Boilerplate Answers to Discovery Won’t Cut It. If Plaintiff does it, they lose the claim. If Defendant does it, they lose the defense.

see https://www.natlawreview.com/article/district-court-requires-plaintiff-to-disclose-evidence-about-noneconomic-loss

I have been writing, lecturing, and just saying the same thing since 2006. Homeowners don’t need to prove anything. The objective in Foreclosure Defense is to prevent the claimant from pursuing their claim. If you are not willing to do all the necessary   work and to make certain you have it right, then you are not litigating, you are complaining. The strategy is accomplished by using the following tactics:

  1. Wordsmithing the right very specific questions and demands that go right to the heart of the case — the existence and ownership of the debt (loan account).  Both lawyers and homeowners seem to be shy about doing this because they are afraid of receiving an answer they won’t like. No such response it will be forthcoming. In fact no answer will be forthcoming and that is the point. The most they can ever do is obscure and evade. They do this with objections or with the responses that are meaningless and boiler plate.
  2. File a motion to compel along with a memorandum of law citing to relevant cases that are exactly on point.
  3. Get a hearing on the motion to compel. At the same time get a hearing on objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should NOT specify punishment. It should only say that your motion is granted, that the following questions must be answered, and that the “bank” must respond to following requests for production must with the documents requested within ___ days. Prepare for the hearing in a mock presentation.
  4. Assuming you win on your motion to compel, having a lawyer in the courtroom representing the homeowner will greatly improve the chances that your lawyer will literally write the findings and rulings of the court. This will decrease the amount of wiggle room that the opposing attorney will try to insert.
  5. You might consider a motion to strike whatever response they file as being unresponsive to the discovery demanded, and contrary to the rules of civil procedure.
  6. There will still be no response — or no meaningful response. All they have are presumptions (not actual facts). You are entitled to rebut those presumptions by asking for facts. They must answer — but they won’t because they can’t.
  7. File a motion for sanctions. along with a memorandum of law citing to relevant cases that are exactly on point.
  8. Get a hearing on the motion for sanctions. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify punishments including (a) striking the pleadings (b) dismissing the foreclosure (c) raising the inference or presumption that the loan account does not exist for purposes of this proceeding (“law of the case”) (d) raising the inference or presumption that the ownership of the loan account cannot be established for purposes of this proceeding (“law of the case”) and (e) awarding the homeowner with costs and fees associated with the discovery dispute. It should say that your motion is granted, recite the history of bad behavior, and give them one more chance to purge themselves of contempt that by compliance with the order on the motion to compel within ___ days. Prepare for the hearing in a mock presentation.
  9. There will still be no response — or no meaningful response. All they have are presumptions (not actual facts). You are entitled to rebut those presumptions by asking for facts. They must answer — but they won’t because they can’t.
  10. File a motion for contempt of court along with a memorandum of law citing to relevant cases that are exactly on point.
  11. Get a hearing on the motion for contempt. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify punishments including (a) striking the pleadings (b) dismissing the foreclosure (c) raising the inference or presumption that the loan account does not exist for purposes of this proceeding (“law of the case”) (d) raising the inference or presumption that the ownership of the loan account cannot be established for purposes of this proceeding (“law of the case”). It should say that your motion is granted, recite the history of bad behavior, and give them one more chance to purge themselves of contempt by compliance with the order on the motion to compel within ___ days. Prepare for the hearing in a mock presentation.
  12. File a motion in limine along with a memorandum of law citing to relevant cases that are exactly on point.
  13. Get a hearing on the motion for in limine. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify that the claimant is barred from introducing evidence on the status or ownership of the debt and barred from introducing any evidence (testimony or exhibits) from which the court might apply presumptions of ownership, loss, right to enforce. It should say that your motion is granted, recite the history of bad behavior. Prepare for the hearing in a mock presentation.
  14. File a motion for summary judgment along with a memorandum of law citing to relevant cases that are exactly on point.
  15. Get a hearing on the motion for summary judgment. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify that judgment is entered because the claimant is barred from introducing evidence on the status or ownership of the debt and barred from introducing any evidence (testimony or exhibits) from which the court might apply presumptions of ownership, loss, right to enforce. It should say that your motion is granted, recite the history of bad behavior. Prepare for the hearing in a mock presentation.
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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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
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18 Responses

  1. Poppy, Your comment: ‘Each time no note was presented at the initiation of the action. [argued lack of possession], obviously because they didn’t produce the note.

