The Economics of Justice

There is no doubt in the minds of most serious trial lawyers who dig deep enough that homeowners can and should win all or most of the foreclosure cases. There is also little doubt that homeowners will lose by default or by inadequate presentation and well-founded attacks on the foreclosing party’s existence and ownership of the loan.

But in the absence of a well founded presentation, in the absence of well founded objections and in the absence of appropriate cross examination and aggressive investigation and analysis, a complete stranger will emerge as the victor in a fight over whether the home should be sold in foreclosure.

This leaves the homeowner and the investor whose money was used to fund or acquire the loan in the dust. It eliminates workouts that are best for both the investors and the homeowners. It rewards the culprits who condemned this country to more than a decade, so far, of strife and inequality of wealth. And it happens because of a defect in the judicial system that is wholly reliant on the financial resources of parties to a dispute.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.


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see The Truth About American Mortgages

I listen to a phone message message. The air of despair is evident in the voice of a homeowner who desperately wants to stay in her home. She correctly believes that the parties seeking foreclosure sale of her property are complete strangers to the loan and the property. She would do a workout with anyone who is entitled to her payments, assuming the debt still exists.
She knows in her bones that what is happening is legally and morally wrong. But she can’t do anything about it without spending thousands of dollars on trial lawyers, forensic analysts and ghost writers. In the end she knows that even in cases of blatant fraud, even when it is clear that she is a victim of illegal behavior, the party with the money has multiple layers of lawyers at their disposal who work tirelessly to make every wrongful act appear right.
It sounds like she is drifting. I can ask around but it is unlikely that any lawyer will take on her case without some upfront retainer and assurance that future fees will be paid. I know this is unfair but this is how our system has always worked. Organizations like Legal Aid do not generally accept cases involving foreclosure defense.

The American judicial system boils down to this: if you want representation in a courtroom and it is not a criminal matter, you are on your own. People who commit wide scale fraud across the country generally have deep or nearly infinite pockets. They have lawyers for their lawyers. The bottom line is that anyone can commit fraud and get away with it if they have the assistance of lawyers drafting the documents to make the illusion seem real and more lawyers to represent “clients” in court that either don’t exist or who have no nexus to the loan, debt, note or mortgage. The only risk in committing fraud is the risk of targeting a victim who has equal access to lawyers, money and investigators. Consumers are fair game.
The appropriate defense of foreclosure actions would include private investigators and aggressive discovery, in addition to carefully worded pleadings and motions. It would require adept lawyers who understand how to present a motion, how to play the discovery game and how to use well-founded objections and good cross examination at trial.
If the homeowner had deep or infinite pockets, the cost of defense would be over $100,000 and in at least one case of mine was close to $200,000. Very few homeowners have access to that kind of money. If they did, they would have won most of the time. And now that fee awards have virtually been eliminated in a twist of a legal fiction, there is little hope of collecting fees from the foreclosing party except as damages for wrongful foreclosure and related claims.
Even on the fee awards that exist, the generally accepted amount of “appropriate” or “reasonable” fees is usually set at around $25,000-$50,000. Sometimes that is right but more often it is not. So a lawyer seeking to recover his fees upon winning the case is going to get, in the best of circumstances a fraction of the billable time he/she spent on the case.

