How to Win a Foreclosure Case or Quiet Title Lawsuit Using Interlocutory Appeals and Discovery Demands
Facing a foreclosure case or quiet title lawsuit can be a daunting experience for homeowners. However, there are legal strategies that can significantly increase your chances of success. Two powerful tools at your disposal are interlocutory appeals and discovery demands. By effectively utilizing these methods, you can strengthen your position, gather crucial evidence, and ultimately tilt the scales of justice in your favor. In this article, we will explore how homeowners can harness the power of interlocutory appeals and discovery demands to achieve a favorable outcome in foreclosure cases or quiet title lawsuits.
- Understanding Interlocutory Appeals:
Interlocutory appeals refer to the process of seeking a review of a court’s decision before the final judgment is rendered. In foreclosure cases or quiet title lawsuits, this can be a game-changer. By pursuing an interlocutory appeal, you can challenge unfavorable orders or rulings, potentially leading to their reversal or modification.
To initiate an interlocutory appeal, it is essential to consult with a skilled attorney who specializes in foreclosure or property law. They will guide you through the legal process, ensuring compliance with relevant procedures and deadlines. By leveraging interlocutory appeals, you gain an opportunity to rectify errors, present new evidence, or address legal issues that could significantly impact the outcome of your case.
- Harnessing the Power of Discovery Demands:
Discovery demands allow parties in a legal proceeding to obtain relevant information and evidence from the opposing side. In foreclosure cases or quiet title lawsuits, discovery demands can prove invaluable in unearthing critical facts, uncovering discrepancies, and strengthening your position.
When preparing your discovery demands, work closely with your attorney to develop a comprehensive and strategic approach. Tailor your requests to seek information that directly pertains to your case, such as loan documents, chain of title records, assignments, or any other relevant evidence. Robust and targeted discovery demands can potentially reveal irregularities or deficiencies in the foreclosure process, casting doubt on the validity of the claims against you.
- The Synergistic Effect: Interlocutory Appeals and Discovery Demands:
The real power lies in combining interlocutory appeals with discovery demands. By employing both strategies, you create a synergistic effect that enhances your chances of success. Here’s how they complement each other:
a. Discovering critical evidence: Discovery demands enable you to obtain crucial documents, records, or testimony that may be instrumental in bolstering your defense. Unearthing inconsistencies, fraud, or procedural errors can form the basis of a strong appeal.
b. Strengthening your appeal: Once you have obtained compelling evidence through discovery demands, it can be presented during the interlocutory appeal process. This evidence can significantly strengthen your arguments, challenging the legality or fairness of previous rulings.
c. Overturning unfavorable decisions: If an interlocutory appeal succeeds, it can lead to the reversal or modification of unfavorable orders or rulings. This provides an opportunity to rectify any procedural or substantive errors that may have adversely impacted your case.
Conclusion:
When faced with a foreclosure case or quiet title lawsuit, homeowners need to arm themselves with effective legal strategies. Interlocutory appeals and discovery demands can be powerful tools in your arsenal, helping you secure a favorable outcome. By challenging unfavorable orders and gathering crucial evidence, you can tilt the scales of justice in your favor. However, it is crucial to work closely with an experienced attorney who can guide you through the intricacies of these legal processes. With their expertise and strategic approach, you can navigate the complexities of the legal system and increase your chances of winning your foreclosure case or quiet title lawsuit.
Why homeowners should consider interlocutory appeals from orders denying enforcement of discovery demands
Neil Garfield
May 23
The practical effect of denial of discovery demands by the trial court is a ruling in favor of the party making a claim against the homeowner — even if the party had no standing. The homeowner is forced to litigate against a ghost — like going to a gunfight with no guns and no bullets. Most homeowners cannot afford to enter into a needless period of litigation with a party who lacks standing. Hence the ultimate result is the loss of a homestead to a fake claimant who may not even exist.
We all know the situation. Trial judges are tasked with moving their docket as quickly as possible. They frequently stray from substantive and procedural law requirements in the interest of closing out the case.
If the trial judge believes their order will not be reversed, they will be inclined to deny (or even ignore) any motion to enforce discovery demands in foreclosure cases. It is indisputable that they will continue to do so because they believe that the discovery demands are merely a gimmick or device for a borrower to escape liability on a legitimate debt.
Homeowners and their lawyers reinforce this. When they admit, directly or indirectly, that the implied debt is real and that the Plaintiff or beneficiary actually owns the implied debt, the trial judge has no reason to look elsewhere.
