Why we need rule changes in the court systems: Judicial Fairness and Judicial Economy

In the next wave of foreclosures coming in 2021, we can stop them if we can simply require an allegation from claimants that they own the underlyign obligation. After that the homeowner can ask for proof of that assertion. If there is no proof, then the claim fails. Knowing that, the would be foreclosers would have to find another way to deal with the myth they created —- that the transctions with homeowners were loans and not some business venture the point of which was the sale of securities and not the collection of payments from homeowners.

If Wall Street still wants to collect on those notes and claim the obligation created by the note (rather the transction) exists then they must deal with the issue of whether the homeowner was fairly compensated for unleashing the securities business scheme, by licensing data about the homeowner’s name, title, reputation and credit hsitory.

see https://livinglies.me/2020/12/18/help-me-change-the-rules-if-you-want-a-different-outcome/

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In recent correspondence with a great contributor to my work on this blog,  he suggested that I contact Senator Warren in connection with my suggested changes in legislation. I replied that the changes in legislation were far less important or needed than the changes in the rules of civil procedure.

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Thank you. Senator Warren is still stuck on the idea that these transactions were loans and that there are outstanding obligations that are owed to somebody who is carrying them as an asset receivable on their accounting ledgers. Although I have always supported her, and much of her work in the Senate has in fact corroborated what I have reported, she does not subscribe to my view that the obligation itself is fiction.

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But you are right, if she is able to review and analyze proposed legislation from Connecticut, she might finally change her mind. She is already convinced that most foreclosures are based on fabricated documents; she is just not yet convinced that the fabrication of the document is the result extinguishment of the claim in the process of what is called “securitization.”

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I completely agree with your position that the media could be our friend here. But I have only one person and while I have done media campaigns, I have no time to do that on my own now. So if you want to pick that up as a task that you would own, you would have my full support and cooperation. I think any such campaign would start from a completed proposed bill.
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Although I think the changes in legislation would be helpful, I’m not entirely sure that that is absolutely necessary. The problem is more of the application of Law rather than the substantive content of existing law. But I do agree that a push for the legislation might provide some incentive for the supreme court of the state of Connecticut, and possibly other states, to reconsider their existing rules regarding acceptable pleading practices.
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Wall Street brokers are succeeding in administration, collection, and enforcement because of the following factors:
  • Existing court rules and procedures are based upon traditional loan models that no longer apply.
  • By fabricating documents containing false information, Wall Street brokers are able to raise legal presumptions of facts that do not exist. This forces a burden of proof onto homeowners that they can never satisfy, because of the asymmetry of information and a complete inability to gain access to the necessary information.
  • As it stands, the only way a homeowner can win is by raising a negative inference that there is no obligation, there is no owner, there is no creditor, there is no lender, and there is no default as to the named claimant. The action then fails — at the end — because of the insufficiency of the evidence to support the claim for enforcement.
  • The current rules were developed over the centuries to reflect the normal traditional relationship between lender and borrower. Those perceptions were true in virtually all cases. Today that is no longer true.
  • The current forms that are used including foreclosures perpetuate the traditional perception of the relationship between purported lenders and borrowers. It is a myth. In every case where securities were issued using data about loans as the basis for the creation, issuance and sale of those securities, there is no Lender role and therefore there is no borrower — even though the homeowner intended it. Most loans are part of a securities scheme.
  • So to be fair, the rules should be charged to a short plain statement of ultimate facts that presumes nothing. This woudl enable homeowners to win or at least have leverage at the beginning:
    • If the lawyers can state a claim on behalf of the claimant who has paid value for the underlying obligation or who has an agency relationship on behalf of someone else who has paid in value for the underlying obligation, then the foreclosure is probably valid.
    • But if they can’t and they are merely relying on antiquated rules of procedure and “preapproved” guidelines for acceptable pleading to establish facts of the case that are completely unsupported by the actual facts, then the rules need to be changed. 
    • Right now their answer to such defense narratives is that judicial doctrine does not require them to make such allegations and then the mirror attachment of exhibit, fabricated or not, is sufficient to prosecute the action. And they are right. That is why judicial doctrine needs to be changed.
    • Statutes already require that in order to foreclose on the security instrument the claimant master paid value for the underlying obligation. A rule change would simply require that the claimant assert that it had paid value for the underlying obligation and therefore suffered a loss approximately caused by the homeowner’s failure to pay.
    • As I have repeatedly demonstrated in cases where I have been lead counsel, and in hundreds of cases where I have been legal consultant, no such allegation can be made or proven.
    • In fact, even in cases where proper timely discovery demands have been made, and even in cases where the court has ordered compliance with those discovery demands, no such assertion appears and no facts, testimony or exhibits emerge that even hint at the existence of the obligation on any ledger. Such entries could only appear if there was a transaction in which value was paid.
      • The case against the homeowner is solely based on manipulating the civil rules of procedure and creating an alternative reality as to the laws of evidence.
      • The only ledger entries that ever appear anywhere is that which is produced by a robowitness for a self-proclaimed “servicer” who merely appears with payment history, in most cases not prepared by the claimed “servicer.”
      • The point missed by nearly everyone is that even if the “servicer” had actually made collections and was actually in control of the IT platforms that recorded all payments in and out of the account that they were tracking, you will never find any assertion by any servicer (a) that their records reveal the establishment of a loan account receivable as an asset on the ledger of ANY company, or (b) to whom payments are sent after receipt by the servicer. 
  • If the courts want to avoid another flood of foreclosure litigation, and want to avoid trampling on the due process rights of every homeowner, they need to insist, at a minimum, that there must be assertions in notices of default and foreclosure notices or complaints that the claim exists.

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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.

2 Responses

  1. Neil ,

    You’re in Florida , I’m in Florida … We don’t need a rule change .. we already have rules where foreclosure complaints have to be verified… What we need is for officers of the court ,, every one of them that allows the fraud to continue .. to be stripped of their privileges and arrested.

  2. Yes, its all about IF .

    If the courts want to avoid another flood of foreclosure litigation, and want to avoid trampling on the due process rights of every homeowner..

    What if Courts do NOT want to avoid another flood of foreclosure because they have too many personal financial interest involved: donations from banks and their lawyers; investments in this scheme; judicial relatives work in financial and real estate businesses.

    IF Judges wanted to stop this fraud, they would do it in 2011, after Cease and Desist Orders which Judges are obliged to follow.

    Nope, Judges do not want to stop this fraud. It is very obvious from so-called “IL Rule 113” aka “recommendation which can be ignored”

    We are doomed. We can only wait until it explode from the bottom when more people learn the Truth.

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