Livinglies's Weblog

it is the failure to contest every element of every piece of correspondence, notice, or pleading that produces the “inevitable” result.

People like to talk about the corruption of the courts and maybe they are right to a certain extent. Court bias is a problem. But a good part of that problem comes from the lack of proper litigation in defense of bogus claims.

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This has produced a huge volume of precedent leading to the conclusion that any defense mounted by homeowners are mere delay tactics and any lawyers who file them is engaged in unethical or even illegal behavior. Yes, I am saying that what is perceived as court bias is mostly the result of a lack of coherent defenses from the foreclosure defense bar.

If you look at appellate decisions you will see all of this in action. Most homeowners are completely ignorant about the impact of false claims of sales and securitization of their transactions. We might as well be asking them to become knowledgeable in Latin or ancient Greek. Most of their lawyers don’t know any more than the homeowner. But it is the failure to contest every element of every piece of correspondence, notice, or pleading that produces the “inevitable” result.

In court decisions, the problem always begins with the same statement. “The homeowner took out a loan for $555,000, secured by a deed of trust on their home.”

• If you accept the premise that the original transaction was a loan, and that the transaction has been maintained as a loan, it is impossible not to conclude that there is no unpaid loan account receivable sitting on the books of account for some person or company.
• It is equally impossible to avoid the implications of the issuance of the note and mortgage.
• And upon filing and recording an assignment of mortgage it is almost impossible to think of the assignee as anything other than a “Successor lender.”
• This opens the door to the designation of a company that is claimed to be a “servicer” although such claims do not appear to emanate from that company.
• As “service” it then becomes possible to introduce reports as if they are records and thus get them admitted into evidence because the foundation testimony is that the witness is familiar with the report and the methods by which the report was compiled.
• Therefore it is impossible to avoid the implications of the fact (i.e., “default”) that the homeowner did not make a payment in accordance with the schedule established in the promissory note. (Because the “servicer” report says so).
• Accordingly one cannot avoid the fact that the mortgage secured that performance and must be enforceable, thus creating the inevitable conclusion of foreclosure, sale and eviction — all in favor of foreclosure parties who are conducting and pursuing and prosecuting foreclosure claims strictly for profit and without regard to achieving restitution or securing payment of any unpaid loan account receivable.

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The real problem is the inability of homeowners and their lawyers to conceive of a scenario in which the original transaction fell (or has fallen) into either one of these two categories: (1) it never was a loan, and it is even possible that there was no money paid to anyone in the origination of the transaction, and (2) it may have been a conventional loan transaction, but it has not been maintained as a conventional loan account receivable (ie.e., it was extinguished — not securitized —by claims of securitization).

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Amongst the many lawyers who have aggressively tested the scenario starting with “Your Honor, this is a standard foreclosure”, homeowners win the case by overwhelming margins. But 96% of all homeowners faced with foreclosure notices and demands simply walk away. And most of the remaining few are viewing the process as an exercise in futility or delay.

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The result is that lawyers fail to test the basic foundation of the bogus claims against their client. The result is that they focus on defenses that I would categorize as “YES BUT”. Such defenses rarely succeed, if ever. Hence most homeowners lose because their case was not properly litigated and because the homeowner failed to take action until the foreclosure was well underway.

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Even if the lawyer does understand these issues, most homeowners are not willing to pay for the litigation and motion practice required to enforce the provisions of statute, reasonable discovery demands, and orders to comply with such demands.

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So by the end of the case (Summary Judgment or Trial) the presumptions arising from the false fabricated and forged documentation prepared exclusively for use in court survive most challenges. Only the most highly skilled litigator who has achieved high competence in cross-examination can break through all of that.

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So the real questions are presented in my article on January 14. If the company that someone has labeled as a servicer is the only one “talking” the consumers are NOT hearing from anyone claiming to own an unpaid account receivable due from the consumer.

• If that company is instructing the consumer to make payments to a certain address then that company is part of a business scheme in which its name at least is used to direct payments.
• But if that company is not making disbursements to an identified creditor, then it is not applying the money paid by consumers to the reduction of principal, interest, taxes, insurance, escrow, and other expenses as required by the loan instruments.
• And unless they can show, when asked, that they have properly recorded disbursements to a creditor with a report to the creditor showing the amount included as principal, interest, taxes, insurance, escrow, and other expenses as required by the loan instruments, then the inference (indeed the legal presumption) arises that no such disbursement and no such report was ever made or rendered.
• And THAT would mean that the debt collector was really a scammer show as not entitled to receive the money of the consumer borrower and that it was not playing any role in the disbursements to a creditor who maintained an unpaid loan account receivable due from the homeowner.

How do you get there? Make tracks in the sand, the same as the securitization players and foreclosure players do. Create a foundation for your denial, answer, defenses, and claims.

• Send QWR
• Send DVL
• File CFPB Complaint
• File complaint with State AG
• File lawsuit to enforce FDCPA, RESPA, FTCA, FCRA etc.

It’s your choice. Either retain your wealth or give it away.

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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.
• Yes you DO need a lawyer.
• If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Filed under: foreclosure |