Lawyers are required to do some pro bono work, but those cases typically take a back seat to the cases where the client is paying “full freight.” So file research and analysis is scarce when the fees are low or nonexistent. In large firms pro bono cases are frequently treated with the same respect as clients paying the fees. But that is because they can. A solo practitioner needs to pay his own mortgage and living expenses. Taking a foreclosure defense case pro bono and giving it all it deserves would mean virtually endless hours spent in investigation, analysis, legal research and strategic planning for presentations.
So the upshot is that really good legal representation is scarce even from the best of trial lawyers. And getting any legal representation is getting increasingly difficult because lawyers don’t like losing. They also privately admit that they don’t want to “look silly” or “anger the judge” because deep inside they believe their client does owe the money and it doesn’t matter who is collecting. It doesn’t matter that a typical loan workout would have eliminated most foreclosures. They are going to lose most of the time without presenting a well focused defense based upon the lies, fabrications and forgeries that are used to pursue foreclosures.
Most lawyers go through the motions and are content to say that at least they bought time for their clients. It’s easy for me to say that it shouldn’t work that way. Lawyers should seek to win because they can win. But reality sides with the lawyers who do not have clients who are able to pay the going rates for legal representation or who cannot pay the extra amounts necessary to present a full throated defense.
But reality  does not side with lawyers who refuse to work on contingency in an action for damages based upon false and fraudulent presentation of falsified evidence. For lawyers who take the time to truly understand what the banks have done, they will then understand why the homeowner should not only be able to avoid foreclosure, but should also get monetary damages including in many cases punitive damages.
But it takes a genuine belief on the part of the lawyer to do it. Most lawyers don’t have that belief because they are ignorant of the true facts and the law. Those lawyers who have done the work have been rewarded handsomely for their efforts in what are not confidential settlements under seal of confidentiality. I know because I have seen many of them but I am restricted as well.
In every system lawyers are not required to work unless they get paid a reasonable fee. Unfortunately reasonable fees are usually beyond the means of the typical homeowner.
So like the other intrepid homeowners who won’t give up their home without a fight, you must piece together a defense using your own skills, perhaps a paralegal, a forensic analyst and ghost writers like me to get you over the top. You are right that you should win because most foreclosures are fraudulent and probably criminal schemes. And that is why homeowners do win cases — if they present their defense correctly and they are able to gain access to some attorney who can guide them on trial practice.

16 Responses

  1. TO ROGERRINALDI….Yes, it is Well Fargo, as trustee for Park Place Sercurities,,,,the servicer is Ocwen

  2. java, my friend, you are 100% correct. I filed grievances with the Office of Attorney Ethics and they declined filing a complaint against the attorneys because I had the audacity to file a Federal suit against the mill. So the mill is being allowed to continue to commit perjury, while my Federal case is pending.

    THE OAE asked for clear and convincing evidence and I gave it to them. They started an investigation and the mill’s defense was “But she’s suing us in Federal Court”, so the OAE will not file a complaint until my Federal case is decided.

    It’s a sad joke, my friend.

    Love, wanda robo

  3. rogerrinaldi- yeah I know the settlement funds were plundered by the states, and I remember the horror show of the “ Independent Foreclosure Review” where several hundred thousand refund checks bounced. Fraud upon fraud upon fraud.
    As a process server, youve seen it first hand.

  4. Ian, none of the PSA’s were followed, and collateral files never traveled. Notes were electronified without customer consent (E-Sign violations). And what you said was exactly correct. All of it. Good man. You know your stuff. It just doesn’t get us anywhere in a corrupt judicial system.
    Sad, but true. Effen criminals all the way around.

  5. I’ve got a flash for everybody….all these states that took the Settlement Funds from the banks and didn’t distribute it (90%) to the homeowners and kept it for whatever they wanted VIOLATED those settlements. My attorney pointed this out to me today. (By the way, I shoot my mouth off and may appear smart sometimes, she’s a big part of that). This is racketeering on behalf of your own state Attorneys General that was in office at the time. And like she said today, THE FRAUD NEVER STOPPED! Every 05-07 vintage foreclosure I’ve ever served had fugazy documents. They continue to choose to ignore the lawbreaking. That’s a class-action for every homeowner in their respective states for a real cause of action!

  6. If the trusts never purchased any loans, clearly evidenced by the lack of two “true sales” in order to create a “bankruptcy remote entity”, or BRE, The two true sales would be evidenced by a sale from the originator to the sponsor, from the sponsor to the depositor, and from the depositor to the trust. There is never any evidence that this was done.
    Under both the IRC REMIC provisions and NY Trust Law, then even the most obtuse judge would see that neither your loan (or any other loans) are in the trust, the trust has no corpus, and therefore doesn’t exist. So the injured party isn’t in the courtroom.
    Which is fraud on the court, and if the judge doesn’t acknowledge this you as a pro she or thru your attorney can file a “misprision if felony” against the judge/court.
    (ANON please correct me if my overloaded memory has clouded my take on things)

  7. We lost our home through wrongful foreclosure. We went to court pro se and lost, perhaps, because, we didn’t know the correct procedures to defend..

