Category: BURDEN OF PROOF

How to Use Legal Discovery to Win Foreclosure Cases

May 30, 2025

Did you know we have a radio show/podcast? We do. And in this powerful episode of the Neil Garfield Show, we dive into how we win foreclosure cases: using legal discovery to expose the truth and challenge the bank’s story. Most people don’t know this, but nearly every foreclosure today is built on shaky ground. The party trying to take your home usually can’t prove they own the debt, and that’s where discovery comes in. Here is a direct link to the show’s episode: Neil Garfield Show The Real Story Behind Most Foreclosures Banks and servicers have been playing a

Discovery in Foreclosure Litigation

April 10, 2025

DISCOVERY: THE MOST POWERFUL TOOL YOU’RE NOT USING IN FORECLOSURE In our experience, one thing remains true across nearly every foreclosure case we see: discovery is your best shot at exposing the truth and forcing the banks to show their cards. But here’s the real tragedy—most homeowners never use it. They sit back, trusting the system or a cookie-cutter defense, and by the time they realize something went wrong, it’s too late. The court has already rubber-stamped the foreclosure. Let’s break this down. What Is Discovery, and Why Should You Care? “Discovery” refers to the legal process where each party can obtain information

We just keep winning Foreclosure Cases

January 14, 2025

We keep winning. People ask us all the time about our wins. Our wins can take many forms but to our clients they are all considered wins. For example, if we help a client defend against an illegal foreclosure and the pretend lender drops their case and it’s dismissed; that’s a win. The homeowner stays in their home. Unfortunately, we see these cases get refiled sometimes even with fraudulent transfers of the supposed “debt” to another pretend lender sometimes years later. At the time the homeowner had the resources to only defend against the pretend lender and not to pursue

What makes a Notarized Document Invalid?

December 19, 2024

Understanding the Role of Notarized Documents in Foreclosure Defense When it comes to foreclosure defense, one critical area of focus is the validity of notarized documents. Homeowners facing foreclosure often encounter documents that appear official and binding simply because they bear a notary’s seal. However, not all notarized documents are created equal. In fact, many documents used in foreclosure cases may be invalid due to improper notarization practices. This can open the door for a strong defense. Let’s break down what makes a notarized document invalid and how it impacts your case. What is a Notarized Document? A notarized document

Another win for Livinglies.me team combines Probate and Foreclosures issues to stop Sale

June 7, 2024

EMERGENCY HEARING REQUEST Case #2013-CA-012542-O This order based upon an emergency motion prepared by Richard Kalinoski esq. with assistance from Anthony Varrone J.D., highlights the creative and unique benefits of our Foreclosure Litigation experience. The sale of clients home was scheduled to be foreclosed upon in Florida on June 4th of this year. In the case before the court there were issues related to an attempt to foreclose on a property involved in probate. At issue was the plaintiff foreclosing wrongfully and obtaining a foreclosure judgement against a deceased party that was not lawfully before the court. We identified the

Foreclosure Defense attorney to challenge Lender claims

December 11, 2023

In the complex landscape of foreclosure defense, the role of a skilled attorneys is paramount. So many of you told us of your struggles in finding an expert in this are I thought it important to share the importance of why Foreclosure Defense is such a specialty. These legal professionals bring a wealth of knowledge and strategies to the table, significantly influencing the outcome of foreclosure cases. One critical area where they add value is in challenging the lender’s right to foreclose based on various affirmative defenses. Understanding Affirmative Defenses Affirmative defenses are reasons why a lender’s claim to foreclose

How to Stand Your Ground in Court Without Offending the Judge

October 31, 2023

A Guide for Homeowners and Their Attorneys in Foreclosure Defense Did You Take a Loan? We’ve all been there, sitting in a courtroom, listening as the judge fires off a familiar question: “Did you take a loan?” Whether you’re defending yourself or you’ve got a lawyer by your side, this moment can be nerve-wracking. But listen up, it’s crucial to hold your ground. Your response should cut straight to the point: “Your Honor, I’ve had my share of loans over the years. But the key thing here is, I’ve never taken a dime from these folks or anyone they took

What foreclosure Judges want to see in court

September 26, 2023

As Neil Garfield explained to me and many of his clients and readers, the only thing most judges are interested in is where did the money go, who paid, who received and whether it was paid, and if in part, to what extent. One must be very careful to distinguish this from the “show me the note” defense, which was effective for a while in obtaining dismissal of judicial foreclosures without prejudice. Our belief is that the Banks, servicers, and lawyers, through Loan processing Services and its various progeny overcame the missing note with the use of color printers, copiers

