Many American lawyers are advising their clients that there is no credible defense. In doing so, they are missing the obvious: that there might not be a real claim that can be corroborated.*That arises either because there is no debt or because the debt is not owed to the claiamnt. It doesn’t matter if someone “missed” a scheduled payment if the payment is not due to the party claiming the default. In such circumstances the “default” does not legally exist and the claim to seek remedies also does not exist.*This is easily demonstrated by anyone who is not afraid to ask the core questions about the existence, ownership and authority over the alleged debt.*The key to success for most homeowners is undermining the ability of the oppoistion to allege or prove their case. In foreclosure cases, this accomplished by a simple revelation produced during discovery: that the opposing attorney is unable or unwilling to produce corroboration of the existence of the loan account.*Lawyers are leading millions of homeowners astray. They do this because they have decided that the homeowner does owe the money to the party demanding it. Lawyers have thus become judge and jury over a claim about which they know absolutely nothing.*But the case against their prospective client relies entirely on the proposition that because the homeowner issued a note, ANYBODY can collect or enforce it — regardless of whether the underlying obligaiton exists and regardless of whether the opposing lawyer can prove that. This proposition invites moral hazard and has never been included in any common law doctrine or stautory law.*Quite the oppoiste.*Here is the law: The ONLY legal way for a lawyer to succeed at enforcing claims for collection or enforcement of the lien is if that lawyer is repsenting a client who owns an unapid loan account due from the homeowner.*In residential transctions, this is virtually NEVER true. But lawyers who are misinformed and suffering from the same bias as judges, fail to advise their clients regarding the procedure by which they can contest a claim.
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In the best case scenario, the defense would start immediately upon applying for a “loan” or closing the “loan.” This is generally not possible because the homeowner has no idea they are being induced to become an issuer in a securities scheme instead of what appears to be a borrower in a loan agreement.
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So my best advice is that as soon as the homeowner learns about the possibility that the transaction was not what it appeared to be, they should ask. This usually starts when they get their first notice of the existence of a “servicer” or the receipt of a “statement” for the lender. The question to be asked is “was a loan account created when we closed the transaction?”
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By sending repeated qualified written requests and debt validation letters pressing them to answer the question in a SIGNED letter (by a human being with a telephone number contact, as required by law), you are counteracting the tracks in the sand that they are creating by sending you statements as if the loan account existed.
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I want to correct what I think is a misimpression or misapprehension: The defense of a civil case in court consists of two possible strategies — usually used in conjunction with each other.
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First and best is proving that the allegations against the defendant (homeowner) are untrue. This is generally impossible in the foreclosure of transactions that have been subject to the securitization process.
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Second, and equally effective, is to undermine the ability of the Plaintiff’s lawyers to put on a case, to wit: to establish the prima facie elements of a foreclosure case. This is the best option to win or settle a foreclosure case on favorable terms.
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Every foreclosure case starts with a pleading and exhibits. The allegations and the exhibits are required by law to be taken as true at the beginning of the case. That is unalterably true, even if it is a complete fabrication. But after the initial pleading and motion stage of litigation, the truth of the claim is no longer presumed — unless the homeowner unwittingly admits it.
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In the middle of the case, the homeowner wants to show the inability or unwillingness of the attorneys for the named claimant/plaintiff to corroborate facts that the attorneys want to have the court presume are true.
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[The attorneys for the named claimant always rely upon available legal presumptions arising from the apparent facial validity of the exhibits and from relaxed pleading requirements created before the era of securitization.]
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By a series of motions to compel, motions for sanctions, and motions in limine, gradually, the homeowner can bring the court to an incontrovertible conclusion that is 180 degrees opposite from the inevitable result that the court was presuming at the beginning of the case., to wit: having failed or refused to answer interrogatories and request for admissions, and having failed to respond to a request to produce, even after court orders (usually many of them) the foreclosure mill lawyers are barred from putting on evidence as to the truth of the matters asserted and that they wanted the court to presume were true.
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That leaves the foreclosure mill with no evidence at trial, which means they lose. In other words, the homeowner wins without proving anything.
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But it is only at the eleventh hour that the foreclosure mill will finally relent and offer a settlement (on the authority of unknown persons. This can be further leveraged in favor of the homeowner by insisting that the settlement be acknowledged by an officer of the named claimant/creditor.
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This particular aspect can be highlighted by motions for sanctions during the mediation process as well as at the end of litigation when the parties are discussing settlement.
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No employee or officer of US Bank, Bank of New York Mellon or Deutsch is authorized to give such a statement. In fact, they are prohibited from doing so since that would subject the person and the corporation to criminal charges of perjury. It would be perjury if such an officer executed such a document w since it is NEVER the case that those banks (allegedly acting “as trustee) maintains or owns any unpaid loan account.
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It is the counterintuitive nature of that conclusion that prevents lawyers from properly advising their clients and to advise making payments to an organization that has been designated as the party entitled to receive the payment — when the designated recipient does not make such a claim for itself.
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So the goal of the homeowner is to show what didn’t happen rather than what did happen. The law requires that any assignment of the mortgage be accompanied by a transfer of ownership of the underlying obligation.
