How the courts are chilling access to the courts, and why they smack down defenses of homeowners in foreclosure

Some people think I am blaming them for not knowing how to navigate the court system. We actually don’t have a dispute between us. The conflict is between two fact patterns that produce an inequitable result for homeowners.

The inequitable result arises from being drafted into an illegal securities scheme and then having that same scheme used against them in court — all to their detriment and never with any distributions or particpation in revenues or profits. In this plan homeowners abosrb only risk and never participate in the bounty of the scheme.

The first fact is that it is nearly impossible for any homeowner, pro se, to achieve success in the courtroom even against the most egregious violations of law, common sense, and equity.

The second fact is that it is nearly impossible for any homeowner to find competent trial counsel to represent them.

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I have another idea which dovetails with some other plans I am pursuing. Someone like Gary Dubin might be of considerable assistance in this endeavor if he is so inclined.
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As we have been discussing, writing, and talking, it has occurred to me that the primary complaint of virtually every homeowner who is in the crosshairs of a group of players who are claiming the right to administer, enforce, or collect an alleged underlying obligation, is that the homeowner can’t get a lawyer.
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A secondary problem, of course, is that most homeowners are unwilling to pay the attorney to do the necessary investigation and research that will reveal defects in the existence and ownership of the core claim against the homeowner.
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I think homeowners should sue their respective states on the grounds that state action, as applied, prevents most homeowners from mounting a credible challenge to foreclosure.
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Either the state should provide effective defense for homeowners or the state should change its policy in treating all homeowners as deadbeats.
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More specifically, each court in each state should not even consider any case in which foreclosure proceedings are initialized — unless the Plaintiff (in a judicial state) or the beneficiary (in a nonjudicial state) swears and acknowledges that they are the claimant, swears under oath, and acknowledges that the attorney who initiated the process has been retained by the claimant to act on behalf of said claimant — and that the claimant and the Attorney certify that the claimant has suffered some financial loss arising from directly from the failure to receive a scheduled payment from the homeowner.
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An additional certification should require that the named Plaintiff or beneficiary is the party intended to receive the proceeds of a forced liquidation of the property and that a loan account receivable on the accounting ledgers of the claimant will be reduced by the payment of such proceeds to that Plaintiff or beneficiary.
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This simply relates back to all pleading practices and forms required in all civil cases except Foreclosure. In every civil case, the claimant is required to make a short plain statement of ultimate facts supporting the foundation for asserting a duty owed by the defendant to the plaintiff, a breach of that duty, and damages allowed by law for the breach of that duty. There are no exceptions. In some cases, statutory damages apply even if the plaintiff is unable to describe the damage to the claimant. But the damage must be there either by application of those rare cases where statutory damages are applied.

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It should go without saying that no Foreclosure should be allowed to be concluded in favor of the claimant if the only damages are prospective and speculative in nature. So the fact that some investment bank, “Servicer,” or “lawyer” might lose future profits or a share of the bounty, is not considered damages for purposes of sustaining a claim against anyone. The only legal and common-sense purpose of a foreclosure action is to make restitution for an unpaid debt owed by the homeowner to the claimant.
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The investment banks have steadfastly avoided any such argument. This is because they stand to lose hundreds of billions of dollars, perhaps trillions, if that door is opened. Once it is revealed that the real purpose of nearly all current foreclosures is to generate revenue instead of restitution for an unpaid debt owed to the claimant, the obvious question will emerge: if they were not owed the money, why did they pursue the foreclosure? And the answer is that the entire securitization framework and infrastructure is based upon lies told to homeowners, the courts, regulators, and lawmakers.

