If it is their case, then THEY must prove it

Posted on October 17, 2018 by Neil Garfield

As I have said since 2006, the burden of proof should not shift to homeowners until the pretenders have made their case. To get rid of legal presumptions homeowners need only prove a credible narrative (like probable cause) that the documents are fabricated or falsely executed. After that, what is the harm of making the pretenders actually prove their case?

The lawyers who flee from foreclosure defense cases are missing out on a golden opportunity. If this were a golf game the ball would have left the tee in a perfect shot. The fundamental aspect is that nobody can actually prove a claim on a debt, note or mortgage by proving actual facts because those facts are not present.

Defense lawyers spend too much time worrying that maybe the facts will show that they have filed a frivolous defense and not enough time researching objections to claims and proof of claim. It’s time to roll back the burden of proof where it belongs.

It is not the fault of the homeowner that the debt and the owner of the debt is lost. Homeowners had nothing to do with it.

The Franklin decision (see below) from 2016 is an exquisite exposition of the law as it was written, as it is understood by jurists and as it is opposed by Wall Street banks whose very survival is completely dependent upon maintenance of lies that were propagated long before the 2008 crash.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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see franklin-appellate-decision-tirelli-2016

The 2016 Franklin case is, point by point, an independent corroboration of what I have been saying for years about presumptions and burden of proof. Unprepared lawyers for homeowners are the greatest contributors to bad law.
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The documents carry a presumption of validity. The signatures carry a presumption of authenticity. Both presumptions are weak and do NOT provide cover for the proponent of the document to step over a legitimate challenge. The homeowner does not need to prove the invalidity or inauthenticity such that judgment would be in favor of the homeowner BECAUSE the homeowner is not proponent of the document or the signatures.
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It is here that that lawyers for the nonexistent foreclosing party step over the real issue only because foreclosure defense lawyers don’t stop them. The presumption stands if not contested. But if it is contested, then the homeowner must only show enough evidence of inconsistency such that a court COULD reasonably infer that the document might have been fabricated and that the signatures were without authority.
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At that point nothing is decided. AND the burden of proof falls on the proponent of the document to prove its validity and authenticity step by step — something that neither the mill lawyers nor their “clients” could ever do.
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Bottom Line: Homeowners do not need to prove “their case.” They only need to prove enough to cast doubt on validity and authenticity that the would-be foreclosers must prove their case without the use of legal presumptions presumptions. In the end it is their case not the homeowner’s case. When you bring a case to court, it is your case to prove — not the other guy’s case to disprove. Remember that legal presumptions are strictly for judicial economy and not to actually prove a contested fact, especially where there is a credible narrative that is opposite to the presumed facts.
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I think judges around the country are now ready to hear and accept this message. Lawyers who are fleeing retainers to represent homeowners are missing the boat to both fame and fortune.

Filed under: foreclosure | Tagged: , , , , , | 7 Comments »

A Document labeled “Assignment of Mortgage” Does Not Prove the Sale of the “Loan”

Posted on December 21, 2016 by Neil Garfield

Too many lawyers and pro se litigants look at the title to a document and don’t know what else to do with it. They accept as true that a document is what is stated. That is one of the many trapdoors the banks have laid for us.

Listen to the Last Neil Garfield Show at http://tobtr.com/s/9673161

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https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
 
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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The “title” to a document is a statement of fact that may or may not be true. The title used is for the convenience of the party who drafted it. In our analysis we do not assume or accept that any  document is what is stated as the title or anywhere else in the document.
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The fact that a document is entitled “Assignment of Mortgage” does not mean that in reality there is either a valid mortgage or that a valid debt, note or mortgage was sold in any transaction.
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Nor does the existence of the document mean that the signatures are authentic and authorized or even that the named entities or signatories actually exist as legal “‘persons.'”
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The admission of such a document into evidence normally proves only that the document exists. While the existence of the document might raise assumptions or even legal presumptions, the document itself is not proof of any statements of fact or issues referred to in the wording of the document.
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Such statements would normally be regarded or should be regarded as hearsay and excluded from evidence unless someone with personal knowledge, under oath, had personal knowledge for their five sense and recalled events that were tied to the execution of the document.
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Objections must be timely raised or the objection is waived. Hence, if opposing counsel refers to wording in the document, that wording is hearsay but must be barred by (a) an objection at the moment the wording is the subject of a question to a witness and (b) the court sustaining the objection in the absence of a proper foundation for the admission of what is or ought to be recognized as excluded hearsay evidence.

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Filed under: foreclosure | Tagged: , , , , , , , , | 15 Comments »

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