Livinglies's Weblog

Over the years many lawyers and laypeople have sent me proposed motions to disqualify or bar opposing counsel from representing to the court that the bank he or she named in a complaint or claim is his client.

It seems like an open secret that virtually no lawyer engaged in the foreclosure process is actually representing that bank; it is also an open secret that no lawyer is actually pursuing a legally recognizable claim against homeowners. Instead, they have been creating false claims (virtual claims) based upon virtual loan accounts that do not exist on the books and records of any creditor much less the bank they say they’re representing.

Such attacks on the lawyers get little support from the courts. And Bar Associations that could prevent and punish such conduct are doing nothing. So I don’t think I am speaking out of turn when I say that you are not likely to get satisfactory results in filing a motion in court or a grievance with the bar association.

A recent interesting countermovement in bar associations is the current effort to remove words like “zeal” and “zealously” from the rules and oath of the lawyer. There is a growing recognition that the use of such words provides cover from unscrupulous lawyers who weaponize the legal process in order to obtain an illegal result.

I can think of no other areas of law where such conduct prevails more than in foreclosures. For nearly 25 years the courts have bent over backward allowing the remedy of foreclosure to be used solely on the basis of “zealous” representations from lawyers whose [principal objective is to make money for themselves, their law firm, the erroneously named “servicer,” and the undisclosed investment bank.

But since so many people keep returning to the subject I will admit that without lawyers being willing to undermine their own due diligence obligation (to assure the factual existence of the client and the claim). Protected by a doctrine called litigation immunity afforded to the lawyers, the investment bank, acting through lawyers with whom it has no direct contact, controls all events and actions by all actors in connection with the administration, collection, and enforcement of a debt that is fictional (virtual) instead of real.

While there have been instances in which lawyers were sanctioned for falsely representing to the court that U.S. Bank was their client acting as a trustee, such arguments are treated dismissively almost all the time. Frankly, it isn’t easy establishing that the law firm itself does not consider its attorney-client relationship is with parties OTHER THAN THE PLAINTIFF OR CLAIMANT. You can allege it, but how do you back that up with proof?

The answer lies in circumstantial evdience and in effective persuasion in court directed at a judge who for the most part has already decided the outcome of the case based solely upon the allegations.

So far I still don’t recommend that homeowners file such motions. If you fail you will make it look like you are trying to distract the court from the debt you owe instead of dealing with the fact that no such debt exists.

But, if I was going to do it, here are my notes on the subject:

• It was a lie to send statements to homeowners indicating they had a legal obligation or even a moral one to pay the newly designated “servicer” who actually performed no servicing duties.
• It was a lie to declare delinquency or default without disclosing the creditor who had suffered any loss arising out of the non-receipt of scheduled payments.
• It was a lie to declare delinquency or default when no creditor suffered any financial loss arising from the alleged non-receipt of a scheduled payment.
• It was a lie to imply that investors were buying pieces of mortgage loans or that foreclosures were being prosecuted on behalf of the investors, often referred to as the “holders of certificates” or “registered holders of certificates” — especially since they were not holders of any notes nor were they registered to receive any part of any payment from any homeowner.
• It was a lie to assert or imply that the naming of a trust in the claim or complaint was sufficient to explain the appearance of the trust since it expressly disclaimed any economic interest in any debt, note or mortgage even if there was an assignment or endorsement — all as stated in the “Trust Agreement” or equivalent document.
• It was a lie to assert that the trust had any right to administer, collect or enforce any promise or agreement with the homeowner and a concurrent lie to assert that the trustee had any right to grant powers of attorney or execute any servicing agreement for unpaid loan accounts that it did not own.
• It was a lie to imply that the outcome of a “successful” foreclosure would result in the payment of a creditor.
• It was a lie to assert representation of “the plaintiff” or “the claimant” when no such representation, retainer agreement, or contract existed.

*

The list could go further, to be sure. But the point is already made. Without lawyers willing to bend custom and norms to the breaking point there would be no successful foreclosure because the law does not allow foreclosure for fun and profit. It only allows it for restitution of an unpaid debt.

*

DID YOU LIKE THIS ARTICLE?
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.

Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
CLICK TO DONATE

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.
*
FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. You will receive an email response from Mr. Garfield  usually within 24 hours. In  the meanwhile you can order any of the following:

Click Here for Preliminary Document Review (PDR) [Basic, Plus, Premium) includes 30 minute recorded CONSULT). Includes title search under PDR Plus and PDR Premium.

Click here for Administrative Strategy ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation. Suggestions for discovery demands are included.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
CLICK HERE TO ORDER CASE ANALYSIS 
*

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.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

Please visit www.lendinglies.com for more information.

Filed under: foreclosure |