TFH 5/12 | Foreclosure Workshop #74: Validity Versus Falsity — Proven Successful Ways in Which Homeowners in Foreclosure Can Weaponize Their Discovery Requests Relatively Inexpensively at the Beginning of a Foreclosure Case

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TFH 5/12 | Foreclosure Workshop #74: Validity Versus Falsity — Proven Successful Ways in Which Homeowners in Foreclosure Can Weaponize Their Discovery Requests Relatively Inexpensively at the Beginning of a Foreclosure Case

TFH 5/12 |  Foreclosure Workshop #74: Validity Versus Falsity — Proven Successful Ways in Which Homeowners in Foreclosure Can Weaponize Their Discovery Requests Relatively Inexpensively at the Beginning of a Foreclosure Case

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

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Sunday – MAY 12, 2019

Foreclosure Workshop #74: Validity Versus Falsity — Proven Successful Ways in Which Homeowners in Foreclosure Can Weaponize Their Discovery Requests Relatively Inexpensively at the Beginning of a Foreclosure Case

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In recent shows we have been discussing the controversy between Validity Versus Finality, where following foreclosure homeowners attempt to set aside foreclosure decrees based on fraud and other standing and jurisdictional deficiencies.

On past shows we have highlighted the Marcantonio Appeal as illustrative of the Validity Versus Finality controversy, now hopefully coming to the forefront in Hawaii.

Last Monday, right after last Sunday’s show, the Hawaii Supreme Court for example granted certiorari in Marcantonio, and the oral argument has been set for June 20, 2019 at 10:00 a.m. at the Hawaii Supreme Court in downtown Honolulu, and any of our listeners interested and able to are invited to attend.

On today’s show we go back to the very beginning of a foreclosure case and examine the flip side of the post-judgment Validity Versus Finality controversy: pre-judgment challenges to a foreclosing plaintiff’s burden of proof during =a foreclosure case, involving Validity Versus Falsity without the burden of Finality.

There are three basic strategies for defeating a foreclosing plaintiff’s foreclosure case: (1) an ambush strategy, consisting of waiting for it to commit itself in its motion for summary judgment once filed and then attacking its lack of proof, (2) an aggressive discovery strategy, consisting of serving numerous discovery requests during a foreclosure case to prove it cannot support its case, and (3) a combination of the first two.

In deciding which strategy to use, cost is a factor along with the specific facts of each case. Also, there is some danger early on in educating a foreclosing plaintiff as to its burden of proof, activating its hidden photoshop and printing press capabilities.

And while an ambush strategy is capable of defeating summary judgment, an aggressive discovery plan can not only defeat summary judgment, but win the case outright for you by disproving the foreclosing plaintiff’s entire case.

In choosing the best strategy for each individual case, here is what we do know. Most foreclosures and certainly virtually all securitized trust foreclosures are being supported in court by various degrees of fraudulent paperwork, consisting of fake documents, false verifications, forged signatures, predated instruments, concealed unjust enrichment, and hidden ownership.

There are many reasons for such fraud upon the court, such as the covering up of sloppy record keeping, securitization which itself slices and dices loan documentation making it difficult for foreclosing securitized trusts to fit within state statutory foreclosure requirements, loan modification hocus locus, and federal government insider machinations, as well as sheer fraudulent intent on the part of banksters, pretender lenders and loan disservicers.

The law in every state and federal jurisdiction provides litigants with several discovery weapons for gathering facts in advance of summary judgment proceedings and in advance of trial proceedings. And with the exception of oral depositions, most are relatively inexpensive.

However, expect the necessity of filing motions to compel as many foreclosing plaintiffs may at first refuse to provide you with adequate answers to your discovery requests or no answers at all, increasing costs that you may be able to recover from the court granting your motion to compel.

And you often also need an expert forensic report identifying your mortgage or deed of trust within a trading platform and/or disproving the existence of a “wet ink” original promissory note, which will add as much as $10,000 or more to your discovery costs, although well worth it if you can afford it.

There are four basic discovery weapons: (1) requests for admissions, where you can ask the other side to admit or to deny specific material facts, (2) requests for answers to interrogatories, where you can ask specific questions of the other side and also to some limited extent nonparty witnesses, (3) requests for the production of documents and things, where you can inspect and acquire copies of specific writings and inspect other physical objects, and (4) notices of the taking of oral depositions, consisting of your questioning of specific persons or unknown persons to be identified by the other side who are knowledgeable as to certain needed information.

The best approach to discovery is to combine the requests by making each separately numbered request in three parts — for example (subpart 1) asking for an admission of a fact, immediately followed by (subpart 2) asking if not given an unqualified admission, for answers to various interrogatories supporting the denial, including the names of witnesses supporting the denial, immediately followed by (subpart 3) asking for all documents to be produced and inspected supporting the denial.

Then you can follow up by serving notices of the oral or written depositions of specific individuals or ask for the other side to identify and produce for an oral deposition knowledgeable individuals as to certain specific issues in the case.

On today’s show we identify the general format for each successfully combined discovery request and list twenty specific three-part sample requests, as time permits, that could cause your foreclosing plaintiff to give up at an early stage in your foreclosure case, offering you an attractive loan modification in settlement, unless you are seeking an even better outcome at trial.

Please join John and me on today’s show and advance your understanding of the struggle between Validity Versus Falsity at the onset of a foreclosure case and how you can relatively inexpensively weaponize your discovery requests, preferably near the beginning of a foreclosure case and before, post-judgment, you are caught within a Validity Versus Finality controversy.

Gary

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GARY VICTOR DUBIN
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Email: gdubin@dubinlaw.net.

Host: Gary Dubin Co-Host: John Waihee

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