THE NEIL GARFIELD SHOW THE NEIL GARFIELD SHOW

From his start as an investment banker with expertise in securitization to his earliest days as a trial attorney Neil discusses the evolution of foreclosure actions by lenders. Of particular interest is how Neil speaks to how they have been able to veer away from the traditional rules of evidence and discovery to foreclose on unsuspecting homeowners not knowledgable on how these pactice are a violation of basic jurisprudence. The very basic issues of "Legal Standing" are discussed and Neil highlights how they are being ignored in courtrooms all accross the country because homewoners and their attorneys are not challenging the issue of "legal standing" in the discvery process during foreclosure defense litigation. Neil Garfields work continues with Lance Denha esq., Neil's hand picked successor on livinglies.me 

Tonight I share my thoughts on strategies and tactics that will put your opposition on its heels and probably result in an outright win for homeowners and virtually all consumers who have a written contract for installment payments. We start with the premise that virtually all such transactions are securitized.


I will talk about the many opportunities that exist under the rules of procedure to create an existential challenge to the claims.


If there is no Claimant or Plaintiff and there is no claim at all, then why must we wait to the end and spend tens of thousands of dollars in legal fees to get to that point?


Why must homeowners lose their homes to such false claims simply because they lack the resources to contest them?


So in tonight’s show, we will visit and revisit some basic strategies that I believe will work most of the time and which could shorten the litigation period substantially.


Here is the Agenda:

Administrative: QWR and DVL, Complaint to CFPB and State AG
Motion to Dismiss and/or Motion for More Definite Statement
Offer of Judgment, Letter, and Notice of Service
AMGAR Strategy: Make them an offer they can’t refuse (but they will)
Motion to Strike Exhibits
Motion for specific mediation order requiring the claimant to appear
Interlocutory Appeal
Combined Request for Admission and Request for production
Motion to Compel Response
Motion for Sanctions and
Motion in Limine
Motion for Summary Judgment

Remember that in 28 minutes of talk time I can only give an overview of these strategies. Yes, you DO need a lawyer who is licensed in the jurisdiction in which your property is located. There is no guarantee that any of these strategies will succeed, even if they have worked in the past. 


 

The simple way to remember all this is that a business record must be a record of business actually conducted by the record keeper. Anything else is hearsay and must be secluded from evidence. But there is another rule that has been used to defeat this premise and the strategy has been successfully employed. By getting the homeowner and the attorney for the homeowner to agree that the company is a servicer, then the tacit admission is that it is performing serving functions.
 

First things first: No case can be proven without evidence that is accepted by the court as proving the truth of the matter asserted. The essence (the truth of the matter asserted) of all foreclosure claims is this:
The claimant is the owner of an obligation owed by the homeowner to the claimant.The homeowner executed documents that memorialized a loan transaction that the homeowner accepted.One of those documents was a note that set forth the schedule of payments plus interest.Another document was the mortgage in which the homeowner agreed that the property was collateral that could be sold in the event of a default.A default has occurred: the homeowner did not make a scheduled payment and the claimant did not receive it.The default caused an economic loss to the claimant.Pursuant to the terms of the documents the claimant demands that the property be sold or that the homeowner redeem the property in accordance with the terms of the note and mortgage.
Of the preceding paragraphs, in nearly all instances, paragraphs 1, 5, and 6 are false in foreclosure litigation.

So the Defense in your case is that there is no claim, that the named designated claimant is a nominee and has no claim, and that the designated company claiming to be a servicer is not servicing (i.e.,  it does not receive, account for or disburse payments from homeowners) and has no authority to declare a default much less prove that a default occurred --- i.e., that the designated claimant suffered some actual economic injury arising from nonpayment that can be corroborated by admissible evidence. 

And just to put a finer point on it, I strongly recommend that it should be brought against the named Bank and not "as trustee" for anything. This is because the basic premise of your defense is that there is no trust that owns any underlying obligation owed by you to the trust. Your secondary defense is that there is no underlying obligation owed to the Bank. And your third line of defense is that any agency authority claimed by a company that has been designated as a "servicer" is irrelevant and immaterial and therefore not admissible into evidence unless the principal (US Bank) owns an underlying unpaid obligation due from the homeowner to U.S. Bank. See 9-203 UCC. 

You do NOT advance some theory of securitization except as context. DO not attempt to try to prove the way the current iteration of securitization operates. You will fail. But if you attack the simple most basic elements of the claim against you at the earliest possible time you will usually win the case --- simply because there is no claim and no viable claimant. 

Lawyers have a job. Their job is to do the best they can at advancing their client's position-- within the bounds of the law. This usually involves a fair amount of bluff and any successful lawyer will tell you that it requires a great deal of knowledge, only part of which is imparted (and even less retained) in law school.

Tonight we will talk about how lawyers bluff their way through any case. And the most effective way of doing that is by asserting facts or laws that have never been introduced into the case. In some cases, those facts and those laws will never be introduced. But if the lawyer is good at bluffing, the opposing lawyer will fail to object or challenge the assertion. In the mind of the judge, a human being, the fact is then firmly established as true. The die is cast.

This is particularly true in foreclosure litigation. A lawyer stands up and says his name and says that he represents the claimant that has either been named as Plaintiff in a judicial foreclosure or as Defendant in a nonjudicial state where the homeowner must file the claim against the forced sale of homestead property.

The fact that this lawyer has never spoken to any officer or employee of the named claimant does not stop him or her from asserting that he or she is the authorized legal advocate for the named claimant. That is a bluff and it is hard to overcome until later, at best. That lawyer knows that the trust, even if could be construed as technically existing, has never received a single payment from the homeowner and never will.

So tonight's show is devoted to bluffing and what homeowners can do about it. Spoiler Alert: you probably need a lawyer of your own to counteract the effect of bluffing by the lawyer for the "foreclosure mill."

Foreclosure trends for 2022 are developing ever rapidly, and here are some of the most significant ones:


- Home Values continue to rise in many places, disproportionate to historical trends, and loan amounts taken out by homeowners, either in refinances, or new home purchases, have likewise reached historical highs, setting the table for a scenario of a wave of loan defaults, should the economy continue to see massive inflation. 


- Many homeowners have seen large increases in home equity, sometimes enough to offset large arrearages built up over months or years of challenging the 'claimants' to their 'mortgage loans'.


- We will discuss on future Shows how homeowners can tap into that home equity.


- In the litigation arena, institutional mortgage foreclosure plaintiffs in judicial foreclosure states are becoming more assertive in bringing matters forward; likewise in non-judcial foreclosure states, where foreclosure activity is not only dramatically increasing, it is also becoming more assertive in the scheduling of trustee's sales. 


- In the trustee sale arena, the small arena of which is the final stage, the auction site, it is more important than ever in some cases to challenge the sale at the actual site, as there are more and better monied predatory groups as third parties buying large quantities of foreclosed properties at auction. All things being equal, it is almost always better if an auction goes forward, for the property to back to the beneficiary, rather than be sold to a third-party. Reasons for this are several, and will be covered on the Show today, tieing the analysis to unlawful detainer (UD), and bankruptcy (BK), legal procedure.