[Excerpt from my upcoming book “KEEP YOUR HOUSE”]
Most discussion amongst homeowners centers on ways to “escape” debt, instead of ways to undermine the enforcement of a claim that is not based on any real duty or debt. The people looking for the escape or magic bullet are always frustrated by loss and their preception of bias when the judge is only doing his or her job. The people who are at least willing to consider that there is no “escape” involved are the ones who prevail in defending false foreclosure claims.
Almost all losses by homeowners in court are based on their erroneous perception of the burden of proof. They don’t even know what “burden of proof” means and why should they? They think by raising questions and not getting an answer they have proved that the claim is invalid. Under existing laws and existing rules of procedure they are wrong. But using those same laws and rules, they can and should win. Homeowners defending foreclosures must come to terms with the content of existing laws and rules and stop complaining about how those laws and rules should have been drafted.
But, if consumers want to stop this horrific behavior by the banks, then they do need to address at least one area that has been overlooked — the forms used as “guides” in foreclosure proceedings all assume a valid claim without requring any party to actually assert the basic elements of any civil case. This assumptions leads to presumptions at law regarding the existence, ownership and authority to collect any money from the homeowner.
Sometimes the homeowner will realize later that they missed their chance and get mad at the system or whoever is telling them that they missed their chance. You can’t blame them. This is a problem that should have been addressed by government enforcement from the start and every single agency that could have done it failed to even make legitimate inquiries when the proverbial s–t was hitting the fan in 2004-2008. Even Alan Greenspan, as chairman of the Fed, thought that “market forces” would make the necessary corrections to a scheme which he admitted that neither he nor anyone else in the Federal reserve understood, despite the presence of more than 100 PhDs.
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So my goal is to continue presenting information and methods of analysis to prevent future forced sales of homes for an illegal scheme. In my upcoming book, I am trying to make it readable but there is a heavy emphasis on the rules of procedure, the rules of evidence, and what actually wins a case. The biggest hurdle to overcome is the lay interpretation of the justice system as serving to provide a venue for one side or the other to prove something. That only applies to one who is making the claim. The defense side is not to prove something. Defense — by definition in the legal system — is the process of undermining the claim. This nuance makes all the difference between success and failure.
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This is not to say that there are no claims that a homeowner could make. But most homeowners and some lawyers make the mistake of filing a complaint that consists entirely of conclusory allegations rather than factual allegations. And they forget that once they allege something, they need to prove it or else it will be dismissed — the very fate they are seeking for their opposition’s claims.
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In its simplest form, the evidentiary question is revealed in any analysis of an assignment of any instrument that purports to be an assignment of mortgage. If it conforms to the facial requirements (as per statute) of an assignment of mortgage and executed with the formalities required by statute it is presumptively an assignment of mortgage.
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Being a facially valid assignment of mortgage means that it can be used as primary evidence that an assignment of mortgage has occurred. Under existing law, a valid assignment of mortgage can only occur when the underlying obligation is purchased for value. So the presumption as to the facial validity of the assignment of mortgage means, unless contested, that a transaction occurred wherein the underlying obligation was purchased for value as part of a transfer of ownership of the lien rights.
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The goal of the homeowner in litigation is to reveal the false nature of the instrument by attacking the corroborating evidence. By aggressively pursuing discovery relating to the corroborating evidence, the homeowner can win.
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- If the instrument says to is executed “for value received” the corroborating evidence would be identification and documents showing such a transaction actually occurred.
- If the instrument shows the signature of someone as “executive assistant signer” or some such designation, the corroborating evidence would be identifying the person, their title, who employed them, what authority they were given and how that authority was transmitted.
- If the signature appears on the document, the corroborating evidence would how that signature was placed on a document and whether any original exists.
- If the signature appears as attorney in fact, the corroborating evidence would be the original power of attorney and the authority of the people executing that power of attorney and all side agreements relating thereto, including the “servicing agreements.”
Experience in virtually all Cases I have reviewed — thousands of them — shows that the foreclosure mill will not give a direct response or answer to these inquiries even though they’re legally required to do so. But it is also true that without a court order compelling them to produce it, the fact that you asked has little relevance. This requires an understanding of motion practice.
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But once the homeowner gets to the point where they are legally entitled to an order of sanctions because the foreclosure mill can’t or won’t answer then the foreclosure mill is no longer entitled to rely on the presumptions arising from the facial validity of the assignment of mortgage.
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That means that the transaction MIGHT exist but that the foreclosure mill may not use the assignment of mortgage as evidence of such a transaction. That is where the magic bullet occurs — after months and probably years of litigation, the action gets dismissed either voluntarily by the foreclosure mill (who will try again later with a different judge) or involuntarily dismissed by the judge in the absence of any facial evidence to prove their claim.
