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Basic Premise in Foreclosure Defense: Documents Are Not Events

by Neil Garfield

The objective in foreclosure litigation is not to prove something. The objective is to prevent the claimant from proving anything.

The fundamental error of most homeowners, lawyers, and frankly judges, is the failure to distinguish between the real world and the fictional world portrayed by documents in front of them. A novel is a work of fiction. It can achieve credibility by referring to things that might have actually happened in the reader’s life at some time in some place. But the characters and events are all fictional. And even if you add notarized and recorded documents and affidavits to the mix saying that the events happened it doesn’t change the fact that no events in the real world occurred as described in the novel.

Perhaps more importantly, once apprised that the information presented to the court is a novel and not related to anything that happened in the real world, no court has the right to say otherwise (unless there is conflicting evidence on whether the events occurred).

You need to get clear on the difference between a document and a transaction. Many if not most people treat them as though they are one and the same. They are not. A document is only a piece of paper on which there is writing that refers to an event in the real world that supposedly occurred between two or more parties. If there is no event, no amount of writing can cure that — even with testimony, certification, or sworn recorded documents.

Foreclosure is about recovering on a loss resulting from an unpaid debt owed to the claimant. If the claimant has not paid for the debt in the real world, then fabricated documents will never change that and the claimant has no claim.

But a fabricated document does change the burden of proof unless you can show that the document is facially invalid. The objective in foreclosure litigation is not to prove something. The objective is to prevent the claimant from proving anything. Every presumption arising out of presumably facially valid documents is rebuttable. Those presumptions can be rebutted by either presenting contrary evidence (which you don’t have) or contesting the facts in discovery and asking for the actual evidence (which they don’t have, even if you fear that they do have it.)

The proactive response to their stonewalling discovery would be to ask the court to rule on a negative inference — that the debt does not exist or at least is not owned by the claimant. But this can only occur after you have gone through a few rounds of motions to compel responses to discovery and a motion for sanctions.

A motion in limine might achieve the same result by barring evidence of ownership or authority over the alleged debt or even that the debt exists since they refused to show corroborating evidence (proof purchase, accounting ledger) that value was paid as a condition precedent to enforcement as per the state adoption of Article 9 §203 UCC verbatim.

So the procedural issue in virtually all cases involving claims of foreclosure by people and companies who claim the existence of the debt, the ownership of the debt, and the authority granted by the owner of the debt is how to get into position to demand discovery in a proper and timely fashion. The second issue often missed is the follow-up to discovery. Some erroneously think that failure to answer is enough to turn the tide. It isn’t. A motion to compel must be filed, heard and granted. Most often such motions must be filed more than once and then followed by a motion for sanctions — which also must be filed, heard and granted.

 

 

 

     
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