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For A Fast, Easy Way To Stop A Foreclosure, Check This Out.
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Documentary Clearing House and Associates ("DCH") has pioneered a new strategy for attorneys
who defend foreclosure cases. To date, DCH has produced three motions to assist attorneys
implement the new strategy.
Viewed from afar, the short, unpleasant history of foreclosure during the last three years presents
a sorry spectacle. Far too many judges in foreclosure proceedings have stopped behaving like
judges and instead become advocates for the foreclosure mills. The parties that foreclose continue
to ignore and avoid alternate dispute resolutions.
The government's efforts to stem the tide of foreclosure and encourage alternate dispute
resolutions have been feckless and dissipated. Most people being foreclosed have not discharged
their legal obligation to defend themselves. Instead, many if not most foreclosure cases go to
summary judgment uncontested. The resulting assault upon American homeownership has been
systemic and overwhelming.
Many homeowners in foreclosure believe that legal representation is unaffordable. Unable to make
monthly mortgage payments, they conclude that they have no means to hire a lawyer. The public
sector which defends people who cannot afford a lawyer has been unable to mount an effective
counter- response to foreclosure.
Too much time has been spent on tactics; too little time has been spent on strategy. Foreclosure
defense is preoccupied with finding omissions, defects and deficiencies. The tactics tend to show
that a rule has been violated.
Too many courts are inclined to forgive and forget. The courts dream up notions such as finding
the non-compliance merely "technical" or that the foreclosure is within the "four corners of the loan
agreement".
DCH is calling for a change in strategy. What is needed is a new strategy which is effective and
affordable. DCH's new motion addresses both these requirements.
1.Employ generic defenses to make defense against foreclosure affordable to most of those facing
foreclosure.
Instead of a case specific defense custom designed to meet the unique questions of fact and law
unique to each case, a defense which most clients confronted by foreclosure can ill afford, DCH is
providing pleadings and discovery where one size fits all. DCH is creating generic defenses. The
foreclosure mills have declared war on defaulting mortgagors. The cost effective response to
litigation filed by the foreclosure mills is counter-measures from a defense mill. DCH provides the

2. bullets for attorneys to fire. By putting foreclosure one the assembly line, every client can afford to
retain his or her own hired gun in a foreclosure battle..
There is a conundrum caused by the litigation protocol used in defense litigation to represent
clients in foreclosure: It is effective and counterproductive at the same time. Lawyers are taught to
approach each case as unique and upon its own merits. We are also taught to employ tactics to
complicate the other side's case and discover damaging information. Lawyers also try to use
discovery to find errors and omissions in the other side's case. A proficient litigator wages war
upon the other side with motions, depositions, production of documents, interrogatories and
requests for admissions and stipulations. Attorneys are taught that litigation cases are won and
lost in pretrial preparation. Many believe that a successful outcome is predicated upon pre-trial
strategy. Such tactics are p[art of the litigation protocol and have over time proven themselves to
be effective and productive.
The problem lies neither with the tactics nor the strategy. Lawyers approach a litigation case like a
tailor making a custom suit. Each case is entitled to receive its unique defense to custom fit the
facts and law applicable to the case. The problem when it comes to foreclosure cases is the client.
A client who cannot make mortgage payment can ill afford a custom suit. One reason so many
cases go to uncontested adjudication is that the client has no way to pay for a custom tailored
defense. Three of the four major areas for defense- a defective or fraudulent note, the provenance
of the note and consumer protection and consumer fraud statutes and regulations- require an
extensive proof of facts. No matter how meritorious the defense, it is not serviceable if a client
cannot financially afford it.
Too many foreclosure defendants find themselves between a rock and a hard place. They lack the
money required for a custom tailored defense; they cannot obtain legal services pro bono publico;
and there are no neighborhood services available for which the defendants qualify financially.
Many of these defendants wind up having to appear pro se and lack the ability to do so. A trained
attorney litigating against a lay person is an unfair contest for which the lay person is ill equipped
to succeed. For every individual who can manage competently to defend against foreclosure,
there are countless scores who cannot. Compelled by foreclosure to defend themselves and
unable to do so, these homeowners are buried by the judicial system without having a day in court
before they lose their homes.
Under these circumstances, lawyers must begin to consider a different strategy. Maybe if a client
cannot afford a custom suit, it behooves counsel to take a suit off the rack. To accommodate a
wider base of foreclosure defense cases, it is necessary to develop and implement generic
strategies where one size fits all. Such strategies would not be dependent upon the facts,
circumstances and laws unique to each case. Instead, such a strategy would be dependent upon
facts, circumstances and laws which a large number of foreclosure cases have in common.
In this connection, DCH has concluded that the fourth area of defense, securitization, provides a
uniquely fruitful field for generic defenses. Factors common to and endemic in all securitizations of
mortgages are vulnerable to attack in cases after case where a mortgage has been securitized. A
one size fits all defense tactic which is replicable in case after case becomes exponentially more
cost effective than a client specific, one time use defense.
The foreclosure mills have stolen a march on the mortgage defense bar. The client base of the

