Recent correspondence with some of my contributors reveals the completely understandable desire to paint the opposition as thieves. The simple answer is that you don’t need to do that and you probably will not be able to prove it until AFTER the foreclosure case is over. Even then, that proof will only be accepted in most cases if you won the foreclosure case.
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This is why we need more lawyers representing homeowners. And those lawyers need to study the issue instead of shooting from the hip. This is a lesson every good litigator, including myself, had to learn the hard way. The lesson is this: don’t go too far.
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If the defendant in a civil lawsuit could escape liability simply by finding acts, events, and documents that were done improperly, illegally, or even fraudulently there would be no such thing as enforceable contracts.
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BUT foreclosure is not about whether the opposition consists of evil-doers who made illegal deals with other parties. It is about whether the homeowner is a party to an enforceable contract with the named claimant or plaintiff.
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So if you limit yourself to testing the direct assertions of the case, you are most likely headed to victory. Going further to invalidate all securitization or to invalidate the securitization scheme that produced a foreclosure is not relevant to the foreclosure case — until afterward when you file wrongful foreclosure.
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The real problem is that it is an article of faith that there must have been a loan. Why else would the money have appeared from anyone? This article of faith is what stops lawyers from challenging other lawyers and judges on the basic facts forming the foundation of every foreclosure claim. It is so obvious, it must be true.
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The corollary is also “obviously” true: that since the initial transaction must have been a loan, the “loan” must still exist. If the loan still exists, then the homeowner has caused financial injury to the party that owns it. And all of that is corroborated by documents that appear to be facially valid even though there are entirely fictional and fabricated.
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Lawyers don’t want to look silly saying otherwise or challenging what appears to be obviously true —- even though in every case where the facts are challenged in discovery the presumed facts are untrue — and the foreclosure case fails.
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Boiling most cases down to their nub, the undeniable facts are as follows: virtually all claims for foreclosure remedies are based strictly on presumptions of fact and law arising from what appears to be facially valid documents. Once those presumptions are effectively challenged, the claim fails. Judges will and do rule for homeowners who limit their attack to the case at hand. They tend to ignore or rule against arguments that challenge securitization generally (even though there is ample reason for doing so).
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You don’t need to prove that there was never a loan, to begin with. You only need to undermine the claim that the current claimant owns an obligation due from you. The twist is that you will never get an honest answer to your challenges. But the law has an answer for that. Once you can establish the stonewalling behavior as the center point for your defense, the foreclosure lawyers have no choice but to dismiss their own claim or suffer dismissal from the court.
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The word “believe” comes from the old English meaning that you are willing to accept the assertion. If you are willing to accept the assertion that the current claimant and servicer have no right, title, or interest to any money or property and you act on that “belief” you are very likely to prevail in foreclosure — as long as you follow the rules.
Filed under: foreclosure |
I suggest that the idea that the people on the other side may or may not be evil but considering them evil is counter productive.. Lawyers only have three things to sell -time, skill and objectivity and if you turn it into a crusade you lose objectivity will not be giving the cliient what he/she is entitled to.
Hope you are getting back to normal. Thnaks again for ALL you have done to help us poor, innocnet property owners. Please stay healthy, happy, and safe inthis really crazy world today. Semper Fi,