Why and How Some Homeowners Win in Foreclosure Cases

Posted on August 18, 2022 by Neil Garfield

Homeowners do not win their cases because they proved the claim was false. They win their cases by preventing the lawyers from the foreclosure mill from putting on the required evidence to establish the claim.

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Law is confusing because it is extremely obtuse at times, and it depends heavily on laws and rules of procedure that cannot be fully understood without the benefit of 3 years of law study and years in practice. Homeowners keep asking about how their victory can be justified or how they could lose when the claims against them cannot be verified.

The fact that the claim cannot be justified and cannot be verified is not a legal bar from alleging the opposite. People don’t get arrested for alleging stupid things in civil actions. And if they fabricate documents as exhibits, the judge is (a) forced to treat those allegations as true and (b) likely to be at least partially convinced that the claim is true.

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It is not up to the claimant to justify or verify as long as they allege the right facts as required by law, true or not.  And it is not up to the homeowner or consumer “borrower” to prove that the claims cannot be justified or verified. And it is not enough to raise “questions” about the verification or justification for the claim.
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The goal in litigation of foreclosures is to identify all the elements of the claim and then demand corroboration (witnesses and documents) beyond the documents provided as exhibits. Unless the transaction is not subject to claims of securitization, nobody will be able to produce such corroboration in foreclosure cases.
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Since the profits on the sale of unregulated securities issued contemporaneously with the consumer transaction are much larger than the transaction itself, it is difficult to imagine a scenario in which any installment contract was not subject to false claims of securitization (sale) of the alleged debt.
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PRACTICE NOTE: There is a huge difference between saying “the loan was securitized” or that “it is in a securitized trust” and proving that the loan was sold.
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To many people, even lawyers without the benefit of training in accounting and auditing, the relationship between the allegation of “securitization” and a “Sale of the debt” is obtuse and basically incomprehensibly complex and blurred.
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But the very plain truth under all securities laws and rules is that there is no securitization without the sale of the asset — in this case, an underlying legal debt owed by the homeowner to the claimed “assignee” or “Successor.”
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No such sales occur in the current iteration of securitization techniques because no such sale is wanted or needed. Hence the allegation or claim of securitization is void, or in legal parlance, a legal nullity. No documents exist showing a purchase of any debt owed by any homeowner by any grantee via payment to the grantor. THAT is why you ask for the witnesses to the transction and the proof that payment was made.
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All laws of evidence and procedure provide that if the claimant cannot provide corroboration for the truth of the matters asserted in the documents, the claimant is not entitled to a presumption that the facts asserted are true.
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That does not end the case. But it does prevent the lawyers for the claimant from putting on any evidence they could not corroborate during discovery. And THAT is what ends the case —  but only if you file the appropriate motions to end the case.

Filed under: foreclosure |

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