I have repeatedly stated that to get traction in the uphill battle of defending property from unlawful foreclosure claims, you need a lawyer. Being right is not enough. The playbook of your opposition is based almost entirely on outlasting you. This is because of loopholes the pleading rules and preapproved pleading forms for foreclosure.
But how much good can the lawyer do? The answer is a lot if you start early. The options available to the defense attorney are diverse and numerous. But those options narrow each time there is a pleading filed by the homeowner (or where the homeowner fails to file) and each time there is a hearing and ruling.
The court system IS set up in the pursuit of justice. But it is far from perfect in doing so. Underlying all judicial institutions is the reason why they’re there: to put an end, right or wrong, to all disputes.
The latter has given rise to the doctrine of finality. No do-overs except in rare instances regarding jurisdiction (authority) of the court. Due process requires that you be heard — within the limits of judicial resources. So if you have 50 things to say you better narrow them down because the judge is likely to cut you off after the 3rd one.
The doctrine of finality means that once a case is decided it is cloaked with eh presumption of validity even if it is dead wrong. Lay people have a lot of trouble with this one. Most people think that if the lower court was wrong or that any reasonable judge would have decided a case differently, it will be corrected on appeal.
That is not the case. On appeal, the Appellate panel will not reverse a trial judge’s decision even if all the members of the panel would have decided the case or matter differently.
On appeal, the test is whether there is anything in the court record that could possibly justify the decision of the trial judge. That is a lot different than saying that the trial judge was right. It speaks only to whether the appellate panel should reverse the decision. Those are two different things.
So the later you go to a lawyer, the more likely you are headed for disappointment. This is not because the courts are corrupt. Quite the opposite. It is because judges in the courts are following established procedures.
The moral of the story is that if you go to a lawyer on the eve of the sale, unless you can declare bankruptcy in a flash, there is nothing that can stop that sale unless the opposition withdraws it.
There are plenty of things you can do after the sale but again the longer you wait the less likely you will prevail.
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Neil F Garfield, MBA, JD, 75, 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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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
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.
Please visit www.lendinglies.com for more information.
Filed under: foreclosure |
Homeowners lose the majority of cases in my county, probably in part because they don’t defend their foreclosures; or the odds are so stacked up against them in the courts, it is impossible for homeowners to win; or government agencies, who are supposed to be there for them, don’t provide any real assistance to them in their time of need. It appears it is virtually impossible to win a foreclosure case in our current court system and who does this serve in the long run? And does anyone care?
Here is no doctrine of finality for void judgements based total lack of any jurisdiction. Fake plaintiffs submit forged documents prepared by someone to steal homes and money are revenue.
All masqueraded as “collection of debt” . It is void, based on all laws, Constitution, over 200 years of precedents.
VOID means VOID. No SOL apply to void judgement. I think its time to realize this simple thing.
Let’s just ignore the fact that there are hardly any Fraudclosure defense attorneys out there to help the Homeowners. Nothing I read above shows us the system is set up for Justice. In fact your post actually shows the opposite. And without a doubt The System is a LIE… And 20 million homeowners is all the proof you need.