Livinglies's Weblog

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I have obtained such rulings from the trial bench. But as a general rule, judges continue to use discredited documents (or at least undermined documents) to allow the foreclosure.

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I completely understand that these issues could have been raised in the case before that failure to address them presents an easy res judicata argument. But the outcome of the case should have been a finding of no jurisdiction, which can be raised at any time. Courts may not confer jurisdiction upon themselves when there is no justifiable issue.

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If the court entered judgment relying upon the documents presented to support foreclosure then it follows that when those documents may no longer be considered true (because of failure to provide corroboration of the truth of the matters asserted), the court must exclude such documents as irrelevant hearsay. Unless the lawyer promoting the foreclosure case has other evidence that survives scrutiny, the case is over. There is no claim and thus no justiciable controversy. 

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The presumptions arising from documents fail (not just rebutted) when the proffer is from a litigant who cannot or will not provide corroboration. Most lawyers and homeowners are afraid to ask the question: Can you identify a loan account upon which you seek recovery of money? If they cannot or will not, they are not entitled to any presumption arising from a document that appears to be valid but. as we all know, is probably fabricated and forged.

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The typical answer to that question will be a reference to the Payment History. Any accountant will tell you that is not the unpaid loan account. The Payment History, even if it is authentic and reliable, merely contains data from which the creditor computes and posts debits and credits to the loan account on the books of the named creditor.

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If the answer is a reference to the Payment History, they are unable or unwilling to answer the question. Any legal presumption that causes facts or law to be applied from the face of the document that cannot be corroborated is therefore eliminated, meaning that the document might be subject to testimony that provides a foundation of admission into evidence. But a motion in limine or a motion for sanctions should remove the last vestige of any hope of using those documents to obtain a foreclosure.

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PRACTICE NOTE: all of these cases sit on a three-legged stool. The first leg is the lawyer, who is acting on instructions from an undisclosed third party (usually a regional law firm hired by counsel for the originating investment bank).

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The second leg is the actual creditor if there is one. The fact that the lawyer names some entity as a creditor does not mean that any officer of that entity will swear under oath that the entity is the owner of a loan account and that he or she is producing a loan account established at origination. This is the key. It is like asking for a copy of the check register and not the accounting done by some party other than the holder of the account.

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The third leg is the company named as “servicer.” This is usually an entity that performs, no servicing functions relative to the receipt and distribution of money from homeowners. These functions are performed by undisclosed financial technology companies who are working in accordance with contractual duties owed to the originating investment bank, and not the servicer.

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Neil F Garfield, MBA, JD, 76, 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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