Attorney Gary Dubin’s Foreclosure Workshop: An Updated Working Checklist of the Ten Most Important Ways of Surviving the Rule Ritual in Foreclosure Summary Judgment Proceedings
“Play dirty and win,” proclaims Hawaii Attorney Gary Dubin during his April 2nd, 2017 “Foreclosure Hour” radio broadcast. Dubin encourages listeners to understand the court’s “rule ritual” and to recognize the ten rules banks use to defeat homeowners and ways to avoid summary judgment. Dubin expresses frustration at the double-standards applied to both criminal and foreclosure law that are handled differently than other court matters. He also notes the lack of due process that both the accused and homeowner’s deal with when seeking relief from a biased judiciary.
Dubin claims that rule ritual has disadvantaged American homeowners by, “fostering an erroneous approach to legal reasoning historically causing the misapplication of foreclosure rules, particularly in summary judgment proceedings, the most important event in any foreclosure case.”
We encourage you to listen to Dubin’s broadcast as he blasts the courts for being a “disgrace” and “train-wrecks.” He says that in two-hundred years, the area of law has failed to progress with other industries and contrasts the rule of law to the field of medicine. While new advances and therapies have resulted in medical innovations to address disease, the legal system has failed to evolve. The legal system is not adaptive and Dubin complains that the, “word robots in black robes” rely on “rule rituals” to make very misguided decisions. “Things change but the law hasn’t,” claims Dubin.
If you lose on summary judgment Dubin says that most importantly, “you’ve already lost” and your chances of prevailing on appeal are poor. Therefore, it is best to take steps to ensure you won’t have your case dismissed on summary judgment and it doesn’t hurt to “play dirty and win.” Agreed. Here are Dubin’s first three rules. Please visit www.foreclosurehour.com to listen to the broadcast.
The first three rules to overcome summary judgment are:
- Truth in Lending Act
The purpose of TILA is to ensure the buyer has full disclosure when borrowing money, but the law is so complicated and ambiguous that attorneys and accountants can’t understand it. However, the law is clear that a homebuyer will receive 2 copies of the Right to Cancel letter at closing. Dubin argues that no closing agent takes a photo of you accepting the 2 copies of the letter,so therefore there is no proof that you received the copies even if you signed a document stating you did. This alone should bring up a question regarding if the TILA requirements were complied with. Dubin floats the idea that maybe you file a declaration that you never received the two copies as required by law, and that may enable you to at least temporarily defeat summary judgment. Dubin is merely suggesting that homeowners might emulate the games the bankers have played for years.
- Default Notice
Did you receive your right to cure or default notice? You may or may not have because servicers have been known to claim they sent default notices when they didn’t or deliberately mail them to the wrong address. Since most states don’t require that the default notice or right to cure notification be sent by certified mail or delivered by a process server, there is no proof that you ever received the letter. The bank can claim it was sent but they typically have no evidence they sent it or you received it. In fact, the letter might get them in trouble by providing conflicting information, so it is not unusual for the bank to fail to send a default notice. If there is litigation, and you deny receiving the default notice, then the bank will have to produce someone to attest that they sent the notice. Challenge all claims and demand evidence of mailing.
- Loan General Ledger
Have you received a copy of the Loan General Ledger from your servicer? You should ask for this ledger that each servicer allegedly transfers from one servicer to the next. The problem is that the servicer probably doesn’t have the full ledger since loan origination of your loan and even if they can produce it, it may be indecipherable. This is because each servicer uses its own technical platform that is often not compatible from one servicer to the next. Dubin says that he recently received a ledger that was so small he couldn’t read it with the aid of a magnifying lens. Other issues are codes that cannot be deciphered and major accounting inconsistencies that raise more questions than they answer. Have you tried to obtain a copy of the loan general ledger? Your servicer should have a copy to share with you. If they don’t have the ledger then where are they getting information on prior servicing events and balances?
In the broadcast Dubin further discusses the use of notes, judicial bias, loan modifications, burden of proof, attorney affirmations, discovery and service of process issues to overcome summary judgment dismissal. (click here to listen).
Dubin also has some other excellent foreclosure defense broadcasts. His foreclosure hour show is broadcast live on Sundays at:
3:00 PM HAWAII
6:00 PM PACIFIC
9:00 PM EASTERN
(830 ON THE DIAL IN HONOLULU)