Why you would use a declaration or affidavit from anyone

Posted on May 11, 2023 by Neil Garfield
homeowners do best when they focus not on winning, but on “not losing.”

Why you would use a declaration or affidavit from anyone:

  1. As context for QWR and DVL demands.
  2. As context for discovery
  3. As context for motions to compel discovery and for sanctions
  4. As context for motion in limine
  5. As context for a memorandum in opposition to a motion for summary judgment
  6. As context motion to dismiss or a motion for clarification
  7. As context for the motion and memorandum of the homeowner asking for Summary Judgment
  8. As context for Motion to Strike due to inconsistent positions, assertions, or documents
  9. As context for a memorandum of law supporting objections and motions to strike during trial
Get the picture?
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The math does not lie. Of the millions of foreclosure processes that were initiated 2000-present, less than 2% of the homeowners did anything to challenge it because they bought the big lie: that their transactions were, in fact, loan transactions creating an unpaid loan account owned by the “lender”/Payee on the note.
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Less than half of that 2% made any meaningful attempt in court to challenge the demand for foreclosure, mainly because they did nothing to research the issue. They had no reason to do that research because everyone believed there was a “loan balance.”
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Most of the remaining homeowners (less than 1%) lost using affidavits and declarations that they wanted the court to accept as evidence rebutting the standard legal presumption arising from the illusion of facially valid documents.
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The rest — 0.25% — went on to (a) get very beneficial settlements in the form of modification with parties who had no right to offer the modification (b) win the case outright where the judge concluded that the evidence in the court record was insufficient to prove that it was more likely than not that the homeowner owed money to the named plaintiff or beneficiary. A lot of those winning cases for homeowners were my cases, either directly as lead counsel, directly as co-counsel, directly as consulting counsel or indirectly through my writing on the blog.
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That last percentage (1/4%) amounts to approximately 25,000 cases wherein homeowners retained their homes, and reduced any claim for payment far below the stated amount in litigation. In all but a handful of those cases, the homeowners were directly paid to enter into a settlement agreement (even after judgment in favor of the homeowner). The agreement provides for non-disclosure. But it also provides or grants illegal powers — i.e., to scrub the court record so that anyone doing legal research at the trial level would never know what happened in the case.
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I have two cases where the judgment was entered for the homeowner and where there was no such settlement. One of them, still ongoing, is 15 years old because after losing, they refiled despite an explicit finding by the trial court that the evidence was insufficient to support a claim by U.S. Bank or the referenced trust). Objections to testimony and exhibits were mostly sustained. These were seasoned judges who concluded that regardless of whether there was a loan or even a loan account, the lawyers had not introduced sufficient evidence to support their claim for foreclosure.
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Despite numerous attempts to use a fabricated mortgage loan schedule and other fabricated documents, the trial judge concluded that the documents either were not what they said they were or that the documents were lacking in credibility. The lesson is that homeowners who want to win should aim low, not high. They should not seek a knockout blow because they can only achieve that upon a confession from the dark side. That is only going to happen at a CIA black site.
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To put it another way, homeowners do best when they focus not on winning, but on “not losing.”
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The point of the affidavit or declaration is not to convince the judge that the contents are true, contrary to the erroneous understanding held by pro se litigants. Homeowners should aim for a much lower threshold if they want to win the case. They merely need to establish that their demands for discovery etc. are not whimsical. Enforcing the rules of civil procedure and demanding sanctions will finish them off or at least set the stage for the judge to sustain most objections at trial.
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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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