“I challenged that and the judge completely ignored the report and my challenge”: How homeowners without knowledge of legal requirements for practice in court lose cases they could have won.

People often tell me that they challenged something in court and that the judge completely ignored their challenge. The problem is that most people don’t know the elements of a legal challenge in court. Based upon my review of transcripts, reports, and proffers of evidence and testimony, nearly all such cases consist of raising questions in the expectation that the judge will answer the question.

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Not only is that not within the job description of a judge, it is expressly prohibited. The judge may not act as an advocate for either side. The judge can only act upon the presentation of evidence and argument that is properly brought before the court. Although there is wide latitude for discretion by the court, any action or statement by the court that clearly shows that the judge is attempting to guide one side or the other toward the correct presentation will ordinarily be considered the foundation for a claim of bias and a motion for recusal.

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Although I vigorously disagree and dissent from the action taken by the third District Court of appeal in Miami and removing a judge from a case, allegedly for bias in favor of the homeowner, the decision is not without a legal basis.
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The attorney for the homeowner was treading the new ground and frankly failed to connect all the dots necessary to make it absolutely clear that there was at least probable cause that the documents have been fabricated and forged. It must be something stronger than a question of whether the documents were fake and in nearly all court cases, the burden of persuasion is extremely high. If that was not the case the court docket would be filled with such motions.
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The judge took it a little bit further and set a hearing to show cause why the attorney and the client should not be held in contempt for lying. In a different context, the action by the judge would probably have been affirmed by any appellate court.
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We live in the context of foreclosure litigation where the general consensus is in agreement that the transactions with homeowners were loans, that when homeowners start making payments a default has occurred, and that relief for such homeowners would be contrary to maintaining the sanctity of contract.
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So the action by the judge appeared to be out of context, even though she was right. And being out of context it looked like she was favoring one side over another. In my opinion, she was just exasperated by the flood of fabricated, false, and forged documentation. 

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But I still maintain that the 3rd DCA was wrong. they know by now that there are hundreds of cases in which judgments or settlements have been entered based entirely on the inability or refusal of the foreclosure lawyer to either prove he had a viable client or to prove or corroborate the claim that the named plaintiff or beneficiary had a claim.
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They know and they knew that in such cases the possibility that real transactions in the real world existed that would have supported or corroborated the false documentation was legally zero (if it existed it had to be presented in the trial).
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Every hill seems steepest when you are at the bottom. That is the start of the journey.
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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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2 Responses

  1. No – don’t think so David. The “start” payments wrongly validated an internal reported VERY FAKE false default debt – transferred from one “debt collector” – actually a debt buyer – to another. By these default debts internally reported – just prior to origination – the claimed “Debt” was nothing more than reinstatement of falsely reported and falsely securitized non-debt. Nothing funded – just reinstatement of false reported default debt. Non-compliant for any RMBS or ABS. This is for crisis claimed loans ONLY. Just reinstated debt that they knew could never be sold to any GSE for any REAL securitization. UNSECURED debt. No trust or trustee. Any subsequent trust is nothing more than continued fake debt collection, and NOT RMBS or ABS at all. Barney Frank knew this and tried to fix BK law to address. Congress voted down. So – the focus is on the crisis claimed loans – which continue in perpetuity. Debt Buyers. Ohhh – the biggest servicers to the GSEs prior to PLMBS were the big banks – biggest debt buyers of all. But they headed for hills with the Bail-Out. Debt buyer unknown today due to deregulation. And, they knew – originations under fake non-bank lenders – were actually just reported fake GSE default debt – that could never go back to GSEs. But GSEs – invested in the PLMBS. Go figure. Now, Neil has great ammunition to attack this in foreclosure. I agree. But for those who can’t pay for services – you will remain a victim. GO back to prior transaction and get all details as to funding, and everything else. And go back to Community Reinvestment Act. And deregulation – complicated. But – that is the real beginning. It is so simple – I don’t understand why some here don’t get.

  2. Do you mean STOP instead of “start” in the sixth paragraph??

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