When the homeowners loses in the trial court what are the options?

April 26, 2022

Foreclosure litigation is a very special type of case. Normal rules of limitation and basic requirements of proof have been softened in favor of giving lawyers the opportunity of saying they represent a Bank that is the trustee of a trust. Those lawyers don’t need to assert that the trust owns any underlying obligation owed by the homeowner to the named Bank as trustee. It is all implied. And they never are required to show proof of authority to represent the bank. In fact, they have no contact with the bank.

The virtually unanimous court doctrine in foreclosure cases is that the courts can be used as a shield against liability for illegal conduct. So this creates several different layers of litigation depending upon when the foreclosure defense lawyer picks up the case.

An appeal is always an attractive opportunity for the layperson but lawyers know that (a) the appeal won’t stop the sale of the property unless the court issues a stay and (b) the odds of achieving any result that could be categorized as successful in the appeal of a foreclosure action are about 200:1 at best.

Your next question is like a double-edged sword. On the one hand, the courts have treated the subject of wrongful foreclosure as not maturing until the Foreclosure case is complete. On the other hand, there is court doctrine that presumes the validity of all preceding orders arising from prior litigation — but only if they were favorable to the foreclosure mills.

This comes partly from the doctrine of finality which is an important doctrine from the standpoint of bringing disputes to a close and partly from the mistaken widespread belief that disallowing foreclosures would destroy the sanctity of contracts that courts are sworn to uphold.

So that is why I am always conflicted when guiding people into or out of litigation. Yes, I believe that all these foreclosures are scams and that the opposition would be unable to prove the basic elements of their claim if put to the test. But starting out — particularly when the case ruling is against the homeowner —- is daunting.

Yet I believe that anyone with the resources to attack this scam at the trial level will most likely (3:1 odds) win. The odds get worse after an actual judgment is entered against the homeowner. But they get better when you add newly named parties discovered by forensic investigations. And the odds become very good when you get to the point where you are pressing for orders compelling responses to discovery demands.

I have only seen a few cases in which homeowners were able to do it on their own and those were cases from 10-12 years ago. I’m speaking here in terms of actually getting a judgment or settlement that consists of real value to the homeowner — reducing or eliminating the debt, payment of damages and attorney fees, court costs etc.

The successful cases (i.e., cases in which the homeowner received substantial relief or value) have the following attributes:

They are buried and even scrubbed under both confidentiality (NDA) agreements and court-ordered expunging of the record
The homeowner was represented by aggressive trial counsel who had internalized the belief that the case was winnable.
Discovery demands were made and pursued.
Motion practice was aggressively employed.
The opposition had been shoved into a corner where they had no answer that wouldn’t put them in jail or under administrative procedures removing their charter or license.

So my short answer is that homeowners who start early, perhaps before any foreclosure is initiated, are the ones most likely to get a favorable outcome.

After the case is over and the judgment is against the homeowner, the odds are daunting. But a well-conceived complaint that is specific in its allegations that form the basis of a cause of action upon which relief could be granted is likely to survive a motion to dismiss or demurrer. Once you get past that milestone your chances are vastly improved.

There are some early strategies and tactics that I outlined on my show 2 weeks ago. But it is too early to say if they will be successful. I have started using them and we’ll see what happens.

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Nobody paid me to write this. I am self-funded, supported only by donations. My mission is to stop foreclosures and other collection efforts against homeowners and consumers without proof of loss. If you want to support this effort please click on this link and donate as much as you feel you can afford.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
CLICK TO DONATENeil 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.

Please visit www.lendinglies.com for more information.

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When the homeowners loses in the trial court what are the options?