Wrongful Foreclosure Case

How to Reopen Discovery on a Dead Case: A Strategic Approach to Wrongful Foreclosure

In the early days of the foreclosure crisis, as far back as 2008, lawyers representing homeowners were scoring victories against the banks, particularly for violations of the Real Estate Settlement Procedures Act (RESPA) and the Fair Debt Collection Practices Act (FDCPA). However, as the banks tightened their grip and the legal landscape evolved, reopening discovery on what many might consider a “dead case” became a daunting challenge. Yet, it’s not impossible. There’s a method, often overlooked, that can breathe new life into your case and compel the banks to show their cards. This was something that my mentor Neil Garfield stressed and that I share with you. This strategy involves an analysis of any statute of limitations issues and a consideration of whether the Supreme Court Throckmorton case. Contact us for a complimentary analysis of whether your case qualifies here.

Laying the Groundwork: Qualified Written Requests and Debt Validation Letters

The first step to reopening discovery often involves initiating a new lawsuit. This might seem counterintuitive, but it’s a proven strategy, especially when you lay the groundwork correctly. Start by sending a Qualified Written Request (QWR) and a Debt Validation Letter. These documents should address the truth of the matter being asserted or implied by the bank or servicer. Under both federal and state law, homeowners have every right to demand corroboration of the claims made by the alleged servicer or creditor. Homeowners often use our Administrative Strategy to do this first step properly right from the start. Many have found that our Administrative Strategy often results in cancellation of auction sale and even settlements or modification offers. In this offering, designed by my mentor Neil Garfield, all letters are customized and sent to correct recipients and this service includes a 30 minute consultation with our legal team. Find out details at the link here.

One of the biggest mistakes lawyers make is assuming that legal presumptions arising from facially valid documents equate to actual evidence. They don’t. Legal presumptions merely allow the court to assume that evidence exists without requiring its introduction. No defendant, especially not a homeowner facing foreclosure, is required to accept these presumptions at face value. Yet, many attorneys, particularly those representing distressed homeowners, fail to challenge the core elements of the bank’s claims.

Unmasking the Deception: A Long Track Record of Fake Documents

Banks have perfected the art of deception, building a long track record of apparent events documented in what often turn out to be fake or misleading documents. But this same strategy can be turned against them. By methodically establishing a record of real events documented through real inquiries, you can create a powerful foundation for reopening discovery.

After sending the initial QWR and Debt Validation Letter, follow up. Point out how they failed to answer the most basic questions regarding the existence, ownership, and rights to enforce the implied claim. When the bank or servicer continues to obfuscate, escalate the matter. File a complaint with the Consumer Financial Protection Bureau (CFPB). File another with the state attorney general. And if necessary, send a final follow-up QWR and Debt Validation Letter.

Exhausting Administrative Remedies: The Key to Court

When the lawsuit if filed, you can assert that you’ve exhausted all administrative remedies. This step is crucial. The Supreme Court has ruled that while statutory damages are allowed under the law, you can’t recover them without showing actual damage. But proving actual damage isn’t as difficult as it might seem—especially in cases of wrongful foreclosure. Every wrongful foreclosure carries with it slander of title and intentional infliction of emotional distress.

However, the real power lies in framing your complaint not merely as a violation of statute but as a petition for declaratory, injunctive, and supplemental relief. In some cases, it’s even beneficial to file an emergency petition or a non-emergency petition requiring the defendants to show cause why a final order shouldn’t be entered. Such an order would demand the withdrawal of all documents recorded in the chain of title and prohibit the bank or servicer from making any further claims against the homeowner.

Here at livinglies our legal team can draft documents relating to a complaint for Wrongful Foreclosure, for use by a homeowner representing themselves, or by a local attorney we may place our work with who agrees to represent a homeowner.

All litigation support services are quoted based on our initial Case Analysis which we perform before any litigation support work can be drafted.

Conclusion: Reclaiming Your Case

Reopening discovery on a dead case isn’t easy, but it’s far from impossible. With persistence, a strategic approach, and a refusal to accept the banks’ legal presumptions as evidence, you can force the issue into the open. The key is to build your case methodically, document everything, and challenge every assumption. The battle may be uphill, but the payoff, justice and substantial monetary damages for wrongful foreclosure, —is worth it.  Lance

Need help in assessing your case? Does your attorney need our help? Use our services to help guide you through the process early enough to avoid mistakes that can cost you your home in an illegal foreclosure action. Call our office today at 844.583.5339 to inquire if we can help. You can also submit a case statement here and get a complimentary recommendation as to your best course of action.

FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. 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.

But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested through Quiet Title Actions. (No Guarantee). Yes you DO need a lawyer.

Tags: anatomy of a foreclosure lawsuit, foreclosure defense, foreclosure offense, NEIL GARFIELD, wrongful foreclosure, Wrongful Foreclosure Case
Posted in Uncategorized |