No Silver Bullet

Lately I’ve been besieged with a flurry of well written motions that are intended to knock out the pretender lender in one punch. People are asking whether there is one single motion that could just end it all. The answer of course is anything is possible. For the past two years, pro se litigants and lawyers merely had to file some simple motion like “show me the note” or motion to dismiss for lack of jurisdiction, or motion to dismiss for lack of standing, and a variety of other grounds. These grounds are still valid, but the sophistication of the opposition has improved and expanded in these two years. Thus more and more people are being met with an aggressive answer to their challenge. If you really want a chance at winning you must be well-versed in the facts of your case, obtain a forensic review, send the appropriate statutory challenges, and press the opposition on who they think they are, what they are doing and why.

For people who are expecting the pretender lender to pack up and disappear, as they have been doing the last couple of years when met by a real challenge from a homeowner, I would say stop expecting that result. They may not be ready to let cases go up on appeal, but they will press you to the wall until the very last minute before you get a deal you can accept out of them.

In the current environment, there are hundreds of lawyers now who are getting on board with understanding at least parts of securitization, using forensic auditors, and even expert witnesses. Judges too are getting the point as they learn more about securitization. While the environment for pro se litigation was especially favorable for the last 2 years, it appears the tide is turning. You need consultation and probably representation with a competent, licensed attorney who can advise you on bankruptcy options, Federal Court, State Court and administrative actions. This might, and probably would involve several different lawyers.

So the answer to the question is “NO” there is no silver bullet, but “YES” all these motions are on point, helpful and if a competent argument can be made in court after appropriate legal research, they are just as good as they ever were. But the pretender lenders are increasingly hiring lawyers who also “get it” and they will try every procedural trick in the book to defeat you. That is their job.

12 Responses

  1. To Dying Truth:

    I hope you realize that it is ILLEGAL for an attorney to guarantee representation to you. Unfortunately, there are too many factors upon which judgments are allowed to go either way (what if the jury simply doesn’t believe you?) for an attorney to do this.

    however, most counties have legal aid, so if you cannot afford an attorney, you can get pro bono help from legal aid. You must keep in mind also, that what you are asking for, while yes, the bottom line is, not to be homeless, but also ownership of the home. And sometimes with huge reductions in principal balance, or a declaration that the note is not enforceable by this bank anyway, so esentially a free house.

    So, that;s worth a couple hundred thousand dollars in California. Is it too much for an attorney to ask to get paid?

    We borrower attorneys fight harder than any other attorneys in the law right now, because even the fees we accept, which are a lot for our clients to pay, are peanuts compared to what the bank is paying its attortneys to get your home.

    I have a case where each opposing party has spent $50000 at least in defending just through the pleadings stage. That;s $300,000.00 that they could have just given to my client and settled. I on the other hand have been paid $6000 to defend $300,000 in legal work, by myself, all against big firms with 5 attorneys assigned to the case. So, you tell me. Do I not deserve even that?

  2. […] Show Me the Note Isn’t Enough Posted on March 8, 2010 by Neil Garfield see no-silver-bullet The reason lawyers should attend the forensics workshop is not so they can do forensic analysis […]

  3. […] someone with experience.  Neil Garfield’s blog post the other day points out that there is NO Silver Bullet motion or defense.  He points out the nessity to get experienced help especailly if you are doing […]

  4. usedkarguy,

    we have the same story, the judge who handles my case never read documents submitted by the pretender lenders which falsified all the evidence from my deed of trust and promissory notes. the original loan numbers on the promissory notes and deed of trust were cover up by black ink. i filed motions to set aside judgment due to fraud and lack of standing to foreclosed, after 2 days the judge denied my motions because the property is not on my schedule A in the first place. i filed motion for reconsideration this morning because the court made a mistakes of granting the relief from automatic stay in the first place, then denying my motion to set aside judgement because the property is not on my schedule A. i think every mistakes the court made on my case , showed that they never read my memorandum of points and authorities and very incompetent and recklessly made a decision that is not based on merits of the case . if the judge will denied my motion for reconsideration, i am ready to go to BAP in court of Appeal to argue federal rule 60 (B).

