Should States Be Obligated to Assign and Pay for Counsel to Defend Foreclosures?

By presuming that virtually all defenses to foreclosures, other than payment, are without merit and futile, and by administering discipline or injunctions to lawyers who prove otherwise, the state has created a gap that only the state or Federal government can fill.
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They must assign and train, if necessary, competent trial counsel or represent homeowners who are faced with the administration, collection to the enforcement of alleged debts by securitization players.
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If they fail to do so, any homeowner faced with foreclosure who is unable to find competent trial counsel (i.e., an attorney with trial experience who accepts an engagement to win the case) is being deprived of access to courts, due process, equal protection and right to counsel. — Neil F Garfield. March 10, 2021 http://www.livinglies.me
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One true and accurate statement for homeowners is that you won’t find a lawyer willing to accept an engagement that is predicated on winning a case involving claims to “foreclose” by parties who have no right to assert such claims much less get money for doing so. This is true despite the obvious need for trial counsel who can navigate the rules of court, the rules of evidence, conduct discovery to unveil the truth about the existence, ownership, and authority over the alleged debt.
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The problem faced by homeowners is nothing less than an unconstitutional deprivation of the right to counsel and right to be represented in court. This problem has been created primarily by the chilling effect on the access of counsel caused by disciplinary or court rulings that have chased successful foreclosure defense lawyers out of the marketplace leaving homeowners with a choice that violates equal protection.
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I can cite dozens of cases besides the recent revocation of the state license of Gary Victor Dubin in Hawaii based upon an application in which a checkbox was overlooked. There is also the FTC who has used its overwhelming power to ban lawyers from ever offering services to homeowners seeking to defend foreclosures. The basis for all such civil and disciplinary actions is the assumption that any such defense is merely dilatory, pointless, and futile. From that arises the assumption that the lawyer is collecting fees on an engagement that should never have been started. Don’t ask me — ask the FTC, ask the state bar associations if that is not exactly how they view it.
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The result is that attorneys were disciplined, barred, or otherwise threatened out of the marketplace in which they could have offered their services as foreclosure defense counsel. The problem is that the main complaint is that these trial lawyers were extremely successful at defeating foreclosure claims that the establishment (i.e., the state) considered to be vital for the free flow of commerce.
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For lawyers, it is a choice between high risk of disciplinary or legal (FTC) action or retreating to the background so they don’t appear as attorneys of record. That leaves them out (maybe) of court and out of the crosshairs of any disciplinary panel or FTC action. For homeowners, they either litigate pro se or quit their homes in the face of a claim by a party who at best is a virtual creditor whose status is not recognized by law.
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So I pose this question: Does every state have the obligation to assign and maybe pay for the legal defense of homeowners who are facing the civil equivalent of capital punishment (i.e., loss of their homestead and largest investment)?
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I say the answer is yes. Having chased out all hope of effective representation by competent trial counsel, the state is obligated to fill in the gap or face the question, in federal court, as to whether they are systemically depriving homeowners of their right to due process? The effect is obvious. 96% of all foreclosures end up successful because of homeowner court defaults or failure to take advantage of legal process.  But 65% of those who have effectively challenged foreclosures based upon securitization claims have been successful for the homeowner.
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Doing the math it is obvious that the situation would be far different if the 96% who do nothing because they think the situation is hopeless had effective trial counsel. We could all conclude that all such foreclosures are suspect instead of the current consensus that all defenses are not only suspect but lacking in credibility. The failure of the homeowner to articulate a valid defense is responsible for losses in the courtroom. It is not the absence of valid defenses.
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By presuming that virtually all defenses to foreclosures, other than payment, are without merit and futile, and by administering discipline or injunctions to lawyers who prove otherwise, the state and Federal government has created a gap that only the state or Federal government can fill. They must assign (and train, if necessary) competent trial counsel or represent homeowners who are faced with the administration, collection to the enforcement of alleged debts by securitization players. If they fail to do so, any homeowner faced with foreclosure who is unable to find competent trial counsel (i.e., an attorney with trial experience who accepts an engagement to win the case) is being deprived of access to courts, due process, equal protection and right to counsel.
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Of course, the other option is to analyze the cases where homeowners have won and then adapt policy, rules and preapproved pleading to require absolute assurance by the attorney and the designated claimant regarding the existence of a loan account receivable on the accounting ledger of the claimant, the ownership of the account receivable and other authority to administer, collect and enforce it.
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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

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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.
Please visit www.lendinglies.com for more information.

15 Responses

  1. @Anon Trump won based on being tough on Wall St and because Clinton gave them a pass and ignored the foreclosure crisis. There is tons of money in settlements and real requirements but homeowners don’t fight like corporations or even middle class tax payers.

  2. More useless rhetoric. The Sup Ct. has already ruled, there is no “Civil Gideon” requirement that attorneys be appointed in civil cases: Lassiter v. Dept. of Social Services, 452 U.S.18 (1981). Also, Dubin was disbarred because he’s just another stall atty,, ripping off homeowners who also happens to be a convicted felon.