    Now entering the evidence adduced from the problems and wrongdoing you stated in the last paragraph of your comment is what would carry the day.

  2. Never presented “show me the note” theory…New Century bankruptcy court, evidentiary hearing, bankruptcy trustee, Alan Jacobs said, Konar note was seized…went off that premise. Complaints were never dismissed…the clerk allowed Rules of Procedure to be disregarded, went from 2015 to 2018…changing parties, time lapses of far longer than allowed and no legal representative working for the creditor…we found no attorney by the name, paperwork presented.

    Appreciate your feedback…BTW: my original file has fabricated income…know later, appraisal is inflated-based on condition and other similar properties…long and complicated. And the loan was in default, prior to closing, based off hand written notations on the closing statements, then default paperwork from Ocwen….originals from closing attorney and Texas deed office confirm irregularities.

    Thanx

  3. Poppy, if I understand your post, one point is regarding the producing the note, and the other is regarding multiple foreclosures. In non-judicial states they don’t have to produce the note, in order to foreclose.

    CERVANTES V. COUNTRYWIDE HOME LOANS, 656 F.3d 1034 (9th Cir. 2011) (The “split the note” theory has no sound basis in law or logic.);STEIN V. CHASE BANK USA, N.A., No. 10-cv-203 (PJS/JSM), 2011 WL 882091, at *3-6 (D. Minn. Feb. 9, 2011).(Uniform Commercial Code references are routinely made in support of “show me the note” claims, and have been squarely rejected by the Courts.); WELLS V. BAC HOME LOANS SERVICING, L.P., 2011 WL 2163987, *2 (W.D. Tex. Apr. 26, 2011) (This claim—colloquially called the “show-me-the-note” theory— began circulating in courts across the country in 2009. Advocates of this theory believe that only the holder of the original wet-ink signature note has the lawful power to initiate a non-judicial foreclosure. The courts, however, have roundly rejected this theory and dismissed the claims, because foreclosure statutes simply do not require possession or production of the original note. The “show me the note” theory fares no better under Texas law.); MURPHY V. AURORA LOAN SERVS., LLC (D. Minn., 2013) (“…most of Plaintiffs’ claims were premised on the ‘show me the note’ legal theory’….Judge Keyes found that this theory had been rejected by the Minnesota Supreme Court and the Eighth Circuit…Butler continues in “pursuit of these discredited legal theories…he continues to refuse to acknowledge that these “show me the note” claims are based on a ‘legal fallacy.'”); DEL PIANO V. MORTG. ELEC. REGISTRATION SYS, INC., 2012 WL 621975, at *10 (D. Haw. Feb. 24, 2012) (rejecting a “show me the note” claim as “baseless”); KRAKAUER V. INDYMAC MORT. SERVS., 2010 WL 5174380, at *9 (D. Haw. Dec. 14, 2010) (citing ANGEL V. BAC HOME LOAN SERVICING, LP, 2010 WL 4386775, at *9-*10 (D. Haw. Oct. 26, 2010) (“[T]his Court and other district courts have rejected `show me the note’ arguments like Plaintiffs’.”)); MANSOUR V. CAL-WESTERN RECONVEYANCE CORP., 618 F. Supp. 2d 1178, 1181 (D. Ariz. 2009) (discussing why courts routinely reject “show me the note” arguments to avoid foreclosure).

