Mark
Stopa, Esq., from the West side if Florida, points out that he and
other lawyers are winning cases without the benefit of some recent trial
and appellate decisions. Our own experience at Garfield, Kelley and
White LLC, shows the same results. In that respect I did a disservice to
myself and my partners. Many lawyers did not get their pleading
dismissed and were able to proceed into discovery and trial. I think
Mark is right that I might have created a misimpression that there was
no progress but for the Arizona or other decisions.
The
fact remains that in most cases the Bank cannot prove its case and
Judges are turning that corner. The old bias is fading. When a lawyer
aggressively pursues weaknesses in the foreclosure case, there are many
gaps in the pleading and proof of the party seeking foreclosure. And
before I leave this out, pay attention to the pleading of the party
seeking foreclosure and their answers either in its answers to discovery
or at trial. It is the complaint and answer that frame the issues to be
presented at trial. When there is a conflict, a proper objection can
stop the Forecloser dead in its tracks.
For
example, BofA in one case filed a foreclosure complaint stating that
they were the Servicer and that the owner of the loan was an
unidentified third party. In response to discovery they assert that BofA
was always the owner of the loan and denied any sale or securitization
of the loan. This amounts to an admission that the allegations of the
complaint are untrue, that the verification of that complaint was a
sham, and that the factual basis and legal theory of their case had
changed. Since they are on the eve of trial, and no motion to amend was
filed, the case is at issue on facts the attorney knows in advance
cannot be proven or even proffered as evidence in view of the sworn
answers to interrogatories. We'll see what happens in that case.
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