The “argument” over evidence

LEARN HOW TO FIGHT WITH HONOR AND WIN!

The argument between well intentioned people over “evidence” stems mostly from an erroneous understanding of the legal definition of the word “evidence.” Evidence is not simply information. Evidence is any document, exhibit or testimony that is admitted by a judge into the court record as being probative of the truth of a fact that is asserted or implied.

When you dig up some fact or inconsistency that is information. It doesn’t become evidence unless you can successfully argue to the judge that it should be admitted into evidence as the truth of a fact you are asserting.

But once you have done that you have assumed the resposibility of disproving the facts that are alleged against the homeowner — a futile task since the homeowner will never get access to the information that only investment banks possess.

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To be clear, evidence means information that the court rules is acceptable to weigh as a foundation to awarding judgment to a party in the litigation. It is not just information. It is information that is accepted by the court basically because it has some credibility and it does point to the truth of some fact that is asserted or implied.
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Most foreclosure mills present evidence that ought to be excluded from the evidence accepted into the court record. But nearly all such evidence is admitted because the rules state that unless you make a proper and timely objection, the testimony, affidavit, declaration, or document is allowed and with that, everything contained therein is presumed to be evidence of the truth of the fact asserted.
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That’s why we have all learned lessons from submitting factual reports and expert conclusions. Mostly such reports are not admitted into evidence and opinions of people who lack impressive credentials are not even considered. But even with credentials, opinions are mostly discarded in foreclosure litigation — unless they are presented by an extremely strong witness who can point to specific facts that are not and cannot be disputed — and I remind everyone that a fact includes the absence of something that ordinarily should be there.
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Foreclosure defense does not mean proving an alternative theory of fact. Any such effort is entirely futile and will always fail. Foreclosure defense means preventing or undermining the foreclosure mill from getting their documents and testimony into evidence and failing that, getting those documents and testimony out of evidence, and failing that, undermining the credibility of the evidence admitted against the homeowner.
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If you simply look at how the banks are doing it is painfully obvious that evidence is not what determines the outcome in foreclosure litigation. Nobody from a REMIC trustee comes to court, the robowitness does not have accounting records or ledgers from the REMIC trustee, and the list goes on. The banks have no hard evidence of compliance with the law. They have fabricated documents to make it appear that they have complied. And that appearance of compliance is all that is necessary to win absent an effective challenge from the homeowner.

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The homeowners that win do so mostly because they successfully prevented evidence from being admitted. And even if it was admitted into evidence they got it back out of evidence. Many other homeowners win even after they failed to convince a judge to exclude the evidence, by simply undermining the credibility of the evidence.
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Undermining the credibility does not mean proving an alternative narrative.
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Knowing the alternative narrative allows the lawyer to argue the points raised more effectively because he or she must answer somewhat nonsensical questions like “if the debt is not owed to U.S. Bank, then who is it owed to?”
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The correct answer is
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“Your honor, we are defending the claims of this claimant not just any possible claimant. Your Honor, we do not admit the existence or enforceability of this alleged debt, especially as to this claimant. It is this claimant’s job to prove their entitlement to receive the proceeds of a foreclosure sale because that is the only assurance the court can get that the proceeds from the foreclosure sale will be applied to reduce the alleged debt if it exists. Asking us to explain the complexity of whatever was done here is an unfair burden. Most precedent bars homeowners from even making such an inquiry. The law requires that before foreclosure can be initiated the claimant at bar has paid value for the ownership of the underlying obligation to a party who legally owned the debt, note and mortgage. If it has paid the debt is theirs. If it hasn’t, the debt either doesn’t exist or belongs to someone else.”
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Knowing is extremely important to having confidence in your arguments. And those who dig up such information are performing valuable service in providing context and foundation for the defense attack. Winning, however, depends upon outmaneuvering the foreclosure mill — something that leaves facts and evidence in the dust. It can be done and it is done every day.
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Cooperation and coordination between people with extensive experience in court procedure, investigation and analysis is extremely helpful as I have demonstrated with my associations with Charles Marshall, William Paatalo, Daniel Edstrom, Patrick Giunta, and others. But for such cooperation to work, there needs to be a common mission: winning the case for the homeowner. People with well-intentioned agendas that diverge from applying common sense trial strategy and tactics, unfortunately, undermine the effort without any intention of doing so.
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Nonetheless, I am always open to new ideas, new people, and new work. When I encounter such work I publish it with attribution to the source.
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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. Correct that no one from the “REMIC” is in court. Not even a claimed Master Servicer – never mind not the trustee whose name appears on record. But try to convince a judge that. They see the trustee name attached to “TRUST” name (which is NOT a REMIC), and think trustee is there. That is why bogus documents must be stopped. Further, many foreclosure cases happen after modifications. By paying a modification – one admits the debt. You cannot backtrack and say — well I should not have paid. So — there must be another argument then to deny a debt exists. Better argument is to challenge AUTHORITY, and demand ACCOUNTING. Nevertheless, this is a very difficult battle in court. Why? Precedent law.

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