    And standing arguments are not on the merits, and banks can come back a re-foreclose

    McCARNEY V. FORD MOTOR CO., 657 F.2d 230, 233 (8th Cir. 1981) (“[A] dismissal based on standing is not “on the merits” and therefore will not act as a bar to a later suit.”); BATTERMAN V. WELLS FARGO AG CREDIT CORP., 802 P.2d1112, 1118 (Colo. App.1990) (noting that dismissal of a suit for lack of standing is also not “on the merits” of the underlying substantive claim and thus does not bar relitigation of cause of action previously asserted based on res judicata); GILBERT V. NAMPA SCH. DIST. NO. 131, 104 Idaho 137, 657 P.2d 1, 4 (1983) (holding that prior dismissal for lack of standing was not an adjudication on the merits under language identical to rule 1.420(b); subsequent suit not barred by 1271*1271 res judicata); FED. HOME LOAN MORTG. CORP. V. SCHWARTZWALD, 134 Ohio St.3d 13, 979 N.E.2d 1214, 1223 (2012) (“The lack of standing at the commencement of a foreclosure action requires dismissal of the complaint; however, that dismissal is not an adjudication on the merits and is therefore without prejudice. Because there has been no adjudication on the underlying indebtedness, our dismissal has no effect on the underlying duties, rights, or obligations of the parties.” (internal citation omitted)).

  4. Have had two (2) foreclosures….2009, then 2018. The sale of the collateral does not have to happen under statute for the foreclosure to be consummated. Each time no note was presented at the initiation of the action. [argued lack of possession] Even right down to the SP “special proceeding”, …[non-judicial for those who don’t know]. The rules of procedure were broken multiple times by the officiating clerk. On appeal the same clerk working for the Civil Court, was also working in the Federal Court as an administrator…I complained, wrote letters, etc…she went to the judge and successfully got a restraining order against me…the only thing I was allowed to do was file paperwork. [story is longer, but no space and time here]. Suffices to say, the same DOT “deed of trust’ and Note were foreclosed on multiple times. I have found no legal provision for this…[if anyone here knows how this is done, legisman-Bob G, hit me with it]…never argued securitization. Then we have the condition of the property, flooding. Known and concealed. Claims up the wazooo, in my non-legal opinion. Hid the survey. Amazingly, I have them blocked, by the Real Estate Commission of NC, for the condition of the property and non-disclosure. Stephen Fussell laid them out…I went after the realtors. For now, this is holding…the property defects cannot be corrected without an agreement from the abutting land owners and it’s over $150,000.00 to correct. In the mean time, I am listening to anyone who can put me on the right path, legally. [when some of this was being litigated I had counsel, malpractice is what he committed], absolutely no defenses were presented…he took $2,500.00 bi-monthly, for almost 2 years and told me on the date of state court hearing “no need to come, not like a real appeal”, I’ll handle it…what a huge mistake. Then 11 days after the judgement, he finally answered my calls, emails, office visit…saying, it turned out the way we expected and it’s too late to do anything. This is the short version.

  5. Wow, after so many years people STILL don’t see the basic facts.

    To Bog G.
    You give a mortgage note to a relative as a gift.

    Ok, was it YOUR Note backed by YOUR money you lent to someone?

    Does the LENDER (who pretend to be a lender) lent you any of THEIR money?

    No? Why not? Because they don’t have any money to lend?

    When whose money this “Lender” lent to have rights to give a Note as a gift to someone?

    And why the source of these money are never disclosed, in violation of every lending law?

    How about if these money came from a criminal source (aka money laundering for which our Big Banks are famous for?).

    So, a fake Lender gave to a borrower someone’s money which came from a highly secretive secretive source. Sounds like a valid contract.

    Next.

    The mortgagor defaults. The relative forecloses because he or she owns or possesses the note. Your relative wins the foreclosure action. Your relative liquidates the collateral.

    Soon the mortgagor discovered that this Note was funded by someone else, like a local mafia; who cannot even tell where this loan is held as an asset.

    If you had no rights to these money but merely pretended to be a Lender and then much less you had rights to gift this Note to your relative.

    Does your relative have rights to liquidate any collateral?

    Or, did the relative actually foreclosed anybody? Or it was done by the same people who secretly passed the money to a fake Lender?