As a result, homeowners are lured into presenting a defense based on errors in servicing rather than errors in claiming anything. The fake claims arising from the cloud of fake documentation constituting the world of “securitization” leave homeowners without the knowledge or access to knowledge that would reveal the true nature of their transaction and its status.
In fact, homeowners have so little knowledge about the nature of the transaction that they have no reason to question what they have been told. This is the essence of fraud. Homeowners reasonably believe what they are told about their transactions. And they are told whatever will most benefit the speaker or seller.
Most con men say that the mark cons themselves. They get only bits of information and then fill in the balance with imaginative components that were neither stated nor otherwise factual.
Securitization is a word that was introduced in the 1990’s under the rubric of Wall Street entering the lending marketplace. But in fact, Wall Street was only looking for new and creative ways to convert the money of investors and homeowners to the off-shore accounts of the investment banks.
Most people who sign documents at closing with a party posing as a bank or non-bank institution are completely and totally ignorant of what is contained in those documents. In recognition of that, Congress passed the Truth in Lending Act in 1965, and many states followed suit. But none of that addressed the real problem — i.e., that nobody understood what the banks and non-bank institutions were doing.
Thus truth was required, but only the investment banks have known anything about the truth since the mid-1990’s. Enforcing the truth requires a complaining party who understands how they have been injured. So homeowners are forced to defend based upon more simple premises, to wit: the nonexistence of the underlying debt.
If discovery demands are framed properly and if they are filed within the window of time in which discovery is allowed, compliance is mandatory. But enforcement of that mandatory obligation is entirely up to the homeowner.
Any judge will ignore the failure to respond or the attempt to serve evasive responses unless the homeowner brings an appropriate and timely motion for enforcement, and appropriate and timely motions, for the law of the case, to include inferences of fact, the application of which rebuts and undermines any presumption arising from the apparent validity of facially valid documents.
Without making it clear that the homeowner does not accept a single premise offered by the attorney representing the “plaintiff” or “beneficiary”, the judge will proceed on the assumption that the issue is an unpaid debt from which the homeowner is trying to escape.
Therefore, discovery demands must be served within the context of rejection and denial of any argument, assertion, or allegation, implying the existence of an underlying obligation due from the homeowner to the “plaintiff” or “Beneficiary.”
Assuming the discovery demands maintain those central issues to the defense, then the failure to provide a clear, direct answer undermines the presumption of an existing debt due to the “Plaintiff” or “Beneficiary.”
Suppose the opposing lawyer is arguing that there is an unpaid debt (besides being a “holder” of the note”). In that case, the homeowner has every right to see the unpaid account on the book of the “plaintiff” or “beneficiary.” If they can’t or won’t provide corroboration of the debt, they lose.
But the judge is likely to deny or restrict such discovery simply because the judge doesn’t believe that it will lead to any admissible evidence. And the judge is right; it won’t because the opposition will never admit they don’t really have a claim.
Educating the judge on the scary qualities of securitization is the blind leading the blind. Except for investment bankers like myself, there is no lawyer, homeowner or judge who could even begin to understand what really happened. That is precisely why we failed to regulate the activities until the entire system crashed in 2008. And it is precisely why it will happen again.
Any properly framed discovery demand that asks about the existence and status of the implied unpaid loan account on the books of the implied creditor must be granted enforcement by the court. To do otherwise would be a denial of due process.
When the court refuses or fails to enforce properly framed and timely filed motions to enforce those demands, it is my opinion that the homeowner and their lawyer should consider a demand for review by the appellate court. The demand is the same as certiorari: departure from existing laws and rules, irreparable injury, and no reasonable possibility of correction on plenary appeal.
The departure (due process) is obvious.
The irreparable harm must be argued. The practical effect of denial of discovery demands by the trial court is a ruling in favor of the party making a claim against the homeowner — even if the party had no standing. The homeowner is forced to litigate against a ghost — like going to a gunfight with no guns and no bullets. Most homeowners cannot afford to enter into a needless period of litigation with a party who lacks standing. Hence the ultimate result is the loss of a homestead to a fake claimant who may not even exist.
The correction on plenary appeal basically never happens. No homeowner is ever returned to property that was illegally taken except in rare instances.
PRACTICE HINT: The framing of a motion for enforcement, sanctions etc, relating to discovery demands should be framed as the draft for the motion for appellate review of an interlocutory order. This informs the judge of your thinking and the possibility of reversal.
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