Nov
13

Ironman World Championships and the Foreclosure War- It takes Endurance and the Courage to Fight!


Watch the Video Then Click on the Link Below for More Information About the Race!

Ironman-clearwater-fl

Ironman Clearwater

Tweet this!Tweet this! Share and Enjoy: Print Digg del.icio.us Facebook Google Bookmarks email FriendFeed Identi.ca LinkedIn Live MySpace PDF Ping.fm RSS StumbleUpon Technorati Tumblr Yahoo! Buzz Posterous Twitter Yahoo! Bookmarks

Scridb filter
Nov
09

Is Your Foreclosure Final Judgment Void or Voidable? Rally Saturday November 20, TAMPA

Foreclosure-weidnerWhen I started defending foreclosures years ago there was no real defense.  The homeowner did not pay, the plaintiff was suing and they were eventually going to win.   My how things have changed in a short period of time.  Today there are widespread and well substantiated allegations of fraud and improper practices on the part of banks, mortgage companies and the law firms and other agents working to throw Americans out into the streets.  In so many cases the question is not whether your client is going to lose the case, but how many questionable things can you find in the foreclosure lawsuit.

This leads us to the emerging line of legal questioning the community of Foreclosure Defense Warriors are engaged in and that is whether previously entered judgments are Void or merely Voidable.  That question looms like a 800 pound Gorrilla in courtrooms all across this state.  When the full specter of issues related to flawed Service of Process is raised, we will have a real sense of how big the most glaring issues of blatantly Void judgments are.  All judgments based on fraudulent service are VOID.  They don’t exist, they did not happen.  To the homeowner living in that new home after purchasing from the bank…..sorry, but you don’t actually own that home, your deed is worthless.  To the bank that gave that mortgage to purchase that home, your lien is not valid.  This line of inquiry is shaking the title industry to the core as they struggle to play a game of “Not my problem; it’s yours”…trying to pass the liability off on the lenders who foreclosed.  Next, the investors are trying to hold the servicers and lenders accountable as evidenced by the recent letter from Deutsche Bank to the servicers stating, “we ain’t gonna be liable for your screw ups”.  This showdown is also a focal point of investor lawsuits against the major servicers, most especially Bank of America.  They’re all saying, you guys screwed this up and we’re not going to hold the bag. (Bank of America is saying “Screw You” you’re on your own.  Obama is saying, “foreclosures are good, we don’t need no moratorium.)

stpete-foreclosure-lawThese are not abstract questions that will have no consequences.  In fact, during a recent meeting of the judges and attorneys in Florida’s Sixth Judicial Circuit, it was acknowledged that these questions are going to plague our courts for years to come, as you can read in the attached article in the St. Petersburg Times.

“Even when judgments have been entered and sales have happened, they may say, ‘Whoa, that may have been sold improperly,’ ” McGrady said. “We’re going to have title issues and all those things. And every motion, everything that’s brought to the attention of the court will require a hearing of some sort. We’re working through it, but it will take that much longer.”

This issue is part of the larger and important work of a highly specialized group of foreclosure defense attorneys who have a broad range of experiences and who meet in secret locations regularly to discuss such issues and work through the much deeper and more significantly troubling aspects of this foreclosure insanity.  The JEDTIS (Jurists Engaged in Defense of Title Integrity) are a group formed by Clearwater attorney Greg Clark and include some of the brightest minds in all areas of the law.  If you’re looking to determine whether you have title claims, void (or voidable) judgments or have any number of other claims related to your foreclosure suit, especially any potential appellate cases, contact me for a referral to one of the JEDTI Masters.

For those attorneys who are just beginning your inquiry into VOID or VOIDABLE  judgments, please see some of the initial case law research and discussions on the issues.  The following is intended to assist attorneys in reviewing and intake of cases, please forward your cases to me for review and consideration by the JEDTI masters who are standing by ready to return the rightful owners to their property after proving up that the current “owners” of homes are merely posessors of the home subject to VOID deeds.

Judgments which are void at the outset, may on motion at any time be vacated. See Fla.R.Civ.P. 1.540 (b).

Diligence to serve by publication: Wiggam v. Bamford, 562 So. 2d 389 (4 DCA 1990), Gans v. Heathgate-Sunflower Homeowners, 593 So. 2d 549 (4 DCA 1992), Hobe Sound Ind. Park v. 1st Union Nat. Bank, 594 So. 2d 334 (4 DCA 1992); Batchin v. Barnett Bank, 647 So. 2d 211 (2 DCA 1994).  Forecl judgment entered where sworn statement defective on its face voids sale, even as to non-party bidder.  Gans; HOWEVER, see later 4th DCA case Demars, which says it is only voidable.  See also Fund Concept, Forecls V. Absentee Owners, Jan 93; and III Fla. Real Property Practice (CLE 1976), s. 5.26.  Sworn statement need not set out search facts, but judgment voidable if insuffic diligence, so better practice to set out.  Demars v. Village of Sandalwood LAkes, 625 So. 2d 1219 (4 DCA 1993).

