Posted by Neil Garfield | September 7, 2017
Legal presumptions lie at the very heart of the millions of wrongful foreclosures that have been approved by the courts and that will be approved in the future unless lawyers are able to successfully challenge the basic premises of the foreclosing party, to wit: (1) a facially valid instrument is presumed to be authentic and valid and (2) holders of a promissory note must prove their right to enforce the note which in turn means that they must disclose the source of their alleged authority.
Without a timely objection the document will be admitted in evidence as proof of the assertion that a debt exists between the homeowner and the foreclosing party as creditor. Without a timely objection the legal presumption arises that the alleged holder is the holder and possesses authority to enforce.
By failing to make timely objections and sometimes by affirmative allegations in the homeowner’s pleadings that inadvertently create admissions against the interests of the homeowner, the homeowner is often removing issues that should be contested. Once the testimony and documents are admitted, it is nearly impossible to circle back around and contest the facts that you have admitted. One example is reciting the chain of title as if any of those entries were true representations of actual transactions. Admit that and it’s game over.
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