Livinglies's Weblog

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The central problem is the erroneous conviction (not just belief) that foreclosure defense is unwinnable — despite the history of dozens of lawyers winning thousands of cases and pro se litigants winning thousands more. Then there is the problem of getting paid which is an ever-present issue.

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Lawyers believe they won’t get paid if they do the work. This is partially based on the reality that homeowners, having been taken to the cleaners by the banks, have no wish to repeat the experience with a lawyer. But the system requires such payment. Without effective representation, the homeowner is often doomed to failure.

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So homeowners demand low hourly fees and low caps on total fees charged. It is no wonder that many lawyers refuse to take the case. They would be paying for someone else’s case if they did.

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But in exchange for low hourly rates, the homeowner gets less effective service and, frankly, fewer services like legal research, analysis and preparation for hearings. And in exchange for a low cap on the total fees charged, they never get to the point at which the judge issues rulings that make them the winner and give them most of the leverage in any negotiations for a settlement.

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All of this piles up into what seems like an unscalable mountain of obstacles to winning — at least in appearance. Practically nobody is noticing that homeowners and prospective lawyers are acting in conformity to a myth, not reality. By refusing to go the distance, they are supporting the myth that foreclosure is not only inevitable but also the morally right thing to happen.

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The really crazy part is the lawyers are skipping over the part about the satisfaction of their greed for windfall money. Upon winning the defense of a foreclosure case, the case is already set up for wrongful foreclosure.

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Anyone who seeks to force the sale of a homeowner’s property without being owed the money is engaging in wrongful foreclosure practices, and many of the actors who did that have entered into settlements totaling hundreds of billions of dollars in all U.S. jurisdictions.

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You don’t need to understand the complexity of what they are calling “securitization” to know that what they are doing is wrong and completely unethical, and immoral.

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It is not up to the homeowner to prove they don’t owe the money. It is up to the party who is issuing a claim to prove that the homeowner DOES owe the money and that the homeowner owes money to the claimant — not some general “they” in cyberspace.

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If they can’t do that, no legal claim has ever been recognized, and I hope there never will be. Neither the homeowner nor the lawyer must know why they won the case. They just need to win it.

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If, like in many cases, this is the second time the opposition tried and failed to get a foreclosure, you have the grounds for aggravating circumstances that support claims for punitive damages.

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And most court systems agree that emotional distress for a wrongfully pursued foreclosure automatically creates damages, the amount of which would be determined by a jury.

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And in most cases, there are out-of-pocket expenses ranging from the down payment made by the homeowner to the various expenses involved in defending the property from unlawful claims and deferred maintenance caused by the uncertainty of the litigation. Some of these issues arise even if the property is not lost, and all of them arise when it is lost.

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So the bottom line is that the banks are not beating homeowners. They are merely outlasting them. The prosecution’s case has already been advanced as PR and the public, including homeowners and their lawyers, have bought it hook, line and sinker.

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If you have even the seed of an idea of how to counter this imbalance or, as they say in the world of finance, “asymmetric information,” I am all ears. Please respond via the chat function.

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Homeowners should not ask for a contingency fee. The translation is please work for nothing. You are most likely correct in your assumption that you are entitled to retain or regain the possession and title to your home.

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In addition, you may be entitled to disgorgement of all money that you have paid. But there is no way to know that without review and analysis of the title, correspondence, statements and your version of the events that have transpired. There are both procedural issues and substantive issues that govern these proceedings.
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No contingency fee is allowed for defense. If you offer 1/3 of the value of your home, that is nice, but it is by no means assured that the conclusion of the case will be anything other than a settlement in which you accept a modification on terms that are satisfactory to you.

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Contingency fees only apply to sums of money that are recovered and paid to satisfy a client’s claim for damages. Ethical rules prohibit the lawyer from taking part ownership of your home or entering a contract in which he/she gains the power to force the sale of the property to satisfy the fees.
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If you win the defense, a contingency fee would be allowable for a new case seeking money damages but probably not offered as the sole compensation for the case. Again the reason is that statistically, the most likely outcome is not the payment of money but the offering of terms that the homeowner accepts. Most lawyers offer a hybrid retainer consisting of part contingency and part hourly fees at a discounted rate.

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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.
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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.
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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.
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.