Monday, February 3, 2014

Many attorneys are doing well in court without the Steinberger decision

by Neil Garfield
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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