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Sunday – November 11, 2018

Ten Common Misstates That Many Homeowners and Even Many of Their Attorneys Continue To Make in Defending Foreclosures

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On past shows John and I have identified many of the mistakes that homeowners and their counsel have been committing while defending against state and federal foreclosures, often resulting in eviction.

Today we highlight and summarize ten such major common mistakes that are still dominant today which, properly understood, could save your home, including the following:

1. Foreclosure litigation is not a static but a dynamic sport, success in which intellectual battle requires an ever changing awareness and constant understanding that nothing is preordained.

2. The outcome of your case will depend not necessarily upon what the law is, but who your judge is, including your adjusting to his or her past decisions and institutional pay grade.

3. Success in foreclosure litigation depends upon basing your arguments in court not upon generalizations but upon your specific facts, and primarily upon the controlling judicial decisions in your jurisdiction and not elsewhere except as used as persuasive authority.

4. Homeowners in foreclosure need to avoid most Internet foreclosure defense advice, any use of generalized foreclosure defense forms, reliance alone on forensic audits, paying for assistance in preparing loan modification applications, and all deceptive mortgage rescue scams.

5. Foreclosure defendants need to avoid being overcome by a dead beat psychosis, blaming yourself for the foreclosure, and causing divorce, depression, illness, drug addiction, and even suicide, when in fact most foreclosures are usually not entirely or even partially a homeowner’s fault.

6. You should marshal your financial resources to delay or to defeat eviction whatever your goal may be, filing a Chapter 7 bankruptcy petition only as a last resort and only if evicted unless needing earlier to discharge other debts.

7. Do not make a fool out of yourself in court by arguing unavailing defenses, such as the Justice Mahoney defense, the copyrighted name defense, the Hawaiian Kingdom or Spanish Land Grant defense, the Postal Court defense, the Admiralty Law defense, and/or the DC defense.

8. Do not consider a loan modification as a gift, but as your federal right and your lender having a duty to grant you one, and specifically document both the contents and the timing of your loan modification application with witnesses’ signatures properly notarized, and when turned down internally appeal and if necessary thereafter sue.

9. Do not file lengthy memoranda of law in court. Winning based on “the weight of the evidence” does not mean how much your papers weigh. Get right to the point. Many judges typically only will read the first few pages and eye scan the rest. Avoid defending with empty labels like “fraud” and “predatory lending” and “robo-signer,” which unless fully explained and documented mean nothing by themselves and will turn away your judge.

10. Do not agree to stipulate or accept any fact submitted by your lender. Deny every material fact. Make your lender prove with evidence based on personal knowledge every material burden of its required proof, including its having sent you an accurate notice of default and to the correct address, the contents your loan general ledger, and its standing to bring the foreclosure action against you.

Listening to today’s show hopefully will save many more homes from foreclosure. One might be yours.

Please remember that most of the Nation (except Hawai’i which remains on standard time) went back to standard time last week.

As a result, The Foreclosure Hour is now heard live one hour earlier on most of the Mainland on iHeart Radio on the Internet, which live show however repeats itself streaming the following hour on iHeart Radio for those who missed our live broadcast.

Gary Dubin

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