Why “Not Losing” Is the Real Strategy
In foreclosure litigation, homeowners do best when they focus not on winning outright, but on not losing. The system is designed to presume that foreclosure is valid. To overcome this, the goal isn’t to deliver a knockout blow—it’s to keep the case alive and prevent foreclosure through procedure, discovery, and evidence challenges.
The Role of Affidavits and Declarations
Homeowners often misunderstand the purpose of affidavits or declarations. These documents are not meant to convince the judge that everything in them is true. Instead, they serve as context to justify your procedural and evidentiary demands.
Here’s how affidavits or declarations can be used effectively:
To support QWR (Qualified Written Requests) and DVL (Debt Validation Letters).
As context for discovery and motions to compel discovery.
To back up motions in limine (excluding improper evidence).
To strengthen oppositions to summary judgment.
As context for motions to dismiss or for clarification.
To support a homeowner’s own motion for summary judgment.
To challenge inconsistent positions with motions to strike.
To frame trial objections and motions to strike exhibits.
The Math: Few Homeowners Fight, Fewer Win
From 2000 to the present, millions of foreclosure cases have been initiated. The statistics tell the story:
Less than 2% of homeowners challenged foreclosure at all.
Less than 1% made meaningful legal challenges in court.
Most of those who did fight lost—often because they misunderstood how to use affidavits or failed to research the real issues.
Only about 0.25% (25,000 cases) ended in clear homeowner victories, with beneficial settlements or outright dismissals.
Many of those winning cases were handled by Neil Garfield—either directly as lead counsel, co-counsel, consulting counsel, or indirectly through strategies published on his blog.
Lessons From the Cases That Were Won
In homeowner victories, judges often found:
Insufficient evidence to prove that the plaintiff or trustee actually owned the debt.
Fabricated mortgage loan schedules and assignments lacked credibility.
“Servicers” and trustees could not prove they were entitled to enforce the debt.
Even after some homeowners won, banks attempted to refile with new fabricated documents. In a few cases, judges explicitly found that no credible evidence supported foreclosure.
The lesson: homeowners win not by proving a grand conspiracy, but by showing that the evidence is too weak to support foreclosure.
Aim Low, Not High
Foreclosure defense isn’t about proving fraud in the CIA sense. It’s about:
Enforcing civil procedure rules.
Filing objections consistently.
Demanding sanctions when rules are violated.
Establishing that discovery demands are reasonable, not whimsical.
This approach sets the stage for judges to sustain objections at trial and for fabricated evidence to be struck.
In short: don’t seek a knockout blow. Seek to avoid losing.
Final Takeaway
Affidavits and declarations are tools—not silver bullets. Their role is to justify discovery, frame objections, and expose weak evidence. When homeowners focus on not losing, they shift the burden back where it belongs: on banks and servicers who often can’t prove they own the debt.
⚖️ Disclaimer: This article is for educational purposes only and is not legal advice. Always consult with a qualified attorney for foreclosure defense.
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.Please Donate to Support Neil Garfield’s Efforts to Stop Foreclosure Fraud.
*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. (No Guarantee).
Yes you DO need a foreclosure lawyer.
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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