Livinglies's Weblog

In one case that I eventually won in 2016, I actually Titled a pleading, “At what point do this Court’s orders mean anything?”

After reviewing approximately 10,000 cases starting in 2006, I have arrived at the conclusion that judges are unintentionally or unwittingly being drafted into an illegal scheme.

Take some examples:

1. Suppose John Smith wants to file a lawsuit against U.S. Bank and Jim’s the title of the lawsuit as “John Smith, not in his individual capacity but as trustee for the XYZ trust series 2006 – 81 Registered certificate holders  v. U.S. Bank NA, not in its individual capacity but solely as trustee for the ABC trust series 2007-A1Z certificate holders.” A lawyer supposedly representing U.S. Bank (or now U.S. Bank trust as it is currently named in foreclosure cases), will file a motion with the court asking to dismiss the complaint for failure to identify the plaintiff and will probably cite factors such as the need for identification of the party who would be responsible for paying court courts or other fines and expenses pursuant to court order. The judge will take that motion very seriously, look at the complaint, and arrive at the inescapable conclusion that the lawyer who supposedly represents U.S. Bank is completely correct. And if John Smith has a good lawyer, he can use that ruling against U.S. Bank in a subsequent foreclosure action that is named as set forth above. But because homeowners do not file suit using the obfuscation style currently used in nonjudicial and judicial foreclosure cases, there is no availability of “turnabout is fair play.”
2. Now suppose there is a foreclosure action naming the plaintiff or beneficiary as U.S. Bank NA not in its individual capacity but solely as trustee for the ABC trust certificate holders.” The same competent lawyer in the first example will file a motion to dismiss a judicial case or expunge the record filings in a nonjudicial case using the same grounds and argument as those presented in the preceding example. The judge will generally deny the motion; some judges have even been known to threaten or levy sanctions against homeowners or their attorneys for pressing the issue.
3. Now suppose the foreclosure action has moved beyond the stage of a motion to dismiss or a demurrer. The homeowner exercises his or her right to due process by demanding that the lawyer that supposedly represents U.S. Bank produce corroborating evidence of the truth of the matter that is asserted or implied: that U.S. Bank is the owner of an unpaid loan account that is due from the homeowner to U.S. Bank.
   1. Anyone involved in foreclosure litigation knows what comes next.
   2. The lawyer for U.S. Bank (or at least the lawyer that says or implies U.S. Bank is his client) will not answer any direct question nor any demand for production nor any request for admissions directed at the central issue of the case – i.e., the truth of the matter asserted in the claim.
   3. Upon filing a motion to compel, typically, the presiding judge will either deny the motion filed on behalf of the homeowner (thus creating an appellate issue) or, more often, the presiding judge will grant the motion and order U.S. Bank to comply with the order.
   4. Of course, U.S. Bank doesn’t know anything about the case and has no relationship with the lawyer who is implying representation of U.S. Bank. That lawyer and U.S. Bank have never had any communication or agreement.
4. When the lawyer who supposedly represents U.S. Bank still fails or refuses to comply, the homeowner will file a motion for contempt, a motion for sanctions including evidentiary sanctions and economic sanctions. The typical reaction from the judge will be granting the motion in part and denying it in part. The judge is simply giving U.S. Bank more time to answer a question that should be at its fingertips if it is the actual plaintiff or beneficiary in the foreclosure action. At this point, most homeowners give up, which is why the lawyers working for foreclosure Mills employed this tactic. But if the homeowner does not give up, and files additional motions, the homeowner does not generally prevail on the motions. The judge will typically “reserve ruling.”
5. The judge should simply have granted the motion and would have done so if the motion was filed on behalf of U.S. Bank. But the homeowner has succeeded in preserving the issue for trial.
   1. This is where the rubber meets the road. If the homeowner has carefully read the trial order (pretrial order), and the homeowner complies with that order in every respect including listing the probable objections to all of the documents on the grounds that the lawyer purportedly representing U.S. Bank should not be permitted to introduce evidence of the existence or status of the unpaid loan account on the ledger of U.S. Bank.
   2. The objections are based on violation of the discovery rules, lack of foundation, and competence of the Robo witness that is used in an attempt to shoehorn false evidence into the court record. It is only when the homeowner is aggressive and persistent with the judge that the homeowner wins.
6. The mistake made by many homeowners and lawyers is that they think winning means that the judge issues an order declaring that the lawyer working for the foreclosure mail is a thief and a liar, and that U.S. Bank is part of a criminal enterprise. While all of that may or may not be true, winning in such cases really means insufficient evidence to prove the truth of the matter asserted as the basis of the claim.
7. Hence the final judgments in such cases recite that the plaintiff or beneficiary has failed to introduce sufficient evidence to corroborate the claims to administer, collect or enforce any underlying obligation, debt, note, mortgage or loan.

It’s not sexy or even satisfying to many homeowners who want to prove a conspiracy that probably does exist. But it works.

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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).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

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