Homeowners win because there is no legal claim against them. But they will lose every time if they fail to establish the inability or unwillingness of the foreclosure mill to come up with concrete evidence that there is, in fact, a loan receivable entry on the accounting ledgers of the claimant and that it got there by virtue of a real-world transaction in which value was paid for the underlying obligation.
Unfortunately, as we all know, all perjury and fraud upon the court is illegal but always allowed unless it is challenged in a timely and proper way. We need to change the rules and the preapproved form pleading such that the main element of the playbook of the banks can be defeated. The main element is to force the homeowner Into a position where the homeowner must expend huge quantities of time, money, and energy defending a frivolous claim.
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Their goal is to wear out the homeowner and the homeowner’s attorney. And they are using this strategy because it works. Over 96% of all foreclosures proceed by the default of the homeowner, to wit: they simply assume that everything alleged against them is true and they walk away.
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The rules and preapproved form pleading are focussed on judicial economy and finality — i.e., how to quickly bring a dispute to final and complete resolution. They must start somewhere and in our system, they start with the claim. In most situations, the system requires a judge to treat the claim as true for most of the proceeding unless there is something obviously wrong that is clearly and indisputably known and demonstrated.
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Claiming that aliens from the planet Zorcar gave you the assignment of mortgage would be an exception to the rule. Your claim will not be accepted as true under the rules unless you claimed (and attached exhibits) also to have proof that aliens were involved, that the planet Zorcar existed, and that they were the owners of the underlying debt. Since your premise is outside of the normal knowledge of any reasonable person or lawyer or judge, it would be dismissed for lack of credibility — because in the absence of your allegations that you did have such proof, the presumption in that situation would be that you had no way of proving it.
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In most of the small percentage of cases where homeowners contest the Foreclosure both they and their attorneys are seeking only delays in what they think is an inevitable result. So no real effort is made to reveal the fact that the attorneys in the Foreclosure Mill have absolutely no concrete evidence to support the claim they are advocating on behalf of entities that probably don’t exist. And in most of those cases, the homeowner admits that the “loan” exists, that the obligation exists, that the obligation is owed to the claimant, etc. In doing that, the homeowner falls into a trap. Once all of those facts are admitted by the homeowner, the defense becomes “yes, but” which rarely works.
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It is only where homeowners are unrelenting in their contest of the f foreclosure and where they follow the rules on discovery, motions enforcing discovery, objections, and cross-examination that the homeowner wins. They win because there is no legal claim against them. But they will lose every time if they fail to establish the inability or unwillingness of the foreclosure mill to come up with concrete evidence that there is, in fact, a loan receivable entry on the accounting ledgers of the claimant and that it got there by virtue of a real-world transaction in which value was paid for the underlying obligation.
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You might not like that answer but it is perfectly correct and true. Your only chance of winning these cases is by excepting the fact that the rules apply and that the judge is bound to follow them. You can use the rules against your opposition and reveal the fact that there is no concrete evidence for the basic elements of their claim. But if you fail to do that, the rules favor party that makes the claim. That is not just true in foreclosures, it is true in all civil cases.
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If you want an analogy, think about a murder case. Everyone knows that it is against the law to kill somebody. And yet the murderer will go completely free without any damage to his reputation Or without any damage to his record and without any loss of freedom — unless someone catches him, charges him, shows probable cause, gets a conviction, and wins on appeal.
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Homeowners must realize that is the essence of their defense is closely related to criminal fraud. That is never going to be presumed to be true at the beginning of the case. In our system, or people who are accused of such illegal behavior are presumed innocent even if they have exhibited a pattern of illegal behavior in the past. It is an age-old problem That in individual cases people are offended that such offenders go free. We could debate the philosophy behind those rules but we cannot debate the fact that those rules exist.
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It is unfair that homeowners must master the rules of court in order to defend themselves against frivolous claims. While they are allowed to represent themselves in court they have no idea how to do that. They walk into court believing that being right is enough. It isn’t enough and it never is. So they will most often lose cases that a good trial lawyer would win. Or they delay hiring a lawyer until it is too late for the lawyer to do anything constructive under the rules.
