Basic Premise in Foreclosure Defense: Documents Are Not Events

The objective in foreclosure litigation is not to prove something. The objective is to prevent the claimant from proving anything.

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The fundamental error of most homeowners, lawyers, and frankly judges, is the failure to distinguish between the real world and the fictional world portrayed by documents in front of them. A novel is a work of fiction. It can achieve credibility by referring to things that might have actually happened in the reader’s life at some time in some place. But the characters and events are all fictional. And even if you add notarized and recorded documents and affidavits to the mix saying that the events happened it doesn’t change the fact that no events in the real world occurred as described in the novel.
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Perhaps more importantly, once apprised that the information presented to the court is a novel and not related to anything that happened in the real world, no court has the right to say otherwise (unless there is conflicting evidence on whether the events occurred).
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You need to get clear on the difference between a document and a transaction. Many if not most people treat them as though they are one and the same. They are not. A document is only a piece of paper on which there is writing that refers to an event in the real world that supposedly occurred between two or more parties. If there is no event, no amount of writing can cure that — even with testimony, certification, or sworn recorded documents.
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Foreclosure is about recovering on a loss resulting from an unpaid debt owed to the claimant. If the claimant has not paid for the debt in the real world, then fabricated documents will never change that and the claimant has no claim.
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But a fabricated document does change the burden of proof unless you can show that the document is facially invalid. The objective in foreclosure litigation is not to prove something. The objective is to prevent the claimant from proving anything. Every presumption arising out of presumably facially valid documents is rebuttable. Those presumptions can be rebutted by either presenting contrary evidence (which you don’t have) or contesting the facts in discovery and asking for the actual evidence (which they don’t have, even if you fear that they do have it.)
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The proactive response to their stonewalling discovery would be to ask the court to rule on a negative inference — that the debt does not exist or at least is not owned by the claimant. But this can only occur after you have gone through a few rounds of motions to compel responses to discovery and a motion for sanctions.
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A motion in limine might achieve the same result by barring evidence of ownership or authority over the alleged debt or even that the debt exists since they refused to show corroborating evidence (proof purchase, accounting ledger) that value was paid as a condition precedent to enforcement as per the state adoption of Article 9 §203 UCC verbatim.
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So the procedural issue in virtually all cases involving claims of foreclosure by people and companies who claim the existence of the debt, the ownership of the debt, and the authority granted by the owner of the debt is how to get into position to demand discovery in a proper and timely fashion. The second issue often missed is the follow-up to discovery. Some erroneously think that failure to answer is enough to turn the tide. It isn’t. A motion to compel must be filed, heard and granted. Most often such motions must be filed more than once and then followed by a motion for sanctions — which also must be filed, heard and granted.
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[PRACTICE HINT:  I have come to the conclusion that the presentation (reports are most effective when pursuing a motion to compel appropriate responses to discovery demands. It is only in discovery that the court is required to allow fishing expeditions that are relevant to the core issues in dispute. The forensic report can be used as the basis for why you are demanding this discovery — i.e., you want to test out their claim to legal presumptions arising from their documents.]
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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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4 Responses

  1. I can prepare a Release of Mortgage (or Lien) by copy and paste the SAME robo-stamp by non-existing company’s top executive as appears on the forged Note and file it with the Court as evidence of an event?

    I can even notarize it for $1 or even for free.

    Based on judicial rational, this Release must be treated as real unless proven otherwise.

    But here is nobody who can come to the court and prove that the Release is fake.

    Thus, the Judge MUST consider factual validity of this release, with the same robo-signed signature and approve the release.

    Oh, but .. the release is prepared by a little guy who does not make donations to the Judge and not his/her family member or friend.

    And a little guy will go to jail for submitting forged evidence.

    Big Bank with the same forged evidence will get a free home and proceeds from sales as tax-free revenue, on top of windfall of profits

    Example: African American guy who told Judge Lynch (really) that his niece is not married while she was, went to jail for SIX(!) years.

    Lawyer Ira Nevel who lied to Judge Lyle how non-existing American Wholesale Lender (CWF) “transferred” something into non-existing Trust with fake Trustee BONY got a free home for Bank of America – plus proceeds from sale while berated my friends in the Court.

    No questions from the Judge, all orders granted, all discovery closed.

    This is called “Justice” (JustUs)

  2. And, the least they could have done was written these FAKE loans down to market rate. But, there was outrage by the investors in these very same FAKE loans. I have posted before, and will post again – Rick Santelli’s 2009 RANT. Did anyone tell Rick – there is no accounting? Anyone tell Rick – these “accounts” were procured by fraud? Anyone tell Rick – victims are victims?

  3. True – a document is NOT what occurs in the real accounting world to which the crisis “loans” never made it. Agree. But, very often, there are problems compelling or asking for discovery. Judges don’t like forcing the big boys. Need a fair judge – hard to find. Instead of compelling, many will be sent to mediation- an opportunity for silence that will never be reflected in a court decision. And, which gives fraudsters more time to make up stories that the courts actually buy. Frankly, no one should have to be battling these fraudulent crisis loans in courts, the government should have made sure that none survived — just like the crisis “trusts” that did not survive. The bail out helped everyone but the true victims. Perhaps, Biden can answer why – he was there. But first you have to get media to understand it, and if goes against Biden — they are not going to question it. Politics.

  4. This comment: “documents are not events”…is 100% truthful. I can provide document after document, allegedly signed and notarized, with a scrivener’s attestation [actually much the same as notary], jokingly accepted as fact. Dates do not match, no legal person with the name exists [anywhere in the country], not witnessed at all or improperly, people working for all companies identified, at the same time, paperwork signed years before I had applied for loan, documents sent from dentists’ office for a major corporation on a Sunday at 6:00PM<EST, etc…all I can think of right now…this garbage is just that. None of it connects. A court would "never" let me do that…I'd be shown the door. My file is one of worst I have seen, after browsing through thousands of cases, exhaustively.

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