3. foreclosure mill is determined to foreclose at the lowest possible expense. Accordingly they have
provided a large number of cases at a fixed rate of compensation per case. This has caused the
foreclosure mills to put foreclosure on the assembly line. The tendency to file the same pleadings
in case after case irrespective of the facts of the case has led to untold abuses of foreclosure.
Nonetheless, by treating foreclosure pleadings as scalable, the foreclosure mills achieve the
economies of scale. This serves to reduce the average cost per case.
Defense counsel can succeed by following the example of the foreclosure mills. Instead of custom
designed defense, counsel must substitute off the rack, scalable defenses. Such a change in
strategy opens up a new and different set of tactics. To date, DCH has produced two motions
attacking securitization. One argues that the mortgage is unenforceable. The second argue that
the mortgage note is unenforceable. Both apply to any mortgage which has been securitized. DCH
has developed a third motion to use in Florida which asserts that the trust is unregistered and
therefore unenforceable. All three motions are generic and are not unique to a specific case.
2.Proactively anticipate and address the concern of most judges regarding unjust enrichment if the
debtor prevails in a foreclosure defense.
What the courts are saying is that foreclosure defenses as presented defend the indefensible.
That a creditor should forfeit the loan because of a technical defect is an inequitable outcome. The
debtor is not entitled to an unearned windfall which is precisely the result for which the defense
consistently argues. So long as nullification of the debt is the outcome if defendant wins,
defendants will continue to lose. Defendants will not succeed in overturning foreclosures unless
and until defendants explicitly seek a remedy other than cancellation of the debt.
To succeed, a defense against foreclosure cannot be a one way ticket to a free lunch for the
debtor. Most judges will not render a judgment they deem to have an inequitable outcome. Unjust
enrichment of the debtor from an undeserved windfall often is used as a rationale which justifies
disregarding defects in the foreclosure proceedings. Most judges believe that the debtor borrowed
and received the money and should be obligated to repay the loan.
DCH's most recent motion explicitly states that if the motion is granted, the court should use its
equitable authority to declare a constructive trust or constructive mortgage and afford defendant a
viable opportunity to effect an alternate dispute resolution. In short, instead of leaving the decision
concerning modification at the sole discretion of the parties controlling the securitization, the court
would now makes its own determination and more equitably protect the rights of all parties
concerned. This affords the defense the proactive opportunity to address the issue of unjust
enrichment. It also allows the court order an alternate dispute resolution where the outcome would
reduce the loss inflicted upon the creditor.
The judicial choice is not limited to either conferring a windfall upon a defaulted "deadbeat" or
allowing large financial institutions to flout existing laws. There is no reason that the note does not
properly evidence a debt which has not been paid-even if the note holder is not evident.
Even if the note is legally unenforceable, the court may declare a constructive trust. The court can
declare a constructive trust or constructive mortgage and assure payment of the trust and
certificate holders. As a constructive trust or mortgage, the court may impose conditions. For
example:

