Reposted out of dread
by Danny Hammond
For thirty years I have done everything in real estate that you can do.
(SEE Danny Hammond Bio) I qualify to testify as a mortgage document expert witness under the Federal Rules of Civil Procedure (FRCP) for expert witnesses.
I have never called out another writer on the subject of Mortgage Fraud. I have always known that some of the most popular blogs are written by attorneys who can cram a whole bunch of correct laws into a sentence that will promptly get your ass kicked. But, I thought it would make me look adversarial when it was not necessary.
But, Neil Garfield has had some other agenda for a very long time, and it isn't helping you win.
But, you guys that contact me have put together some beautiful research and have eloquently stated the facts, the law, the truth, and the malicious intent that you have reviewed.
Not knowing the law or not doing the research is not the problem that is causing y'all to lose in consistently ludicrous and logic-defying rulings and orders. I have heard Borrower after Borrower repeat the same true and concrete evidence as if their research was leading them to the same conclusions over and over.
It is not just you. I have burned a great chunk of my life coming to the same conclusions and having judges rule and order and such, with what seemed to be total disregard for what has been written.
That is exactly what every state, federal, and the municipal judge has been doing. They are not reading what we have written. Never. Not ever. That is the conclusion you must come to when you find that truth and law are not present in your courts. That is the conclusion that I have come to. I would back off of this belief if anyone anywhere would just prove me wrong. I am not wrong.
The point all along was that a judge cannot take a case until he has reviewed at the beginning of the case what the foreclosing party has written in its lawsuit or complaint and what the Defendant Borrower has stated in his Answer to the lawsuit. The judge cannot disregard what you write in some useless motion two years from now if HE HAS NOT REVIEWED AND DETERMINED AND WRITTEN DOWN HOW THE FORECLOSING PARTY HAS MET THE ARTICLE III CONSTITUTIONAL, IRREDUCIBLE, MINIMUM REQUIREMENTS OF STANDING.
I have never seen a judge do that. I have never seen a judge do the right thing. If you are reading this and you have been to my website before then you know that I am a strict constitutionalist. What do the words say, exactly? Neil is now saying they always do the right thing. If that were true no foreclosure trial would take more than three weeks and Borrowers would never lose.
Someone sent me what I think is a recent post from Neil Garfield's Livinglies blog. For ten years he has rehashed the same attorneyspeak junk about how smart he is and you can't possibly know anything because you are not a member of the Lawyer Cult. "So, don't worry honey, I will take good care of you while you are in such danger".
When I read this all I could think of is it is the same logic-defying proof issues that all of you keep telling me. Neil has run up a new flag to the yardarm.
Let's review these new Garfield thoughts for consistency with reality...
Every word of what Neil Garfield writes is correct and would be useful in the old world before 1999 and the Repeal of the Glass-Steagal Act of 1933. But, Neil and everyone like him is leaving out the little part about how the constitution directs judges to review and then define whether the Plaintiff Foreclosing Party has demonstrated the right to even try to haul your ass into any court by meeting the requirements of claiming it has suffered an injury in fact and proved that injury is real and actual with "concrete and particularized" evidence (those of us from Perry Mason to Boston Legal know this as "beyond a reasonable doubt".
For two years I have tried to find one single Borrower case in which the alleged foreclosing party even stated that it had suffered an injury. Not one. I found none. These Imposters and Fictitious Payees won't write it down. They won't file it. They won't describe their concrete and particularized evidence. They don't have it. Any judge that has taken any of the cases that I looked at (hundreds) forward did so without subject matter jurisdiction and committed acts of Deprivation of the Constitutional Civil Rights of the Borrowers. I believe it has been done over 20 million times.
I'm telling you that the judges are the problem. Why in the Hell is Neil writing this tripe in defense of the same judges? Read his recent stuff and read my recent stuff and you decide which road you want to travel. You are welcome to follow me to the constitution and your civil rights to Due Process.
Below are Neil's condescending words I try to figure out how his cases get into court and then how the burden of proof is unconstitutionally placed upon the borrower to think up all that great stuff he wrote about a case that should never have been allowed to go before a court.
