Livinglies's Weblog

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But you are right when you get from my writing that homeowners share the blame for what happened and what is still happening.

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The main point of this discussion is the ability and willingness to pay a good lawyer the fees required to do ALL of the work necessary. Homeowners all cry poverty when they are looking for a lawyer. They have already reduced their goals and expectations, to wit: instead of being in it to win it, they only want delay or settlement. So the value they put on a lawyer’s services are also diminished.

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So the willingness of the homeowner to plunge into litigation that could turn out to be “expensive” results in retainer agreements with lawyers who are NOT paid to do all the investigation and research to narrow and sharpen the tip of the spear.

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And the lawyer does not do the investigation and research and analysis. Such lawyers go to court with diminished expectations and without a strategic plan or tactical plan. The die is cast for nearly all such cases the moment that the issues are joined.

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Everyone, including the homeowner themselves, believes that the transaction as a loan, it still exists and that the named “servicer” is performing servicing functions for a bona fide creditor. They admit to those presumptions directly or indirectly by referring to entities by the descriptive term used by the banks — all for the purpose of misleading the homeowner, the lawyer, and the court.

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So the lawyer for the homeowner goes to court with no reasonable desire to win, a fact that is not lost on the judge who is simply playing the game of the appearance of due process. Homeowners will almost always slip up (and so does the lawyer) by calling the transaction a loan, by referring to the correspondent as a servicer, and by referring to the claimant as a bank.

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This is not a philosophical discussion of what should be done. I deal with real-world realities. People challenge me all the time by pointing to cases where the homeowner lost. Did he or she ever think they deserved to win — or did they think that it would be great if they somehow escaped enforcement? The difference between losing and winning is in the intent of the homeowner and the lawyer.

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The proof of the pudding is that the house, if it was free from any encumbrance, would represent a major asset that could be sold, thus providing a basis for a better lifestyle or retirement. But there is virtually no homeowner that I have ever spoken with who thinks that is a viable option. So they aim far lower and that is what they get — low results. In their hearts, homeowners believe that the loan is real because that is what they asked for and that is how it looked at “Closing.”

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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 COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

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

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