Mastering the Art of Winning Your Foreclosure Case: Expert Insights from Fraud Stoppers
The article titled “How to Win the Case” provides valuable insights and strategies for achieving success in legal cases, particularly in the context of foreclosure proceedings. Authored by Fraud Stoppers, an expert in the field, the article emphasizes the importance of developing a strong narrative based on solid evidence and building it progressively throughout the case. FRAUD STOPPERS can help you win your foreclosure case with our expert witness testimony and court ready legal documents.
One key point highlighted in the article is the need to refrain from presenting the final narrative too early in the proceedings. Instead, it suggests reserving the strongest arguments and closing statements for later stages such as trial or motions. Early motions and discovery requests primarily rely on the presumption that the plaintiff’s complaint is true, with limited scope for presenting evidence.
Challenging foreclosure complaints and notices requires a deep understanding of the opposing party’s case and its weaknesses. Rather than filing counterclaims right away, the article suggests that these issues can often be addressed through affirmative defenses, paving the way for claims of wrongful foreclosure or slander of title.
To attack the opposing party’s case effectively, the article advises starting with the verification of the complaint, especially in judicial states where such rules exist. Deposing the person who verified the complaint can be a powerful strategy, compelling them to produce the documents and evidence they relied upon. This approach may require arranging video depositions and potentially gaining access to their workplace with the assistance of forensic ediscovery experts.
By exposing stonewalling tactics and delays employed by the bank or opposing party, judges may become more receptive to the borrower’s claims. Seeking expedited discovery schedules and filing motions for status conferences can further demonstrate the aggressiveness and credibility of the borrower’s position. It is crucial to avoid strategies that give the impression of merely buying time or seeking free rent, as this may weaken the defense and reinforce the validity of the debt and foreclosure.
The article emphasizes the importance of early proactive litigation to shift the narrative in the borrower’s favor. By engaging in aggressive discovery and motions, borrowers can challenge the opposing party’s assumption that they only fight uncontested cases. This proactive approach sets the stage for potential victories during motions for summary judgment by highlighting material issues of fact in dispute.
Ultimately, the article stresses the need for experienced trial attorneys who understand these strategies. While most cases tend to settle, it is vital to present a credible threat to the opposing party to achieve a favorable settlement. Simply allowing the foreclosure process to proceed without mounting a strong defense often results in eviction, foreclosure, and negative credit consequences for the homeowner.
In conclusion, “How to Win the Case” offers valuable guidance for individuals facing legal battles, particularly in foreclosure cases. By employing a strategic approach, focusing on evidence, and challenging the opposing party’s claims, borrowers can increase their chances of success in the courtroom.
How to Win the Case
By: Neil Garfield
There many ways to win a case, so what I am saying in this article should be taken in the context of a larger reality where lawyers are winning hearings and winning the entire case using their own style, strategies and tactics. And it is equally true that any case management plan, regardless of the brilliance behind it, can still result in a loss. So this article should not be taken as my way or the highway, but rather just my way.
The first thing to keep in mind is that the argument that many lawyers are using at the beginning of the case should really be reserved until the end if the case — closing argument at trial, or argument at motions in limine, motions for summary judgment etc.
The narrative at the end of the case must be based upon evidence that you have built, brick by brick, and which has been admitted in evidence or at least is presumed correct by the time you make your arguments. The error of pro se litigants and many lawyers is that in the absence of knowledge and experience in trial law, they attempt to insert the final narrative at the beginning of the case, when it is neither credible on its face nor supported by anything in the record. Evidence, for the most part, consists of facts that are admitted into evidence or presumed true. In early motion practice and discovery requests and motions there is no evidence except that the Plaintiff’s complaint is usually presumed or deemed to be true for purposes of the motion and argument.
If you wish to challenge the foreclosure complaint or the notice of sale in non-judicial states it is necessary for you to know the facts and know the defects of the case presented by your opposition. Announcing your narrative at the beginning merely telegraphs your case plan and locks you into an argument about why you are saying what you are saying.
For that reason I question the wisdom of filing counterclaims against the foreclosing party since your claim probably does not arise until it is determined that the foreclosure action was wrongful. This is a matter some considerable debate amongst lawyers who believe that the borrower’s claims are compulsory counterclaims that are waived unless filed in the first action that litigates the validity of the foreclosure. So it is a tricky call and only a licensed practicing attorney can give you an opinion upon which you could rely in your strategy. My belief is that most of the issues presented by the planned counterclaim should fit nicely into affirmative defenses and set up the claim for wrongful foreclosure, Slander of title etc.
So knowing your theory of the case is important as a guidepost for your early discovery and motion practice. But what you need to do is attack the basic facts and presumptions alleged by your opposition. Where do you start? In judicial states there are frequently rules requiring the verification of the complaint. Taking the deposition of the person who verified the complaint is a good idea.
Making them bring the documents and media upon which they relied might require the place of deposition to be their place of work and for lawyers to arrange for video deposition. The interesting reaction of your opposition is likely to be a motion for protective order. At this hearing you can probably get an order requiring that the person show up, perhaps permitting access to the workplace for your forensic ediscovery expert, and to bring documents “upon which she or he relied.”
My experience is that the presumptions in favor of the banks start cracking during the fight about deposing the verifier and the designated representative (the next deposition duces Tecum). The Bank will want to block access to the person who signed the verification. They will want to limit the inquiry to the designated corporate representative. Keep in mind that you also want to depose the witness who will testify at trial find out why that witness is different from the one they produced as the corporate representative with the “most” knowledge at deposition and why both if them are different than the person who verified the complaint.
By demonstrating the stonewalling and delays imposed by the bank who supposedly has an interest in getting to foreclosure sale, judges recognize that there is something odd about the case. Asking for and offering an expedited discovery schedule in a motion for status conference will also help set the stage for your accusation that the delaying party is the plaintiff or the foreclosing party. Being the aggressor can convey the impression that the borrower is not the perpetrator, but rather the victim of wrongful behavior.
Early subpoenas and motions will remove the impression that are just buying time. Strategies for buying time even if allowed by the court, basically show that you are admitting the debt, note, mortgage, foreclosure sale and credit bid but want your client to get a few months of free rent. You are digging the wrong hole if your case strategy encourages the judge to believe that the debt, note and mortgage, and the assignments are all valid and that the borrower is looking for a break.
Early proactive litigation can highlight the fact that the bank is backing up and only wants to fight uncontested cases. It is a way to take control of the narrative gradually, so that when it comes to the motions for summary judgment (including your own cross motion), you have an opening for victory as Mark Stopa has done in Florida at least make it clear that there are material issues of fact in dispute.
The absence of early proactive discovery and motions speaks loudly that the homeowner really has no defense because otherwise they would have pursued the proof.
Getting experienced trial attorneys who understand this article is not easy. Most cases settle, and most people are at least initially happy to remove the stressor imminent foreclosure and eviction. But without presenting a credible threat to the opposition, the settlement, if it happens at all is not going to offer much in terms of relief. And the cost of just getting free rent is not retaining your house and not having offset and complaints for damages for wrongful foreclosure. When you sit and do nothing you are conforming to the playbook of the bank. In the end they get the foreclosure, they evict the homeowner and the homeowner gets nothing except a black mark on their credit history.