If the trial judge were to find the affidavit to be defective on its face, service would be void as to the bona fide purchaser. If the trial judge finds the affidavit sufficient on its face, but were to determine that a diligent search was not performed, the foreclosure would be voidable, not void, as to the bona fide purchaser. See generally 33 Fla. Jur. 2d Judicial Sales § 13 (2009). On the face of the affidavit of diligent search before us, we find that the affidavit is sufficient for purposes of service by publication and that the trial court did not grossly abuse its discretion in so holding. In light of the necessary reliance on the public record by a bona fide purchaser, the affidavit of diligent search was sufficient on its face to establish that an adequate search had been made to locate an address for service upon Lewis prior to effecting constructive service. The resultant foreclosure sale to the bona fide purchaser cannot be set aside. First Home View Corp. v. Guggino, 10 So. 3d 164 (Fla. 3d DCA 2009) (holding that trial court errs in vacating final judgment of foreclosure in sale of property to bona fide purchaser where homeowner is constructively served by publication and affidavit of diligent search is legally sufficient to establish that an adequate search has been made prior to constructive service); Southeast & Assoc. v. Fox Run Homeowners Ass’n, 704 So. 2d 694 (Fla. 4th DCA 1997) (holding that notice by publication is adequate where affidavit of diligent search is facially sufficient and foreclosure sale to bona fide purchaser is merely voidable, and not void, and cannot be set aside)

847 So.2d 555 RINAS v.RINAS; 1D09-2170 SOUTHEAST LAND DEVELOPERS v. ALL FLORIDA SITE AND UTILITIES, INC.,; 625 So.2d 1219 18 Fla. L. Weekly D911, DEMARS v. SANDALWOOD LAKES; 168 So.2d 183 EVANS v.  HYDEMAN

Tweet this!Tweet this! Share and Enjoy: Print Digg del.icio.us Facebook Google Bookmarks email FriendFeed Identi.ca LinkedIn Live MySpace PDF Ping.fm RSS StumbleUpon Technorati Tumblr Yahoo! Buzz Posterous Twitter Yahoo! Bookmarks

Scridb filter
Oct
26

Saint Petersburg Mortgage Symposium- Saturday November 13, 2010

St. Petersburg is once again leading the state with efforts to protect consumers with this free symposium on mortgage issues.  Please spread the word and make plans to attend.

MortgageSymposium

mortgage-symposium-weidner

Tweet this!Tweet this! Share and Enjoy: Print Digg del.icio.us Facebook Google Bookmarks email FriendFeed Identi.ca LinkedIn Live MySpace PDF Ping.fm RSS StumbleUpon Technorati Tumblr Yahoo! Buzz Posterous Twitter Yahoo! Bookmarks

Scridb filter
Sep
13

Chase Sued in NY for denying modifications

 See full story below… this is going to start happening more and more. The  bottom line in this bank charade is that the big banks/servicers are NOT modifiying people’s loans according to the Making Home Affordable (HAMP) provisions and in accordance to their Servicer Participation Agreements with the US Dept. of Treasury, Fannie Mae and Freddie Mac. Why? Becasue they don’t make as much money when they modify… they’d rather keep a homeowner in default and ultimately foreclose. It all boils down to massive greed.

You know, what really galls me about all of this is that these banks took taxpayer funded bailouts which were given to them AGAINST the will of the people but they took the bailout money and now they are givin the US taxpayer the finger when it comes to modifying millions of homeowners into a federal program which would seriously stabilize the entire economy if it were truly implemented. The worst part of this situation is that the banks/servicers who received the bailout money and who are denying loan modifications really don’t have anything to lose really; they sold these mortgage loans they now service so they have already been paid on them. You know who really owns these loans? You and I do basically… city pension funds, state pension funds, mutual funds. Oh yeah… these fraudsters sold the toxic assets to the American people, insured themselves against the default of the toxic assets, came crying to the government to bail out their insurance companies when the claims exceeded the ability to pay out, took bailout money to “stabilize” the bank when they started to fail and now they treat defaulting American homeowners like complete *!$@ when they call the bank to ask for help to save their home and offer to keep paying a payment that they can afford because the whole damn economy has been imploded by their reckless and greedy behavior.

I for one will NEVER put my worthless money in any of the big banks ever again. A safe at home is safer than depositing any money in a bank. Use a small community bank or local state bank. Credit unions are just as bad if not worse. Seriously, we should all collectively bring the big banks to their knees by simply exercising our right of choice. Take your money out of their bank and go open a new account with a small community bank.

If you continue to do business with the likes of Chase, Bank of America, Wells Fargo, Wachovia, US Bank, Citibank, et al. good luck… you’ll probably be forced to sue them one day just to make sure they abide by their agreements because they really don’t care about you at all.