  5. CASE FILES From the Judge “who gets it” ……….

    see also
    Post: Mario Kenny, on December 15th, 2008 at 1:27 pm

    The following is a compilation of links of some of Justice Schack’s decisions over the last year and a half or so in which he has denied foreclosure because of the questionable and/or faulty paperwork submitted in a foreclosure action that led him to the conclusion that the alleged plaintiffs in the following foreclosure actions did not have legal standing to bring suit:

    American Brokers Conduit v Zamalloa, 9/11/2007, 2007 NYSlipOp 32806(U);

    Ameriquest Mtge. Co. v Basevich, 6/26/2007, 16 Misc 3d 1104(A), 2007 NYSlipOp 51262(U);

    Aurora Loan Servs., LLC v Sattar, 10/09/2007, 17 Misc 3d 1109(A), 2007 NYSlipOp 51895(U);

    Bank of New York v Mulligan, 6/03/2008, 2008 NYSlipOp 31501(U);

    Bank of New York v Orosco, 11/19/2007, 2007 NYSlipOp 33818(U);

    Countywide Home Loans, Inc. for the Benefit of DB Structured Products, Inc. v Persaud, 01/15/2008, 2008 NYSlipOp 30076(U);

    Deutsche Bank Natl. Trust Co. v Castellanos, 5/11/2007, 15 Misc 3d 1134 (A), 2007 NYSlipOp 50978(U);

    Deutsche Bank Natl. Trust Co. v Castellanos, 1/14/2008, 18 Misc 3d 1115(A), 2008 NYSlipOp 50033(U);

    Deutsche Bank Natl. Trust Co. v Clouden, 9/18/2007, 16 Misc 3d 1140(A), 2007 NYSlipOp 51767(U);

    Deutsche Bank Natl. Trust Co. v Maraj, 1/31/2008, 18 Misc 3d 1123(A), 2008 NYSlipOp 50176(U);

    EMC Mtge. Corp. v Batista, 6/05/2007, 15 Misc 3d 1143(A), 2007 NYSlipOp 51133(U);

    Fremont Inv. & Loan v McBean, 11/26/2007, 17 Misc 3d 1132(A), 2007 NYSlipOp 52229(U);

    GE Capital Mtge. Servs., Inc. v Powell, 11/13/2007, 18 Misc 3d 228, 2007 NYSlipOp 27463;

    HSBC Bank USA v Perboo, 7/11/2008, 2008 NYSlipOp 51385(U);

    HSBC Bank USA, N.A. v Betts, 4/23/2008, 2008 NYSlipOp 31170(U);

    HSBC Bank USA, N.A. v Charlevagne, 11/15/2007, 2007 NYSlipOp 33673(U);

    HSBC Bank USA, N.A. v Cherry, 12/17/2007, 18 Misc 3d 1102(A), 2007 NYSlipOp 52378(U);

    HSBC Bank USA, N.A. v Valentin, 1/30/2008, 18 Misc 3d 1123(A), 2008 NYSlipOp 50164(U);

    HSBC Bank USA, N.A. v Yeasmin, 5/02/2008, 2008 NYSlipOp 50924(U);

    NYCTL 2006-A Trust v Kin Kan Wong, 1/09/2008, 2008 NYSlipOp 30037(U);

    NYCTL-1 Trust v Cruz, 6/07/2007, 15 Misc 3d 1144(A), 2007 NYSlipOp 51144(U);

    NetBank v Vaughan, 6/13/2007, 15 Misc 3d 1147(A), 2007 NYSlipOp 51197(U);

    Nomura Credit & Capital, Inc. v Washington, 4/30/2008, 2008 NYSlipOp 50883(U);

    Perla v Real Prop. Solutions Corp., 4/28/2008, 2008 NYSlipOp 50846(U);

    U.S. Bank National Association v Maynard, 11/26/2007, 2007 NYSlipOp 33766(U);

    U.S. Bank National Association, Trustee v Grant, 11/09/2007, 2007 NYSlipOp 33631(U);

    U.S. Bank Natl. Assn. v Bernard, 2/14/2008, 18 Misc 3d 1130(A), 2008 NYSlipOp 50247(U);

    U.S. Bank v Videjus, 4/29/2008, 2008 NYSlipOp 50851(U);

    Wells Fargo Bank, N.A. v Farmer, 2/04/2008, 18 Misc 3d 1124(A); 2008 NYSlipOp 50199(U);

    Wells Fargo Bank, N.A. v Farmer, 6/05/2008, 2008 NYSlipOp 51133(U);

    Wells Fargo Bank, N.A. v Guy, 5/01/2008, 2008 NYSlipOp 50916(U);

    Wells Fargo Bank, Natl. Assn. v Reyes, 6/19/2008, 2008 NYSlipOp 51211(U).

