Successful and Unsuccessful Appeals.

you can use your knowledge … to ask for things that the foreclosure mill will never provide even though they are required to do so under the rules of civil procedure and more importantly under the terms of a court order issued by the judge commanding them to comply with the discovery demands. That is where most homeowners prevail in the trial court and that is where most homeowners are able to win on appeal despite the heavy statistics against them.

By the time you get to appeal the appellate judges and their clerks are not interested in the truth of the matters asserted and accepted into evidence in the trial court with certain exceptions that don’t really apply to foreclosures.

The presence of a company claiming to be a servicer strongly indicates that your transaction was subjected to a process of securitization in which your underlying obligation was extinguished. This means that the loan receivable account was either never created or was retired. You will never prove that statement.

But you can use your knowledge that the statement is true to ask for things that the foreclosure mill will never provide even though they are required to do so under the rules of civil procedure and more importantly under the terms of a court order issued by the judge commanding them to comply with the discovery demands. That is where most homeowners prevail in the trial court and that is where most homeowners are able to win on appeal despite the heavy statistics against them.

Trial litigation is the time and place where properly presented narrative, objections and motions are filed.

On appeal, the best rule of thumb is that the appeal will be denied statistically and that it will especially be denied if you do not cite the specific errors that you are saying were committed by the trial judge. The second rule of thumb is that you will most likely lose on appeal unless you can present convincing arguments that the procedural error (the only kind of error that is normally accepted by the appellate court) resulted in preventing the homeowner from pursuing a credible defense narrative — and that narrative if true, would result necessarily in a different final judgment or ruling.

The test employed by all appellate courts seems to be this: if there is any basis for affirming the trial court’s behavior, order, judgment or decision they will do exactly that. This comes from the centuries-old practice of keeping all decisions as final except in the face of clear error.

Any argument that complains about the trial judge’s bias, onions, or personal judgment is likely to fail. Such arguments are viewed by the appellate court as attempts to have the appellate court sit as a trial court and reconsider whether the greater weight of the evidence supported one side or the other. That is not the function of appellate courts, and they are correct when they affirm a negative decision in the trial court.

BUT — if you can point specific instances in which the homeowner was denied due process, then you have an issue that will be reviewed and could result in the reversal, remand and instructions to the trial judge. This is not an easy issue. The most common is that summary judgment was granted despite the presence of outstanding discovery demands.

But if the court record contains tacit or express admissions about the “loan” being sold into the secondary market or that it was securitized, it will be difficult, if not impossible, to show that the trial judges rendition of a Final Judgment of Foreclosure had no possible foundation in the record.

Many pro se homeowners get led astray looking for magic bullets. So they point to defects that have both factual and philosophical merit. But the courts tend to review such arguments as being an attempt to relitigate the foreclosure. Defects in documents or procedures are not reversible error ipso facto. Such defects must be shown to have actually altered the outcome of the case if the defects had been properly presented to the court in a timely manner.

In many cases I must deliver my opinion that the homeowner’s chance to have presented such defects expired regardless of whether you presented them or not — unless there is later acquired evidence that you could not have otherwise obtained (best if it relates to facts that occurred after judgment). But where the case has progressed so far procedurally — such as in what is generally reported to me — other options, in my opinion, present better strategies with a higher likelihood of success or a satisfactory result.

In plain language, a lawyer can be retained to review the briefs but the great likelihood is that he/she will forecast failure on appeal and it might even be to your advantage to dismiss the appeal. Check with local counsel. A negative opinion from an appellate court is one more nail in the coffin of your defensive narrative and strategy. It raises additional negative inferences and legal presumptions.

Of all the possible strategies I have seen in thousands of cases the one that works best, by far, is the case where the homeowner is able to get back into a position of making discovery demands that relate directly to the core issues of the case. This may involve complaints, under the FDCPA, FCRA, RESPA and even TILA. And this is probably going to be supplemented by a petition for Declaratory, Injunctive and Supplemental Relief.

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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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2 Responses

  1. Have to agree Summer. I have to be bolder here – because something is very missing. I was never in default and can prove it. Many here know that — but did not matter for courts – internally recorded in default anyway. But they never went to foreclosure. “FINAL” foreclosure code was never coded. Nothing was “accelerated” – just “liquidated.”
    That is because everything was just “reinstated” by so called “refinance” — NOT a refinance. Nothing prior paid off by me or any borrowers (especially crisis loans). THERE IS NO LOAN. So – never in foreclosure, and still paying. But title — so messed up — can’t get OUT. Thus, can APON help in it for those still paying – or with a bogus loan mod? I never had a loan mod. At least I never signed one – but internal documents say otherwise. I was never in bankruptcy. I never missed a payment – for decades – not ever. I think this is helpful somewhere. But it gets lost. The blame is put on litigants not doing their job. But I see no reference to this. NONE. Discovery – you do not get discovery. One Judge once said – “You get what you get in discovery – and you are not getting anything more. ” And that is nothing. Courts do NOT care about title — it is your problem if you remain in nowhere land – never to escape. I understand the focus here is foreclosure. But if you can’t figure out why it happened in first place,, and why there is no loan —it is an endless battle, and you will NEVER have clear title – even if you win against foreclosure. You are just a “data” number – forever. And, no title insurer will cover you. You will never know where your money went or where is goes. And, you will never have clear title rights to your home. This is not about despair by me to discourage homeowners from battling in court. I encourage the same. But, what do you do if you keep paying and you can’t get out? I see nothing here to address this. Sorry – been here a long time. And this is ignored. I don’t know why. .

  2. How about absence of the Plaintiff and criminally concealed by the trial Court judge key evidence from key records?

    Does it count as a fraud upon the Court and lack of standing?

    Not for Illinois Appeal Court. Its Justices write absolutely bogus and absurd decision that since they see how Fremont “assigned” something to its bogus Fremont Home Trust 2006-1, IL Appeal Court pass my property to bogus Trust GSAMP 2006-FM1 who filed the case.

    No question about missing evidence, no one judges eve bothered to look at your Appeal. Who cares which Trust filed the case?

    They steal for all of them.

    People are nothing for Judges, money is all that matters

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