If you don’t understand the job of being a judge, then you can’t possibly win

The bottom line is that if you start off with a hostile attitude toward the judge, the possibility of a successful result for anyone defending a case diminishes to practically zero. Likewise for the litigant who expects the judge to carry water for one party or the other. Judges don’t carry water. They merely watch it and weigh it. That is their job.
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I am frankly disappointed in the number of people who continue to blame judges for the failings of the system and the failings of presentation caused by both consumer homeowners and their lawyers.
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No matter what anyone says (including me) it seems that in our polarized world, people would rather believe in corrupt judges than win their cases fair and square. Letting go of the “corrupt judge” meme is just a bridge too far for most of the people who are willing to fight. And letting go of the myth that they knew what they were doing when they signed those papers at “closing” is apparently equally too far. And so Wall Street continues to profit while consumers are blindsided again and again.
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Let’s start with what a judge is and what a judge is not. The authority of every judge is strictly limited by constitutional, statutory, and other restrictions contained in court rules a d regulations passed by the Supreme Court of each state (or the Federal government in Federal Court cases). While there is some interpretation allowed in case precedent basically the judge is supposed to operate ONLY within the confines of his or her job.
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In criminal law, you would not expect the judge to do the investigation and you wouldn’t expect law enforcement to decide on guilt or innocence. It’s not up to the judge to figure out the true facts. It is the job of the judge ONLY to rule on admissibility and weight of facts and law presented by the parties in both criminal and civil cases, like foreclosure.
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In criminal cases, if the prosecution fails to introduce the weapon, neither the judge nor the jury may rule on the case based upon the presumed existence of the weapon.
Likewise, once the weapon is admitted into evidence, the weapon and the testimony about the use of that weapon stands as uncontested and therefore presumptively true until or unless the defense mounts a credible and persuasive challenge to the weapon and the testimony.
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Defense counsel does not suggest that maybe the weapon was planted or that the witnesses were lying or that the exhibits were manufactured for trial — unless the defense counsel intends to put on real evidence that something happened, when it happened, and who did it.
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In most cases, defense counsel has no such evidence. Therefore defense counsel will not mention his opinion or the opinion of his client that the weapon was planted or that the testimony or exhibits were false. Defense counsel will refrain from doing that because anything else would destroy the credibility of the defense narrative.
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This logic appears to be absent in most foreclosure cases. If you can’t prove it, don’t allege it. But that doesn’t mean you have to abandon your defense narrative. And if you do make those charges, don’t be surprised if the judge considers you and your whole defense as lacking in credibility.
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The criminal defense lawyer will generally focus on the exclusion of evidence wherever possible followed by (and possibly accompanied by) an attack that undermines the credibility of the foundation on which the evidence was admitted. After that, the defense attorney will continue to attack the credibility or relevance of the evidence that was admitted so that it is given the least possible weight against the interests of his or her client.
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The job of the judge is to allow or disallow evidence, testimony, and exhibits based upon the rules of court, the rules of evidence, statutes, and case law. Generally speaking, nearly all evidence that is proffered into evidence is excepted into evidence if it is not effectively challenged. And that is the problem in foreclosure cases.
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It seems that people are so focused on getting revenge that they forget to win their cases. Whether the judge believes or not that there is a legitimate loan and that the current claimant is or is not owed any money from the current homeowner is irrelevant. And after seeing thousands of cases all end in the same way it is hard to blame a judge for having some bias in the direction of the plaintiff or beneficiary named in a foreclosure.
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The job of keeping evidence out, or getting evidence out after it has been admitted, or diminishing the weight of the evidence is not nearly as exciting and fun as proving that the other side consists of a bunch of thieves. It is not the fault of a judge if he enters a ruling in favor of the thieves unless someone has proven by clear and convincing evidence that they are thieves and that they committed theft in the case at Bar. It is not the job of a judge to ruminate about whether or not the claim is a sham claim, considering the fact that nearly all litigants either lie outright or “stretch the truth.”
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A lot of people are angry about the justice system and the financial system for a good reason. They have been victimized by both. But it is the system and not the individual players who have committed the grievance. It is the system that has not yet caught up to the realities of securitization and that securitization does not mean the sale of any debt, note or mortgage. Judges are not oracles. They are just people trying to do their jobs.
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So I would say that people should redirect their anger towards the institutions that control the system. Since nearly all homeowner victories are decided on the basis of a lack of any claim against the homeowner, it follows that the current requirements that attempt to address this deficiency are not good enough. They need to be tightened.
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That usually means the rules committee that reports to the Supreme Court of each state, which publishes rules for filing lawsuits and claims. It also means lobbying the legislature for changes which means that you’re going up against the banks’ huge lobbying efforts. It’s tempting to throw up your hands and say that’s impossible.
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But with tens of millions of people that have been negatively affected by the false assertion of securitization of debt, It would not be hard to overcome the lobbying of the banks if homeowners adopted a concerted and cooperative approach that made it extremely dangerous for any politician to vote against the interest of the homeowners. Yes, they have the money. But homeowners have the votes, and politicians need votes in order to stay in office.
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PRACTICE NOTE: As described in countless blog articles, radio shows, Webinars, and seminars, consumer homeowners can bar any evidence from admission if they follow the rules and use them in an aggressive and persistent fashion. The entire case presented against homeowners in foreclosure is based on presumptions rather than facts. Homeowners lose by directly or tacitly admitting facts that support the presumptions or by failing to test the presumptions by failing to ask for the supporting facts.
There are statutory inquiry letters (QWR and DVL) that require a direct answer to a direct question about the existence of the loan account receivable and its current status, ownership, and authority to administer, collect tor enforce. And there are plenty of discovery options in litigation. The plain simple truth is that regardless of what piece of paper the opposition can produce if they can’t provide confirmable evidence that something happened at a certain time between specific parties, they can’t use the paper.

