Summary Judgment is the way that the foreclosure mills avoid answering reasonable discovery demands.

The bottom line is that if you follow the rules, and demand discovery of actual proof of payment (citing the form that such proof must take or asking what form such payment took), the foreclosure will file anything other than a response to your demands. If you don’t know what to do about that or if you don’t do anything about that you are headed for defeat. But if you do follow up relentlessly you are more likely than not, headed for victory. The reason? There is no legal claim.

The simple answer is that they do it because they can and because they generally get away with it, because most of the time their opposition is a layperson who knows nothing about the rules of civil procedure. JUdgment gets entered and the homeowner loses their largest investment, their home, and usually their lifestyle. sometimes they lose their marriages too or their lives when they commit suicide.

As a result of my recent broadcast on the Neil Garfield Show, I received a number of emails and messages r relating to the topic of my show on Motions to Compel. they all spell out the same scenario.

Homeowner files timely and proper demands for discovery in the form of interrogatories, request to produce, and request for admissions. The demands are specific, clear, and related to the core issues of the foreclosure action — the existence, ownership, and authority to administer, enforce or collect the alleged debt. The current status, as per the judge, is that legal presumptions are being applied because of the apparent facial validity of the documents upon which the foreclosure mill relies in pursuit of foreclosure.

In oversimplified language, the discovery demands are for specific documents that would either corroborate the presumption that the debt exists or that would rebut that presumption. Most lawyers and homeowners don’t want to ask that because they’re afraid of the answer. They need not be afraid. In cases where securitization is at play, there will be no answer.

Additional discovery is likewise sought as to any facts or documents that actually show payment of value for the underlying obligation as set forth as a condition precedent to filing foreclosure in Article 9 §203 UCC adopted in all U.S. jurisdictions verbatim. And lastly, such discovery demands seek factual proof to corroborate or rebut the presumption that the designated claimant (Plaintiff or beneficiary) possesses or was legally granted authority to administer, collect or enforce the alleged debt by someone who possessed such legal authority.

The response — always the same with minor variations — is either no answer at all or motions to extend the period to answer the discovery demands or occasionally a response that objects to the demand or which answers the demand with evasive responses. The homeowner or his/her lawyer files a motion to compel proper responses to the demands for discovery. The typical error here is that no hearing is set and so you just have a motion sitting there which means virtually nothing.

But before you can do anything beyond filing the motion to compel, the foreclosure mill files a Motion for Summary Judgment. They manage to get it set for hearing before you are able to get your own motion to compel set for hearing. No order has obviously been entered by the judge commanding the foreclosure mill to obey the rules of discovery and frankly, we have seen a number of cases where even after such an order is granted, the judge has granted summary judgment anyway. I think this is obvious reversible error but on appeal, the panel looks for anything that could conceivably justify the departure from the rules by the trial judge.

Like discovery demands, the motion to compel must be specific and clear. You are contesting the presumption that the named designated claimant is owed any legal debt by you. You are entitled to seek discovery from your opposition that would reveal facts that could constitute admissible evidence on that question. Those are the rules. YOu complied with eh rules and now it’s their turn. they didn’t do it. You want an order compelling them to play by the rules.

So the first thing you need to do is make a big deal bout getting your motion to compel heard by the court and you must file affidavits in opposition to the motion for summary judgment or else the court is required to accept the recitations of uncontested facts submitted by the foreclosure mill as true —even though the rules say the court should also look to the pleadings, where you should have laid out your narrative about how the named designated claimant is not owed any money, does not own the debt, note or mortgage and has no right to administer, collect or enforce the alleged debt.

If you have followed the rules, you should be able to say without any disagreement from anyone, that they filed their motion for summary judgment while your requests for discovery were outstanding and in lieu of answering such requests. You would then argue that least for the purpose of the hearing on the motion for summary judgment, that the homeowner is entitled to a negative inference regarding the existence, ownership, and authority over the debt, note and mortgage.

That means that for purposes of the hearing on the motion for summary judgment filed by the foreclosure mill, the debt, ownership, and authority do not exist, and therefore the matter must go to trial. congruent with that the homeowner should seek the order compelling responses and then follow up with 2d motions to compel and motions for sanctions culminating in a motion for monetary and evidentiary sanctions that would end the case.

The bottom line is that if you follow the rules, and demand discovery of actual proof of payment (citing the form that such proof must take or asking what form such payment took), the foreclosure will file anything other than a response to your demands. If you don’t know what to do about that or if you don’t do anything about that you are headed for defeat. But if you do follow up relentlessly you are more likely than not, headed for victory. The reason? There is no legal claim.
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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. Your adversary in the Court is not a bank or their lawyers.

    Your adversary is a Judge.

    And 98% of all Judges will not rule against their parties of interest – Big Banks. Courts know exactly that will be discovered – a massive thievery of homes by Stockbrokers; and fraud upon the Court at unprecedented scale.

    And will cover for it as long as they can, by all possible means,

    Even experienced foreclosure lawyers rebel.

    Bruce Jacobs was attacked by Florida Bar because he made TRUE statements about judges such as .”Banks must always win”

    Mark Stopa wrote – foreclosure court became something unrecognizable. ProSe homeowners are not allowed to speak even one word in defense.

    FL lawyer Ivan Rosen said: What is Wrong with Florida’s Third District Court of Appeal?
    Statistics from every Florida District Court of Appeal show something is wrong with the
    Third District’s handling of foreclosure cases.
    Fort Lauderdale, Florida (February 8, 2018) – Statistics reveal what experienced Florida foreclosure
    attorneys already know, the Third District Court of Appeal has an issue properly adjudicating foreclosure cases.

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