No it is NOT a "Payment History" even if it is labeled as such and even if a witness testifies that it is a payment history

October 11, 2022

Bottom Line: Homeowners and their lawyers should immediately question whether the company on the letterhead sent anything, knows anything, or did anything.

Those who follow this strategy are likely to prevail at least 65% of the time.

People are asking me why I am splitting hairs about the testimony of the robowitness who appears at trial. It is because the foreclosure mills are getting away with it.

It is all about the letterhead. That is where the lie begins. By the time the robo “witness” testifies, the court will assume that the homeowner has admitted, virtually admitted, or deemed that that company sent previous statements, correspondence, and notices and that said company is a servicer.

In nearly all cases where the homeowner has been foreclosed or is at risk (i.e., threatened) of foreclosure, those assumptions rely entirely on nonexistent facts. In ALL cases I have reviewed, they are not even alleged. The only foundation for that assumption comes from self-serving nnotices, statements, and correspondence sent out by mail services for FINTECH companies operating under AI instructions. It never comes from the alleged creditor itself. There is no creditor in most cases and no unpaid loan account.

Many homeowners make the mistake of relying upon the “payment history” Which is only a report of a report based upon the data from a chain of companies performing the functions that you probably associate with that of a single servicer.

Both the homeowner and the lawyer frequently make the mistake of pointing out errors in the payment history as though it was a valid document. By using that document, you are implicitly admitting that it is valid. You are tacitly agreeing to its admission into evidence by admitting it is valid.

The best you can hope for in that circumstance is some sort of modification that does little to reward the homeowner with the deserved compensation. The bolder choice is to begin your attack as soon as you read this or before. That is what leads to victory in court for the homeowner — if they are properly represented in court.

And with the rules changing back again, the availability of recovery of attorney fees has returned. By preventing the foreclosure mill from introducing evidence that establishes the existence of the unpaid loan account on the books and records of the designated creditor, the opposition is not just defeated by the standing argument; they are also defeated by a finding that, after a trial on the merits or (summary judgment based upon evidentiary sanctions), they were unable to introduce evidence of the existence of a claim.

And once that goes to Final Judgment, they don’t have the right to relitigate or refile. The game is over unless they appeal. The motion for fees will most likely be granted (at least in Florida and other states following the corrective action taken by Florida). THEN you have an action for abuse of process, wrongful foreclosure, etc.

Now here is how to lose:

Once you are deemed to have tacitly agreed to admit the “payment history” into evidence you have then tacitly admitted that the company whose name appears on the letterhead or on the statement or notice is the source. It is likely to be held that you have agreed that the company is “the servicer.”

And logically, once you have agreed that the company is “the servicer,” you have also agreed that it is the proper representative of the company that has been designated as the creditor and, therefore, the claimant or plaintiff in the foreclosure action.

And since it is deemed to be a servicer, the records produced under the letterhead of the company named or designated as a “servicer” are deemed to be valid entries representing debits and credits to an unpaid loan account created by receipts of payment by the “servicer” — when in fact that company has never received or deposited any payment and has not created any data or records of any business done by that company in connection with the homeowners’ alleged obligation.

Bottom Line: Homeowners should immediately question whether the company on the letterhead sent anything, knows anything, or did anything.

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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).

Yes you DO need a lawyer.
If you wish to retain me as a legal consultant please write to me at neilfgarfield@hotmail.com.

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No it is NOT a "Payment History" even if it is labeled as such and even if a witness testifies that it is a payment history