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.”
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.”)*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 See Powell v. COBE Laoratories, Inc., 208 F.3d 227, *6 (10th Cir. 2000) (unpublished decision) (mere reference to a document does not place it in record and does not give court access to language of document).”)*United States v. Chambers, No.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 IRS, 688 F.2d 1376, 1383 (11th Cir. 1982)(quoting Cohan, 39 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 Banking, 688 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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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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Filed under: foreclosure |
Lack of case law in homeowners favor is why attorneys will not take cases.