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Editor’s Notes and Analysis:
This is the type of decision that can be expected almost every time when the homeowner or counsel focuses on the documentation rather than the money. By not alleging the absence of a transaction with the foreclosing party and the absence of a transaction with any predecessor to the foreclosing party, the property owner essentially conceded its case before it began.
I agree that the Bassman case represents a problem, but only in the same sense as all other negative cases present problems, to wit: bad law arises out of bad lawyering.
Lawyers tend to skip through a decision until there is a discussion of the law. They should be reading the facts. This court assumed the existence of the subject mortgages and assumed the existence of a default. in its discussion regarding choice of laws between one state and another, it assumed from the record that an obligation or debt existed. Litigants are just not getting the message–the courts are not going to provide any substantial relief to borrowers on the grounds that there are defects in the documents upon which the fore closer relies. Most judges and most appellate courts essentially subscribe to the view that the only way to discharge a debt or attack it in bankruptcy is by a) alleging facts supporting an allegation that the mortgage lien was never perfected and that therefore the obligation is unsecured–an argument which is unlikely to be accepted without the second part which is b) the borrower denies any financial transaction with the forecloser and further denies any default, debt, obligation, lien or any other right to enforce an obligation that does not exist. This usually should be accompanied by some statement that the borrower denies the signature on the note, mortgage or other “closing documents” unless it was procured by deceit and trickery in which the borrower was unaware of the true facts of the transaction.
Borrower’s counsel must take control of the narrative with objections even to preliminary argument. And the question which frequently comes form the judge as to whether or not counsel or the borrower will concede that the borrower accepted the benefits of a loan should be met with an answer sounding something like this: “The borrower has had many loans in the course of his or her life, but has never entered into a transaction nor accepted any funds from the party seeking to collect on a nonexistent debt. The borrower denies accepting any money from the named originator of the loan. Further borrower denies that any intervening assignments were supported by either facts or payment.”
The lawyers in the Bassman case got stuck in the rabbit hole of standing and other technical issues while the real rabbit scampered away. Unless the forecloser can plead and prove the elements required as the foundation for the documents upon which they rely, which means proving that the financial transaction recited in those documents actually took place, they are precluded from proceeding any further. As an alternative, even the most doubtful judge could be persuaded to allow discovery to proceed and for the borrower to survive preliminary motions based solely on the denial of the debt, denial of the default, and denial of the foreclosers right to collect or enforce through foreclosure.
Bassman-ILL APP Bof A vs Bassman
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