Homeowners and their lawyers need to use the prelitigation procedures available to counter the tracks in the sand each time a company claiming to be a servicer sends a letter or notice. I cover this in the upcoming webinar on 11/19 at 4 PM. In the absence of such activities of the homeowners, the court will presume, like any human being, that there was no issue until the homeowner was actually faced with the loss of title and possession. The failure to act and create tracks in the sand for the homeowner will be seen by any experienced judge (and lawyer) to be tacit acceptance of the deal even if the deal is bad. 

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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, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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5 Responses

  1. Summer, pro se litigants have it the hardest in defending themselves in such cases. You have to be quite savvy on legal statutes, procedure and the art of the argument itself. Most of us do not. And even if judges allow pro se persons to submit their arguments, and evidence, they still realize that we are greatly disadvantaged. But, the mere fact that one would be pro se, communicates real ‘balls’, and if they are savvy enough, they can effect wins. But it is hard. A pro se littigant is seen as either indigent or intelligent. 9 times of 10, it is indigent and with that, they have no knowledge sufficient to win.

    Sites like this arm us with ‘inside’ info and insights that help us navigate the court system. However, nothing without long and hard work. Impartial, maybe. Forgiving of novice faux pas, seldom to never. It’s a big fight, even when we know that we are right..

  2. Great points made here. It is almost completely upon the defense to raise issues of credibility as to the weight of the other side’s assertions. The defense, if no questions are raised at all, is practically handing the win to the bank or the prosecutor.

    Even if excusable/meritorious defenses are to be presented on client’s behalf, taking a few jabs at the other side is another way to challenge their assertions. In most cases, foreclosures and others, there are always mistakes and missteps taken by the ‘offense’. We have to ‘fine tooth comb’ all of them in their pleadings and motions.

    I am no atty, but am a consumer who does understand that the defense has to be better and more thorough than the other side in order to win. The wins are almost NEVER impossible. If they don’t emerge victorious, they haven’t done their job to the best of their ‘ability’ and do a disservice to their clients. NEVER take anything for granted. They count on that, and therefore are overzealous in their presentations to the courts. Just because they appear confident, they are not invincible, esp. when it is something of ours to be won. We just have to be willing to pay for that best representation to match their slew of law firms at their disposal.

  3. Sure whatever you say.
    As pro se at SJ, i proved the Servicers A & Servicer B had 2 completely different monthly payment on their statements and Servicer B actually went back and post dated their statements that contradicts themselves. The judge said I should have just paid one of them. I asked which one is correct ??? She said just pick one !!!
    Then at FJ The mortgage amount due schedule that was certified as true and correct was SUSTAINED for my objection as I proved 3 line items were double charged for $10,000. I proved the 3 line items were double charged and the amount due was certified as true with penalty. The judge still ruled for Final Judgment!!!
    So is it incompetence or corruption??? You can choose.
    But Neil & most of the clowns in robes are Boomers. And they have ruined the world with their greed and arrogance.

  4. Agree Summer. And, judges cannot affirm facts that do not exist. But they do. It is all a chain reaction. Judges operate on precedent law, and even if that precedent law is wrong – they will not go against their peers. We are overwhelmed with bad precedent law, failure to challenge representation from onset, failure to allow full discovery, and reliance upon fraudulent documents. Maybe not the judge’s fault that false documents are filed and presented, but judges should pursue. If they did, we would not have the abundance of bad precedential law. Further, there is apparent bias against pro se from beginning. Pro Se simply do not have the power of the big law firms foreclosure mills hire. Judges wrongly assume that there is no way the little guy can be correct, and it is easy to squash him. Our legal system has been overtaken by the powerful. With the crisis loans, had the government investigated before settlement – the little guy would not have been left to battle the powerful in courts. Unfortunately, the fraud was silenced by large settlements that did nothing for the true victims – the homeowners.

  5. Yeap, and when the evidence in not convenient for the bank, judge simply conceal it from the case records and other judges never ask where is the key evidence the prior judges ruled upon.

    Or, like Mark Stopa said in 2013, Judges did not let pro se litigant to say a single word in their defense.

    Way to win cases, by silencing the opposition and concealing evidence from case records.

    Too much for “independent and impartial judiciary”

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