Good trial lawyers will easily understand that they don’t need to prove fraud because it is not their client who is making a claim.
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They only need to test the evidence to show that there is insufficient evidence to support the inferences and presumptions raised by the current mountain of fabricated, forged, backdated, and robosigned documents (mostly by computers and machines).
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They win by revealing the inability to corroborate those presumptions, not by proving anything nefarious.
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Of all the final judgments ever rendered in favor of homeowners (thousands of them that have been buried — i.e. scrubbed from court records) I have not seen one that was not based on insufficiency of evdience.
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When homeowners or lawyers ask “How do I prove that?” they are asking the wrong question. They should be asking “How do I defend that?”
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A recent inquiry to me gave rise to the following answer. The writer was a lawyer who was drilling down into the essence of current foreclosure claims. One of the sticking points for this lawyer was using “loan account numbers.” Like everything else in the securitization game, every reference point is a lie.
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The key question is whether the “specific loan number” corresponds to a loan account on the books of the beneficiary or plaintiff. I can tell you with 100% confidence that there is no such correspondence or link because no such account exists.
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This counterintuitive fact, confirmed by dozens of sources, stops most lawyers from mounting a successful defense — like the criminal defense lawyer who believes his client is a serial murderer.
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While the lawyer could go through the motions of exhausting due process, it is hard to get passionate about his client’s right to a not-guilty verdict when the lawyer believes the client will likely kill again. But the lawyer will try anyway, accepting the fact that he is probably going to lose.
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If there is a not-guilty verdict, it doesn’t mean that the client is innocent. It just means that the prosecution failed to convince the jury members that there was sufficient evidence to convict behind a reasonable doubt. American jurisprudence makes a big deal about the difference between “not guilty” and “actual innocence.”
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In civil cases, lawyers don’t like to do that because they erroneously think it represents a losing streak that will affect their reputation as lawyers and their credibility with judges. It also poses potential issues with clients who are disappointed with the results that the lawyer thinks are inevitable.
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But what if the lawyer knew that his client was actually innocent? Suppose for a moment that the lawyer was physically present in a location where the defendant was present, far away from the crime scene. He or she would defend with great vigor, knowing that the evidence would not be sufficient to place the defendant at the scene — if the evidence was put to the test.
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Taking it a step downward, suppose the lawyer strongly suspected that his client was telling the truth and that the defendant was not at the scene but had no direct way of knowing whether that was true.
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I believe the defense lawyer would pursue every avenue possible to show that the allegations and the evidence presented may have created certain inferences or even presumptions of guilt but that the evidence does not stand up to scrutiny — especially if the lawyer had some confidential source telling him that the defendant was being framed.
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This is where we are in foreclosure litigation. Lawyers refuse to take these cases primarily because they think that the transaction was a loan, their prospective client failed to pay, and the result is inevitable. They believe they will lose every time. They believe that success on behalf of their client would cheat a creditor out of money owed. Lawyers are also intimidated, for good reason, by the deep bench of lawyers opposing them.
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So when lawyers hear “theories” that sound like wishful thinking from desperate homeowners seeking to retain their home and when they read blogs like mine that say that there is no windfall to homeowners even if they win and that the windfall goes to the foreclosure payers, they are not just skeptical. They are frequently contemptuous.
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The result is that they fail to test the claim, and the homeowner either goes without any representation in court or simply loses because the most common defensive techniques were never applied. The lawyer moves on to the next case confident in his or her superior ability to practice law in a courtroom, despite failing to take effective steps to test the claim.
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Meanwhile, millions of homeowners have lost their homes to players who never intended and never did credit any unpaid account owed to them or anyone they represented. And that is why I call it the largest economic crime in human history. But it wasn’t just an economic crime. Of the millions who lost their homes, thousands died by suicide or illness brought on by stress, marriages collapsed, and children were raised in a more uncertain world than ever.
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I frequently say that my mission is to save homeowners from losing their homes and that I usually succeed. But really, I am seeking to recruit lawyers willing to consider the possibility that their clients might be right and that the people making claims are not only wrong but committing criminal fraud.
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Good trial lawyers will easily understand that they don’t need to prove fraud because it is not their client who is making a claim. They only need to test the evidence to show that there is insufficient evidence to support the inferences and presumptions raised by the current mountain of fabricated, forged, backdated, and robosigned documents (mostly by machines). They win by revealing the inability to corroborate those presumptions, not by proving anything nefarious.
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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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