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In foreclosure cases, virtually all of the normally required pleading is simply implied and then presumed. It is not until the end of the case after years of litigation and tens of thousands of dollars spent on lawyers, court costs, and other fees, that homeowners obtain a judgment in their favor based primarily upon the insufficiency of the evidence to provide a foundation for the claim (failure to maintain a prima facie case in a contested matter.)
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In short, homeowners when their cases only after revealing the deficiencies in the initial forms and procedures and vote by false players in foreclosure, who have no intention, incentive, or desire to pay anyone who paid value in exchange for ownership of the underlying obligation alleged to be owed by the homeowner.
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This relates back to my other project of suing to change the current forms, rules, and procedures in place. If the case should never have been filed in the first place, then it should not take homeowners 2 years or more to litigate a case costing tens of thousands of dollars to defend in order to get to the point that should have been known at the beginning: the claimant does not win the claim against the homeowner and is not the intended receiver of any proceeds from the cash proceeds of forced sale of litigation.
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This has been the result of a chilling effect on access to the courts.
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The entire system (courts, bar, regulators, and lawmakers) and context of foreclosure litigation take dead aim at lawyers who are successful in defending attempted foreclosures. Lawyers and their clients must endure ridicule and sanctions for even bring up the idea that the claim does not exist.
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In most cases, these successful outcomes result from (a) enforcement of the rules requiring adequate responses to timely discovery demands (es[eciallya after a court order requiring compliance or (b) findings of act and conclusions of law that recite the judge’s conclusion that the claimant had no case in the first instance.
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Yet nearly all judges start with the premise that homeowners do not and should not win the litigation of their foreclosure case. All of those judges are apparently proceeding in ignorance of the fact that homeowners are winning cases — that’s contradicting their initial assumption that the foreclosure proceedings are valid and based on authentic documents.
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The latter point is especially problematic since the source of those documents has been intermediaries who have since promised the Attorneys General of all 50 states that they will stop faking, forging, and fabricating documents that contain false information in support of their foreclosure claims.
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In that context, it strains credibility to understand why the courts would apply legal presumptions to such documents without requiring further corroborative evidence in the initial forms for initiating foreclosures or shortly thereafter. All rules covering such legal presumptions contain a caveat that states that those legal fictions of validity of documents do NOT apply if the source might not be a credible source mainly because they have an interest in the outcome of litigation.

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The courts are restricted from taking such factors under consideration primarily by the application of doctrines relating t precedent. I have seen multiple cases in which after a victory or satisfactory settlement was reached with the homeowner, the homeowner was literally paid to maintain secrecy and confidentiality about the existence of the case and certainly not the terms of settlement at I can report often eaches 6 figures for damages in addition to the retention of the property.
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It should come as no surprise that upon researching such cases, most investigators will find that the court record has been scrubbed clean. Not even the initial pleadings can be found much less ofIt should come as no surprise there upon researching such cases, most investigators will find that the court record has been scrubbed clean. Not even the initial pleadings can be found much less the settlement.
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Needless to say, such cases are never seen at the appellate level. So there is literally a complete absence of precedent relating to the viability, constitutionality, and fairness of a final order or a judgment in favor of the homeowner. There is nothing in the court record on appeal because there is no appeal. There is nothing in the trial record because it is scrubbed.
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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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One Response

  1. It is summer – everyone out partying now – virus or not. Home sick, so I am here.
    People – get vaccinated!!! This virus attacking young people now (just like what happened in 1918) and mutating constantly – whether you believe it or not – which affects ALL. And, there lies the problem. People think – “everything is fine,”, and that they will be fine. “This is not about me,” they think, OR – “This is only about me”, and they think – “I am invincible.” They don’t question the “Process” (or the virus) until they are affected. Need to be ahead of the pandemic – virus pandemic AND financial pandemic.
    People “paying” are being bombarded with refinance “great” opportunities from non-bank entities such as New Day, New Rez, PennyMac, Quicken Loans etc. etc. — it is constant advertisement and solicitation. These are entities that do not actually refinance anything. Read the reviews on NewRez refinances. Takes months, or more, to even get one through – if you ever get one through (and you don’t want that kind of refinance if you do get it through). That is because the “chain” has to be fixed, and it can never be fixed. It means you will not get a loan that goes to an actual valid secondary securitization market (yes there is a valid secondary securitization market – you are just not in it). You will remain with the same default debt collector — in the same invalid security trust – forever. There will be no clear title – as there is no authority to clear the title “chain.” So the first payment you miss, or the first misappropriation of funds that redirects your payments — will re-certify default by you. Securitization is NOT the same for all.
    It is our fault that we lump all into the same place. Big mistake.
    People want a quick fix. They want lower payments, by whatever means, and they don’t care if “Goodfellas” is offering them a quick fix. And, obviously, neither does the government or courts. This is not about navigating the system once one is foreclosure and in court. It is about stopping the fraud before you ever get to court or foreclosure. Neil should be expanding his services before foreclosure ever even occurs. This will better clear the path in courts for the fraudulent foreclosures. If you allow the system itself to continue, the courts cannot ascertain the source of the fraud, and it goes on in perpetuity. Sue your state? Good idea. But what attorney is going to take that? None. Attorneys want to get on the good side of judges, and politicians – they want no part of a BIG challenge to them and their “relationships.” Again, don’t wait until it becomes “about you.” We are in very difficult battles. The war is not just about “your” battle. It is much bigger. And this is not about blaming people for not “navigating” the system. The system is much bigger.
    Have a wonderful summer weekend!!!! Won’t last long.

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