Lack of Research and Knowledge About Court Procedure and Rules of Evidence Will Bury You

There are many well intentioned people and lawyers who go into court to contest foreclosure cases with the expectation that the foreclosure mill must prove ownership and status of the loan. In plain language they don’t need to prove that because of a legal fiction called a “legal presumption.” That is a shorthand way of approaching evidence.

It creates conclusions of facts based upon common knowledge or legislative intent regardless of the truth of the matter. If the opposing party wants a different conclusion the opposing party must seek to rebut the presumption.

Rebutting the presumption is accomplished in only one possible way in foreclosure cases.

The homeowner will NEVER have actual evidence that the debt does not exist as a loan account on the books of any entity and will never have direct evidence that is admissible in court that the named claimant has no claim. So that is not a possibility. And arguing the case as if you did present such evidence is a fool’s errand.

But the same goal can be achieved if the foreclosure mill refuses to respond appropriately to direct questions in the discovery process. It is or appears to be an uphill battle but the key is merely persistence.

see https://livinglies.me/2020/10/02/boilerplate-answers-to-discovery-wont-cut-it-if-plaintiff-does-it-they-lose-the-claim-if-defendant-does-it-they-lose-the-defense/

  1. If a facially valid document is merely shown, it is presumed (at least at the pleading stage) that the original exists — even if it doesn’t. (see discussions about custom and practice in the industry to shred the original notes concurrent with the loan closing).
  2. A statement by affidavit or in testimony that the note is the original note signed by the maker (homeowner) is sufficient to get a facially valid document into evidence as the original even if it is not the original and was reconstructed expressly for trial to make it appear like an an original.
  3. Possession of that “original” is presumed to be evidence of delivery even though the note is a reconstruction.
  4. Delivery is presumed to convey a right to enforce even if there is nobody who could grant such right.
  5. The right to enforce gives rise to the presumption that the ownership of the underlying debt has been conveyed even though nobody paid for it — which is the only way you can legally own the underlying obligation.
  6. The presumed conveyance of ownership of the underlying obligation is the only thing that allows anyone to  foreclose on the security instrument pursuant to the state adoption of Article 9 §203 of the UCC — but all of that is legally required to be presumed in the absence of any rebuttal.

They don’t need to prove it. Under the rules of evidence the presumptions exist that they are who they say they are and the debt is what they say it is. YOUR burden is to show that they refuse to respond to inquiries about the status of the debt and its ownership. But it is more than that. You can’t just ask, you must ask in a venue where they are required to answer. This exactly where most lawyers and pro se litigants dig their own legal graves.

And the failure to respond won’t get  you anywhere unless you get a court to agree with you and enter an order commanding them to answer. And not even that will be conclusive until you get an order on sanctions after they violate the order compelling response. And the deal is not sealed until you get a definitive ruling on a motion in limine that says that due to their refusal to respond, they are prohibited from introducing any evidence of ownership or status of the debt at trial (i.e., motion in limine).

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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial attorney since 1977. He has received multiple academic and achievement awards in business and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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