This will probably get me in plenty of hot water with lawyers. Homeowners should be winning foreclosures most of the time. The reason they don’t? — Ineffective Counsel.

The problem is not the judges. The problem is the lawyers who walk into court believing that the loan is real, claimant is real, the claim is real and that they are only looking for technical ways to get their client out of a valid deal.
The problem is exacerbated by magical thinking — that by pointing out bad acts by the foreclosure mill or servicer they will automatically cancel the mortgage, get quiet title and somehow the “debt” will disappear. Is it any wonder that judges are responding negatively to such assertions?
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Well I am rapidly coming to the conclusion that the primary basis for appeal in capital murder cases — ineffective counsel — is the real reason why homeowners think that the courts are ignoring the obvious. This is most manifest in a phenomenon I refer to as hallway trial lawyers. When they are speaking to their clients in the hallway outside the courtroom they sound great; but once inside the courtroom they are either mute or should be mute.
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Hallway lawyers can be great trial lawyers — if they would only prepare and obsessively roll the issues over in their mind as they approach a hearing or filing of a motion, pleading, or brief. And they would win far more often than they would lose if they did the work. That takes two things that most people lack — other than trial lawyers — commitment and courage. Like any performer you must give it your best and accept a pie in the face occasionally.
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In 45 years of litigation I have won and lost cases. Most of them I won. In hindsight I would say that virtually every loss is attributable to one factor —- lack of adequate planning, preparation and execution.
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My own experience is that when I have done my job as a litigator I have consistently successfully defended foreclosure cases because there is no case. That knowledge propels to me to object, challenge and refute basic assumptions in an orderly, timely and effective way. I am clear as to the basis of my objections and challenges and how it it lacks foundation, relevance or relies upon inadmissible statements or documents. And I am relentless. 
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While there are judges who simply refuse to consider any possibility of a homeowner victory, many of such judges can be turned when approached correctly. They are merely starting from assumptions they are required to make. They are not against the homeowner. They are for the rule of law.
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The problem is not the judges. The problem is the lawyers who walk into court believing that the loan is real, the claim is real and that they are only looking for technical ways to get their client out of a valid deal. The problem is exacerbated by magical thinking — that by pointing out bad acts by the foreclosure mill or servicer they will automatically cancel the mortgage, get quiet title and somehow the “debt” will disappear. Is it any wonder that judges are responding negatively to such assertions? 
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Why should any judge relieve a debtor of an obligation because of bad acts by a creditor? The answer is that they should not because if they did they would be destroying the foundation of a nation of laws. If you were owed the money then you would not think that is such a good idea either.
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That is why I strive to show the truth of the transaction between the homeowner and whoever sold the transactional documents for the homeowner to sign or the truth behind the acquisition of what had been a valid loan agreement.
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For the homeowner it was a loan and as soon as you admit that it was a loan, you are already in deep trouble. By admitting the loan you admit the existence of a conventional creditor and a conventional debtor. You also admit the existence of a conventional debt and you can’t contest  the non payment by the homeowner and therefore you are conceding that the homeowner is in breach of a loan agreement without excuse. Fabricating paperwork is no excuse to get out of paying a loan you received. You still owe the money.
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The lawyers and homeowners who complain that this gives them no place to go are missing the essential truth of Wall Street securitization: in nearly all cases the debt was never sold. If you start with the wrong premise you will always end up with the wrong result. 
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The entire enterprise was about selling and reselling private financial data of homeowners who for their part were tricked into thinking they were entering a loan agreement while the other side spared no effort in avoiding the title and liability of a lender under lending laws. That is not a loan and the agreement was not a loan agreement. 
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More importantly, the agreement might not be enforceable at all since (a) there was no meeting of the minds and (b) there was an absence of consideration caused by the payment of consideration together with an obligation to pay it back.
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For the investment banks this was solely about getting consent to sell private data and issuing sand trading securities based on the data not any debt. Anyone who does not understand the significance of that should probably not be litigating these cases. They will lose and thus contribute to the growing body of evidence that most people lose defending actions titled or labelled as foreclosures even though most people could win.
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Mass joinder and mass petitions to change the mandatory requirements for filing foreclosure actions can be done with direction from licensed people who actually understand that there is neither an actual claimant nor a claim in the creation, administration, servicing or enforcement of any transactional documents in which a homeowner is one of the parties.
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My opinion is that without central direction, preparation, investigation, and strategic and tactical planning by experienced trial lawyers, homeowners will continue to be food for a profitable scheme created and advanced by Wall Street.
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My opinion is that this is a massive social issue as well. By finally denying Wall Street banks of profit from foreclosures and all the profitable events leading up to foreclosure, the vast inequality of power and wealth can be addressed, at least in part.
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Neil F Garfield, MBA, JD, 73, is a Florida licensed attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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11 Responses

  1. see comments to – “Have towns been profiting from abandoned properties?”

