TRAPDOOR FOR HOMEOWNERS AND CONSUMERS: lay people and lawyers are not comfortable unless they are trying to prove something

I think that both lay people and lawyers are not comfortable unless they are trying to prove something. But the way to win these cases is the reverse — by not proving anything or saying anything you need to prove. The only thing you want to say when you get the chance is,

“Judge, we are filing discovery demands relating to the existence and ownership of the unpaid loan account. We already exhausted our adminstrative remedies by asking those questions in qualified written requests and debt validation letters. They won’t answer those questions. They will never answer those questions. So this case is really about whether you will enforce the rules.”

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The scheme is counterintuitive, and so is the remedy. The idea is not to prove anything. As soon as you start alleging facts, you are required to prove them.
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At its root, the truth of the matter asserted is that XYZ is a beneficiary that is owed money from you. You win by simply asking XYZ to produce a records custodian or other officer who will swear to that under oath.
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And that is because no such person is willing to commit perjury. But you ONLY win if you press the issue as to their inability or unwillingness to answer questions that are allowed in every court of law.
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There is no case law from an appellate court because every time the banks lose, they do not appeal. And the trial court decisions where the homeowners won are scrubbed from the public record.
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A lawyer frequently assumes that he/she has no tools to combat the representations that are being made. That is not correct. He has no confidence in his tools, but that is not the same as not having the tools. I can show final judgments where the result was just as I predict would likely (not definitely) happen in your case if you were to follow suit — a ruling from the court including findings of fact and conclusions of law that basically says that there is insufficient evidence to establish a claim on the part of the company named as the claimant.
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As an expert, I can only testify that it is impossible to conclude whether the loan account exists and who owns it without seeing the supporting documents that reflect a financial transaction.
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Any other conclusion that the debt, loan account or obligation exists or doesn’t exist is pure speculation, and the fact that it is recited on a document is insufficient for auditing purposes, absent supporting documents that can be independently verified. True if the counterparty acknowledges the transaction and confirms the debt, it is probably true or will be accepted as true.
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For example, the “assignment of Mortgage” is NOT an assignment, nor does it necessarily pertain to a mortgage lien or deed of trust. “Because I said so” is not a recognized legal maxim. If the other party admits or agrees either intentionally or unintentionally, then for purposes of a legal proceeding, it is true even if it is not really true.
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On the other hand, if the assertion is denied, then the issue is contested. The assertion is allowed presumptive status if it satisfies statutory conditions. But that presumption can be rebutted — and indeed, it is rebutted when you ask for corroboration and you can’t get it. Absent the presumption, there is no claim before the court other than the demand for a remedy which again is not a legal doctrine — “I want what I want when I want it.”
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If a lawyer wants to present a claim for money due, then the lawyer must assert the conditions under which the money is due. The lawyer must prove it. It is not up to the defendant to prove anything. If the lawyer implies that ZYZ Corp. owns an unpaid loan account due from the homeowner, when asked, he must produce it or quit. If he/she doesn’t quit, the court will do it for him/her.
Vickery v. City of Pensacola, 342 So. 3d 249, 270 (Fla. Dist. Ct. App. 2022) (“The Legislature’s use of the noun documentation—rather than document—signifies that a document with speculative or insupportable assertions is inadequate; a document must contain “records, instruments, or other evidentiary authorities” that support its conclusions to be legitimate.”)
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Res-Nv CHLV, LLC v. Rosenberg, No. 2:13CV115DAK, at *2 (D. Utah Nov. 20, 2014) (“First, Defendants may have admitted to the existence of the documents, but that did not place the documents in the record. The parties agree that the documents speak for themselves. Agreeing that a document speaks for itself, however, does not provide foundation for a document or place it in the record. In addition, because the documents have not been placed in the record, the court has no ability to verify the information contained in the documents. See Powell v. COBE Laoratories, Inc., 208 F.3d 227, *6 (10th Cir. 2000) (unpublished decision) (mere reference to a document does not place it in record and does not give court access to language of document).”)
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United States v. Chambers, No. 3:09-cv-961-J-34JRK, at *28 (M.D. Fla. May 22, 2014) (“the Cohan rule may be applied to determining the amount of deductions due, if it is clear that the taxpayer is entitled to some deduction, but cannot establish the full amount claimed. See Ellis Banking Corp. v. Comm’r IRS688 F.2d 1376, 1383 (11th Cir. 1982)(quoting Cohan39 F.2d at 544)); see generally e.g. Linzy v. Comm’r, 102 T.C.M. (CCH) 482, 2011 WL 5346688, at *2 (2011)(T.C. Memo 2011-264)(applying Cohan rule to estimate allowable business deductions where taxpayer submitted canceled checks, bank account statements, receipts, and invoices purporting to substantiate various expenses, though records were disorganized). However, the Cohan rule applies only if the taxpayer “can show [his] entitlement to some deduction.” Ellis Banking688 F.2d at 1383. And, “though a taxpayer can use evidence other than books or records to substantiate claimed deductions, [the Court] is not bound to accept a taxpayer’s unverified, undocumented testimony.” Zilberberg, 2011 WL 37843, at *3 n.7, 6.”)
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Suppose the counterparty (homeowner) disclaims the transaction as a current debt. In that case, there is nothing the court can do except rule against the attorney presenting the claim on behalf of whatever entity is designated as a claimant  — unless they come up with clear and persuasive evidence of a transaction by which the obligation was acquired.
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The transfer of a note does not transfer the debt unless payment is involved. If there was payment, then they are right. Admit and concede that fact to gain credibility with the judge.
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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.
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2 Responses

  1. Lawyers won’t takes cases because the homeowner breached the contract. And they don’t know how to analyze a mortgage transaction to identify problems with it. Hence they can’t win.

  2. Lack of case law in homeowners favor is why attorneys will not take cases.

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