How do I get a lawyer to defend unlawful foreclosure?

The biggest challenge that homeowners face is securing the services of a lawyer who really acts like a defense lawyer — i.e., he or she seeks to win the case regardless of whether they think the client has committed a breach of contract or violation of law. These lawyers consistently win at least 65% of their cases even though they understand nothing about investment banking or current lending practices.

They want to know whether the opposition can corroborate their assertions and allegations. The lawyers test those assertions and allegations.

When they see that the opposition fails or refuses to comply with those requests they pounce without regard to the “moral outcome” of the case.

Their job is to win and any lawyer who practices basic defense strategies attacking the prima facie case of the opposition can win — even if they don’t completely understand why they are winning.

Homeowners who were successful in engaging a lawyer whose goal was to win have been successful at winning or settling their case on very favorable terms. The trick is getting a lawyer who has no preconceived notions about the foreclosure “marketplace.”

Like everyone else, they will start with the thought that there must be something supporting the claim.
What you need is a lawyer who is experienced and hopefully gifted at employing defensive strategies and tactics. It appears that most of those lawyers are in law firms that are governed by senior lawyers who see representing homeowners as a losing proposition.
They assume the claim is valid even if it is imperfect. They assume they will lose and they further assume that the homeowner is incapable of paying the fees for all the work that must be done to successfully defend a lawsuit or claim.
So how do you get a lawyer? You start off by seeking a lawyer who has a general trial practice. They are usually found in the area of personal injury, where that is only part of their practice. These lawyers have no potential conflict with the investment banks.
Then you must present yourself as a financially responsible individual who is able to pay the fees required. This starts with your insistence that you pay the fee for the initial consultation.
And here I have a suggestion to entice the lawyer to engage with this case. Offer a bonus on top of the normal billing if the case is resolved in favor of the homeowner.
The biggest mistake that homeowners make is that they try to get a lawyer “on the cheap.”
That results in failure to conduct an aggressive motion practice and failure to conduct investigations and discovery. Each hearing takes time including preparation and often travel time.
Homeowners who are trying to keep costs down will try to strike a deal with lawyers such that there will be no payment for this work. They are doomed to ultimate failure because the necessary work doesn’t get done.
Then you must present an executive summary of “why we can and should win this case.”
In the lawyer’s mind, his/her initial impression is going to be that there will be a witness who is the custodian of the records of the “lender”.
This imaginary witness will present an exhibit that is a certified copy of the loan account, including all debits and credits.
The witness will be able to show and testify using the exhibit that a default occurred and that the “lender” or “successor lender” has suffered an economic loss caused by the homeowner withholding or failing to pay a promised installment.
That picture is in the mind of the lawyer. It presents the picture of a futile effort to help a deadbeat homeowner escape the contractual promises made at the closing of a “loan.”
The executive summary must address the various components of that picture. It should state that no such witness will appear and that the loan account will not be presented.
By definition, the loan account is the compilation of data retrieved from the general ledger of the successor lender if there is one. It tracks the money trail.
Instead, a witness will appear who is not employed by the successor lender and who will produce a “Payment History” in lieu of the loan account.
Since the “Payment History” presents only data that relates to the activity of the homeowner and does not show the beginning and ending balance, it is not possible to compute the current balance due or whether the “lender” has debited or credited the account for other reasons.
The ending balance shown on the payment history is mere speculation since the witness will not be able to testify that he or she has ever seen the loan account on the books of the named claimant (who doesn’t even know their name was used as a claimant).
And of course the absence of the loan accont altogtehr completely rebuts any presumptionsa rising fromreports of its existence by  an outside vendor who, upon  digging,  will be revealed to be NOT performing any servicing functions relating to the receipt, processing, accounting or disbursement of money to or for a creditor who has paid for the udnerlying allged obligation. Therefore the named “servicer” cannot report on such transctions since they were not party to those transctions.
One of the main points of the executive summary is a brief recounting of the theory and story of securitization. This must be quickly and briefly translated into results on the ground. Securitization only means that securities were issued and sold. it does not mean that any “loan” was sold. In the absence of such a sale, all actions derived from the false memorialization of such a sale are legal nullities and completely void ab initio.
When put to the test, the opposing lawyers will be unable to produce any corroborative evidence that the loan account exists, that the current claimant wons any rights to administer, collect or enforce the presumed obligation. The executive summary directly addresses the prima facie case as I have described it and it says that when challenged, each of the components of the prima facie case will fail because they can be undermined and eliminated.
The executive summary should be prepared by someone who is well acquainted with the false claims of securitization and who knows that no sale actually occurred.
The debt was not purchased or sold. The presumption that it was sold arises from false fabricated and forged documents. The only thing the lawyer needs to do to win is to undermine the presumption arising from the false documentation. Each assignment or endorsement is an implied or stated representation that the sale occurred. The lawyer need only demand that the opposing lawyers produce the evidence of that sale. They can’t.
So the litigation is going to be directed at compelling and sanctioning the opposing lawyer and his “Client” for failure to obey the rules of court and the order of the court that such documents be provided (e.g. proof of purchase by the claimant.)
While there are strategies that could terminate the litigation early, they have not been fully tested. So the homeowner must be prepared for protracted litigation because the opposing lawyer is operating under instructions to make it as hard and long as possible for the homeowner to win. those that persist do win. And the defense lawyer can get paid for his or her time — usually at a rate of $400+ per hour, plus a bonus of perhaps $10,000 or $20,000.

This isn’t for everyone. If the numbers don’t add up for you then simply don’t start. It is a bad thing that is happening to you but the fact is that the opposition will push the foreclosure through if they can even though it is a false claim. So homes with fair market value below $100,000 might not present a viable litigation objective when compared with $20,000-$40,000 in litigation costs.
On the other hand, for a home worth $250,000+ the prospect of converting all of that into equity makes good sense.
NOTE TO READERS AND FOLLOWERS OF THE NEIL GARFIELD SHOW: I have a mystery medical condition that requires me to take some medication that interferes with my usual clarity of thinking as the day progresses. Something had to give, so I am taking a break from presenting the Neil Garfield Show on I will probably return in a couple of weeks. In the meanwhile, there are more than 300 podcasts you can listen to that will keep you well-informed. There is no cost or obligation for listening to the NEil garfield Show either live or as a Podcast.
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.

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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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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.
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