Category: Motions

The Foreclosure Business Records Trap

August 11, 2026

How Servicers Try to Get Computer Records Into Evidence There is a moment in many foreclosure trials that homeowners and even some lawyers fail to recognize as one of the most important moments in the entire case. The introduction of Foreclosure Business records. The foreclosure lawyer hands a stack of documents to a witness. The witness identifies them as records maintained by the mortgage servicer. The lawyer asks a series of questions about how the company keeps its records. Then the lawyer asks the judge to admit the documents into evidence under the Foreclosure business records exception to the hearsay

TRO in Foreclosure: Emergency Court Orders Can Stop a Sale

June 23, 2026

One of the most common statements heard from homeowners facing foreclosure is: “I wish I had acted sooner.” Unfortunately, many homeowners do not realize how quickly foreclosure timelines can move until a sale date has already been scheduled. The notices arrive. The servicer refuses to answer meaningful questions. The foreclosure attorneys continue moving forward. And suddenly the homeowner is staring at a trustee sale date that may be only days away. At that moment, many people assume there is nothing left to do. That assumption is often incorrect. In many situations, courts possess the authority to temporarily stop a foreclosure

12-Step Foreclosure Defense Program: A Complete Homeowner Guide

June 4, 2026

Read this 12 step Foreclosure Defense guide carefully because most homeowners lose before they ever walk into court. Not because the bank proved its case. Not because the servicer proved ownership of the debt. Not because a judge carefully reviewed every transaction involving the loan. They lose because they assume the foreclosure paperwork must be true. That assumption will cost you your home. The foreclosure industry depends upon assumptions. It depends upon homeowners believing that because a company appears in court claiming to be a lender, trustee, servicer, beneficiary, creditor, or note holder, that company must automatically possess the legal

Foreclosure Defense Attorneys are hard to find

January 4, 2024

Once of the most common problems readers of our blog describe is trouble finding a foreclosure defense attorney to take their case. Not only take their case but even listen to them! In our experience this is a result of two main issues. 1. Expertise We often say amongst our team here at livinglies that not only are we among the very best at defending foreclosure, we’re among the very few! This is a highly specialized practice and not for the faint of heart. (We are regularly attacked by the big money players and judges we oppose and appear in

HEARSAY OBJECTION AND LACK OF FOUNDATION: How Lockbox and Separate Processing Agreements Divert Money and "Servicing" Functions to Undisclosed Third Parties Acting on Behalf of the Investment Bank Who Originated the Transaction with the Homeowner.

February 15, 2023

From LoanDepot quarterly report, 2022: The Company derives income primarily from gains on the origination and sale of loans to investors, income from loan servicing, and fees charged for settlement services related to the origination and sale of loans. Not one word about revenues or profits arising from the receipt of principal and interest from borrowers. But people who have done business with Loan Depot (and there are thousands of them) all think they borrowed money from Loan Depot. So when they see a document purpotedly endorsed or assigned from Loan Depot, it make sense. But it is a lie.

Interpleader Might Be Useful in Revealing the Absence of Any Unpaid Loan Account

April 28, 2022

One of my constant comment contributors recently informed me and others that she was trying a new tack. She writes “My attorneys are making a demand that any refi money be placed with the Court and that the judge decides who he wants to pay.” This is very close to an Interpleader action which is virtually unknown amongst laypeople and many lawyers. In an interpleader action, a party says to the court I have this asset and there are two conflicting claims to get it from me. In its purest form, the Interpleader says that he doesn’t care who gets

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

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

EARLY BIRD DISCOUNT ON WEBINAR ENDS 9/22/21

September 16, 2021

APPROVED FOR 2.5 CLE CREDITS APPROVED BY THE FLORIDA BAR HOMEOWNER ATTENDANCE PERMITTED Live and On-Demand Available EARLY BIRD DISCOUNT ENDS 9/22/21 What to Look for in Examining an Assignment How to Successfully Litigate the Issues How lawyers can make money in this niche APON and GTC Honors, Inc. an approved host provider for CLE (for lawyers) credits in Florida and 26 other states that allow reciprocal credits for licensed attorneys announce that they are producing a seminar presented by Neil F Garfield, MBA, JD , trial lawyer for nearly 45 years and investment banker for 50 years. Only lawyers

