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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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more.
  • 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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Please visit www.lendinglies.com for more information.

Boilerplate Answers to Discovery Won’t Cut It. If Plaintiff does it, they lose the claim. If Defendant does it, they lose the defense.

see https://www.natlawreview.com/article/district-court-requires-plaintiff-to-disclose-evidence-about-noneconomic-loss

I have been writing, lecturing, and just saying the same thing since 2006. Homeowners don’t need to prove anything. The objective in Foreclosure Defense is to prevent the claimant from pursuing their claim. If you are not willing to do all the necessary   work and to make certain you have it right, then you are not litigating, you are complaining. The strategy is accomplished by using the following tactics:

  1. Wordsmithing the right very specific questions and demands that go right to the heart of the case — the existence and ownership of the debt (loan account).  Both lawyers and homeowners seem to be shy about doing this because they are afraid of receiving an answer they won’t like. No such response it will be forthcoming. In fact no answer will be forthcoming and that is the point. The most they can ever do is obscure and evade. They do this with objections or with the responses that are meaningless and boiler plate.
  2. File a motion to compel along with a memorandum of law citing to relevant cases that are exactly on point.
  3. Get a hearing on the motion to compel. At the same time get a hearing on objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should NOT specify punishment. It should only say that your motion is granted, that the following questions must be answered, and that the “bank” must respond to following requests for production must with the documents requested within ___ days. Prepare for the hearing in a mock presentation.
  4. Assuming you win on your motion to compel, having a lawyer in the courtroom representing the homeowner will greatly improve the chances that your lawyer will literally write the findings and rulings of the court. This will decrease the amount of wiggle room that the opposing attorney will try to insert.
  5. You might consider a motion to strike whatever response they file as being unresponsive to the discovery demanded, and contrary to the rules of civil procedure.
  6. There will still be no response — or no meaningful response. All they have are presumptions (not actual facts). You are entitled to rebut those presumptions by asking for facts. They must answer — but they won’t because they can’t.
  7. File a motion for sanctions. along with a memorandum of law citing to relevant cases that are exactly on point.
  8. Get a hearing on the motion for sanctions. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify punishments including (a) striking the pleadings (b) dismissing the foreclosure (c) raising the inference or presumption that the loan account does not exist for purposes of this proceeding (“law of the case”) (d) raising the inference or presumption that the ownership of the loan account cannot be established for purposes of this proceeding (“law of the case”) and (e) awarding the homeowner with costs and fees associated with the discovery dispute. It should say that your motion is granted, recite the history of bad behavior, and give them one more chance to purge themselves of contempt that by compliance with the order on the motion to compel within ___ days. Prepare for the hearing in a mock presentation.
  9. There will still be no response — or no meaningful response. All they have are presumptions (not actual facts). You are entitled to rebut those presumptions by asking for facts. They must answer — but they won’t because they can’t.
  10. File a motion for contempt of court along with a memorandum of law citing to relevant cases that are exactly on point.
  11. Get a hearing on the motion for contempt. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify punishments including (a) striking the pleadings (b) dismissing the foreclosure (c) raising the inference or presumption that the loan account does not exist for purposes of this proceeding (“law of the case”) (d) raising the inference or presumption that the ownership of the loan account cannot be established for purposes of this proceeding (“law of the case”). It should say that your motion is granted, recite the history of bad behavior, and give them one more chance to purge themselves of contempt by compliance with the order on the motion to compel within ___ days. Prepare for the hearing in a mock presentation.
  12. File a motion in limine along with a memorandum of law citing to relevant cases that are exactly on point.
  13. Get a hearing on the motion for in limine. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify that the claimant is barred from introducing evidence on the status or ownership of the debt and barred from introducing any evidence (testimony or exhibits) from which the court might apply presumptions of ownership, loss, right to enforce. It should say that your motion is granted, recite the history of bad behavior. Prepare for the hearing in a mock presentation.
  14. File a motion for summary judgment along with a memorandum of law citing to relevant cases that are exactly on point.
  15. Get a hearing on the motion for summary judgment. At the same time get a hearing on any new objections raised by your opposition. Prepare an order in advance of the hearing so the judge can see exactly what you’re asking for. The order should specify that judgment is entered because the claimant is barred from introducing evidence on the status or ownership of the debt and barred from introducing any evidence (testimony or exhibits) from which the court might apply presumptions of ownership, loss, right to enforce. It should say that your motion is granted, recite the history of bad behavior. Prepare for the hearing in a mock presentation.
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.
*

FREE REVIEW: Don’t wait, Act NOW!

CLICK HERE FOR REGISTRATION FORM. It is free, with no obligation and we keep all information private. The information you provide is not used for any purpose except for providing services you order or request from us. Inthe meanwhile you can order any of the following:
*
CLICK HERE ORDER ADMINISTRATIVE STRATEGY, ANALYSIS AND NARRATIVE. This could be all you need to preserve your objections and defenses to administration, collection or enforcement of your obligation.
*
CLICK HERE TO ORDER TERA – not necessary if you order PDR PREMIUM.
*
CLICK HERE TO ORDER CONSULT (not necessary if you order PDR)
*
*
CLICK HERE TO ORDER PRELIMINARY DOCUMENT REVIEW (PDR) (PDR PLUS or BASIC includes 30 minute recorded CONSULT)
*
FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. 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 12 years or more.
  • 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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