The Foreclosure Case Against You

The foreclosure case against you is an allegation claiming that you owe money to the claimant, that you failed to pay it, and a demand that the court force you to pay it. The allegations are contained in the body of the complaint, if in a judicial foreclosure (Mortgage), or the Notice of Default in a nonjudicial foreclosure (Deed of Trust). The allegations will always refer to attached documents called Exhibits. Neither the allegations nor the Exhibits have been accepted into evidence by the Court. They are just allegations or accusations. The case is all about the collection of an unpaid debt. Everything else is about the procedure that is legally required in order to prove and effectuate the collection of that debt. Failure to recognize this simple and undeniable truth is the first trap door that homeowners and their lawyers often fall through.
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There are three elements to the case against you that must be satisfied to enable a judge to grant the relief sought: (1) the existence of the debt, (2) ownership of the debt by the claimant, and (3) authority from the owner of the alleged underlying obligation. Those three elements have been overlooked and torn asunder by nearly everyone in the process. Even homeowners start out with the erroneous assumption that the loan account receivable exists on the accounting ledgers of the named claimant. Once that is admitted, it is downhill from there. The homeowner is seen as trying to get out of a debt that has caused financial injury to the claimant.
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This is where the rules of court procedure come into play. In judicial states, if you fail to respond to the complaint after service of process has been completed, the clerk will enter a default and the judge will enter Final Default Judgment, and order the clerk to conduct a sale. In nonjudicial foreclosure. This is true even if everything in the complaint filed against you was factually untrue. That is our system. Basically, the system assumes that there must be some truth to the claim or else nobody would go to the bother and expense of making it. This is the anchor of the case — just alleging debt owed to a named Plaintiff raises the inference that the debt exists, that the named Plaintiff is the legal owner of it, and the Plaintiff has a right to a remedy.
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In fact, at the earliest stages of a motion to dismiss, motion for a more definite statement, or other motion intended to dispose of the case without further litigation, the Judge is duty-bound by statute and judicial doctrine to assume all facts alleged in the complaint are true. Many angry homeowners assume that the judge is biased against them. This may or may not be true. But as to the pending motion, if the judge even attempts to discount the facts alleged in the complaint or exhibits and uses that discount as a basis for dismissing the lawsuit, he or she will have their decision reversed probably with directions to follow the required law — but only if the losing party files a notice of appeal within the very strict timeline published under the laws and rules of the appellate procedure published in each state.
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This is not an example of the system being created to oppress you. In an orderly society, there must be a definite set of rules for people to resolve disputes with finality. Those who fail to follow the rules have waived their rights to make claim or argue a defense. That is not bias. If we didn’t have such rules, no decision would ever be final or resolved. You may have some ideological objection to those rules but the case against you has no room for attempts to change the rules or the law in Court. I support efforts to change the pleading rules and pre-approved forms for use in foreclosure complaints — but that must be done through the Bar Associations (Rules Committees), Supreme Court, and legislature of each state. That said, as you will see, the investment banks that are the puppeteers behind almost every foreclosure, have carefully studied the rules in order to weaponize the foreclosure process for fun and profit.
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In nonjudicial states, this analysis becomes more complex. The statutory schemes for nonjudicial foreclosures are subject to the same constitutional protections as judicial states. They all contain provisions for judicial foreclosures that are rarely used and they all contain provisions in which the homeowner can challenge the foreclosure. But instead of filing an answer that denies all allegations of a foreclosure complaint, the homeowner who has signed a deed of trust must file a lawsuit. Failure to do so within the prescribed time periods waives any right to contest the foreclosure.
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The rules of pleading are the same. Your allegations in seeking a temporary or permanent restraining order (TRO) must be accepted as true at the early stages of litigation. But be careful what you allege. As discussed in a later chapter the nonjudicial legal infrastructure subtly changes the burden of proof. Because you filed a complaint or petition, you have the first burden of production of evidence that is sufficient to make it more likely than not that you should prevail. Since you probably have reason enough to file the Petition or Complaint you might think that is enough. But it isn’t. Your reasons are based upon opinions at best and speculations at worst that is only partially corroborated by available information. So best practices require that you file demands for discovery and perhaps even depositions included, along with the Petition or Complaint.
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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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One Response

  1. Here is no debt. Not for a borrower at least. This is a Wall Street Bank who owes money to borrowers.

    As soon as a borrower submitted an application for mortgage or any other debt to fictitious “Lender” – he becomes a CREDITOR to Wall Street Bank who uses this application as a “letter of credit” to borrow money from someone else, likely Federal Reserve or some shady investors who want to be undisclosed.

    So, borrowers exchanged a their LOAN to Wall Street Bank (signed application) for a loan from undisclosed investors to Wall Street Banks which already made substantial profits for stockbrokers.

    These secretive investors were source of funds in your home purchase, which they lent to Wall Street Banks on short term to pass to you as a “loan” in exchange of Wall Street Bank’s repayment after sales of securities (bets) to other investors backed by information about your transaction with a fake “Lenders”.

    THIS transaction was probably briefly recorded on Wall Street books – borrow money form someone else, as non-tax event.

    As soon as a homebuyer signed closing documents, Wall Street Bank securitized information about this transaction via book-entry on DTC and sold it to other investors as bets.

    The original “creditors” who passed Wall Street Banks funds backed by your signed application for a loan, which Wall Street passed to borrowers as “loans” via fake Lenders, were repaid right away.

    Borrowers performed very valuable financial services for Investment banks – provided them a “letter of credit” (application for a loan) to help Wall Street receive cheap short-term funds from third parties; and issued a Promissory Note at the closing which was converted onto images and sold many times more than the amount of original transaction – which was between undisclosed investors and Wall Street Bank and which was repaid as soon as closing documents were signed, usually in 30 days.

    But borrowers were never paid for these services because they were conned into a transaction which was mislabeled as their debt, not a commission.

    Here is no debt. Borrowers never owed any cent to the actual source of funds – because they never had any contracts with them. Wall Street banks did. And these secretive investors were repaid right away.

    But a “non-bias” Judge who is obligated to follow law criminally conceals material evidence from your case records; never give you a copy and block all discovery requests because he has personal interest to assist Wall Street thieves.

    And when you insist on discovery and demand to produce concealed evidence, this Judge and his colleagues start to use all possible cheap scary tricks like inviting impersonators to the hearing to pose as “Attorney Generals” and file bogus “Orders to Show Cause” why I cannot be in contempt simply because I challenge a flagrantly void order where this Judge helped Goldman Sachs to steal my home.

    And the same Judge’s entire family is heavily involved in securities and real estate business while younger son is a SEC lawyer.

    And this is a COMMON practice in ALL Courts with rare exemptions.

    Kick out borrowers aka creditors to Wall Street Banks and steal their homes as additional tax-free revenue to thieves who already defrauded borrowers many times

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