Chase loses again after trying sneaky maneuver

December 15, 2020

WHAT ABOUT ALL THE OTHER LEHMAN DEALS WHERE CHASE CLAIMED OWNERSHIP AND STOLE PROPERTY FROM HOMEOWNERS? Neither Chase nor anyone else actually has a claim or a case against the homeowner if the premise is that either Chase or some other named “trustee” owns the loan through the magical process of “securitization”. The fact that securities were issued is not a license to lie. Using a label doesn’t mean anyone is telling the truth. Even Chase couldn’t stomach defending a nonexistent securitization process; so it lied about something else. In this case it lied about ever receiving the note which

Sometimes the client figures it out better than the lawyer

December 7, 2020

The problem has always been how to present this counterintuitive reality to a judge who is convinced that securitization of a loan DID occur even though the transaction was not in fact a loan and no sale occurred. After decades of litigating and teaching litigation, the one common theme throughout my career has been the knowledge that often your best ideas come from the client, who is unencumbered by thoughts of what can’t be done. One such client of mine in the state of Hawaii asked a simple question. She asked whether the homeowner, post-foreclosure, could ask for surplus funds.

How and Why to Litigate Foreclosure and Eviction Defenses

December 2, 2020

[contact-form][contact-field label=”Name” type=”name” required=”true” /][contact-field label=”Email” type=”email” required=”true” /][contact-field label=”Website” type=”url” /][contact-field label=”Message” type=”textarea” /][/contact-form] Wall Street Transactions with Homeowners Are Not Loans * I think the biggest problem for people understanding the strategies that I have set forth on this blog is that they don’t understand the underlying principles. It simply is incomprehensible to most people how they could get a “loan” and then not owe it. It is even more incomprehensible that there could be no creditor that could enforce any alleged obligation of the homeowner. After all, the homeowner signed a note which by itself creates an

Why are conditions precedent so important in foreclosure cases?

November 6, 2020

The mischaracterization of a condition precedent alters the burden of proof. (e.s.) If compliance with the HUD regulation is a condition precedent to foreclosure, the plaintiff carries the burden of proving substantial compliance with the condition when it presents its case, so long as the borrower has made a specific denial of the plaintiff’s allegation that it had satisfied all conditions precedent (e.s.).2 See, e.g., Chrzuszcz, 250 So. 3d at 769–70. But if compliance with 24 C.F.R. § 203.604 is an affirmative defense, “[t]he defendant, as the one who raises the affirmative defense, bears the burden of proving that affirmative

The Key to Winning is Aggressive Discovery and Compliance with Court Orders

October 30, 2020

I have just received a slew of inquiries about what to do when the foreclosure mill files evasive responses and objections. Here is the answer. Discovery consists of the following steps toward victory: Framing your answer, affirmative defenses and/or allegations such that you are challenging the status and ownership of the underlying debt. Draft your discovery demands such that they all relate to status and ownership of the debt and the right to represent the designated Claimant or Plaintiff. File a motion to compel answers after you receive evasive answers and nonsensical objections. Get a hearing. Appear at the hearing

Careful what you say in "Hardship Letter"

October 5, 2020

Modifications are tricky. They are trickier than you think. First of all the offer is made by a company who has no right to act as “servicer” or to change the terms of your contract. By changing the apparent lender or creditor to the named servicer, the agreement is probably tricking you into accepting a virtual creditor in lieu of a real one. But the most important trick is that what they are really looking for is a direct or tacit acknowledgement of the status and ownership of the debt. So if you say that this “servicer” did something or

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

October 2, 2020

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: 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

Just like I said: Megabanks are doing just fine despite economic downturn — at the expense of investors, taxpayers and homeowners.

July 21, 2020

Major banks, including Citigroup, JPMorgan and Morgan Stanley used massive trading revenues to beat profit expectations despite the continued struggles of the United States economy during the coronavirus pandemic. Those trading units tend to perform best when markets are volatile, helping to guard the major banks against economic struggles. see https://www.cnbc.com/2020/07/17/without-big-wall-street-trading-arms-regional-banks-lean-on-mortgages-and-fees-to-beat-earnings.html Way back in 2006 and 2007 and when I first started publishing articles about the mortgage meltdown (before most people realized there was a meltdown) I reported that the major banks were siphoning off much of the wealth contained inside the U.S. I said that these mega banks were parking ill-gotten gains off-shore in various

Does the REMIC Trust Exist?

