Mar 23, 2021
By presuming that virtually all defenses to foreclosures, other than payment, are without merit and futile, and by administering discipline or injunctions to lawyers who prove otherwise, the state has created a gap that only the state or Federal government can fill.*They must assign and train, if necessary, competent trial counsel or represent homeowners who are faced with the administration, collection to the enforcement of alleged debts by securitization players.*If they fail to do so, any homeowner faced with foreclosure who is unable to find competent trial counsel (i.e., an attorney with trial experience who accepts an engagement to win the case) is being deprived of access to courts, due process, equal protection and right to counsel. — Neil F Garfield. March 10, 2021 www.livinglies.me
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One true and accurate statement for homeowners is that you won’t find a lawyer willing to accept an engagement that is predicated on winning a case involving claims to “foreclose” by parties who have no right to assert such claims much less get money for doing so. This is true despite the obvious need for trial counsel who can navigate the rules of court, the rules of evidence, conduct discovery to unveil the truth about the existence, ownership, and authority over the alleged debt.
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The problem faced by homeowners is nothing less than an unconstitutional deprivation of the right to counsel and right to be represented in court. This problem has been created primarily by the chilling effect on the access of counsel caused by disciplinary or court rulings that have chased successful foreclosure defense lawyers out of the marketplace leaving homeowners with a choice that violates equal protection.
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I can cite dozens of cases besides the recent revocation of the state license of Gary Victor Dubin in Hawaii based upon an application in which a checkbox was overlooked. There is also the FTC who has used its overwhelming power to ban lawyers from ever offering services to homeowners seeking to defend foreclosures. The basis for all such civil and disciplinary actions is the assumption that any such defense is merely dilatory, pointless, and futile. From that arises the assumption that the lawyer is collecting fees on an engagement that should never have been started. Don’t ask me — ask the FTC, ask the state bar associations if that is not exactly how they view it.
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The result is that attorneys were disciplined, barred, or otherwise threatened out of the marketplace in which they could have offered their services as foreclosure defense counsel. The problem is that the main complaint is that these trial lawyers were extremely successful at defeating foreclosure claims that the establishment (i.e., the state) considered to be vital for the free flow of commerce.
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For lawyers, it is a choice between high risk of disciplinary or legal (FTC) action or retreating to the background so they don’t appear as attorneys of record. That leaves them out (maybe) of court and out of the crosshairs of any disciplinary panel or FTC action. For homeowners, they either litigate pro se or quit their homes in the face of a claim by a party who at best is a virtual creditor whose status is not recognized by law.
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So I pose this question: Does every state have the obligation to assign and maybe pay for the legal defense of homeowners who are facing the civil equivalent of capital punishment (i.e., loss of their homestead and largest investment)?
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I say the answer is yes. Having chased out all hope of effective representation by competent trial counsel, the state is obligated to fill in the gap or face the question, in federal court, as to whether they are systemically depriving homeowners of their right to due process? The effect is obvious. 96% of all foreclosures end up successful because of homeowner court defaults or failure to take advantage of legal process. But 65% of those who have effectively challenged foreclosures based upon securitization claims have been successful for the homeowner.
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Doing the math it is obvious that the situation would be far different if the 96% who do nothing because they think the situation is hopeless had effective trial counsel. We could all conclude that all such foreclosures are suspect instead of the current consensus that all defenses are not only suspect but lacking in credibility. The failure of the homeowner to articulate a valid defense is responsible for losses in the courtroom. It is not the absence of valid defenses.
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By presuming that virtually all defenses to foreclosures, other than payment, are without merit and futile, and by administering discipline or injunctions to lawyers who prove otherwise, the state and Federal government has created a gap that only the state or Federal government can fill. They must assign (and train, if necessary) competent trial counsel or represent homeowners who are faced with the administration, collection to the enforcement of alleged debts by securitization players. If they fail to do so, any homeowner faced with foreclosure who is unable to find competent trial counsel (i.e., an attorney with trial experience who accepts an engagement to win the case) is being deprived of access to courts, due process, equal protection and right to counsel.
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Of course, the other option is to analyze the cases where homeowners have won and then adapt policy, rules and preapproved pleading to require absolute assurance by the attorney and the designated claimant regarding the existence of a loan account receivable on the accounting ledger of the claimant, the ownership of the account receivable and other authority to administer, collect and enforce it.
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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.
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Neil F Garfield, MBA, JD, 73, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business 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 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.
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But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more.
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Yes you DO need a lawyer.
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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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