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The progress of litigation is backward in foreclosures. Usually, the claim in any civil suit is that there is a duty owed by the defendant to the plaintiff. Then there is an allegation that the duty was breached and there are specific factual allegations that demonstrate the breach.
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And finally, there is an allegation that says the plaintiff suffered some sort of injury from the breach of duty. In foreclosures, because of archaic forms and assumptions that don’t apply in the era of securitized loans, the only allegations required are those that involve conclusory allegations about the existence of the note and failure to make a payment.
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Unlike all other civil actions, there is no allegation currently required that the payment was due to the Plaintiff, and frequently there are no allegations that the plaintiff even exists, much less that it owns a claim against the homeowner and has suffered an actual financial loss arising from the behavior of the homeowner.
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So the homeowner is stuck with litigating a case that should never have been filed in the first place — for months and years. It is up to the attorney for the homeowner to point out, sometimes aggressively, that there is no direct assertion of ownership or loss and that any presumption of such facts is erroneous in the absence of proof.
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But all of this is deeply dependent upon the desire and willingness of the homeowner to perceive their status and their position as just and proper, in both a legal and moral sense. I have spent thousands of hours explaining why any other perception of their transaction is wrong.
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In the era commencing around 1995, the transactions were either not loans or were extinguished as loans. the money came from Wall Street who was selling securities that representing a sale of the advance made to homeowners several times over.
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Transactions were either originated indirectly by the investment banks or taken over by the investment banks (without any incidence of ownership that might subject them to civil or criminal liability relating to the origination or servicing). The goal was to avoid lending and avoid being a lender. But homeowners persist in viewing the transactions as loans or debts owed to the people who are making the claim even though this is not the case in nearly all collections and enforcement proceedings.
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Homeowners were entitled to share of such a scheme — particularly in view of the fact that they never received a hint of any disclosure of the scheme. The amount to which they were entitled was determined by the investment banks, who have them that money or took over the transaction with a lie about the existence of a loan account receivable and the existence of a creditor.
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The amount of the payment was what was described and believed to be a loan because that is what the homeowner was seeking. But the money was purely an incentive to sign papers that would launch the securities scheme. The amount the homeowners received was their share of the scheme. The trick was getting the homeowners to agree to pay it back to anyone who made a claim because they thought it was still a loan.
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The truth is that nobody cares whether the foreclosure mill wins or loses individual cases — as long as the loss does not threaten the real business at hand, to wit: the sale and trading of securities.
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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.
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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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Yes you DO need a lawyer.
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Filed under: foreclosure |
Summer – you are correct. And, once a judge does it once — do you ever think he will correct the “error?” Of course not — he/she will instead multiply his/her “errors.”
The laws are good. The application of these laws by judges are bad.
The burden of proof is on Plaintiffs who according to ALL laws must have standing by at least being alive to suffer damages.
The Ghost of Hamlet’s father cannot demand a relief from the Court.
Judges turned all Courts into haunted Houses where non-existing corporation are taking homes from real people – who did not owe them any money.
Non-existing Trust cannot suffer damages and appear in the Court no matter how many guesses Judges make that a dead entity could receive requested relief and even distribute it to someone whom nobody never seen in any foreclosure Court,
How many judges ruled for US Bank as Trustee appearing as a Plaintiff on behalf of non-existing Trust? 99%
Judges must know (this is their JOB) that the PLAINTIFF in all these cases are beneficiaries of this Trust – which this Trust cannot have simply because it does not exist. And US Bank is merely an agent for beneficiaries of a non-existing entity who cannot hire US Bank to represent it.
Next, the damages must be real. A non-existing entity which has no beneficiaries cannot suffer damages. Why Judges break all laws and rule for corporate corpses?
Robo-signining is a crime. Why Judges promote this crime and accept robo-signed documents from “MERS VPs” for more than 20 years. Even a donkey can learn how to talk during this time.
Here are no law which allows forgery to be considered into a valid evidence.
So, we have a non-existing entity whose lawyers file forged documents is representing someone who does not exist – beneficiaries- and by someone who does not even know about their role as “Plaintiff” in particular cases since everything is done by Black Knight.
WHY no one judge asks for a Trust representative to personally appear and testify – as well as proof of standing such as legal existanse of this Trust.
The law is good. Judges break it all the time. And demand more and more money to fund their paychecks.
Time to place personal liabilities on judges for judicial malpractices
An entity should never report other entity’s assets as its own under GAAP, it’s duplicating same asset (hint).