Thursdays LIVE! Click in to the EAST COAST Neil Garfield Show Or call in at (347) 850-1260, 6pm Eastern Thursdays   see https://livinglies.me/2018/10/17/if-it-is-their-case-then-they-must-prove-it/ Foreclosure defense essentially boils down to three major categories. Procedural errors, lack of standing and absence of an actual creditor. * Procedural errors involve improper notice, improper accounting, and inconsistent documents. * As for no creditor and no party with standing,…[...]

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Tags: BURDEN OF PROOF, legal presumptions
Posted in Uncategorized |

As I have said since 2006, the burden of proof should not shift to homeowners until the pretenders have made their case. To get rid of legal presumptions homeowners need only prove a credible narrative (like probable cause) that the documents are fabricated or falsely executed. After that, what is the harm of making the pretenders actually prove their case?…[...]

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Tags: authenticity, BURDEN OF PROOF, credible, presumption, self-authentication, validity
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Foreclosure defense litigants usually find themselves in a fog of questions they can't answer. That is because the banks are using a tactic that I have called "step-over." If they can't prove an essential element of a case they step over it and pretend it was already established before. ADMIT NOTHING. ASSUME NOTHING. Let us help you plan for trial…[...]

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Based on questions that greeted me when I got to my desk this morning, here are just some of the thoughts that apply --- a case review and analysis for each case being necessary to actually draft the right questions and to close any trap doors. Let us help you plan for trial and draft your foreclosure defense strategy, discovery…[...]

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Tags: authority, authority to represent, beneficiaries, discovery, Hawaii, motion for summary judgment, Motion Practice, motion to compel discovery, MOTION TO DISMISS, owner of the debt, REMIC TRUST, settlor, Supreme Court, trustee, Trustor
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Hawaii Supreme Court Restores Balance in Foreclosure Cases Now that courts are less fearful of triggering an economic meltdown, judges are returning to legal decisions instead of political ones. The Hawaii Supreme Court has taken a major step in that direction with a landmark ruling reaffirming long-standing civil procedure principles and giving homeowners a fairer chance to defend themselves. The…[...]

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Tags: ACCESS TO COURTS, bac home loans, Bank of America, countrywide, discovery, legal presumptions, legal standing, MOTION TO DISMISS, notice pleading, plasubility pleading, Reyes-Toledo, TRUTH, wrongful foreclosure
Posted in foreclosure defenses, Foreclosure Questions, Pleading |

Thursdays LIVE! Click in to the WEST COAST Neil Garfield Show Or call in at (347) 850-1260, 6pm Eastern Thursdays   Charles Marshall will discuss today two seminal unlawful detainer (UD) cases, in which respectively in each case the lower Court there found per usual for the institutional UD Plaintiff against the 'former' homeowner who was foreclosed on by an institutional trust, aka 'lender-in-succession'. Yet…[...]

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Tags: Eviction, Unlawful Detainer
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Fundamental questions: How can a "trust" change trustees without consent of the Trustor and/or beneficiaries? Is this statement true: The position of being a Trustee for a REMIC Trust is a salable, transferrable commodity that can take place without the knowledge or consent of the Trustor or the Beneficiaries? Hence were all those changes in Trustees void or invalid and…[...]

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The Common Misconception About Notes and Debt For most people—including lawyers and judges—the concept of endorsing a promissory note and delivering the “original” means only one thing: The note is evidence of the debt. Under the merger doctrine, the transfer of the note equals transfer of the debt. Therefore, the transferee “owns” the debt. Banks have exploited this assumption in…[...]

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Tags: debt, promissory note
Posted in evidence, foreclosure defenses, securities fraud, Uncategorized |

Mortgage foreclosure is the civil equivalent of the death penalty. in criminal cases. Many court decisions have enthusiastically supported that notion and attached much more stringent rules to the enforcement of a mortgage or deed of trust than they use in enforcement of a note. That is, until the last 20 years. If you begin with the assumption that securitization…[...]

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Tags: ARTICLE 3, BURDEN OF PROOF, conjecture, legal standing, presumptions, proof of payment, PRUDENTIAL STANDING, standing, TRUTH
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Thursdays LIVE! Click in to the WEST COAST Neil Garfield Show Or call in at (347) 850-1260, 6pm Eastern Thursdays Yes the bane of California-based litigators both attorneys and those in pro per is MERS, and the way California courts State and Federal routinely allow MERS assignments to be sanitized and made legitimate, notwithstanding the many issues with same assignments, from robo-sigining, to…[...]

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