The Key to Winning is Aggressive Discovery and Compliance with Court Orders

I have just received a slew of inquiries about what to do when the  foreclosure mill files evasive responses and objections. Here is the answer. Discovery consists of the following steps toward victory:
  1. Framing your answer, affirmative defenses and/or allegations such that you are challenging the status and ownership of the underlying debt.
  2. Draft your discovery demands such that they all relate to status and ownership of the debt and the right to represent the designated Claimant or Plaintiff.
  3. File a motion to compel answers after you receive evasive answers and nonsensical objections. Get a hearing. Appear at the hearing with a good argument as to why your discovery will lead to the discovery of admissible evidence that is relevant to the case at bar. Get an order compelling discovery response.
  4. File motion for sanctions after you again receive evasive answers and nonsensical objections. Get a hearing. Appear at the hearing with a good argument as to why your discovery demands are necessary for your defense and will lead to the discovery of admissible evidence that is relevant to the case at bar. Get an order on sanctions in which the court will probably give them one more chance to comply with the rules.
  5. File renewed motion for sanctions after you again receive evasive answers and nonsensical objections. Get a hearing. Appear at the hearing with a good argument as to why the opposition should be found in contempt of court order, in contempt of court procedural rules, and ask for striking their pleadings as long as they are unwilling to provide answers and documents that show proof they paid value for the underlying obligation. Get an order on sanctions in which the court will probably give them one more chance to comply with the rules.
  6. File a motion in limine. Ask the court to limit evidence on the existence and ownership and status of the debt. Get a hearing. Appear at the hearing with a good argument.
Your pleadings should include something like the following:
Opposing counsel has filed a common place boilerplate response to simple requests whose purpose is to reveal the status and ownership of the subject obligation, which is the central or sole issue in the case at bar. Opposing counsel seems to want the court to get distracted into other areas of inquiry or law. The plain truth of the case at bar is that if the designated plaintiff owns the debt and the defendant has failed to pay that debt, then a declaration of default is proper and foreclosure proceedings are appropriate.
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But the reverse is also true. If opposing counsel cannot confirm ownership of the debt despite lawful discovery propounded in accordance with the rules of court, then there is no case at all. In such event, Defendant is entitled to the finding that any presumption of ownership of the debt has been rebutted and an inference that no such ownership exists. Opposing counsel could come back and produce evidence that his “client” paid for the debt — but only after complying with the rules of discovery. Otherwise a motion in limine would bar any such evidence at trial, thus ending the case.
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The objections are based upon the disingenuous assertion that the requests are not related to the issues of the case. To be clear, as stated in Defendant’s Answer and Affirmative defenses, the issues raised by Plaintiff and defendant are the same — the status and ownership of the debt that the Opposing counsel seeks to enforce. Either the debt exists and is owned by the designated Plaintiff who is represented by opposing counsel or it does not exist or it is not owned by the designated Plaintiff.

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If opposing counsel maintains an attorney client relationship with an existing legal entity that claims it owns the underlying debt and has been injured by “nonpayment” then counsel has every right to plead, object and otherwise represent the claimant in court.
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But if opposing counsel maintains no attorney client relationship with any name included in the designation of Plaintiff, then they have no right to claim any right to represent or pursue any claim on behalf of a third party who is not present in the case.
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So questions about the true nature of the relationship between opposing counsel and the designated Plaintiff are highly relevant and any objection thereto is dilatory and a complete waste of the time of the court and Defendant’s counsel. Since opposing counsel has also made a demand for recovery of attorney fees and costs, Defendant  is obviously entitled to know the nature and terms of the contract for legal services — and the parties thereto.
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Further, if the designated Plaintiff — or some name contained within the label of the designated Plaintiff — has not paid value for the underlying obligation, then the action fails for lack of compliance with Florida statutes adopting in whole and verbatim Article 9 §203 of the Uniform Commercial Code which states unequivocally that as a condition precedent to enforcement of a security instrument, the claimant must have paid value for the underlying obligation. If the designated Plaintiff has not paid value, then the action must be dismissed for failure of condition precedent.
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Further, failure to have made such payment eliminates the implied (but unstated) assertion of harm since no harm could come to anyone who did not own the debt. This eliminates the foundation for jurisdiction over both subject matter (the claim for unpaid debt) and personal jurisdiction over the designated Plaintiff who has no claim as well as the Defendant who is under no duty to defend a baseless claim.
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For The sake of justice, finality and judicial economy, such boilerplate objections should be rejected both to stop opposing counsel in this case and so serve as a deterrent in the many foreclosure cases that will soon clog the court system again.
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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate 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.
  • But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
  • Yes you DO need a lawyer.
  • If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
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Please visit www.lendinglies.com for more information.

2 Responses

  1. Summer. That pretty much sums it. Up I got yelled at for raising my voice to the clown in the robe. I laughed and raised my voice even louder. The clown in robe did nothing. Then the first debt collector law firm Made an error and motion to have my name in default of answer. Even though I answered and signed every motion for over a year and stood in front of the clown in the robe and got yelled at by her in the hearing. STILL The clown in the robe signed the motion to default me. UNTIL the other side realized their mistake and scrambled to vacate the Motion the judge signed off on. Do these public parasites even read or look at what they are signing ?? Or is every single decision just to favor the Plaintiff in the Fraudclosure !!
    This doesn’t begin to start how incompetent and fraudulent these people are. Now I’m up against a new set of debt collectors low lives pretending to know what is going on and charging $10,000 added on to the account balance (on top of the previous firms $5000) to lie to the court and try to steal the house.

  2. Maybe on Utopia Island. Not in current American Courts.

    Here is the reality:

    File a motion. Get a hearing. Appear at the hearing with a good argument.

    Get a “Denied” from a Judge who received handsome donations from Banks lawyers.

    File a motion. Get a hearing. Appear at the hearing with a good argument.

    Get denied because the Judge is a relative to handful of investment bankers or lawyers who represent them.

    File a motion. Get a hearing. Appear at the hearing with a good argument.

    Get denied because Judicial money are invested in the same scam and the Judge does not care about your case or your discovery.

    File a motion. Get a hearing. Appear at the hearing with a good argument.

    The Judge will conceal material evidence from case records (happened many times) – and deny all your Discovery, Subpoenas, and Motions.

    File a motion. Get a hearing. Appear at the hearing with a good argument.

    The Judge will either threaten you from the bench with bogus “sanctions” or invite a clown-impersonator to pose as Attorney General – in exchange for a referral to be a Judge.

    Final.
    Investment Banks will walk away with tax-free gift – your home – and laugh at you with Judges, all the way to the bank.

    Maybe even have a drink together, to celebrate.

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