People often say that using the QWR and DVL is useless because you don’t get any answers. But that is exactly my point. It is like pleading the 5th. In a civil proceeding, the refusal to answer raises any inference implied by the question asked. Whoever you are out there, stop trying to prove something.
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In our system of jurisprudence, you are not required to defend a claim unless it is claimed and there is evidence to support it.
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To make things easier on judges, lawyers, and litigants, there are shortcut rules that allow the court to assume certain facts to be true — not because they are uncontested but because the parties agree. Once they agree, it does not make any difference whether the agreed facts are true.
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So the moral of the story is to stay away from anything that adopts the position of your opposition — including the terms they use. If you admit that the payment history is a loan account, then you have just consented to foreclosure. It is not up to the judge to ferret out the real facts — that is what the litigation process is designed to generate.
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All claims are admitted if they are not disputed.
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The second level of litigation analysis after determining that a party has properly stated a claim that is recognizable by law is to challenge the opposition to corroborate the statement of claim.
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For example, the claim is that there is a present dispute that arises from the homeowner’s failure or refusal to make a scheduled payment to the named claimant. The homeowner who wins responds to that claim by challenging the truth of the matters asserted.
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In the example below, the claimant is US Bank. So the homeowner asks for corroboration that the homeowner owes US Bank. Since that information is not on the note, payable to someone else, US Bank must come forward with an assertion that it owns an obligation due from the homeowner, that it has been receiving payments, and that it is no longer receiving payments causing an economic loss.
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Most homeowners and their lawyers are afraid to ask this question because they are afraid of the potential answer. But in reality, this is your ticket to defeating the claim. There will be nothing from US Bank or any officer or employee of US Bank. Instead, every assertion will come from the mouth or pen of lawyer. The implied client of the lawyer is US Bank, but the lawyer never says that US Bank is his client because he has never had any contact with US Bank.
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The corroboration you are seeking is simple: show me the ledger where the unpaid account receivable is kept on the books of US Bank.
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If they can’t do that, then you are allowed to raise the inference that the unpaid loan account is not on the books of US Bank. At that point, the authority of the “servicer” vanishes along with all claims to administer, collect or enforce any payment that is stated to be due from the homeowner but not due to the named claimant. Case over. Homeowner wins for real in the real world in real courts.
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So I continue to strongly urge people to set up the bank (not just the servicer) for a complaint to the CFPB (to exhaust administrative remedies).
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This is followed by a civil lawsuit that specifically cites the lack of answer as a violation of the statutes and raises inferences favorable to the homeowner. The bank and “Servicer” should not be allowed to present a challenge to those allegations unless they provide the basic answers to the basic questions you asked.
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The response is always (100%) intentionally evasive and deceptive. The value of such a response si that most people don’t understand what they are reading and don’t know what they are looking for.
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The continued use of the SPS name is part of the deception. The company’s response merely repeats prior claims to being “the servicer,” without identifying any principal.
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The homeowner then claims that he/she cannot validate, confirm or corroborate the alleged debt without hearing from a party in interest who has paid for the alleged obligation, note or lien. As it turns out, most judges agree with his logic even if they believe that it is being employed to delay rather than win the case.
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But those same judges correctly conclude that they have no choice but to strike the pleadings or evidence proferred by the other side when the opposition refuses to comply with proper discovery demands. And it turns out that the inference is not just raised during litigation. It is also raised prelitigation when the opposition refuses to answer the same questions posed in statutory demand letters like a QWR or DVL.
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The judgment that you should be looking to obtain from the judge is simply that there is insufficient evidence to support the claim, and violation of the rules of procedure precludes the introduction of evidence in support of the claim. Your goal is not to get a judge to say that your opposition are thieves — even if they are thieves.
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The continued responses allegedly on behalf of SPS are all generated by automated computer programs without any accountability on the part of any company or person. SPS did not serve any of the responses and it does not serve the interests of any company or individual who owns any obligation due from me.
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To be clear, I wish to pay off this alleged obligation if it exists and I have the resources to do so. But I am not going to make any payment to any company or any individual who merely has information about my transaction. If I am to make a payment under the terms of the note, then I want to know who owns the obligation and who was the source of authority to enforce the note.
Despite numerous formal and informal requests, there is no basis or information supplied by anyone to support any foundation for asserting that authority to administer, collect or enforce was generated or authorized by an officer or employee of US Bank. US Bank disclaims any such ownership or authority. Yet it continues to be named as a claiming party. US Bank disclaims any responsibility for that decision and any responsibility for doing it.
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There is no assertion by US Bank that it warrants title to a debt, note or lien. There is not even an assertion or information that an unpaid loan account exists anywhere in the ledgers of US Bank nor that an obligation owed by the homeowner is due to US Bank. In fact, there is no assertion that US Bank has ever received any payment from the homeowner nor that it intends to assert a claim for payment.
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Everything that has occurred here has been generated by third-party financial technology companies that have computers that read and respond to letters from homeowners based upon algorithms constructed and written by people who were not employed by any of the claiming parties or any company working for any of the disclosed parties.
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In the absence of any assertion of ownership and authority, the homeowner demands that SPS and US Bank cease ad desist from making any claim to administer, collect or enforce any payment from me and that the CFPB take administrative action to stop them.
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This is a serious violation of statutes and a breach of the charter for the agency (CFPB and FTC).
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I suggest that this response be incorporated into a Qualified Written Request and Debt Validation Letter with instructions that only an authorized officer or employee answer the request and that the person be identified by name and contact information.
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Delegation of duties is at least partially illegal for a party named as trustee. You want to know whether US Bank ever and any right, title or interest in the payments scheduled to be paid by you. If not, it doesn’t matter what they delegated.
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If US Bank is merely allowing third parties to use its name while it performs no functions in connection with the accounting, processing or management of payments allegedly due from the homeowner, then it is neither acting as a Bank nor as trustee, and the CFPB should make a referral to the appropriate banking regulators for discipline related to their banking charter and licenses to do business.
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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 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).
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Another great post Neil, thank you very much.