The irrefutable logic at the foundation of all successful foreclosure defense narratives

February 2, 2023

The mortgage lien is designed to protect against financial loss — not to promote financial gain. If Wall Street wants to protect the financial gains it created from its crazy scheme using weapons of mass financial destruction, then the least it should do is share a little of that with homeowners, consumers, the government, and investors. * I continually get the same question, mostly because neither the homeowner nor the “investigators” understand anything about being a licensed, educated, experienced investment banker, lawyer, or accountant. If they were any of those, they would not ask the question. * The latest question

Why the CFPB Announcement is Very Important

May 2, 2022

when the time comes that a judge enters an order or judgment containing findings of fact, for example, that the records of the designated “servicer” are not business records that are not exempt from the hearsay rule, the poop will hit the fan. I received multiple emails from lawyers and homeowners who were confused when I posted an article about the latest CFPB announcement. Most people are not clear on why this announcement is so important. I can say this — the lawyers who represent “industry actors” are sending up flares about this announcement. See the Troutman Pepper Analysis.

The Payment History is not the Loan Account. Only the Loan Account Can show the Balance. If there is no Loan Account receivable on the Accounting Ledger there is no Balance. If there is no Balance there is no Balance Due.

February 15, 2022

The problem starts with the Homeowner, who thinks that because he or she applied for a loan, they received it. This assumption is completely unfounded. The law is mostly procedural and logical. It requires building a foundation for a fact to be accepted as true. If there is no foundation, there is no fact. Every case I have ever won has been based on a lack of foundation. * When money is paid to or on behalf of a Homeowner, a financial transaction has occurred. But the payment of money does not create a loan without a lender and a

Western Progressive LLC is named as Trustee or even Attorney on many forms, notices and recorded documents in foreclosures. Who is this Luxembourg LLC and Why do all paths lead back to Ocwen?

February 7, 2022

why such a company would ever be seen as a qualified party to (a) serve as a trustee on a deed of trust (b) make any claims whatsoever and (c) allow its name to be used by FINTECH service providers operating under contract with Merrill Lynch and its “successor” Bank of America. This is especially true because there is no beneficiary who executes the Subsitution of Trustee and no beneficiary named that is qualifeid as a beneficairy — i.e., the one to whom the udnerlying obligation is owed. And all this goes back to what I said somewhere around my

"Payment History" is not the loan receivable account

February 2, 2022

The payment history is not the loan receivable account by definition and it is never presented as such. Failure to recognize this obscure fact often results in failure. But those who do understand it, raise their chances of a successful defense from unlikely to very likely. A lawyer (Scott Stafne) shared with me a case that he is apparently working on. This case is interesting because the lawyer for the homeowner has filed the final round of motions in the discovery cycle, which is a Motion in Limine — i.e., a motion to limit testimony from the sole robowitness expected

THREADING THE NEEDLE: IT IS WHAT THEY DON'T SAY THAT REVEALS THE TRUTH — AND YOU CAN USE IT!

January 5, 2022

So talk about splitting hairs — here is a statement from a company that is claimed by third parties to be the servicer of a “loan.” Note that the parties making the claim do NOT swear that PennyMac is servicing claims to administer, collect and enforce for them, but rather for some unknown creditor or some other entity that does NOT make such a claim. Think about that. Here is the quote: PennyMac, who, as the loan servicer, is authorized to accept payments for your loan. And here is the analysis of that statement: PennyMac IS authorized, although not by

Destroying, Hiding or Fabricating Evidence: Doctrines Regarding Spoliation of Evidence

December 28, 2021

The latest issue of the Florida Bar journal contains several interesting articles. One of them is entitled “Spoliation of Evidence and Non-party witnesses.” The author is Gary M Glassman, who is the attorney for Daytona Beach. The major points of the article that I think are relevant to Foreclosure Defense litigation are that (A) spoliation has a very broad meaning and (B) the refusal to produce documents that are relevant to the case at Bar raises an inference in favor of the homeowner, and might even give rise to a cause of action for damages. Foreclosure lawyers have long relied

Stop Using the Labels: Homeowners Lose Foreclosure Cases When They Refer to the "Servicer"

December 27, 2021

You need to challenge the status of the company claiming to be a servicer by finding out what functions they really perform. * I know I have contributed to the problem, but I think it’s time to stop using the labels that are promoted by the banks. * Companies that are claimed to be the “servicer”, by all accounts, do not perform any functions normally attributed to that label. This it is against the interests of the homeowner or the lawyer representing the homeowner to accept the use of the term unless there is foundation testimony as to the actual

