Court procedure is a long and tedious process during which the parties make their points and counterpoints. If you don’t make the point evident, you lose. If you don’t make the counterpoint, you lose. If you lose, the opposition wins. This is about the rules, not justice or the pursuit of truth.
Recently a client asked me to comment on whether to file an adversary complaint in a Chapter 13 bankruptcy along with eh schedules attached to then petition or to wait until the opposition makes their move. Here is what I answered.
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There are arguments both ways. You are required to name anyone making a monetary claim against you, so your schedules already state the case. But his email also makes sense. I would file ASAP because I like to take the lead in the case narrative.
DUE PROCESS only means that the judge must give you an “adequate” amount of time to assert and argue your chosen positions in litigation. The so-called “rocket docket” was a violation of due process because it provided no time for the homeowner to state a defense or to challenge the case brought against them.
The “rocket docket” started with the presumption that the claim was valid and the homeowner was being allowed to present the illusion of a defense.
The thinking behind that is the delusion that a lawyer or judge could understand the securitization process that has been in use since the late 1990s. That being the case, there was no use to bring in or even allow experts to testify. Hence Judges were and are making rulings without a shred of evidence — something they were never authorized to do by Constitution or statute.
And that is the conundrum for homeowners and their lawyers. You are facing a judge who thinks he or she knows and usually starts out adamant about what the court “knows” when in fact, they are completely ignorant. Like most litigation, it is the lawyer’s job to gradually re-educate the judge such that he or she will insist on compliance with the rules of procedure and the rules of evidence.
Before you act on the truth of the matters asserted above, you should find a lawyer who is licensed in the jurisdiction in which the property is located.
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.
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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.
Please visit www.lendinglies.com for more information.
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