Garfield Continuum Defense: How To Use Mediation to Your Advantage

The essence of the Garfield defense is to (a) get the Judge mad at the foreclosure mill and (b) reveal the inability to produce one iota of evidence of a money trail, thus rebutting the clear legal presumptions arising from the supposedly facial validity of fabricated documents containing untrue statements.
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Step One: Make clear, specific, proper, and timely discovery demands and if possible subpoena records or officers duces tecum to appear at a deposition. Don’t expect compliance. Expect either no response or a response that is, at its roots, a non-response — either evading the question or avoiding the answer. Discovery should be regarding the existence, ownership, and authority over the alleged underlying obligation for the supposed debt.
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Step Two: Advise opposing counsel that the responses are overdue or inadequate and give a reasonable amount of time to respond.
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Step Three: File a motion to compel, get a hearing date, and submit a memorandum in support of the motion to compel.
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Step Four: Make sure you also set down a hearing date for any objections that were filed at the same time you ask for a hearing on your motion to compel.
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Step Five: Attend the hearing, argue it and hopefully get a written signed order from the judge commanding the foreclosure mill to comply with your discovery demands within a certain number of days.
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Step Six. Repeat Step Two:
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Step Seven: File a motion for sanctions, get a hearing date, and submit a memorandum in support of the motion for sanctions. Ask specifically for monetary and legal sanctions including striking of pleadings, exclusion of evidence,  and a court order that asserts a negative inference against the foreclosure mill regarding the existence, ownership, and authority over the alleged underlying obligation for the supposed debt.
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Step Eight: Repeat Step Six
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Step Nine: Repeat Step Seven
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Even if the court commands compliance with the discovery demands you have made, it is still discretionary with the court as to what sanctions to apply.
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There are two types of sanctions. One is monetary, where they are slapped on the wrist and ordered to pay you money. And the other is legal, where their pleadings, evidence or both are barred from use. The legal sanctions often result in no case for a plaintiff or no defense for a defendant.
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One tactic I have used successfully in the past is in mediation, which is usually covered by an administrative order or specific order from the judge. The usual order requires the parties to physically appear either in person or by video conference.
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The usual response to such an order is that a “representative” from a company claiming to be the “servicer” for the Plaintiff or beneficiary shows up without stating affirmatively that they are representing the named beneficiary or plaintiff. That is because they don’t represent the trustee, the REMIC trust or anyone other than the company claiming to be a servicer.
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They will seek to imply representation of the named claimant, beneficiary or plaintiff by saying that they represent the servicer but they won’t say that the person appearing is a representative of the named claimant, beneficiary, or plaintiff.
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That raises the possibility of a motion for sanctions for failure to appear at mediation. The person who appears at mediation is not competent (lacks knowledge) to say that his company is actually citing a servicer on the subject underlying obligation on behalf of the beneficiaries or plaintiff who is in fact a creditor. After the court re-orders mediation a few times you have an excellent chance for the court to apply sanctions (see above). But you must be very persistent.
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The error committed by nearly everyone is that failing to object to the appearance of a person who is representing the named claimant, beneficiary or plaintiff is going to be taken as your admission that they are the servicer and that they are “servicing” for the named claimant, beneficiary or plaintiff.
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Despite the fact no such company actually receives money in its own financial depository accounts from any homeowner nor even the proceeds of foreclosure sales that were successfully executed, the “law of the case” becomes that they are the servicer and that raises the nearly irrebuttable presumption that the party whom they say they represent is in fact a creditor. Thus the untrue set of fabricated facts become “true” for purposes of litigation. That is how the system works and many would successfully argue that is the only way the system CAN work.
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The second thing about the mediation order is that it almost always requires that the person showing up for mediation must have full authority to settle the case. Many judges add that they must have full authority to accept a cash offer or any other form of settlement without making a phone call. This never happens when the situation involves even a hint of securitization claims. The only thing the “representative” has the authority to do is show up and deliver an application for modification.
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If you make a cash offer, even if it’s more than the amount they are demanding, the “representative” will be unable to accept it because they have no right to accept it. Try it, you’ll like it. File a motion for Sanctions.
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If you agree to whatever terms are offered but demand that the named “creditor” acknowledge the deal they will withdraw the offer and proceed to foreclosure.
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You have every right to demand that the named claimant acknowledge the deal since there are nothing but questions as to whether the “servicer” has any right or interest in administration, collection, or enforcement of any alleged underlying debt supposedly owed by you.
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When they withdraw the offer, it is an opportunity to move for sanctions because your request is not only reasonable but only seeks to enforce the mediation order. It also alerts the court to the fact that there is a problem in this particular case and that the parties seeking to collect and enforce are playing games.
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If you accept the offer which is most likely modification, you are agreeing to waive all other defenses that would otherwise eliminate the claim and the claimant.
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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, 74, 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.
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