Why You Need to Perform Investigation of Real Facts in the Real World

December 22, 2021

I state with great confidence that among those homeowners who perform and achieve a slam dunk win over the foreclosure lawyers, the great majority enjoy that victory because they did the investigation and hired a lawyer who knew what to do with the information (as opposed to slinging it at the judge and expecting the judge to make sense of it). Question received from one of the readers of this blog: “I’m trying to understand how a house in NJ. Is alleged to be notarized in Florida and recorded by a company in Idaho (whose Name of course, is not

You Can Use This As a Template for How I Would Respond in a Discovery Dispute — Especially with Wells Fargo, Fannie Mae and Wachovia as the Originator

December 14, 2021

In a dispute between the attorney for the homeowner and the attorney for the alleged “lender”, there are a number of devices that are nearly universally applied across the country in order to ridicule and defeat the homeowner. The more you are aware of them, the better you will be prepared to deal with them. Opposing counsel is instructed to accomplish several things (winning being the last of the things on his or her menu). First, the idea is to undermine the confidence of the homeowner and to undermine the confidence of the lawyer for the homeowner in any defense

Here is How Wall Street Smoke and Mirrors Works

December 1, 2021

The idea that some company bearing the label of “servicer” is performing financial functions and accounting on behalf of an investor, a trust, a trustee is completely false from end to end. Such companies do nothing and were never intended to do anything except act as a buffer, in name only, to prevent liability attaching to investment banks who had entered the lending marketplace without any intent to enter the business of lending money for profit. But when the homeowner admits that such labels and narratives are true, the law of the case becomes the false narrative and labels. As

How Likely Is It That a Homeowner Will Win a Foreclosure Case?

November 30, 2021

The answer to this question depends upon the homeowner — not the judge. * If the homeowner rigorously, aggressively and persistently seeks enforcement of the rules of civil procedure, the rules of discovery, the rules of evidence and enforcement of court orders, the chances of quite good that the homeowner role reach a very favorable result. * If the homeowner attempts to make a claim or state and affirmative defense that requires proof of malfeasance by the opposition (or anyone else), probability of failure is extremely high. * The general consensus has accepted the proposition set forth in the national

The fallacy of construing negative decisions as bad decisions for homeowners

November 29, 2021

It’s not the job of courts to save litigants from their own admissions. Here is a simple rule: if you admit the existence of the loan account receivable and you admit the rights of the servicer and the currently named claimant, you have no viable basis to challenge standing or enforceability. “Yes, but” doesn’t count in court. Here is the other rule: if you challenge the existence of the loan account receivable and deny the rights of the servicer and the currently named claimant consistently, starting with the first notices and correspondence that you receive after the apparent “closing” the

Unilateral Mistake: Equitable Defenses Explained — How homeowners can get the upper hand and defend against enforcement of contract that is different from the one they knew or intended

November 10, 2021

Homeowners are missing out on a huge opportunity for economic gain that balances the power between Wall Street and consumers. Courts of equity are courts of conscience, which should not be shackled by rigid rules of procedure,[51] and inherent in a court’s equitable powers is the authority to prevent injustice engendered by fraud, accident, or mistake.[52] Florida Bar Journal Novembert/December 2021 “Two, Three or Four Prongs? The Contractual Defense of Unilateral mistake in Florida” Second, there is a distinction between the equitable remedies of rescission and reformation that may further blur the lines. The Florida Supreme Court and a few others

Who gets a QWR or DVL and When?

September 21, 2021

LEARN HOW TO FIGHT WITH HONOR AND WIN! After some reflection, legal research and analysis I have come to the conclusion that a very good way for homeowners to put tracks in the sand that they can use later with success is to use the following protocol — subject to the opinion of local counsel: Send QWR and DVL to “servicer” and nobody else. Under statutes, service to one is service to all anyway. In cases where the creditor is either asserted or implied to be a bank as trustee for a REMIC trust, send a second QWR and DVL

Tonight! Neil Garfield makes it simple: Lying for Dollars: How to Apply Your Understanding of Securitization Claims to Win

April 8, 2021

Thursdays LIVE! Click into the Neil Garfield Show Tonight’s Show Hosted by Neil Garfield, Esq. Call in at (347) 850-1260, 6pm Eastern Thursdays “Your Honor, this is a standard foreclosure.” That is the first lie told in court as lawyers, and companies claiming to be servicers, lenders, or trustees continue to play their game of lying for dollars. It’s obvious I have not simplified the explanation enough because both lawyers and homeowners still mostly don’t understand what I am talking about. That means they can’t use it effectively, as I have, and that means the judge won’t have any idea what you