How Bias Works Against Justice in Foreclosure Litigation

If one takes a neutral view there is an inescapable and undeniable conclusion: millions of homes have been forced to sale, depriving the owners of property and money, and causing untold damage to families and careers without the court knowing to a reasonable degree of certainty that the loan account even exists.

Scott Staffne and I have been in discussion about court bias. He is advancing the cause in one pending case.

The basic thrust of the argument is that judges have their retirement and their personal investments at stake in every case that questions the reality, integrity, or assumptions arising from a financial innovation (MBS) about which judges know absolutely nothing. In place of knowledge, they use assumptions and presumptions arising from fabricated documents containing false information that are forged by robosigning.

Even the promissory notes are routinely destroyed and then re-created using the miracles of modern technology. Allowance for such actions means that anyone with a computer and printer can fabricate the base documents for any claim. That is the direction of the courts today.

It turns out that in certain states the retirement of judges is funded and guaranteed with taxpayer money so there are at least some judges, theoretically, who have no MBS bias.

So here is what I wrote to Scott regarding this entire mess:

I see what you are saying about the taxpayer guarantee — but knowing as many judges as I do (personally), I wonder how many of them understand that or even think about it. In short, I wonder if they are thinking the way we are saying even though the MBS issue doesn’t affect them — or maybe it does in their personal investments.

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I think it might be a task too large to prove the points I raised. But the reverse is possible and directly in line with what you are asserting in your brief. The neutral point of view would be that there must be a justiciable issue before the court which is universally defined as two or more parties in conflict about legal rights.
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In order for the justiciable issue to be presented in foreclosure cases, there should be a pleading requirement — given all the excesses and abuses that are revealed in settlements with Federal and state AGs — that
(1) requires the complaint to be signed under oath not by a servicer but by an officer of the bank that supposedly is a trustee of an alleged trust that is the plaintiff or beneficiary under a deed of trust,
(2) contains specific language warrantees title to the underlying obligation, legal debt, note, and mortgage,
(3) asserts an economic loss caused by its failure to receive payments from the homeowner that it had otherwise been receiving and
(4) acknowledging a specific servicing agreement, which should be attached, naming the currently named servicer to act and to specify the acts that are both authorized and performed.
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I also think that a certification from the company that is claimed to be a”servicer” that it received and disbursed money from the homeowner would end all foreclosure litigation. they don’t and their “records are merely an aggregation of data from third parties including unknown third parties.
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These FINTECH companies, effective yesterday are now being viewed as the real servicers by the CFPB. They are the ones receiving payments and they are the ones recording the receipt. So the Payment history” offered by the fake “servicer” is not a business record in the sense that it is not a record of business done or even managed by the “servicer.” it is inadmissible hearsay. And that means no case.
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But when homeowners raise any of those issues, usually inartfully, they are swept aside in a manner that is completely inconsistent with the customs and practice of judges thirty years ago — i.e., scrutinizing the document and asking the right questions even if the homeowner did not show up.
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A neutral judge would allow the homeowner to demand proof that the loan account exists and that the named plaintiff or beneficiary is the owner of it by virtue of having paid value for it. A neutral judge would automatically insist that the named plaintiff or beneficiary appear at least once by testimony or affidavit.
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A neutral judge keeps the burden of proof squarely on the claimant until the prima facie case is made. A neutral judge would not apply presumptions of fact drawn from documents whose source is a series of companies that admittedly fabricated millions of such documents containing false information — at least not without some corroboration (i.e., proof of payment for the loan account).
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Instead, the courts have swung the other way. And the use of nonjudicial foreclosure is an extreme example of what happens even in judicial foreclosures. Contrary to constitutional requirements, the homeowner must first produce evidence of a negative the nonexistence of the loan account — without any access to the records, data, and ledgers that would prove that.
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If one takes a neutral view there is an inescapable and undeniable conclusion: millions of homes have been forced to sale, depriving the owners of property and money, and causing untold damage to families and careers without the court knowing to a reasonable degree of certainty that the loan account even exists.
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I admit that many homeowners have cooked their own goose by referring to the existence of the loan account and accepting the status of the alleged servicer. But many people did not. And in any event the court should be careful before the property is allowed to be foreclosed.
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The courts have taken the view that it doesn’t;t matter whether the proceeds of foreclosure are paid to or on behalf of the named plaintiff or beneficiary. what matters only is if the homeowner owes the money. And the homeowner MUST owe the money because they signed loan papers including a promissory note.
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Thus was borne the court doctrine contrary to the statute and the constitution that says that anyone can enforce a claim as long as someone else doesn’t also make the same claim during the same time period. It doesn’t matter if the claim is valid, meritorious or just a scheme to generate more cash.
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They have swung that way, only in the niche of foreclosures, because of their fear and bias regarding a financial innovation to raise capital about which the judges know nothing. They assume from the outset that the claim is real. And that is the sole basis for failure to enforce discovery and pleading requirements. Whether conscious or unconscious, judges are rewriting the statutory laws and the state and federal constitutions.
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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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2 Responses

  1. Hammertime – I agree. This is not just about judicial bias. Judges are afraid to expose the biggest scam ever. If they do, they will be banned from the old boy/girl network as their peers won’t like them anymore. Jr. Highschool lives on.

  2. Somehow this big lie has filtered to every official, agency, broker etc

    “Thus was borne the court doctrine contrary to the statute and the constitution that says that anyone can enforce a claim as long as someone else doesn’t also make the same claim during the same time period. It doesn’t matter if the claim is valid, meritorious or just a scheme to generate more cash.”

    Although CA courts had rejected that anyone can be a debt collector

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