nonjudicial is NOT supposed to be a workaround for due process.
IT IS ILLEGAL TO USE NONJUDICIAL PROCESS THAT WAY.
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The statistics are very clear. The foreclosure mills win far more often in nonjudicial foreclosures than in judicial foreclosures, where they are required to file a complaint containing allegations of fact that can then be tested in discovery.
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Basically, it boils down to a motion for realignment of parties when the action is brought under the nonjudicial statutory scheme. In constitutional terms, nonjudicial is NOT supposed to be a workaround for due process. The same pleading and proof requirements are required in nonjudicial and judicial. The problem seems to be that pro se litigants know nothing about that, and most lawyers don’t think of it.
I would add that opposition from the foreclosure mill would be good cause for you to demand their formal allegation that the unpaid loan account exists and is owned by the designated beneficiary.
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PRACTICE HINT: The issue is not whether the unpaid loan account exists or whether the designated plaintiff or beneficiary owns it. The issue is whether the foreclosure mill lawyer can prove it exists. He/she cannot prove it exists if (1) the issue is contested and (2) they are unable to corroborate the truth of the matter asserted in the documents (assignments, allonges, etc.).
Such documents are evidence of a transfer of the unpaid loan account, but they do not rise to the level of solid proof — if the issues are contested. If the issues remain uncontested, the only evidence before the court is the legal presumption arising from the document’s content that was admitted into evidence.
You don’t need to believe that the unpaid loan account does not exist or that the designated plaintiff or “beneficiary” owns it. You only need to prevent the opposing lawyer from proving the truth of the matters being asserted and argued, to wit:
(a) that the unpaid loan account exists,
(b) that this is an action to enforce it, and
(c) that the designated Plaintiff or “beneficiary” owns it.
What you will find in response to your challenge is that the lawyer from the foreclosure mill is willing to talk about anything rather than discuss the existence, status, and ownership of an unpaid loan account on the books of any creditor, much less the one they designated as plaintiff or beneficiary.
Instead, they will talk about ownership of the note or ownership of the mortgage lien by virtue of some document of transfer that appears to grant “new ownership” when in fact the document of transfer is creating the illusion of ownership where no such ownership exists because no such asset exists.
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 DONATENeil 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 14 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.
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