    The answer to all these is America needs more kind and compassionate pro bono lawyers who could assist and represent distressed people.

    It may be true, “organizations like Legal Aid do not generally accept cases involving foreclosure defense.”

    The article may be some sort of enlightenment for homeowners facing illegal foreclosure without professional legal representation.

    Our home was sadly gone.

    Go and vote.

  8. Good points but in the end giving lawyers, courts and government a pass. I have seen homeowners that paid $50k to $100k and their lawyers never scratched the surface of the fraud involved and worse ignored basics that Neil speaks of all the time. No way any individual would get away w all the fraud on the court we see. Gov Brown in CA still depriving homeowners of $300 mil in relief after court order. Republicans getting us primed for next crash and bailout. Lawyers can work w us that have done alot more “discovery” than most lawyers and esp non profits that took settlement funds. People need to speak up and not allow settlements be dismissed esp in CA. U can submit ur stories to House finance committee web site on Dem side and submit whistleblower info on majority Rep side.

  9. louise, they always block your discovery and enter Summary Judgment. The judges are criminals actually. ruling for their own retirement plans full of bank stocks.

  10. Hey Al Murray, is that a Wells Fargo foreclosure? let me know….

  11. I did win my first foreclosure action, because there was TOTAL LACK OF STANDING. I have now noticed that almost every foreclosure action has lack of standing.
    All they did was sue me again, this time by the NONEXISTENT trust, and we were off to the races. If I was give full DISCOVERY, I would have won period. No discovery, no honest judges. Until we sue the lawyers and the judges and maybe the clerk of court, nothing is going anywhere.

  12. By the way can some one do “Go Fund me” for that client called you w despair voice!

  13. With all the despair voices from the wrongfully foreclosure client. And with all the clarification about the fraud been explained by Mr Garfield! I don’t get it what kind of Gov & other authority not interested to challenge the crook! Not interested to stand up for “we r the people” their blood is not moving for elderly citizen fragile thrown on the dirt in the hot weather & chilly weather it cost a lot more to live on st than having a roof! I lost my appetite to settle up my life in a home! Called SLAVERY all our earning are robbed by a junk of paper by the bank “I’m here to help u” all kind of mind game! Stay strong Mr Garfield! Hope u become president of usa

  14. There is much truth in Neil’s article.

    I have great respect for Neil. Not only has he stood up against the fraud for a decade, but he has also brought many together – for support and, often, lifelong friendships.

    The added truth is that not even unlimited resources can correct what has been done. The “Bank” law firms will keep you in court until you die even if you have a great case, and, if even if you are paying!!!!. .

    It was incompetent upon the government to attack the fraud. They failed. While there is one lawsuit by a government agency against Ocwen, the stalling is incredible, much is demanded for “secrecy,” and it is only against Ocwen. Perhaps, resolution of this case will help. But, until the government realizes that the problems are unresolved, and will likely increase, we remain on a difficult path.

    If anyone can help – it is Neil. Again, I have no interest in saying this. But, I have been around a long time, and have seen much. We need more – we need government help. Government “settlements” made things much worse, and did nothing for the true victims.

  15. I agree with Javagold. I am still fighting my foreclosure (5 years). So far I have defended my home against 3 attorney firms hired by the servicer but pretend to being hired the trust and or the trustee. There is a lot of fraud in my situation as there is with most foreclosures, What is really needed is a judge that will follow the law. I can actually see a glimmer of light at the end of the tunnel.

    I am pro se and will remain pro se…

  16. Sorry. This sounds like a lot of excuses for lawyers across this corrupt country. It’s very obvious They can benefit much more by allowing the fraud to continue as is. The BAR is a joke. And lawyers should be ashamed of themselves. Please don’t defend them. It makes you look foolish.

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