  6. My first visit to the courtroom gave me the impression that the judge did indeed care about what was happening to his county. I heard the plea of an elderly man saying “Your Honor, I’ve lived in my house 29 years. I’ve had three strokes and three brain surgeries…I don’t know what happened except my payment went up too high…”. He deferred the foreclosure so the man could get counsel. Another case showed the home being sold for 55% of the appraised value. He stalled that one to find out why the sale price was so low. But of the 12 or so cases called, no one showed up to defend their home. Except us. That’s when he said “Yer the guy who lied on his mortgage application!” to which I responded “THAT’S SWORN TESTIMONY YOU HAVE IN YOUR HAND, JUDGE!”. “Nothing further” he replied. 2nd and 3rd appearances yielded no decisions in my case, but there was a simple discussion where he seemed to throw me a bone on one of my claims. Prior to that, multiple uncontested foreclosures were granted with plaintiff attorneys just “phoning it in”, literally. The judge actually called the attorneys at their offices. Judgments were entered against homeowners who never showed,and were entered systematically and impersonally. Throughout the last 6 months, hopefully he’s had to read my side of the story (the multiple motions to dismiss and quotations of State mortgage and fraud statutes). I want to believe in justice and the American Way, I refuse to be that cynical where something as serious as fraud and foreclosure is involved. This judge appears to dislike criminals, so I kept this case in his courtroom; even after our initial “less than friendly” discourse.

    When I parade my family into the courthouse, each carrying a binder containing some of the 10,000 or so pages of stuff I’ve accumulated, I will watch the judges’ reaction. And then we’ll know whether or not lasting Justice exists.

  7. […] is Living Lies by Neil Garfield.  Today he wrote one of the most important posts to date.  Read Living lies here. Yes there is good information on his site but putting it all together is why one should seek […]

  8. I think this note is a little over due. I have talked with many and recommend your site often. I always qualify your site and any pro se litigation with get yourself some help! Get someone who has experience and can stand up in court against mean and nasty bank attorneys, not to mention judges that may not even take the time to read your answers or motions, they will just assume a lot and mostly in the banks favor with out proper counsel.

  9. We go before the court this Friday, 4 September, for a pre-trial conference after having no motions heard since the start of litigation in March. I have evidence of the fraud in the origination, stated the faulty SEC reporting and handling of the mortgage servicing, and have proof of a second set of documents submitted with the mortgage. Multiple motions filed by ourselves including restatement of counterclaims, the Wisconsin 134.15, and a host of other FASB and SEC violations. The BIG question is will the judge find it relevent or will the Plaintiff Bankster (HSBC) be able to hide behind “holder in due course” defense? Motions in Limine seek to exclude all information regarding the loan servicing and origination, Ponzi scheme and other news/information as “prejudicial” to their client. YOU BETCHA!.

    We shall see what transpires. WISH US LUCK!

  10. Yeah that sounds like a great stradegy for people that haven’t already exausted all of their resources, but all of it mentioned requires A LOT of money & in California as well as probably every other state they have raised filing fees in the courts add everything that youj mentioned with representation, Neil you’d be asking homeowners to pay for the impossible. People don’t even have enough to pay for food let alone a bunch of “No Guarantees” representation!

  11. well thought reply neil!

    does anyone have or found sec fraud cases being pursued ?

    1- tax evasion – [using mers] as a front.

    2- collusion , aiding & abiding … my opinion is the servicing industry is the underling mechanism that allows the predatory structured finance to flourish by
    lenders using sevicer’s as a straw-man front to evade direct liability or exposure to damages.
    sheesh!!…that was long sentence, kinda like servitude my mortgage has been.

  12. I’d bet 10-1 that plenty of the “pretender lenders “scum” Arttorneys have paid to come to Garfield’s site to learn defenses to use against us homeowners in our fight. They “get it” becuase nobody screened the “scum” out at the seminars I’d bet. Cause it’s all about MONEY isn’t it??

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