    Who is in Rick’s camp?

  2. to losingmyhome — everything, unfortunately is about money.

    What kind of settlement does anyone ever get but a continuance of the fraud?

    We need to do much more.

  3. Lawyers are taking money from plaintiffs to ramrod homeowners into a settlement. How? Homeowner asks for discovery ( #1 clue shoum6 have to ask, discovery letter never sent, sends you an discovery letter. doubt it wasd sent to plaintiff.. trial set discovery not completed.refuses to motion for continuance
    It goes on and on

  4. Cannot focus on last “transaction.”

  5. Well mr garfield you are one of those lawyers who failed people including charging many, many thousands of dollars, losing the suit and charging one person for audits that you never ever produced. YOU ARE PART OF THE PROBLEM TOO AND YOU NEED TO OWN UP TO IT

  6. Yes-Poppy and John– and one attorney I had — “Talked to the Enemy” — and by “talk” – I mean not good.

  7. John…Shapiro & Ingle?

    Anyhoo…I could go on for pages, about the lawyers. Tens of thousands of dollars for delay tactics. In “most” cases the lawyers have never met their clients, no verified paperwork – diligence, inconsistent paperwork [to say the least], unverified witness testimony. right down to not following the Rules of Civil Procedure…all of it allowed by the judge(s).

    They do not listen to many of us, active, informed homeowners…the folks here have done their homework and can provide all the relevant documents. Research is minimal with this group of folks.

    I would hardly call most of the lawyers in foreclosure cases, litigators. They can barely handle a traffic ticket. Problem is: they misrepresent – lie about their ability and the outcome they can achieve.

    My last attorney…ugh, calling him that makes me ill, after a De Novo hearing, did not answer his office phone or cell for 11 days, can prove it…we all here know, 10 days after the entry of sale, is all you have to appeal the de novo judgment. Prior to the lack of response, he got another $5,000.00 showing me a stack of papers from afar, saying we were filing a civil suit…that never happened, otherwise I would have filed an appeal to the District Court…he burned up all my cash. This behavior is so unacceptable. Filing complaints takes time, energy and most of the time, they go absolutely nowhere…

  8. From Black’s 9th:

    corruption. (l4c)

    1. Depravity, perversion, or taint; an impairment of integrity, virtue, or moral principle; esp., the impairment of a public official’s duties by bribery.
    [Cases: Officers and Public Employees (;:::>121.J
    “The word ‘corruption’ indicates impurity or debasement and when found in the criminal law it means depravity or gross impropriety.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 855 (3d ed. 1982).

    2. The act of doing something with an intent to give some advantage inconsistent with official duty and the rights of others; a fiduciary’s or official’s use of a station or office to procure some benefit either personally or for someone else, contrary to the rights of others.

    You mean like that?

  9. Well I don’t give up — but tend to agree with Bob G here.

    !) no borrower is going to get the high priced attorneys the “banksters” get because they can’t afford it. And the better the case, the bigger the firm one will go up against.

    2) Friend and I used to call meetings “Lobster dinners” — judge would meet with big bank attorneys in social settings. No judge wants to be the black sheep that sides with the homeowner.

    3) Discovery is RARELY granted. And even if you get some, judge will ignore it.

    4) Even CFPB has trouble battling Ocwen’s attorneys — they will find every trick in the book to DIVERT from real issues.

    Do agree some attorneys don’t pay attention — that is because they want more money that the borrower does not have.

  10. We were forced into a chpt. 13 bkr. After mos. of trying to get somewhere with SLS, LLC. Refusal to timely and fully answer
    any FDCPA inquiries. The way it played out, 13 was our only
    way out. So far, both SLS and the stumblebums at Shapiro, et
    all can’t even agree who the REAL CREDITOR is .
    All this is to say I wholeheartedly agree with Neil, it’s all smoke
    and mirrors – that’s why they won’t answer QWRs – there is no
    information to answer with !
    BTW SLS filed with the bkr trustee ( Tenn. ) as the creditor. So
    were’re taking the hit , again, for a bunch of crooks.

  11. I give up.

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