    Because people who file foreclosure cases and get favorable verdicts have absolutely no relationship to any debt or any Notes. They are actors hired by Banks who launder money though the Court for profits

  6. Poppy — your arguments were not wrong. They were right.

  7. “possessed the note at the institution of a foreclosure suit”….

    this seems to be the overwhelming theme, basis for a foreclosure, no matter what alternative alleged facts are presented. Unfortunately, this is how the courts are ruling, like it or not. 12 years in and in 2009 when this entire mess started for me, they, US Bank or Ocwen did not have the note in their possession, documented. My arguments were incorrect, wrongly presented and paid the price.

  8. ANON, again, you have not provided any “facts” that securitization is illegal, because its not illegal; they’ve been secularizing loans in this country since the 1700’s; and now you’re claiming that these “refinances were 90% of the crisis loans – were internally actually modifications.” What facts do you have to support either legal conclusion.

    Furthermore, you provided no “facts” that refutes the proof Bob G or me provided. Please explain.

  9. ANON…your case is an outlier, several standard deviations from the mean.

    I am familiar with your case. It’s right out of bizarro world. There is a lot of “crazy” going on in your case, and the craziness is being allowed to continue by the state and federal judges trying to avoid dealing with your situation, which is professionally unconscionable.

    In my opinion, (NG doesn’t agree, of course) it really doesn’t matter whether a note and mortgage was securitized or not…the note and mortgage exist independently of what “desk drawer” they were placed in. Holders have a right to foreclose unless you can prove fraud or forgery on the part of the alleged holder, or that their holdership is otherwise somehow illegal.

    Do your own homework, so to speak.

    Remember how long our host held on to his erroneous Jesinoski belief, before conceding that he was wrong? Or what about how he insisted that DB National Trust Company was a non-existent entity? Or that none of the trusts exist? Or that the banksters made 12X the amount of borrower’s note? Or the claim that UCC 9-203(b) applies to real estate mortgages and that there must be proof of independent payment of value for the mortgage as well as the note, before a foreclosure action can be commenced. (BTW, real estate mortgages, except in very rare instances not applicable to what concerns readers here, are not covered by the UCC, but rather by state law.) When money changes hands at the closing table, that’s value paid by the lender and consideration had by the borrower. That’s what makes the mortgage usable in foreclosure actions.

    None of this is not to say that some of the posts do not contain useful tactics and strategies. Some of them actually might get you an acceptable loan mod or another couple of years in your house. But there is no magic bullet.

    Finally, because there is so much bad advice given on this site by its owner, I think that I am going to have to unsubscribe, as I can’t afford wasting any more time.

  10. Legisman — I have discussed facts here many times. Another question – if the “refinance” (refinances were 90% of the crisis loans) – were internally actually modifications — who holds the note? There must be authority to hold the note.

    Thanks.

  11. Anon, what facts do you have to support anything within your post, or contradicts Bob G’s comments or the case law I provided?

    Furthermore, refinance was not discussed by Bob G or me, which wouldn’t matter anyway regarding a holder vs. an owner being able to foreclose.

  12. What is stated here is okay if the law was followed. Unfortunately, it was not followed. Not followed from the inception of the claimed note/mortgage/refinance. What was presented to the borrower is NOT what was done internally. This is strictly as to the CRISIS loans and invalid securitization. There is a reason why the securitization was invalid — and it is NOT for lack of consideration, and it is not for claimed bad “underwriting,” and it is NOT for possession, or lack thereof, of the note. It is because the “Refinance” did not do what it supposed to do — pay off the prior loan BY THE BORROWER via a valid refinance. Foreclosures that came later are based on fraudulent origination. But if you limit yourself to “last” transaction of so-called claimed refinance (let us call it a “transaction”) and/or assumption of debt by purchase of home — you are not addressing the real issues. In fact, you are letting it be buried by “law” that is not applicable.

    Don’t get caught up in the “last” transaction. Not valid.

    Thanks.