    Furthermore, all of these so-called foreclosure defense hacks disbarred and sanctioned deserved it, they were all ripping off homeowners.

  3. I agree about Mnuchin (and Ross) – Hammer. But Trump came in ignorant of what had gone on before him — which left the blame on the homeowners. Bottom line – garbage settlements were done, and as we see with the CFPB, it is very difficult to undo what has been done.

  4. VP Harris is a mixed bag. While she didn’t prosecute Mnuchin she challenged Gov Brown for diverting settlement legal aid and hot more than most states. The aid funds are still there in CA and billions in settlements can be tracked. Now’s a different time as GOP completely abandons the American people and those in Dem party only looking out for their donors are being called out.

  5. @Anon can’t give Trump a pass he hired friggin Mnuchin and he helped himself and Wall St to steal whatever they could just like grifter Trump

  6. @Beth Jacobson completely agree although mixed in Los Angeles where mom/pop landlords now recognized as needing relief as well as in COVID relief. CA has opportunity w $330 mil NMS funds but still trying to divert funds after court order last year.

  7. Big FAIL here Neil ,, the “state” isn’t whacking all the good guys .. it’s the BAR ,, that’s BRITISH … unless you want to acknowledge that the Columbia Organic Act of 1871 sold control of the USA to the City of London (which is correct but considered to be a conspiracy theory).

  8. I agree Poppy. I have seen people foreclosed upon and the house is purchased by someone else with almost nothing down, and who struggles to make payments. It makes no sense.

  9. If anyone is putting 2-3-5% down, they are essentially renters. No equity, no risk-loss…walking away. Further, why would any lending institution allow people to buy “highly inflated” properties, with little or no money down?…the risk is huge for a legitimate lender, in this market
    A bigger game at play here. Just saying…my opinion only

  10. Beth – they want us all to be renters. That is the goal. Anyone remember the “shared appreciation” con game?

  11. I’m in Maryland – Baltimore City recently enacted a law that renters are to be represented by counsel when facing eviction. The legislature is trying to pass a similar law for the state. What I find interesting is that these legislators are looking to protect renter’s rights but not homeowner’s rights when the borrower/homeowner has so much more to lose. The loss of a house is the loss of generational wealth. I’m not saying that renters shouldn’t have the right to an attorney but why leave homeowners without that protection?

  12. Slaves do not have rights, don’t be naive. States will do nothing. They do not even respond to complaints. The Government allowed Big banks to proceed with this fraud and will cover as long as they can.

    Everyone on the Government knows about Wall Street Banks crimes, specially Biden/Harris. . Big Banks bough everyone.

    $9.2 billion went to Harris in 2012 – and you think she will move a finger to confront Big Banks?

    I have another idea. Remove tyrans in judicial robes from all foreclosures cases and replace them with Juries.

    Every litigant has a right for a jury trial – but judges ignore our requests. I many times asked and judges pretended they did not hear it.

    An unconstitutional deprivation of the right is done by Judges who fail to provide (steal) honest services to homeowners and enable fraud upon the Court by Wall Street Banks.

    Why homeowners even need to hire a lawyer if every JUDGE is a lawyer who must follow the law and obey the Constitution – which they refuse to do.

    The Constitution is clear – Plaintiff MUST have standing. None of them have standing since most Plaintiffs do not even exist.

    The law said – forgery is a crime. All Courts are flooded with forged documents filed by non-existing “plaintiffs.

  13. Have to agree with Java here. Obama, Biden, Harris, and others, were in place when the fraud was covered up. Unlikely they will now go against themselves. Cover-ups very hard to undo. Papergate partly correct. But taxpayers objected to any bail-out. The tea party – recall? But they had it wrong. They thought the government would bail out the victim homeowners. That did not happen. The bail-out went to the fraudsters full force without anything for the real victims – the homeowners. Thanks Obama, Biden, Harris for nothing. And Harris — cut your laughs. Nothing is funny right now. Neil is correct. Attorneys do not want these cases even if you have money. Precedent law is badly messed up — thanks again to prior administration. And, Trump? He blew an opportunity. We don’t even hear a word about the crisis, and the consequence is ongoing with manipulated interest rates for over a decade. It is like a dirty word – “CRISIS” loans – that no one wants to re-visit. Why? Biggest campaign donators (and lobbyists) are the fraudsters. Politics.

  14. Ha. Sure. The VP when Obama allowed this crime spree to continue is now the President, is going to help homeowners 13 years after.
    Nice Dream.

    If all the lawyers are cowards. Then that’s on the them.
    Home of the Brave. That’s the best joke of the past 200 years.

  15. This has been an excellent article Neil – I’ve been saying for 10 years the government should be defending the taxpayers and the new administration has an obligation to undo the bad medicine of the past decade.

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