The Important Point Is Not So Much To Be Right As it is Being the Winner in Litigation
By Neil Garfleld
LivingLies.me
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.
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.
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.
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.
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.
- 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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