I am rapidly coming around to the view that the only effective defense narrative is one that challenges the existence, ownership, and status of the alleged unpaid loan account due from the homeowner.
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I think if you don’t make that challenge the judge, in any case, is going to assume and even apply legal presumptions such that as the trier of the fact he or she will conclude — with good reason — that the unpaid loan account exists, that it is owned by the named designated claimant, and that its status is being accurate reported by an authorized servicer.
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The typical question from both pro se litigants and inexperienced lawyers is “How do I prove that?” And that question is fueled by a desire to see a judge declare the whole securitization infrastructure as a criminal enterprise, which is probably true.
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THE GOAL IN LITIGATION IS TO WIN AND NOT MERELY MAKE A POINT THAT MAKES YOU FEEL BETTER.
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The opposition has a burden of persuasion and a burden of proof. The goal of homeowners is to undermine the ability of the opposition to satisfy the requirements of a prima facie case.
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The first step is to introduce the defense narrative that the implied (but never stated) unpaid loan account does not exist, is not owned by the named designated claimant, and is not being managed by an authorized company that is performing the servicing functions of receipt, accounting, and disbursement of actual money paid by homeowners. As part of that narrative, you should allege that you will prove it in discovery.
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The purpose of establishing the defense narrative (by denials and/or affirmative defenses) is to open the door that would otherwise be closed in the window of time in which discovery is conducted.
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The second step is to draft and serve well-conceived and well-written demands for discovery. This should be done as early as possible.
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And the final step is to create a pressure cooker in the issue of stonewalling — until you ask for and receive a court order that says that since they are unwilling to answer basic questions and produce basic documents relating to the existence, ownership, and status (balance due), the court imposes evidentiary sanctions, to wit: the loss of use of legal presumptions arising from the fake, fabricated, and forged documentation that is quicksand for most homeowners.
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Once you get that order, it is smooth sailing. The reason is not that you proved that the other side is lying or that they’re bad guys or thieves. It is because, under the rules of court, they are barred from introducing evidence that was demanded during discovery.
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PRACTICE NOTE: Why does this work? It is because, despite all appearances, there is no unpaid loan account, there is no creditor, and there is no authorized servicer. As to the servicer, the company that the homeowner refers to as “the bank” or the “servicer” is not performing any serving duties relating to the receipt, accounting, or disbursement of funds.
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That is all done by FINTECH companies who are NOT in contractual privity with the named designated as “servicer.” FINTECH servicers perform all such work.
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Their records might qualify as “business records” to allow the introduction of the activity reports generated from data that memorialized actual transactions conducted by FINTECH. But printouts proffered on behalf of the designated, named “servicer” are not business records because they are not a record of any business conducted by that company, even though they were referred to as the “servicer.”
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The FINTECH companies were regarded as outside data processors up until a few days ago. Now FINTECH companies are referred to as servicers by the CFPB because that is who does the servicing. When homeowners think they are dealing with Ocwen for example, they are most likely to be dealing with CoreLogic, Fiserv, or Black Knight.
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That letter, notice or statement you receive was generated and sent by FINTECH companies operating for the benefit of their Wall Street employers. That correspondence is sent out under the letterhead of the Ocwen, for example, even though Ocwen did not write it or authorize it. But Ocwen did confirm that any FINTECH appointed by the Wall Street brokers was allowed to use the Ocwen name, just like U.S. Bank, N.A. is allowed to be used as part of the name of a nonexistent business entity
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The FINTECH companies divide their tasks such that there is more than one required to fulfill the full “servicing” function. Each FINTECH is authorized not by Ocwen, for example, but by a handful of underwriting securities brokerage firms that stay hidden behind veils.
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The FINTECH company takes its orders from Wall Street brokers who did the underwriting on the creation, sale, and trading of certificates. Those Wall Street firms maintain control without any legal claim to ownership of the alleged underlying obligation.
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The loan account is a fantasy that is useful in extorting money from homeowners. It otherwise has no reality or purpose.
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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.
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