Transcript of Neil Garfield Show: How to Survive Litigation

Blog Talk Radio 6-27-19

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Tonight! How to Survive Litigation on the Neil Garfield Show 6PM EDT!

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Hello, Neil Garfield here and this is Thursday June 27, 2019. Tonight, we talk about the uphill battle for pro se homeowners and lawyers for homeowners in the current judicial environment.

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Both lawyers and pro se homeowners are continually frustrated by the Dickensian process of the courts. If you don’t know what that means, go read Bleak House by Charles Dickens. If nothing else just read the first chapter.

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What you need to know and accept as fact is that the litigation in foreclosure defense will always be long. That is because the lawyers for the banks, like every lawyer advocating an indefensible position, know that there is a difference between who should win and who can win.

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And often merely outlasting an opponent spells victory in what would otherwise be a losing position. Banks win because they have the money to drag things out and most homeowners and their lawyers give up.

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So we have millions of cases that ended up with wrong results because of defaults, inaction, improper action and lack of resolve by lawyers and homeowners.

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Surviving that requires physical and mental stamina and accepting the realities of the role of courts and judges. And most of all it requires the development of a strategic plan for each case and a tactical plan for executing the strategy. That can only be done by investigating and analyzing all the facts of each case.

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First I want to address something in the news. US Bank is said to have filed another lawsuit against Bank of America seeking to enforce the buyback provisions of a nonexistent sales agreement. It’s another ploy to get people to think about the poor trust when there is no trust.

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It’s a “friendly” suit to make it look like US bank is a real trustee of a real trust with assets that included the loans.

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This is the bank’s way of countering the mounting evidence that no such trust arrangement exists and that the trust name is just a fictitious name for the investment banker, Merrill Lynch in this case, whose liabilities were apparently assumed when BOA acquired ML in the 2008 crash.

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And when people challenge the physical and legal reality of the Trust, BOA gets to point to this lawsuit in which it appears as though BOA agreed to buy back some loans and leave others with US Bank. This creates the illusion of “title” to the debt, note and mortgages where no such title existed. On its face the illusion is complete. In reality it is nothing. It is a self dealing deception staged for the public and for the courts.

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 I’m broadcasting live from Duval County Florida and this show is brought to you by the livinglies blog, GTC honors, Lendinglies, AMGAR, and the Garfield firm.

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Over 99% of the population of the United States consists of laypeople with little or no practical experience in the courtroom.

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Nearly all of them believe that we have a system of justice that favors the party that should win. They are all wrong.

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There are 1.3 million lawyers in the United States. Many of them hold the same belief as their lay counterparts.

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The other 700,000 lawyers know the truth: in court the issue is who CAN win not who SHOULD win.

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We all know that there are many cases in which the party who should win doesn’t win. And there are many cases in which a party shouldn’t win but can win and often does.

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The difference between winning and losing boils down to one simple thing: persuasion. Successful persuasion depends entirely upon a good strategy, a good tactical plan and great execution.

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Sometimes great execution will make up for defects in strategic or tactical planning but for most pro se litigants and most lawyers who find themselves in court, great execution is elusive. And even for good lawyers it can prove challenging.

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The people who should win are the people who are aggrieved by some action or inaction of another person or legal entity. The people who can win are the people who can convince the judge to rule in their favor.

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Most litigants who rely only on the merits of their claim lose their cases in court, especially if they can’t afford adequate legal representation from an attorney who is experienced in the courtroom.

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You must not only have merit to your claim, when the case can only be won if the court is convicted of either the lack of merit of the claim against you or the permit of your claim against your opposition. Presentation and persuasion are the key and that doesn’t happen just because someone has a silver tongue.

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For many people their only experience with a courtroom is in Small Claims Court. With the rules of evidence and procedure relaxed, it is often the case that the meritorious claim does in fact prevail. But in all other cases, the decision is based upon technical rules of pleading, argument, discovery, and examination at trial. This includes obviously the ability to make timely objections during a hearing or during the trial.

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So how do you survive a court system which plays by rules that you don’t know and don’t understand?

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Stop assuming you know or understand what the banks did. That will only interfere with your planning and execution of a successful defense strategy.

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Assumptions by homeowners and their lawyers are what gets them into trouble. It leads them to ignore what is right in front fo them. For example, let me quote form an email I wrote in response to a client:

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Most lawyers only glance at the style of the case. They compound that error by not comparing the style of the case with the body of the foreclosure complaint or the body of the notice of substitution of trustee which starts off the whole wrongful foreclosure scheme. It’s like a puzzle that seems unsolvable at first. But if you stare at it long enough things start to emerge.

