Practically every email and inquiry I get contains complaints about court bias. It is as though people think that there are humans on this planet who have no opinion or bias. They point out examples of being steamrolled, ignored or otherwise wiped out in foreclosure litigation and they blame the opposing lawyers for being evil (which they might be) and they blame the judge for being biased (which is probably true in most cases).
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Here is my answer to all of that: Bias is not a sin. Nor is it insurmountable.
Substantively you are correct. Procedurally you are incorrect. You fail to acknowledge that every case, whether civil pr criminal, starts off with bias. Everyone in the courtroom has it. The Judge, the jury, the bailiff, and even the court reporter.
*There is no case in which humans are involved where there is no bias. To project failure on the basis of bias is like giving up one’s life because of the presence of air. Having bias and even acting upon it is not a crime under the constitution or any statute or common law precedent.*We have all heard about cases in which an obviously guilty defendant was “acquitted.” And then people all get in an uproar about that and how the system failed to work properly.*That is because they don’t understand constitutional and statutory law. A verdict of “not guilty” does not mean “innocent.” It means that the prosecution failed to prove their case beyond reasonable doubt — not that the defendant was innocent. That is our legal system.*How does a defendant get a “not guilty” verdict? The lawyer attacks the predicates for the prima facie case against his client. If the search is bad the case is thrown out because our constitutional right to privacy was violated by law enforcement. that is how we keep them in line. The lawyer does not seek to prove his client is innocent because he need not do that to win. The lawyer must only undermine the factual or legal premise of the case filed against his client.*So applying this to foreclosure cases, what you may be missing is the fact that homeowners win all the time. And the way they win is by undermining the case filed against the homeowner. They never win by proving that the opposition is composed of all crooks and liars. They win because they timely and properly bring up issues that the judge must decide in a manner in which the court is required to make a decision between the bias of the court and the procedure required to preserve the constitutional integrity of the legal system.*I don’t deny that there are judges that will rule in favor of bias. But nearly all the examples of judges ruling by bias consist of decisions that I would have made myself if I was sitting on the bench. The judge is there to call balls and strikes and not to pick winners.*
If the homeowner brings up issues long after the appropriate time and place to do it, the homeowner has waived those defensive strategies in most cases. For example, you can’t refer to “the loan” and the “the servicer” and the “account” and then argue that they don’t exist. Here is another common example: objecting to hearsay after a string of 12 questions asked and answered. When the first question calling for a hearsay answer was put to a witness, THAT was the time to object. If not the objection is waived. Case over.
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So the moral of the story is that the criminal defense lawyer does not seek to prove his client is innocent. He or she seeks to undermine the case filed against the defendant. The foreclosure defense lawyer who wins recognized simply that it is not the job of the lawyer to prove that the claim does not exist. It is the job of the foreclosure defense attorney to undermine the ability of the opposition to prove a case against the homeowner.
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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).
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Correct me if I am wrong, but if a jury in a murder case is exposed to media chatter during a trial – most likely the judge will declare a mistrial. This is why jurors are often sequestered. The judges have long been exposed to the media chatter and wrongful blaming of the homeowners by the crisis and the bad solutions for the bad scheme that homeowners had no knowledge of. Yes – the homeowners are steamrolled. And, precedent law is absurdly ignorant of the players and their parts and what really occurred.
The entire Fraudclosure Complaint Timeline Process is done backwards In the Courts and allows for the bias and the lies ……and for the homeowners to get either steamrolled or trapped by the Cast of Characters all playing their parts.