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The absence of a valid purchase and sale of the underlying obligation makes the paper transfer a legal nullity, which means that it is treated as though it never happened for legal purposes. It is not necessarily true that an endorsement of a note creates such a transfer. So if the assignment of mortgage recites “for value received” and no such transaction occurred (i.e., no value was actually received), then there was no assignment, and all claims that rely on that assignment are void.
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The homeowner wants to show that the opposing side — the foreclosure mill — is unable or unwilling to produce evidence that the payment of value occurred — but not try to prove that the transfer, while on paper, never actually occurred. The burden of proof is on the party pleading allegations.
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The claim against the homeowner must be established with a prima facie case. If you stop that process, then you win. Don’t try to go beyond that point, or you will raise more presumptions in favor of the foreclosure mill. You can’t prove anything if you don’t have the actual evidence and only the investment banks have evidence of what really happened outside the sight of prying eyes.
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You may know that the reason they cannot produce evidence of payment of value for the underlying obligation is that the underlying obligation no longer exists and therefore, there was no reason to make a payment which in turn means that no payment was made.
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If you try to actually prove that case without a cooperating defendant in a case brought for declaratory, injunctive and supplemental relief, that could be an unreachable goal — except for using the same strategy of proving the unwillingness or inability of the parties you are suing to produce any evidence of the existence of the underlying obligation or the authority to administer, collect or enforce it.
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However, after you get a favorable ruling when they move against the homeowner to foreclose, you can press the claim that the parties have no right to the lien and perhaps even that the lien should be removed from the chain of title through a quiet title action.
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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.
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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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Charles – excellent comment. Quote – “Wells said when refusing to process me for the HAMP & VA HAMP that it was up to the investor.” But in court – the foreclosure attorney states the TRUST “owns the loan.” WRONG. Trustee is supposed to be legal holder by all law. Yet, they hold nothing. No conveyance to them by any legal trust or trust indenture by PLMBS. As to Ginnie – it is not for you – it is for some transaction long before the transaction claimed related to you. Do you understand that??? This is a major flaw in FDCPA. Ginnie, Freddie, Fannie invested in the PLMBS fake REMICs (not a trust) — by taking into their own claimed REMICs. But all dumped before claimed transaction related to you. DUMPED. FDCPA claim should disclose this. They do not disclose.
So what I found in my case where Wells Fargo Bank who was fraudulently assigned my Deed of Trust by MERS who they use the term that Ginnie Mae is the “investor” and is show on the MERS Milestone report as Ginnie as the investor, however in the non-judicial foreclosure procedure says that the party that purchase the loan is the investor.
Wells said when refusing to process me for the HAMP & VA HAMP that it was up to the investor to make the decision on whether to process me, but that the investor information could not be given to me because of privacy reason. Fast forward 2yr and and complaint later, Wells finally said that the investor was Ginnie Mae which at the time of the foreclosure I did not know my loans was in the Ginnie Mae pool which would have changed everything (if known how Ginnie worked) as the challenging of the non-judicial process and demanding the UCC9 procedure be done. The local register have no clue that over 96% of Fed Gov mortgage loans are Ginnie pooled and are Fed Backed loan are some of the poorest and less educated and 100% of the borrowers have a clue what securities are, and no attorney outside the Fed Gov got a clue about Ginnie Mae MBS. As long as there no objection to the foreclosure the county allows anything because they are under the understanding that the Fed Gov owns a FHA and VA loans! Right now we got the attention that over 11 year ago that Wells started abusing 16 million of its customer, however, that not when the TARP protection started and Wells already admitted to abusing customers by denying them HAMPs modification starting on Apr 13, 2010.
Legi – long time no see! Java not wasting time. All of this gets under one’s skin – no matter WHAT happens. Without government support to state what really occurred, and it is never stated by anyone here, it is very difficult in courts to do anything. There is no yellow brick road, and as a six year old tells me – “there is no wizard.” All was covered up by settlements. The “named creditor/claimant” is never represented in court as stated. There will be nothing to acknowledge without first getting representation right in a court. I never see this challenge in the hundreds of cases reviewed. NEVER. There is no such entity as “trustee to a trust” – never mind a valid trust to begin with. If one can’t get representation straight – it is a problem at onset. Also, ownership of note, or enforcement, is bogus if there was no valid mortgage. Everyone has theories. None of them here explain the Great Financial Crisis and real cause for explosion. By now, it should be no secret to anyone.
Javagold, I’m surprised you’re still wasting your time!
Hey look who Is back. Legisman !!!
The law is very clear, the bank nor its assignee is required to own the note in order to foreclose. Ownership of a note is irrelevant to the power to enforce that note: Brown v. Dep’t of Commerce, 184 Wn.2d 509, 514, 359 P .3d 771 (2015); Bain v. Metro. Mortg. Grp., Inc.. 175 Wn.2d 83, 104, 285 P.3d 34 (2012); Truiillov. Nw. Tr. Servs., Inc., 181 Wn. App. 484, 502, 326 P.3d 768 (2014), rev’d on other grounds, 183 Wn.2d 820, 355 P.3d 1100 (2015).