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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.
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Filed under: burden of persuasion, burden of pleading, BURDEN OF PROOF, discovery, Discovery -Subpoena, Eviction, evidence, Fabrication of documents, foreclosure, foreclosure defenses, forensic investigation, jurisdiction, legal standing, Pleading, Presumptions, prima facie case, TRIAL OBJECTIONS, Unlawful Detainer |
Yes it is illegal. my point is that illegal doesn’t mean anything unless it is caught and prosecuted. As long as a judge signs an order it is cloaked in the presumption of validity
China will not challenge, they will seek to collect collateral instead…or 99 year leases in exchange for the cheat. We just added taxpayer debt to the tune of 1.4 Trillion, +/-, plus the other 27 Trillion. Generally when I take on debt I must qualify…our elected leaders are part and parcel of this problem. Then, commingling commercial paper and residential paper has created one heck of a mess, for homeowners. Just me…but I say if I am personally indentured-obligated for a debt and one used my name, s/security number and personal info to qualify me,…I have a direct link to any profits, i.e. standing. My payments create their certificates and revenue…my contract trumps their back-door deal. Further, their agreement was unknown to me. Just a mere observation…
PS. IF homeowners are entitled for an answer, and all Courts are eager to follow law and find justice; and all public protection agencies are willing and able to protect customers – why I cannot get an answer to a simple answer – who purportedly sold my loan to PennyMac?
I repeatedly demand disclosures from PennyMac from WHOM they purchased my loan and who is the owner of my obligaiton.
PennyMac lies relentlessly and NO SINGLE so-called “consumer protection” agency – such as CFPB, SEC, HUD, Ginnie Mae, ect – NOBODY ever tried to help me to investigate it.
AG representatives repeated the same lies as PennyMac, from Big Banks scrips. HUD Senior VP Drayine lied to Senator Peters – and this lie contradicted with PennyMac’s lies – but nobody cared.
CA Dept of Prof. Regulations ignored all my complaints and never helped to investigate.
SEC ignored my complaints and never helped to investigate.
CFPB works as alternative to USPS, just help you to save $.50 cents on postage and time. They CLOSE all your complaints without ANY investigation.
And with OCWEN case – merely enter a settlement asking to return stolen pennies and keep stolen millions as a reward for fraud.
I am absolutely confident Judges will not listen my arguments or allow me any discovery, they always stay for Banks and money.
Yes, Banks want and can wear you out – and Agencies will do nothing while Judges will finish you in favor of Banks.
It is a total corruption in all public offices. Maybe it could change IF foreign creditors like China will challenge it.
Looks like China finally realized how Big Banks defrauded them.
With all my respect to Neil, I want to change his first statement to :
all perjury and fraud upon the court is illegal but always allowed [unless] REGARDLESS it is challenged in a timely and proper way.
EVERYBODY in the Courts and the Government know about Big Banks crimes since at least 2009.
Here are millions of cases where perjury and fraud upon the Court are challenged in timely and proper way – but Judges proceed with illegal foreclosures anyway.
I can bring numerous example where lawyers challenged fraud, perjuries, standing – even physical existence of the Plaintiff.
All ignored by Judges who declared Fraud Upon the Court into the law
“We need to change the rules and the preapproved form pleading such that the main element of the playbook of the banks can be defeated.”
We need to hold those who enabled this Fraud upon the Court for 2 decades. Every profession has malpractices liabilities – except Judges.
Old rules and the Constitution are good enough. Standing requirements are demanded from Joe Does but and why Banks and their lawyers are exempt from it?
While a small group of people who are hired to uphold the law and defend the Constitution does exactly opposite – no new Rule will change anything. Judges will fail to comply with new rules just like they did all this time with existing Rules.
UCC Art 9 is not a new rule, it been here for a while, as well as TILA and RESPA. Nobody at the bench cares about them.