July 8, 2020

In all jurisdictions, even if the trust has some assets, and therefore legal existence as a legal person, if the asset in question has not been entrusted to the trustee on behalf of beneficiaries, the existence of the trust is completely irrelevant. And all claims arising from the supposed existence of the trust are also irrelevant and lack Foundation. I agree that the existence of the Trust might be a subject for debate. However, the fact that a trust exists on paper does not mean that it exists relative to any loan or debt or note or mortgage. In fact,

Hawaii Supreme Court: Bond on Appeal Should be Based Upon Evidence of Potential Loss Pending Appeal, Not the Value of the Property.

July 6, 2020

Many thanks again to Attorney Gary Dubin for bringing this to my attention. == The current hodgepodge of decisions that I have always maintained were merely vehicles to discourage appeals is taken to task in this well-reasoned decision. In Hawaii the rule is now no bond pending appeal or low bond pending appeal. The Hawaii Supreme Court has merely applied principales that are already stated in all US jurisdictions and applied it to limit the discretion of the trial court or even an appellate court to set an arbitrary amount to stay the effect of an adverse judgement. But this

The Best Article Yet on Illegal and Immoral Practices by Investment Banks Making False Claims About "Securitization of Debt" by Francesca Mari on Aaron Glantz Book "Homewreckers"

June 8, 2020

Francesca Mari in the JUNE 11, 2020 ISSUE of The New York Review of Books, has written a truly excellent piece on a book called “Homewreckers” by Aaron Glantz. If you ever had any doubt about whether homeowners have the moral high ground and whether the investment bankers have no moral or legal grounds for what they did, you should read the article and buy the book. ( I get nothing from sales of the book and I have not met either author — although I will contact them for interviews on my show). The only point that I think

Sham Affidavit Rule in Federal Courts Might Apply to State Court Actions in Foreclosure

June 5, 2020

A sham affidavit is one that asserts facts that are inconsistent with facts alleged in pleadings or previously proffered in discovery, prior affidavit or proffered documents. This happens a lot in foreclosure cases when foreclosure mills file motions for summary judgment. They often casually change the claimant by reference or name adding some power of attorney or other claim that is not attached or explained. The sham affidavit rule bars the affidavit in its entirety if it asserts facts or positions that are not consistent with prior assertions. The sham affidavit rule can apply to attempts to contradict not only

How to Deal with Motion for Substitution of Plaintiff in Foreclosure Actions

May 26, 2020

The single basic tool of the investment banks, who are secretly running the whole foreclosure show, is musical chairs. By rotating the players they can successfully bar the courts and the litigants from knowing or pinning down who is real and what is real. All of that ends if you sue the investment bank. Look at any foreclosure in which claims of securitization are known or suspected and you will find “rotation”. In nonjudicial states it starts with “Substitution of Trustee” on the deed of trust which can be done without any motion. Before or after that there is a

The Curious Distraction of Applying "Adverse Possession" Rules to Foreclosures that are Time Barred by Statutes of Limitation.

May 1, 2020

The reference to “adverse possession” in any of these cases is not about legally changing title due to the statute of limitations enabling adverse possession. I know what that looks like. Possession that is adverse is not the legal definition of the statute governing “adverse possession”. Not even close. In this case the court was using the words “adverse possession” loosely. An adverse possession claim is procedural and substantive. * For adverse possession to even be an issue that a court could adjudicate one would need to file a complaint alleging that the Plaintiff did NOT have legal title but had possessed

This will probably get me in plenty of hot water with lawyers. Homeowners should be winning foreclosures most of the time. The reason they don't? — Ineffective Counsel.

April 24, 2020

Sign Petition to Change the rules to Protect Homeowners from Fraudclosure. The problem is not the judges. The problem is the lawyers who walk into court believing that the loan is real, claimant is real, the claim is real and that they are only looking for technical ways to get their client out of a valid deal. The problem is exacerbated by magical thinking — that by pointing out bad acts by the foreclosure mill or servicer they will automatically cancel the mortgage, get quiet title and somehow the “debt” will disappear. Is it any wonder that judges are responding