce an officer or employee of the claimant who would attest to maintaining the alleged unpaid loan account on its books as an asset and who would attest to the fact that it had been receiving payments and now expects restitution for an unpaid debt through the process of foreclosure.
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I have always recognized that this would be a very steep uphill battle, and it is. The key question here is whether we can convince an appellate court to right a wrong. To do that, we must convince them that the trial court should have explored whether a wrong had been committed — not just technically — but one in which justice was twisted rather than served.
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If we proceed, we should not try to convince the court that the foreclosure case was a fraud. We should try to convince the appellate court that the trial court is under an obligation (perhaps a new obligation) to inform itself about securitization and determine whether the foreclosure is based on any legal foundation in which justice is served. We might be asking for new law, which is, I think, the cleaner approach.
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All of this starts, I think, with a procedure I have sometimes explored in court. Voir dire (to see and to say) is a process by which lawyers question jurors about bias, as I have outlined above.
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I see no impediment to conducting voir dire directed at the Judge at the start of the trial or even the start of a hearing.
- Specifically, the question should be whether the Judge has already decided that the subject claim is based on a debt that has been “securitized.”
- And further, that securitization means that the debt is an asset that has been sold to multiple investors.
- Lastly, the questioning should be directed at the source of such “knowledge.”
- And finally, I would ask whether an alternate explanation (the defense narrative) can be fairly and impartially heard by the judge sitting as both judge and juror.
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I won’t deny that judges will get testy about this, but that might only serve as additional grounds for appeal.
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Comments would be appreciated.
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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).
Yes you DO need a lawyer.
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