If the party named as claimant or Plaintiff or Beneficiary did not own any unpaid debt and said party, therefore, suffered no economic injury by and through any action or inaction of the defendant or homeowner, then despite the appearance of default, no legal default has occurred even upon declaration of such by a disinterested third party.
The bottom line on collateral attacks is that the attack must be based on a theory that ultimately affects a finding of whether the trial court ever had jurisdiction. This means that there was no justiciable issue — one party was injured and alleging that the other party caused the injury.
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If the answer is yes, the court did have jurisdiction, it follows that the court had the authority to hear the case and render judgment even if the judgment is perceived as wrong. Such judgments or actions must be attacked by either post-judgment motions or by appeal (or both).
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But if the answer is no, the court never had any authority to hear any allegations, facts, or even arguments about the law. The sole action permitted to be taken by the trial judge is dismissal — regardless of when the issue is raised, including on appeal.
Based on my experience and analysis, it is highly unlikely that any adversary claim or collateral claim will yield any positive result unless it attacks the jurisdiction of the court or the status of the declared beneficiary in a nonjudicial case.
Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
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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.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.
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