Category: Pleading

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

Article 3 vs Article 9: The Foreclosure Defense Strategy

April 14, 2026

Most foreclosure cases are decided on an assumption that is never actually proven. That assumption is simple: “If the bank has the note, they have the right to foreclose.” But that is not what the law says. And if you build your defense around that assumption, you will lose — even if the party foreclosing has no right to enforce the debt. The truth is this: Article 3 of the Uniform Commercial Code deals with enforcement of a note.Article 9 deals with ownership of the debt. Those are not the same thing. See definitions discussed here And foreclosure is not

Lack of Standing Defense in Foreclosure

June 18, 2024

Many of us heard about the issue decided by the United States Supreme court in the abortion pill case this past week but you might not be aware of what Lack of Standing means. Whatever you opinion on the FDA approval of that drug, the court rejected hearing the case citing the plaintiff doctors, who wanted the pill banned, had no standing to bring their suit. So what is “legal standing” and how does it apply to Foreclosure Defense and specifically MERS.? What is Legal Standing? Legal standing refers to the right of a party to bring a lawsuit to

Rethinking Legal Defense in Foreclosure Litigation

April 28, 2024

Let’s break down foreclosure battles into simple terms. Imagine you’re playing a game where the odds feel stacked against you, and you’ve been told from the start you’re going to lose. That’s how it feels for many of you fighting illegal foreclosures to keep your home. Many Lawyers often don’t want to touch these cases because they think they’ve got no chance to win. That’s why so many of you describe having a hard time finding a lawyer. Foreclosure defense is a specialty practice that is not very popular with many in the banking and judicial system. At Living lies

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

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

FCRA Might Be Fertile Ground for Individual and Class Actions Especially under CFPB Rules

May 3, 2022

if the CRC does not perform the investigation or performs it incorrectly, you can sue them. In a world where the ability to access credit matters more than the ability to access savings, nothing could be more important than these provisions under the Fair Credit Reporting Act (FCRA). Anyone who read the book or saw the film “The Firm” knows that it is often a boring statute that can take down the worst offenders. It was mail fraud in that story. For more information ask the descendants of Al Capone who died in prison of syphilis after being convicted of

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

Why the UCC Matters in Foreclosure Cases

April 5, 2022

The problem as illustrated by many scholarly articles and articles on this blog is that courts are given to treat plaintiffs and claimants as holders in due course without anyone asking them to do so. The first thing you need to know about Foreclosure is that it is only about money. If you have the money and you pay it, there is no claim — or at least no claim against you. You might have a claim against a “debt collector” seeking to enforce a nonexistent debt for a nonexistent claimant. The second thing to remember is that, by definition,

Use of QWR and DVL is extremely important in counteracting the tracks laid down by securitization that fake a contractual relationship with the homeowner

January 31, 2022

If you are not willing to challenge the basic assumptions of the loan or debt, then you probably should not even start any challenge or defense. If you are willing to do that you will probably win or force the “dark side” into a settlement that you find favorable to your interests. You don’t need to understand how the debt vanished. You only need to know that if you challenge its existence and therefore its owner and agents, the dark side will fail. The inability of consumers to understand the securitization process is not a legal excuse for preying on

Getting a piece of the pie: How securitization can work FOR homeowners and not against them

January 19, 2022

There is no sale of the obligation, note or mortgage and so there is no securitization of debt. By splitting the attributes of behavior from the provisions of the executed documents and changing the description of the behavior, an investment bank could, in essence, sell the apparent debt an unlimited number of times without ever recording the sale of the debt, note or mortgage. In most instances, the “closing” of a transaction with a homeowner results in the issuance of a note and mortgage promising payment that is not supported by any reciprocal consideration. In most of the other cases, the “closing” results in very

How Those Refi's Were Turned Into Gold by the Investment Banks

January 12, 2022

Most people cannot conceive of why they should have been paid more at the purported “Closing” of their transaction than what they received or what they think was paid on their behalf. * But the bottom line is that in most cases, whether the transaction involved a resale of the home or “refinancing,” only a fraction of the money you thought was transacted was actually present. It’s not just that they should have been paid more — it is that the homeowner did not receive the money he or she promised to pay back. This fact is part of a

Wilmington Entities in Foreclosure

December 29, 2021

The “Wilmington” name shows up with what appears to be increasing frequency in foreclosures. The bottom line, in my opinion, is that whenever the “Wilmington” name appears in foreclosure cases, it is an attempt to launder title such that the lawyers who prosecute the foreclosure process can reasonably imply that he or she is representing a creditor who is one or more of the following — none of which are true in any respect, in my opinion, and no evidence has ever been produced to support these premises: it is a holder in due course of a promissory note, It

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

Tonight! Q&A on Prelitigation Strategies — QWR, DVL and Complaints to CFPB and State AG 6PM EST 3PM PST

December 9, 2021

Thursdays LIVE! Click into the Neil Garfield Show Tonight’s Show Hosted by Neil Garfield, Esq. Call in at (347) 850-1260, 6 pm Eastern Thursdays As a follow-up to our FREE presentation CLE webinar on Prelitigation Strategies and Practices, we offer an open mike Q&A on tonight’s show. Please think about your questions in advance and refrain from long monologues about your case. As an introduction let me state the obvious premise of this work: If as a consumer you have executed a promissory note and mortgage (or deed of trust) and you think that there is a loan account receivable somewhere

How Could This Not Be a Loan?

December 3, 2021

if the investment bank paid the homeowner as an incentive payment rather than as a loan, then there is no debt any more than salary or wages can later be called a loan. The fact that the consumer/homeowner thought or even wished it were otherwise makes no diffeerence. If I pay you money and you think it is a loan but I paid you for services you rendered, the substance of the transction is “fee for services” — not a loan — and there is no legal or ethical or moral obligation to pay it back. I think the one

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