  13. Anon, this should answer your question; and further backs up what Bob G and I have been proving:

    U.S. BANK, N.A. V. KNIGHT, 90 So. 3d 824 (Fla. 4th DCA 2012) (“to have standing, an owner OR holder of a note, indorsed in blank, need only show that he possessed the note at the institution of a foreclosure suit; the mortgage necessarily and equitable follows the note.”); TROTTER V. BANK OF NEW YORK MELLON, 275 P.3d 857 (Idaho 2012). (“a trustee may initiate nonjudicial foreclosure proceedings on a deed of trust without first proving ownership of the underlying note….”); BROWN V. DEP’T OF COMMERCE, 184 Wn.2d 509, 514, 359 P .3d 771 (2015); BAIN V. METRO. MORTG. GRP., INC.. 175 Wn.2d 83, 104, 285 P.3d 34 (2012); TRUIILLOV. NW. TR. SERVS., INC., 181 Wn. App. 484, 502, 326 P.3d 768 (2014), rev’d on other grounds, 183 Wn.2d 820, 355 P.3d 1100 (2015); (“Ownership of a note is irrelevant to the power to enforce that note.”).

  14. Let me qualify my criticism. NG would be absolutely correct about debt ownership, if these cases were debt collector cases, where a debt collector was trying to collect on an old consumer debt that the consumer had defaulted on. But foreclosure cases are not such cases governed by state debtor-creditor laws. These are UCC Negotiable Instruments cases, and therein lies the problem: ownership of the debt is not required, only lawful possession or holdership of the note is a prerequisite to bringing suit.

    Now NG has actually stated this 2 years ago here:

    https://livinglies.me/2018/09/10/ucc-hierarchy-of-rights-to-enforce-note-and-mortgage/

    NG, in his prefatory remarks to list of authorized foreclosure plaintiffs, said the following, which in my opinion is incorrect:

    “The big one on mortgages is that the foreclosing party must have paid value for the mortgage which means the foreclosing party must have purchased the debt. But that is not the case with notes — except in the case of someone claiming to be a holder of the note in due course. A holder in due course does not step into the lender’s shoes.”

    One pays value for the Note, not the Mortgage. Pull up any major mortgage lender’s financial statements from the SEC. You will see Mortgage Notes listed on the balance sheet, not Mortgages. The mortgage itself is not a recordable asset. When a party purchases the mortgage note, unless specifically excepted, the mortgage as security for the note goes along with it. As the black letter law of Article 3 of the UCC provides, there is requirement for payment of value for the note. Not paying value for the note precludes the holder from claiming holder in due course status. And contrary to NG’s statement above, a holder in due course certainly does step into the lender’s shoes, because a HIDC did pay value for the note w/out knowledge of any problems with the note. (again, purchase of debt not required.)

  15. @legisman. Bob G. smart guy. You — not sure where you come from.

    Asking YOU — note or collateral holder matters? Not the same.

    Opinion?

  16. Bob G., as usual, you appear to be the only one besides me that knows how the law works. The others need to wake up to the facts, instead of wishful thinking.

  17. If you are in litigation or default, there will be servicer advances, and a servicer receivable trust who advances funds and holds property and OWNS this collateral. This trust MUST be paid first. So, in effect, any proceeds from a “note” “collection” goes not to the “Note” holder, but to the collateral holder. How is title ever cleared?

    .

  18. UCC Article 3 doesn’t require ownership of the debt. All that is required is possession of the note, either by ownership of the note or by being a Holder of the note. Again, my gift example. You give a mortgage note to a relative as a gift. The mortgagor defaults. The relative forecloses because he or she owns or possesses the note. Your relative wins the foreclosure action. Your relative liquidates the collateral. What happens to the debt liquidation proceeds after that depends on your agreement with your relative as to who is entitled to those proceeds or any portion thereof. The mortgagor has no say in the matter, and thus cannot assert an affirmative defense based on the fact that the mortgagee doesn’t own the debt. Can anybody prove me wrong? Buehler, Buehler ?

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