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The system has been caught flat-footed by the banks’ strategy of weaponizing the court process to prove a nonexistent claim. Homeowners and many lawyers throw up their hands claiming that the banks are just too strong. But the banks are actually weak, once you poke behind the armor.

Of the thousands of cases in which the homeowner won or achieved a very successful result, not one was the result of proving that bankers should be shot. Every single win by homeowners has been the sole result of arguing insufficiency of evidence to prove the existence of the claim.

What most homeowners and many attorneys have failed to realize is that by not responding to demands that they are legally required to answer, the banks have opened the door to the stated allowable inference that the defense narrative is correct, thus rebutting the legal presumptions that form the sole foundation for the case against the homeowner.

Proving that the loan account got paid off is not just difficult. It is impossible because you don’t have that information and your opposition is not going to give it to you. But when you ask for identification of the party who maintains an asset account consisting of the subject alleged loan receivable and you are met with stonewalling —even after court orders have been entered commanding them to answer — then you can claim the inference that the loan account does not exist.

The suggestion that courts are completely unwilling to consider any possibility that the homeowner has a meritorious defense is ill-conceived.

I would suggest that you keep open the possibility that the court will consider these matters if they are presented correctly. It’s a hard pill to swallow but the truth of the matter is that many courts have not considered these issues because they have not been presented in a manner in which the court could consider admissible evidence and inferences, and where the evidence and inferences are properly presented within the context of a defense narrative in which the evidence is shown to be relevant to material facts in the case.

The problem with many pro se litigants and many lawyers is that they don’t know how to do the preparation, they don’t know how to do the presentation, and they don’t know how to argue the law. The most common error is the one where someone tries to introduce evidence of skulduggery, thinking that is all they need to do. It isn’t.

The fact that your opponent is a gaping moral hazard does not change the facts of the case or the proceeding. But if you introduced that evidence, for example, as evidence of a lack of credibility, with corroboration, legally permissible inferences, etc, that might enable you to argue your way out of legal presumptions arising out of what appear to be facially valid documents. So a knowledge of objections and motion practice, together with discovery is a key. 

In simple words, it is never enough to show that your opponent is a no-good low life who is advancing his own interests mercilessly. You must show and prove that your opponent was cheating and lying etc in THIS case. What most pro se litigants and lawyers do not understand, is that in cases like foreclosures arising out of highly sophisticated and complex securitizations schemes, PROOF is generally not going to be actual evidence, although you might have some evidence that you can show the judge. 

PROOF  — in such cases where the asymmetry of knowledge is indisputable — is the raising of inferences against the opponent. Those are conclusions that the court is legally permitted to accept and even required to consider in evaluating the evidence.

So, for example, if you clearly and repeatedly present your defense narrative — “no debt and no creditor” — then your demands for an order compelling answers to discovery requests, followed by a motion for sanctions and motion in limine, will in most cases (at least 2/3) cause the judge to exclude the evidence against the homeowner. Yes, that does happen every day.

That is what happens when the opposition is strictly relying on presumptions, assumptions and inferences which they have raised by sleight of hand. We all know they don’t own the debt and they have no right to administer, collect or enforce it. Our system allows the banks to rely on such legal fictions and devices to present their case because in the past there were no common arguments against those presumptions. 

The system has been caught flat-footed by the banks’ strategy of weaponizing the court process to prove a nonexistent case. 

So you need to rebut the presumptions. Once that is accomplished then the banks must prove their case without presumptions, inferences and assumptions. they must prove it in the normal way — with actual evidence of each element of their claim. 

For those of us who are steeped in the tradition of the last 20 years we know that the banks are unable to do that. We know that the banks will offer a settlement or modification (which they have no authority to offer) only when all other options have been exhausted. to them, it is not a matter of winning because they prove their case; it is a matter of wearing down homeowners so they lack the time, energy and money to defeat the banks. 

The reason why successful homeowners in litigation challenge the records of the alleged servicer is to expose the fact that the company (Ocwen etc) doesn’t actually perform servicing tasks (which are in reality performed by Black Knight) as implied by their evidence.

And since they are not making the entries of data at or near the time of any transaction and they are not making payments for taxes, insurance or to investors, the company claiming to be a servicer is actually a third party witness whose only interest is to promote foreclosure and not to serve as an objective credible witness to prior events.

When Ocwen fails to answer appropriate questions or discovery demands you can raise the inference that they are not really the servicer. As merely a third party witness to a witness (i.e., you have robowitness with no knowledge testifying about Ocwen’s records of Black Knight’s records that is hearsay on hearsay and it is NOT subject to the business records exclusion from the hearsay rule.

Sound complicated? That is why you need to get a lawyer.

*Neil F Garfield, MBA, JD, 73, is a Florida licensed trial 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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