Livinglies's Weblog

Legal presumptions lie at the very heart of the millions of wrongful foreclosures that have been approved by the courts and that will be approved in the future unless lawyers are able to successfully challenge the basic premises of the foreclosing party, to wit: (1) a facially valid instrument is presumed to be authentic and valid and (2) holders of a promissory note must prove their right to enforce the note which in turn means that they must disclose the source of their alleged authority.

Without a timely objection the document will be admitted in evidence as proof of the assertion that a debt exists between the homeowner and the foreclosing party as creditor. Without a timely objection the legal presumption arises that the alleged holder is the holder and possesses authority to enforce.

By failing to make timely objections and sometimes by affirmative allegations in the homeowner’s pleadings that inadvertently create admissions against the interests of the homeowner, the homeowner is often removing issues that should be contested. Once the testimony and documents are admitted, it is nearly impossible to  circle back around and contest the facts that you have admitted. One example is reciting the chain of title as if any of those entries were true representations of actual transactions. Admit that and it’s game over.

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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Every state and the federal system has laws and rules concerning the admissibility of evidence. The first problem for the defender of the foreclosure is an assumption that the banks play up — the mere allegation of being a holder is taken in many courts to be all that is necessary to enforce the note and thence the mortgage, without proof.  This incorrect assumption has the effect of a legal presumption — thus removing the requirement of proof of the matter asserted — i.e., that the foreclosing party has any right to be in court enforcing a contract to which it is not a party.

The effect of this assumption is seismic in that it shifts the burden of persuasion (burden of proof) onto a homeowner who has plenty of forensic evidence to cast doubt on the “proof” (the note, the mortgage and the bookkeeping report introduced as proof of default and the amount due). But what the homeowner does not have is solid evidence that there is no debtor or creditor relationship that is relevant to the claims of the foreclosing party.

Objections to evidence get far more traction than claims of conspiracy and complaints that the foreclosing party has failed to provide proof of its status. In fact the courts have bent over backwards to give the foreclosing parties legal standing even when the true facts would show otherwise. Many “bad” decisions relate not to court bias but to poor timing or absence of proper objections causing the court to arrive at a conclusion that might be inapposite to the facts.

Florida Statute 90.302 Classification of Legal Presumptions says

90.302 Classification of rebuttable presumptions.—Every rebuttable presumption is either:

(1) A presumption affecting the burden of producing evidence and requiring the trier of fact to assume the existence of the presumed fact, unless credible evidence sufficient to sustain a finding of the nonexistence of the presumed fact is introduced, in which event, the existence or nonexistence of the presumed fact shall be determined from the evidence without regard to the presumption; or (e.s.)

(2) A presumption affecting the burden of proof that imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.

History.—s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379.

Filed under: foreclosure |