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Presumptions, Pleading, Procedure and Proof Really Matter in Foreclosure Actions

livinglies.wordpress.com | May 5, 2016

By Neil Garfield

In the final analysis nearly all foreclosures have been rubber-stamped based upon facts that are presumed to be true but which are untrue.

In my opinion every case lost by homeowners has been the result of the court using legal presumptions and shifting the burden of persuasion onto the homeowner who has been stonewalled, with the court’s help, during discovery and stonewalled before there was any foreclosure when the homeowner submitted qualified written requests and debt validation letters. Hence the court shifts the burden to the homeowner and then helps the bank by not allowing access to information that would prove that the presumed fact is rebutted by competent evidence.

THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

As if it isn’t hard enough to defend foreclosure actions, pro se litigants and lawyers alike get caught up in a spiral of presumptions that are said to apply because of state law.

Florida Statute 90.302 makes it clear that if there is credible evidence to sustain a finding of nonexistence of the presumed fact then the existence of nonexistence of the presumed fact shall be determined from the evidence without regard to the presumption. In other words the banks must plead the facts upon which they want relief and not rely upon presumptions of fact that are clearly untrue or at least debatable. After they plead those facts they must prove those facts. In other words the burden of persuasion is on the banks to show the fact is true instead of being on the hapless homeowner to show that the fact is untrue. The only party who actually knows, and the only party that has access to the information that would prove it one way or the other is the bank or entity that is initiating foreclosure.

This provision is often overlooked — especially when arguing to compel discovery. Patrick Giunta, Esq. (Ft. Lauderdale) has had success in demanding discovery that would rebut the rebuttable presumption. The bank responded with alarm.

For example, the promissory note that is facially valid (complies with statute to be a negotiable instrument) enables the bank to invoke the legal presumption that everything in the note is true. That in turn gives rise the presumption that the Payee in that note is a lender.

But that is also a rebuttable presumption. So discovery requests for information that might lead to the discovery of admissible evidence showing that the Payee was not a lender, but rather a broker would be appropriate. Courts have almost uniformly used the rebuttable presumptions as though they were conclusive presumptions. During discovery they will most often deny requests for information about one instrument or another and the underlying presumption of a real transaction for which the note is evidence.

The note is evidence of the debt, not the debt itself. Theoretically at least, demanding information about that underlying transaction should produce no prejudice to the bank. But he fight on presumptions is so intense that it leads one to conclude that the banks are winning cases based upon facts that are not true but taken to be true as a result of the application of legal presumptions.

It isn’t enough to know that the loans and foreclosures are fraudulent generally. It must be specific to the case. But I am leading the attack now on legal presumptions. I am attempting to use the information in the public domain and, where possible, inconsistencies in specific case filings, to show that the rebuttable presumptions that are normally applied should not be applied because of the common wording in the statutes that say if there are circumstances that show lack of trustworthiness about what appears to be a facially valid document then the party who proffers that document must prove their case without the benefit of legal presumptions. This, if accepted, would shift the burden of proof squarely on those attempting to use the vehicle of foreclosure, requiring them to prove the actual loan from a specific party, and the actual ownership of the debt by a specific party.

The argument from the banks should be interesting. On its face there is obviously no prejudice requiring the banks to prove a fact that is true. What if the presumed fact is untrue? The banks will fight it because without the presumption they cannot prove the truth of the matter asserted in the “facially valid” document. My proposition is this: they can’t prove those facts because they are not true. In the final analysis nearly all foreclosures have been rubber-stamped based upon facts that are presumed to be true but which are untrue. In my opinion every case lost by homeowners has been the result of the court using legal presumptions and shifting the burden of persuasion onto the homeowner who has been stonewalled, with the court’s help, during discovery and stonewalled before there was any foreclosure when the homeowner submitted qualified written requests and debt validation letters.

Hence the court shifts the burden to the homeowner and then helps the bank by not allowing the homeowner to access information that would prove that the presumed fact is rebutted by competent evidence.

Whether this attack will be allowed is another story. The underlying bias is that regardless of the malfeasance of the banks, the homeowner shoulders the entire burden of the wrongdoing. As stated in Yvanova while legally it matters whether the homeowner owes any money or anything else to the initiator of a foreclosure, in practice this is NOT followed in most court actions. The simple truth is that the courts are allowing the banks to bend, break or twist the rules and laws — until the bank wins. This obviously is wrong on many levels. The decisions being made during this 10 year holocaust will come back to haunt us on a variety of levels. These cases will be cited to enable fraudsters of all stripes and colors to escape liability and even accountability in civil and criminal courts.

I have marveled, for example, at how the small fish have been convicted of white collar crime for issues relating to “mortgage fraud” when in fact they were doing exactly what their “victims” had wanted them to do. They were merely tossed under the bus to make it appear that a mega bank would never have sanctioned such behavior. In truth, they not only allowed continuous violations of lending laws, they invented most of the ways that lending laws were ignored. And the violations continue because the banks are obviously immune from serious prosecution.

Both political parties are responsible for that and thus all three branches of government are infected with what has repeatedly been shown to be a fatal virus — fatal to the middle class who make up the vast majority of the consumer driven economy. We are undermining ourselves every time another foreclosure is allowed. In each foreclosure we remove another family from the ranks of consumers whose purchases normally make up 70% of GDP. Look that up — the economists have replaced consumer purchases with the movement of paperwork linked to worthless financial instruments. Where the financial industry pretty much had an important place at 16% of GDP, it is now reported as just under 50%. But Wall Street is allowed to exist because it is a conduit for capital. How could the currently reported figures be right if the middle class has been indisputably decimated? What is so valuable on Wall Street that it now makes up half of our GDP? What are they measuring — inflated salaries and bonuses?

As long as this bias remains true, the continuing epic financial fraud revealed in 2007-2009 will dominate our legal and living landscape.

 

 

 

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