4. (a)Review foreclosure fees and charges.
(b)Consider compliance with consumer protection laws and avoidance of consumer fraud. Where
damages have been suffered by the debtor, the court may allow a set-off.
(c)The Court may order mandatory mediation or arbitration.
(d)The Court may modify in any way deemed equitable and appropriate, the mortgage to enable
the debtor to make timely payments and the creditor to recover payment of the debt.
The court may consider a wide range of modifications to the note to allow an alternate dispute
resolution. This would go a long way to mitigating financial loss to the creditor and moving
foreclosure from a first resort to a last recourse.
3.In an adversarial system the person sued is under a legal obligation to defend against the cause
of action. Every person in foreclosure requires a competent legal defense; and an affordable legal
defense is available.
Our adversarial system of justice legally obligates a person who is sued to appear and defend. A
defendant who fails to appear and defend loses the case by default. In civil proceedings, the law
provides each defendant only with the opportunity to defend, not a defense. Judges preside to
hear a case and make judgment. The judge does not represent or defend the rights of the party
filing suit or the defendant. It is shocking and saddening to realize how many Adult Americans do
not realize and understand their legal obligation to defend when they are sued. Such ignorance is
a function of an inadequate educational system and an indifferent media.
The avalanche of foreclosures resulting by adjudication in uncontested cases demonstrates how
many homeowners fail to realize that they have an opportunity, duty and obligation to appear and
defend against foreclosure. The message is lot that effective, affordable and realistic defense of
foreclosure has the highest likelihood of achieving an alternate dispute resolution whose
consequences to the debtor are significantly preferable to foreclosure.
The members of the bar who want to defend clients against foreclosure need to get out a
message. Every person in foreclosure requires a competent legal defense; and an affordable legal
defense is available. Most families in foreclosure believe they are helpless victims, overwhelmed
by forces beyond their control. The foreclosure mills are posed to exploit this state of mind.
A different message needs to be published and widely disseminated. Most people today have
learned that with the advances in modern medicine it is far better to treat a disease than succumb
to it. The same principal applies to defense against foreclosure. Most people, however, are
unaware that affordable "treatments" for foreclosure ailments are available.
There are many public spirited people, including members of the bar, who have selflessly given
their times and work product to enable individuals to act pro se and represent themselves. In many
places, people in foreclosure are invited to participate in symposia which are aimed at educating
defaulting debtors regarding their rights and remedies. To the extent these programs educate the
public about the choices and expectations relating to foreclosure of a home, they perform a
valuable public service. The non-profit mortgage counseling conducted by HUD affiliated
counselors is an excellent example of public education about debtor's options and choices in
foreclosure.

5. To the extent, these symposia try to empower a debtor to defend pro se against counsel from a
foreclosure mill, the undertaking is an exercise in futility. The average homeowner is unable to
effectively defend against a foreclosure in a judicial proceeding. Busy, overworked judges have no
patience with quixotic tyros tilting against windmills.
4.Use asymmetric defense tactics to thwart foreclosure mills.
The profitability of foreclosure mill operations is a function of the number of cases resulting in
uncontested foreclosure. For these operations, time is money. The less time allocated to
successful adjudication of a case, given the fact that compensation is capped, the more profitable.
Conversely, the more time required to prosecute a case, the less profitable it becomes. DCH's
motions to dismiss require opposing counsel to do extensive, time consuming legal research. A
response will consume substantial legal resources and billable hours which are not billable.
In defending a foreclosure, every attorney should have an off the shelf, standardized discovery
package. Where a mortgage is securitized, DCH is working on a discovery package of requests for
production of documents, requests for admissions and interrogatories, motions to compel answers
and production if required, document checklists and annotations and notes explaining why a
specific document is required or question needs to be answered.
The ultimate goal is to bring down the cost of legal care, just like health care, to make it affordable
to one and all.
Conclusion
DCH is respectfully calling for a change in foreclosure defense strategy by implementing the
following tactics:
1.Employ generic defenses to make defense against foreclosure affordable to most of those facing
foreclosure.
2.Proactively anticipate and address the concern of most judges regarding unjust enrichment if the
debtor prevails in a foreclosure defense.
3.In an adversarial system the person sued is under a legal obligation to defend against the cause
of action. Every person in foreclosure requires a competent legal defense; and an affordable legal
defense is available.
4.Use asymmetric defense tactics to thwart foreclosure mills.
For more information contact:
Richard F. Kessler
Documentary Clearing House and Associates, LLC.
941-924-5608,
richardfkessler@verizon.net
http://www.documentaryclearinghouse.com
DCH OPENS NEW FRONTIER FOR DEFENSE OF FORECLOSURE

6. "The Stop Foreclosure Package."
The Stop Foreclosure Package contains legal forms, explanations and instructions to enable the
user to argue the unenforceability of the mortgage and find the evidence which supports each
legal defense asserted. When a mortgage is converted into a security, fatal legal errors occur. The
Stop Foreclosure Package identifies the errors and provides the tools needed to find the proof
required.
The Stop Foreclosure Package enables each customer to purchase as an individual and defend
like an army.
The Stop Foreclosure Package is priced as follows:
$349.00 plus tax................pro se for an individual for a one time use.
$599.00............................for a single attorney with unlimited right to reuse.
$799.00............................for a law firm of attorneys with unlimited right to reuse.
DCH may not represent you legally or provide legal advice. Please give us the opportunity to help
you save your home and delay foreclosure by using our Stop Foreclosure Package for the price of
one half month's rent. You cannot afford to miss this opportunity to try to save your home.
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For A Fast, Easy Way To Stop A Foreclosure, Check This Out.
www.realestatesolutions2012.com
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