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The first thing you need to understand is that our justice system runs on money not merit. If you want justice you have to pay for it. Nobody is going to do the investigation, discovery and preparation required for trial for you unless you pay them. For many distressed homeowners this is an obstacle which they are sometimes unable and often unwilling to tackle.

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Homeowners often think that the system has failed them and they are probably exactly right in that thought. Many of them are sitting with homes that are still not worth the principal amount of the loan that was given to them 10 or 15 years ago. While businesses are allowed under the bankruptcy code to strip the liens down to the actual value of the property, individual homeowners are not allowed to do that under the law.

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Most laypeople consider lawyers as being part of the system and they are right. Since they believed that the system failed them or screwed them, they believe that the system owes them justice and therefore that lawyers should be willing to get them justice without regard to compensation. While there are good philosophical arguments in favor of that proposition, that’s not the way things work in this country or, as far as I know, and any other country.

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The people who can survive the court system and win a good verdict or satisfactory settlement are those who see the system in an objective light for what it is and not for what they think it should be.

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I give you some examples of what I mean.

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Many objections and motions are made as though the judge already knows that the opposing attorneys have committed fraud or that their clients are lying and fabricating documents. Judges have no such knowledge nor do they presume to have such knowledge nor do they presume to know what issues are being presented to them until one of the parties speaks or files a motion.

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Most objections by foreclosure defense attorneys are not timely and appear to be merely technical in nature because they lack a plan of strategy and tactics. Any good trial lawyer knows that objections are not meant to prove a point; they are meant to be part of a pattern by which the lawyer is educating the judge as to the credibility of the opposing party and counsel, and the lack of real evidence to support their claim.

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If you have previously done discovery and the opposing side has either answered or not answered, and you have properly followed up discovery with additional questions, motions to compel and motions for sanctions, you can use both their answers and their evasions to your advantage in excluding their evidence, which then is corroborated by your objections at trial as to lack of foundation, hearsay, best evidence and other laws of evidence and court rules.

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Laypeople just have no idea what I’m talking about. So they flounder about in hearings which they almost always lose when in fact they could have easily won. Virtually all of pro se litigants have no idea about what constitutes admissible evidence for summary judgment or a trial. As a result they fail to introduce admissible evidence and they failed to object to evidence used by the opposing counsel for summary judgment and at trial. The rules are clear. In most cases failure to object is a waiver of the objection. So, on appeal all of such cases are affirmed, usually without any opinion. We lawyers call that PCA, per curium affirmed.

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On appeal most pro se litigants and some lawyers forget that if there is any possible reason for the judge to have issued the ruling that you think was wrong, the decision will be affirmed, even if the appellate court thinks that the ruling was wrong. If it’s possible for a judge to have ruled that way, then even though most of the judges would not have made such a ruling, the decision will nevertheless be affirmed.

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So how do you survive?

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The answer is always preparation. Before you plead anything you should do the proper investigation, legal research and factual research so that you are pleading facts rather than theory.

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Most dismissals of pleadings filed by homeowners can be traced directly to the fact that they were pleading theory instead of facts. Information is not a fact unless it has all of the attributes indicating that it is true and not a statement of opinion.

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Pleading on information and belief is not enough unless you have made outright statements of ultimate facts upon which relief could be granted. Then pleadings on information and belief fill in some of the spaces that you will prove through discovery, if you enforce discovery with Motion to Compel and Motions for Sanctions and even Motions in Limine.

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One of the major reasons why homeowners win is that they have properly performed discovery and enforced it. It’s only then that they can properly complain that the opposing lawyers are attempting to introduce evidence about which they were evasive or unresponsive in discovery even after a court order.

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Lack of preparation for appearance in court is another big reason why homeowners lose even though they have strong facts upon which they could have won.

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Preparation means you know how you are going to convince the judge to rule in your favor and you know how you are going to counter the specific arguments raised by your opposing counsel.

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It means having a plan before you question or cross-examine a witness and that includes follow-up questions. I’ve seen lawyers bring a legal pad up to the podium and ask a bunch of questions without listening to any of the answers and following up on them.

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So that is my take on survival in court. Good luck and we’ll see you in two weeks after the independence day holiday.