The changes in what he has said for a decade and what he just said are enigmatically extraordinary. Neil has just said in two back to back blogs that the same judges that were bad and that were recklessly swamping the United States Constitution. No, I said that. But, Neal knows good and well the judges are placing the burden of proof on the Borrower in direct conflict with Article III constitutional law.
Neil's Current thinking is below. Do not trust any of this.
This is how I found it on the Livinglies Website. His blog today is
Stop Blaming the Judge
Posted on March 31, 2020 by Neil Garfield
This is how it appeared. I did not change any wording or fix any typos.
RULES OF COURT: Judges Are Not Overlooking Anything
Posted on March 27, 2020 by Neil Garfield
In defense of judges, they are not “overlooking” anything. They are following established judicial doctrine and practice. It is true that 20 years ago judges would scrutinize foreclosure filings to make sure there was nothing amiss but that was unusual practice compared to other areas of the law. In the face of volume, they had to drop that and go back to normal practice. That means that if you have an issue you must state it. If you have a claim you must prove it. If you have a defense you must prove it.
It’s all legal procedure that hardly anyone outside the courtroom understands. We have rules or “elements” for every type of claim. Once stated, if you allege the elements, then the burden is on the defendant to answer.
If Defendant files affirmative defenses the Plaintiff can file a response but is not required to do so.
A facially valid document, for purposes of judicial economy — especially in the context of high volume — MUST be considered valid for all purposes and further that everything written on it is true.
Judges don’t have any choices about that even if they harbor grave doubts. It’s their job. So there is your legal presumption. The difference between an assumption and a presumption is that a presumption is legally binding. That’s the rule.
So that is what enables and in fact requires judges to enter final judgment or summary judgments if the Defendants fails to respond or does nothing but whine about the presumption. The whole point of the court system is to move disputes through a process where there is a final decision, for better or for worse.
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We know that the presumption leads to erroneous conclusions of fact and law. But the judge is required to assume we are wrong. That is why I have emphasized how opposition to illegal foreclosures MUST be persuasive — and not merely correct. One of the fundamental doctrines that judges are required to follow is called “preservation of contract.” Once presented with a contract, the court is required to honor it. If you want the judge to say there is no contract or that the Plaintiff is not party to it, you must present the court with very convincing facts that undermine these presumptions and doctrines.
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So merely alleging that they are thieves and crooks and that they fabricated, forged, backdated and robosigned documents is not enough. You must put facts in front of the judge that makes the judge stand back and consider that the foreclosure might be defective or even a ruse. We do that in discovery. And in discovery, knowing that the documents are not valid, we ask questions and demand answers and document production that we know they can’t answer or produce.
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But the system is more elaborate than that. No claim simply gets denied because of clerical mistakes or even willful avoidance of discovery demands. We need to aggressively and repeatedly demand hearings on objections and file motions to compel, motions for sanctions and motions in limine — because the judge, all in accordance with established court doctrine — is going to give the claimant in foreclosure multiple chances to comply with court orders before the judge brings the hammer down.
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And lawyers need to be mindful of what they are getting once they make their point and have convinced the judge that the opposing counsel is playing with the court. They should seek judgments, not dismissals, but that is not always easy to get.
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PRACTICE HINT: No fact is admissible without a predicate. So, for example, if you want the judge to believe that the traffic light was red, then you need a witness who say that. But the witness can’t say that unless the witness is competent — capable of taking an oath, perceived the red light at the time and place you are seeking to prove, can remember the situation and context, and is able to communicate their memory of their perception in a credible manner.
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The only exception are situations where legal presumptions are in play. Facially valid documents require no predicate other than that they are facially valid. But watch that too — many documents admitted as facially valid are not facially valid. failure to perceive that fact and allowing such a document into evidence may in effect concede the whole case.
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For example, the fact that it appears to be signed does not necessarily make it facially valid. If the signature leaves the reader in doubt as to the authority of the signor it is not longer facially valid. A clear example of this is when the signor claims to be signing for a company that is claiming to be an attorney in fact for a legal entity that is inadequately described.
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In such situations, there are two problems with declaring such a document facially valid. The common thread in the necessity of parole evidence in order to establish the validity of the signature. In the example I provided two such instances exist:
_There is more, but it was more drivel. Neil is trying to wow you with words he knows but, you do not often hear. That is part of the attorney cult rule book. "Baffle them with bullshit!"
