Errors by the Judge do not establish foundation for vacating an order

Greetings. I am recovering slowly from my heart attack and thank you to everyone who has sent me thoughts and prayers.

I have recently received a question from multiple people citing case law or quotes from treatises about errors made by Judges. Non-lawyers jump to the conclusion that the presence of an error is sufficient to vacate a prior ruling. This is not the case. If the judge or justices reviewing the error determine that the outcome would not change by correcting the error of law or fact, then the ruling stands. Usually, that shows up on appeal as “per curium affirmed.”

A recent decision that established the fact that an error does not need to be obvious to be overturned, is leading some people down a rabbit hole. I reviewed the decision. I strongly doubt this will do us any good — tactically or strategically.

The existence of a mistake is NOT sufficient to change anything. It is only if the mistake altered the outcome. The general view of nearly all judges is that this falls under damnum absque injuria — an error that did not cause anyone injury. That is where bias comes in, but it is permissible bias. The assumption is that there was a loan, a loan account was created, the act of the homeowner in making payments corroborated that it was a loan transaction and that the Payment History supplied by the so-called servicer leaves no doubt as to the existence of a breach of contract (default).

So if the decision is made that the foreclosure was probably the proper remedy in the situation, even though all the documents should not have been admitted into evidence for example, then the error will not result in vacating or overturning the decision of the trial judge. But, continuing with that example, if all the documents should have been excluded from evidence, then the result would change because that results in failure to establish any prima facie case against the homeowner.

Each case in which homeowners have prevailed in contested foreclosure cases is the result of the exclusion of evidence. Evidence is excluded from the court record mainly because there is a lack of foundation for the introduction of the evidence or because it is undermined in cross-examination.


But the primary issue confronting homeowners and their lawyers is their own bias, which results in tacit or explicit admissions about the existence, ownership, and authority over an unpaid loan account. This is the unfortunate result of a lack of knowledge regarding investment banking. This ignorance makes it impossible to think that the transaction and the history were anything other than what is being represented by the lawyers seeking a forced sale of the property.
It is the failure of homeowners and their attorneys to attack the initial premises that causes most contested foreclosures to be decided against the homeowner. If you assume there is a loan account on which the homeowner was paying and then stopped, the entire defense turns into a “yes but” defense that the court can permissibly ignore.

3 Responses

  1. Good to hear your ‘voice’ again Neil; but still take it easy.

  2. Great to have you back!

    Yes presumptions and own bias needs to be changed in whole narrative from homeowner to lawyers to courts, agencies.

  3. I am so very glad to see you are recovering Mr. Garfield. Just take care of yourself – and know that you are greatly loved and appreciated 🙂 May God Bless you!!

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