The important point is not so much being right as it is being the winner in litigation.

I think the biggest problem for homeowners can be summed up in two sentences. First they believe there is something they should feel guilty about. Second, they don’t know the difference between (a) documents that can say anything and be prepared at any time and (b) original source (best evidence) documents.

Homeowners are regularly outwitted by Wall Street investment firms. They are the victims of a crime practically every time they sign “loan” documents. Each scheme is designed to prevent them from knowing that they are entitled to a fair share of the securitization scheme. They are victims and they have nothing to be guilty about.

For most lay people, a document is a document and as soon as you call it a document it is evidence of the truth of the matter asserted in the document. So if someone produces an assignment or endorsement even the homeowner assumes that there was a source transaction for which there are source documents (e.g. cancelled checks, correpsodnece etc.).

The thing to remember always is that nobody ever produces the source documents that occurred at the time of the source transction (assignment or indorsement). The homeowner must ask for that and if they can’t produce it, they no longer have a valid legal claim for anything.

I receive many emails every day that basically complain about the corruption of the courts or why they should win any case brought against them by lawyers seeking the remedy of foreclosure on behalf of a name (usually a long name) that may or may not identify an actual legal entity like a natural person, business entity trust. Much of what they say is correct.

The important point is not so much being right as it is being the winner in litigation. I think they practically prove their points in their emails. The banks are not right but they keep winning anyway. Being right is the furthest thing from their minds. They only want to know if they can win.

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I think we have all spent too much time elaborating on the basic premise that the banks should not be allowed to prevail in foreclosure actions if they are based upon fabricated documents and false testimony. Or to put it another way, false claims should not be the basis for awarding any remedy in court.

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Under our judicial rules, there is no reason to toss out a false claim just because the opposition denies the claim. But important practice note: failure to deny engraves the claim in stone and gives rise to a number of judicial presumptions that favor the lawyer pursuing the foreclosure and against the interests of the homeowner.
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While it is helpful to know the reasons why you should win, it is essential that you understand the role of the judge and established court procedure. You can make any outlandish claim and you will win the case if the opposing party fails to defend.
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Generally speaking, the party who wins in litigation is the party who controls the narrative. And generally speaking, the party who initially controls the narrative is the attorney that is pursuing the remedy of foreclosure.
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Homeowners that win foreclosure cases might cast doubt about the authenticity or validity of the fabricated documents that have been forged and backdated. But casting doubt does not win cases except in criminal law.  Homeowners that win the case achieve success because they undermine the legal presumptions arising from those fabricated documents.
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Each of those documents might appear to be facially valid, especially if they are not inconsistent with other documents that have been presented.  Facially valid generally means that it conforms to statutory requirements, the rules of civil procedure, or custom and practice. Such a document is entitled to a legal presumption as to its authenticity and validity.
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Attacking the facial validity usually dooms the homeowner to failure. But attacking the legal presumption arising from the facially valid document is generally a valid path for the homeowner seeking to repel the illegal claims of the opposition.
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In plain language, this means that if a document appears to memorialize a transaction in which some elements of title were purportedly conveyed as part of a purchase and sale, the homeowner should simply require the opposition to produce documents that were generated at the time of the alleged transaction.  If they cannot produce the original source documents, then the homeowner is in a position to rebut the legal presumptions arising from the facially valid documents upon which the opposition relies.

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The fundamental reality of all homeowner defense work is that the opposition possesses no legal claim against the homeowner. The homeowner seeking to prevail in litigation can only achieve success if the basic premises of the case in foreclosure are left unsupported. Once you remove the legal presumptions, the opposition is left without any support simply because there was no valid claim, to begin with.
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The role of the judge is to call balls and strikes.  Picking a winner or loser should come at the end of each case not at the beginning.  Sometimes judges need to be reminded. But nothing moves the needle more than when the judge grants a motion to compel and the opposition continues to stonewall a discovery request.  The case changes from the perspective of the judge. At that point, the case becomes judge versus the lawyer for your opposition instead of a bank versus the homeowner.
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Foreclosures are about restitution for an unpaid debt.  The fundamental elements of a prima facie case in support of the remedy of foreclosure consist of three things.
  • First, is the existence of an unpaid loan account receivable.
  • Second, the ownership of that unpaid loan account receivable by the party who is named as the claimant or plaintiff.
  • And third, a financial loss is reflected in that unpaid loan account receivable. [This third element is the key. If there is no loss caused by the behavior of the homeowner there is no default and there is no cause for bringing a claim against the Homeowner.]

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Neil F Garfield, MBA, JD, 75, 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 12 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.

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