How do you challenge illegal claims to administer, collect or enforce claims arising from transactions with homeowners? Nip It In the Bud!

Posted on March 1, 2023 by Neil Garfield

The basic idea is not to give a single inch. If you do, you lose. Don’t accept a single assumption or presumption as though it was really true. It isn’t.

Always focus on what is missing.

Correspondence allegedly from the designated “Servicer” is not signed. It is always ended with a reference to some nondescript team. So if it is false or improper who can you blame? But if it isn’t signed then it the legal equivalent of not having been sent.

Making a claim is not the same as proving a claim. As long as you obey the rules of pleading you can make any claim, no matter how ridiculuous.

And there is little to stop you from fabricating documents that look like evidence. It is when the lawyer looks behind the evidence for corroboration of the transactions referenced or recited in the documents that the claim falls apart.

One of the strategic issues with these cases is all about when to make what challenge and how aggressive you should appear. These are mostly decisions for the lawyer on the ground, not for someone in an ivory tower in Jacksonville, Fl. Nonetheless, I have been toying with some ideas.

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As a litigator, my opinion is that you should come out of the gate with guns blazing. The real place to start is immediately after the “Closing” has been consummated. You thought you were getting a loan from the named “lender.” You thought it was a lender because the documents said it was a lender. You thought it was a loan because the documents you signed were called “loan documents.”

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So ideally the time to start is immediately after closing, but why would anyone do that unless they knew that the transaction was a sham and if they did, then why did they sign the documents?

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So as a practical matter, the first time the homeowner starts questioning and challenging is when the company that has self-appointed itself as the “servicer” starts communicating with you despite no notice from the designated “lender” on the closing documents. And as a practical matter, homeowners are not moved to do anything until they are at risk, which is exactly the gamble that the investment banks made when they devised this scheme.

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In communications with the lawyer who asserts or implies the representation of some name or entity, here are the strategies, facts and the issues — and keep in mind that keeping it simple makes it more likely that you will get a satisfactory result while ignoring the basic issues will eventually lose the property. (Names used are for examples only):
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  1. Dear Attorney: Our client is John Smith, and he has informed us that he has received a communication from you or referencing your law firm as the attorney for U.S. Bank. But we have received other information suggesting that you either represent Ocwen Loan Servicing or simply some regional law firm that has tasked you with pursuing a claim they told you about. Can you please clarify? That is, please identify your client and their role in connection with the subject property.
  2. We also see that while there is correspondence purportedly from Ocwen Loan Servicing and referencing “records” of Ocwen Loan Servicing,” we have received information indicating that Ocwen does not receive, collect, process, account for, or disburse funds received from the subject homeowner and will not receive any money from the forced sale of the property if it is successful.
    1. Therefore if Ocwen has business records,  they would not contain any data relating to business Ocwen conducted with our client.
    2. Can you please clarify the information upon which you rely as to business records for the foundation of the claim you are presenting and identify the intended party for the distribution of funds if and when the subject property is liquidated (sold to a third party bona fide purchaser for value)?
    3. Please identify the person, company, or business organization(s) that perform functions relating to the receipt, collection, processing, accounting, or disbursement of funds due to a “creditor” received from the subject homeowner and the person, company, or business organization(s) that will receive any money from the forced sale of the property if it is successful.
  3. We also see that there are references to the promissory note but no references to the unpaid receivable account on the ledger of any putative creditor. Such an account is neither asserted or implied. Can you please clarify whether you represent the party who owns that unpaid receivable account due from our client? This is also necessary to assess the putative servicer’s authority and the attorney’s authority to proceed.
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You understand perfectly well what I am getting at here. You can juice it up or down. Like, for example, “if you have asserted, implied or filed a claim without knowledge of the identity of the owner of the claim, then the claimant has not appeared, and your appearance is irrelevant –except for advancing the theory of the claim potentially on behalf of unknown parties.” Or “your conduct may be in violation of the  ethical and disciplinary rules governing the conduct of attorneys.”
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CRAZY EXAMPLE: I sue you for stealing my German Shephard and performing life-altering experiments on him in Alaska. The truth is I don’t have a German Shephard, and you don’t live in Alaska or work there. But I created documents that apparently you signed (even though you didn’t) and receipts showing that you took the dog from my backyard (deep fake pictures). The natural assumption by everyone is at least that I own that dog. But I don’t. And if you don’t defend, there will be a judgment in my favor and maybe even some criminal charges against you for something that never happened. Basically, lying is at the core of all judicial systems, If people didn’t do it, we would not need courts.
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Just because you hear, read, or otherwise think you know something because it seems to make sense does not mean that any part of it is true. No matter how often a lie is repeated, the only fact is that the lie has been repeated.
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And that is why this site is called livinglies.me.
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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.

Please visit www.lendinglies.com for more information.

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