Why Procedure Matters More Than Being “Right” in Foreclosure Defense

By Neil F. Garfield, MBA, JD
Disclaimer: This article is for educational purposes only. It is not legal advice. Always consult with a licensed attorney about your specific case.

The Hardest Lesson

The hardest part of my job is educating homeowners (and sometimes lawyers) about court procedure. To most laypeople, procedure feels incomprehensible, even nonsensical. But it has its own internal logic — and ignoring it is the number one reason homeowners and pro se litigants lose.

I often hear complaints: “I used the arguments from your blog, and the judge ignored me.” The truth is: they didn’t lose because the arguments were wrong. They lost because procedure wasn’t followed.

Why Courts Exist

The court’s purpose isn’t necessarily to “do justice.” Its primary role is to resolve disputes with finality. Once a judgment is entered, doctrines like res judicata and finality make it extremely difficult — often impossible — to reopen the case.

That’s why screaming “fraud!” after the fact rarely works. Unless it’s pleaded properly, tied to the right orders, and raised at the right time, it’s procedurally dead.

Example: Fraud on the Court

Take the common allegation of fraud in foreclosure cases.

• First question: Was fraud specifically raised and decided by a court of competent jurisdiction?

• If yes, then that order — whether denying discovery, overruling an objection, or entering final judgment — is already binding unless timely appealed.

• If no appeal was filed, or the wrong order was appealed, the issue is lost.

This is why appeals are expensive. Appellate lawyers must analyze the precise order at issue, file within days, and frame the issue in one or two powerful sentences that grab a panel clerk’s attention.

Why “Fraud” Is Hard to Prove

Even when properly raised, fraud is one of the hardest claims to win because:

1. Specificity Required – Who said what, when, how, and to whose detriment?

2. Higher Burden of Proof – Fraud requires clear and convincing evidence, far higher than the ordinary civil standard.

3. Intent to Defraud – Courts often expect proof of a pattern of misconduct, not just one bad act.

That’s why I tell clients: you don’t need to “prove fraud” in the broad sense. You need to use discovery to expose gaps in the plaintiff’s prima facie case — gaps they can’t or won’t fill.

The Real Battleground: Discovery

Winning isn’t about shouting at trial. It’s about motion practice before trial:

• Motions to compel discovery

• Motions for sanctions

• Motions in limine

• Timely objections at trial

Every motion must be supported by evidence of why the request matters and why no other source exists. Without this foundation, objections get waived, and the judge defaults to siding with the foreclosure mill.

The Bank of New York Mellon Example

We all know that Bank of New York Mellon typically:

• Has no financial interest in the loan

• Doesn’t receive borrower payments

• Exercises no trustee powers over trusts

Yet its name appears in foreclosures across the country. The lawyers never talk to Mellon. They hide behind litigation immunity and plausible deniability.

But knowing this isn’t enough. You must use procedure to force discovery into whether Mellon (or any claimant) ever received a single payment. If they can’t or won’t answer, you then move for evidentiary sanctions. That’s how you win — not by shouting “fraud” but by using procedure to reveal the absence of evidence.

Shifting the Judge’s Perspective

Judges usually assume:

• The debt is real.

• The borrower defaulted.

• Foreclosure is justified.

And many fear that if homeowners win, the financial system will collapse.

Your strategy must reframe the issue:

• Show that the foreclosure is not about restitution of a real debt but about profit for intermediaries.

• Emphasize that the real creditors (investors) are cheated by these foreclosures because they never see the money.

• Position the foreclosure as an abuse of process, not an inevitable consequence of default.

Bottom Line

Being “right” about securitization, standing, or fraud isn’t enough. Procedure wins cases.

• File thoughtful, specific answers.

• Target discovery to issues they can’t prove.

• Pursue motions when they evade.

• Preserve objections for appeal.

If you ignore procedure, you’ve already conceded. But if you master it, you can expose that the foreclosure is being pursued for profit, not repayment of a legitimate debt.

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