Unveiling A Strategic Foreclosure Defense Model: Leveraging Discovery In Judicial And Non-Judicial States Through State Specific Statutes

By: Lance T. Denha, Esq.

In the labyrinth of foreclosure litigation, the timing and strategy employed during critical stages can significantly impact the outcome. Our experience has revealed a paramount step often overlooked by real estate investors and homeowners, proving prejudicial in many cases. This negligence often allows foreclosure proceedings to progress unchecked until it is too late to mount a substantial defense.

Critical Stages of Foreclosure Litigation:

Foreclosure cases initiated by banks, servicers, and trusts frequently sprint towards final judgments without robust opposition. The procedural trajectory takes shape upon filing the foreclosure complaint, where supporting exhibits, affidavits, and documentary evidence are presented to establish the lender’s possession of the note and mortgage at the case’s inception.

Uncovering “Fatal Flaws” in Foreclosure Filings:

Remarkably, the sheer volume of foreclosure cases has led to a concerning trend of sloppiness among bank attorneys during complaint filings. This inadvertent negligence has unveiled a myriad of “fatal flaws” within the documents supporting their chain of title, critical for foreclosure.

Strategic Litigation Model:

Drawing from years of litigation experience, research, seminars, and court rulings, we’ve developed a strategic litigation model. This approach assists lawyers, law firms, and real estate investors across various jurisdictions. The model focuses on critical steps during the discovery phase, utilizing specific state statutes that provide property owners a legitimate cause of action against banks for knowingly filing false documents in public records.

Enhancing Foreclosure Defense:

This innovative strategy enhances foreclosure defense in alignment with Neil Garfield’s premise. It targets banks and their agents for filings made under false pretenses and material misrepresentations, designed to mislead the court regarding their entitlement to enforce the note or institute foreclosure.

Success Across Jurisdictions:

Recent successes in both judicial and non-judicial jurisdictions attest to the effectiveness of this aggressive litigation approach. Propounding various sets of discovery on the filing plaintiff, servicer, and agents regarding misleading instruments filed in public records has proven fruitful.

Versatile Applications:

This exclusive model offers versatile applications during pre-judgment, post-judgment, and appellate foreclosure proceedings. Successful outcomes include discovery victories, motions to vacate final judgments, expert affidavits, expert testimony, objections to judicial sales, and the filing of wrongful foreclosure suits.

Civil Cause of Action:

Central to this strategy is the utilization of state-specific statutes that create a civil cause of action for property owners. This empowers them to file suits based on the falsities contained in foreclosure documents. The discovery process is crafted to trigger violations of state statutes governing the unlawful filing of false records by banks to foreclose.

Conclusion: In the complex landscape of foreclosure defense, this strategic litigation model has emerged as a powerful tool. By focusing on critical stages, leveraging discovery, and exploiting state statutes, we’ve achieved favorable outcomes for clients across diverse jurisdictions. This innovative approach is reshaping the foreclosure defense landscape, offering a potent defense against the banks’ orchestrated filing and recording of misleading foreclosure documents.