Attack the Legal Presumptions

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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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.
The arrival and use of legal presumption is a process. It starts with the introduction of some document or information that is offered as evidence. Once admitted into evidence the legal presumption might arise — the court might be asked whether ti considers a presumption to have been raised requiring challenge by the homeowner.
A Legal Presumption means that the foreclosing party does not need to offer any further proof of the truth of the matter asserted.  Once the presumption is established it is up to the homeowner to discredit the evidence, and upon doing so the burden of proof shifts back to the foreclosing party, who must prove the facts asserted without the use of the presumptions.
So you have two opportunities: (1) prevent the presumption from arising through proper timely based objections or motion in limine directed at the proposed testimony or document and (2) discredit the presumption.
If the challenge results in a favorable ruling as to the admissibility of the evidence or the the application of the legal presumption, foreclosing party is forced to produce competent evidence of the actual facts — including that they are the owner of the debt because they acquired it from a party who was the owner of the debt and so forth back to the original alleged loan. In a word, they can’t. There is absolutely no possible way they can prove that they are out of pocket in connection with any aspect of the alleged loan.
The fact that they have proven that the hoemowner stopped paying does not in and of itself constitute a default. And even if the “default” is established, it doesn’t mean that this particular foreclosing party suffered any financial injury nor that they represent anyone else who suffered financial injury.
This is why you need a trial lawyer and trial lawyers need to prepare their objections because without them,  the case is almost a sure loser. Virtually every case I won or forced a favorable settlement arrived at that result because of timely well-placed and well-argued objections to evidence.
On appeal if you have lodged the right objections at the right time, the appellate court may well be forced to reverse the foreclosure judgment and either order dismissal or remand for further proceedings.
Business Note: One of the services we do here but don’t advertise is preparation of lawyers and pro se litigants for trial and other hearings. In that service we essentially write the narrative for the homeowner and the objections to evidence, when to raise them (immediately), how to raise them and why to raise them. We don’t advertise it because it is very labor intensive trimming the narration to focus on the weakness of the foreclosing party. It is quite expensive for me to review everything and come up with a trial strategy. It is NOT some template that anyone can follow. Nevertheless, if you want to discuss such a service you can set up a consult as shown at the beginning of this article.

8 Responses

  1. An Inquiry into the Legal Standing of
    Rogue REMICs in Foreclosures
    Capstone Advisor: Prof. Camille Walsh
    Second Reader: Prof Keith Nitta
    June 2016

  2. PORTLAND, Maine (AP) _ The Maine supreme court has ruled a mortgage company can’t have two bites at the apple when it comes to a foreclosure proceeding.
    The court has unanimously upheld a ruling against Fannie Mae, which tried to start a new foreclosure process on a property in Lincoln after a judge threw out the original case.
    A lawyer for the property owners called the ruling a victory for consumers, saying the Thursday court decision makes clear that rules must be applied equally to lenders and borrowers. He says it ensures that lenders can’t try to refile a foreclosure case that it already lost.
    Lawyers for Fannie Mae didn’t immediately return a call seeking comment.

  3. I remember in June of 2016 I went to branch to pay mortgage but the system did not accept it at WF Branch so instead of 2 month behind became 3 months behind then misleading modification mail stated to ball out on me! Until I got tired I remember I said to S Harding, “listen if I have to pay then I ll pay just don’t make me pay unnecessary fees” she was mute no Financial education that Bigu Modification dragged me loosing my home

  4. Oh you are in Florida! Be safe please!

  5. Have you been advised to get out of Florida yet?

    I know you guys effectively represent America’s Last Stand against the most out of control-goon-thing that has ever happened but Hurricane’s are seriously nothing to f*ck with?

    Just thought I would restate the obvious here.

    Make it a Great Day.

    Scott Thompson

  6. Presumption argument is good, but if you have no due process from the judge, it will not make a difference.

  7. To Mr. Garfield and crew:

    Be safe during this storm! We need you guys!!

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