Success Rate Using Livinglies (Garfield) Strategies

When you get flack you know you are near the target. The banks are scared by my strategies are working so they are planting articles and blogs around the country questioning either me or my methods. My proposed strategies do get traction, subject to consultation with licensed attorneys who practice in the county in which your property is located, are working — but success can be defined in many ways. Obviously, the Banks are planting articles about my personal history and blog that are in the nature of attack ads and like all attack ads, they appear to have raised questions in the minds of readers.

First let me say that my suggestions, analyses, comments and forms are mostly free on this blog. I have been writing 3500 articles for the last 6 years. I am a 35 year veteran of the court system, as well as a seasoned investment banker. I have represented banks and other lenders in court in foreclosures and I have represented HOA and Condominium associations in foreclosures for non-payment of liens and other matters. I know both sides of this issue and most of what is in the middle.

If I was wrong, then a comprehensive expert report would be forthcoming from the banks disputing my assertions. But after taking my deposition for 6 days, 9-5 each day, 16 banks decided not to ask me any more questions nor has even one bank, servicer or would-be forecloser has ever submitted an affidavit disputing my analysis or that of anyone on my team.

Next, success is defined in the eyes of the beholder. If it means holding a person in their home for the longest time possible and then leaving because they want to leave, it would appear that our success rate is very high — in the tens of thousands of homes, although I have not paid for an expensive survey to prove it. Believe or don’t believe it. Use it or not — after you consult with an attorney as aforesaid.

Second it is still true that while we are getting more traction in courtrooms around the country, more cases on lost on the trial level than are won. I trace this directly to errors in pleading and argument where the homeowners is admitting or failing to deny the basic elements of the foreclosure case. A fast reading of any trial court or appellate opinion will often say the same thing — the homeowner does not contest the the validity of the loan or the default. From their prospective, what else is there to do except to split hairs and remand cases where the results are inevitable since the homeowner is trying to get relief or delays on a legitimate debt.

My method attacks the legitimacy of the debt using my knowledge of property law (I literally wrote the book on Florida Real Property Law in the 1975 update), contract law, UCC (I won the academic award for Bills and Notes in Law School as well as Federal procedure), litigation experience, and my deep store on knowledge and sources within the Wall Street community.

Third, there is no magic bullet. “Show me the note” had its effect for a while, but ultimately lost ground because even when people were “winning” they were only getting dismissals without prejudice for the forecloser to come back in and plead the case differently.

My approach seeks to educate lawyers and their clients about how a lien is perfected. In my opinion, shared by most scholars, it is simply not possible for the mortgage lien to have attached to the property even if it was executed and recorded because the funding of the documented loan never took place, the parties are improperly described, and there is a conflict in the terms of repayment between what was promised to the investor-lenders through the mouths of the investment bankers, and the promise of the mortgage broker and fake originator to the homeowner.

If success is measured by total evisceration of the note, mortgage and obligation, there is little to report although there are some cases where that is exactly what happened. If success is measured by preventing foreclosure because of basic deficiencies in the foreclosure process, the success rate is much higher — because it raises questions that have not yet been properly litigated about the legitimacy of the origination documents and assignments from either non existent entities that never funded or purchased the loans or existing entities that never funded or purchased the loan.

But when you boil it all down, any good trial lawyer will tell you that being right is rarely the key to winning. It is all in presentation and aggressive argument and representation of homeowners by lawyers who have the courage to force the burden of proof onto the other side.

This we do know from thousands of cases: when the order comes from a Judge requiring proof of the money trail and thus real ownership of the loan based upon consideration (value) being passed from one party to another, the settlement or modification is finalized in a matter of days. So it all depends upon whether you get past the initial motion practice and into discovery. Denial of the basic elements helps greatly in getting to the next stage of litigation in discovery.

These strategies include denying the signature on the origination documents upon which the foreclosers rely, since there is so much evidence of recreating “wet ink” documents from old storied scanned or copied documents, denying the default because the homeowner never did actual business (where money exchanged hands) with the forecloser or its predecessors, all of which explains why the banks and servicers resorted to fabricating, forging and producing robo-signed unauthroized illegal documentation. If they had the goods, they would have shown up in courts across the land with the proof.

Or, let me put it this way: when I represented banks in residential and commercial foreclosures and represented HOA and Condo Associations in foreclosures, any challenge to the documents or the accounting was not a reason for me to delay. It was reason for me to say that the other side was trying to delay the proceeding to buy more time but that they didn’t have a chance in hell of winning.

Then I would produce the full accounting from the funding of the loan to the present along with an affidavit from a real person, with real knowledge of their own from their own senses — sight, sound etc. — to show that the loan exists, the default occurred and that the foreclosure, while unfortunate was the only remedy left since the homeowner either failed or refused to pay.

I would never have asked for delays, to delayed sale dates or done any of the games that the pretender lenders have played for many reasons besides ethical considerations. I would have rushed any contested case to trial where the homeowner would be left standing naked in the wind, which was a deterrent in some troubled communities where people were watching the case to see if they could get some mileage out of presenting spurious (false) defenses.

It is only now that more Judges are beginning to ask why foreclosers are the ones delaying proceedings and then suddenly popping up with documents they said they didn’t have. It is only now that lawyers show up in court without actually knowing if they have the authority to represent the party who is foreclosing. It is only now that repeatedly, the bank lawyer stands up and asks for the court to allow a new party to be substituted for the existing party in litigation because they just received the documents they should have had before the first notice of default was sent out. Those documents most often are pure fabrications, forged, reciting false and indeed fraudulent facts about transactions that never occurred.

Bottom Line: I receive feedback of hundreds of attorneys who all tell me that I appear to be right on the law, right on the facts and right on the strategy. But in the end it depends upon whether the case is properly presented, who controls the narrative in the courtroom, and other tricks of the trade. My direct statement is that if you follow the form and substance of what I am suggesting on this blog, your chances of success will probably rise either at the trial level or on appeal.

The articles questioning the usefulness of our services or our free library of forms, articles and treatises are appealing to those people who quite naturally want the nightmare over in one fell swoop. The Court system doesn’t work that way.

I remind you that due process is not the same as justice.  Justice is the desirable outcome of due process, which only grants you the right to be heard as much as the Court can allow, given time constraints and overburdened court calendars. So you may have 50 arrows in your quiver, but if you only have 5 minutes to talk, you need to choose the one that this particular judge is most likely to receive favorably and put the rest in the record through pleadings and memorandum and requests for discovery.

85% of all appeals fail because people try to litigate the cases in the new court. The appellate court can ONLY concern itself with what is in the record on appeal — not what should have been in the record or what should be understood because you said this or that, a transcript of which is not in the record.

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