Chase sued in NYC for denying foreclosure relief

Three Queens homeowners allege the bank illegally delayed and denied their applications under the Home Affordable Modification Program; suit seen as first in NYC.

By Amanda Fung

Published: May 4, 2010 – 12:28 pm

Three Queens homeowners filed a lawsuit against J.P. Morgan Chase Bank N.A. and two of its subsidiaries, Chase Home Finance and Washington Mutual Bank, claiming that the groups illegally delayed and denied their applications for permanent foreclosure relief under the federal Home Affordable Modification Program. The lawsuit is seen as one of the first cases involving the modification program in New York City.

The lawsuit, which was filed in the Eastern District Federal Court in Brooklyn, claims that the bank violated the federal program that requires banks to provide permanent modifications to eligible homeowners who complete three months of trial payments and verify their income. Similar lawsuits have been filed against a number of other banks, such as Bank of America and Wells Fargo, in other states over the past year. Last month, a California couple reportedly sued Chase because it told them to stop making mortgage payments so they could qualify for loan modification. Chase then foreclosed on their home.

Chase declined to comment.

“Chase breached their contract,” said Carmela Huang, an attorney at the Urban Justice Center, which is representing the Queens homeowners in the case. “As far as we know, this is the first case in New York.”

Homeowners from three Queens neighborhoods—Queens Village, Fresh Meadows and Jamaica—are suing to force Chase to modify their loans and end foreclosure proceedings.

Despite making timely trial modification payments two of the homeowners were denied permanent loan modifications and their homes were foreclosed, according to the lawsuit. Chase claimed that their incomes were inadequate for the permanent loan modification, but refused to specify income qualifications, said Ms. Huang.

Similar to the California case, the third plaintiff in this lawsuit is a homeowner in Fresh Meadows who claims that the bank instructed him last month to deliberately miss payments so he would be eligible for a loan modification. The homeowner had refinanced in 2005. As a result of missing two monthly payments, the homeowner now faces foreclosure. While the homeowner was placed on trial modification last year, he was denied permanent status based on the value of his house. But the bank has not disclosed the value. The Home Affordable Modification Program requires banks to offer trial modifications as long as the value of modifying the loan is more than the value of foreclosing.

“Our clients’ situation is not unique. We have been inundated by people in foreclosure,” said Ms. Huang, adding that homeowners don’t have enough resources to sue banks. In this particular case, Urban Justice is providing its legal service for free. “The law is clearly on our side. We hope Chase will settle quickly.”

Loan modifications under the federal program reduce homeowners’ mortgage payments to 31% of the homeowners’ income by reducing the interest rate, extending the term of the loan or adjusting monthly payments. According to Chase, since the start of 2009 the bank has offered 750,000 homeowners loan modifications nationwide, 25% of those were permanent. The bank does not break down regional information.

Aug
09

Foreclosures on NBC Evening News.

Tonight’s episode of NBC Evening News reports on one of the largest yet bailouts….the bailout of Fannie Mae and Freddie Mac.

NBC news reports that more than half of the mortgages in the US are owned or underwritten by the federal government…now consider that in the context of the foreclosure crisis.

Why should the obscene conduct being committed by the foreclosure mills be allowed to continue when the client on whose behalf such conduct is being committed is the victim of the conduct….the US Taxpayer.

Here is the NBC Story.

Visit msnbc.com for breaking news, world news, and news about the economy

Tweet this!Tweet this! Share and Enjoy: Print Digg del.icio.us Facebook Google Bookmarks email FriendFeed Identi.ca LinkedIn Live MySpace PDF Ping.fm RSS StumbleUpon Technorati Tumblr Yahoo! Buzz Posterous Twitter Yahoo! Bookmarks

Scridb filter
Aug
09

The Economic Realities of our Judicial Branch

government-foreclosureWhen our forefathers conceived of this once great nation, a key principle was the necessity for each of the three branches to be separate and insulated from one another.  Great pains were taken especially to insulate the judicial branch from the other three branches. (Writing “the other three branches” was a typo in the original draft, but I left it in…a slip perhaps…maybe the other branch is the heretofore hidden kleptocracry that has recently become so powerful in this country.)

The foreclosure crisis features center stage the most dramatic assault on the fundamental principle of separation of powers witnessed during this generation.  The legislature in this state in particular has made it very clear to our elected circuit court judges…

YOU JUDGES MUST CLEAR THIS FORECLOSURE DOCKET

Legislators are not concerned with pesky details like the law, the Uniform Commercial Code and they’re certainly not concerned with details like Rules of Civil Procedure and the Evidence Code. They don’t care about practical economic realities like what will be done with foreclosed homes in a state with 25% unemployment.  They don’t care that they Yankee Fat Cats and foreign investors sucked billions of dollars of equity from this state.  They don’t care that all this foreclosing sucks more money out of this state and concentrates that wealth in Yankee Fat Cats and foreign investors.   What the legislature does care about is the well funded banking and mortgage industries that contribute to their campaigns…

THOSE INTERESTS ARE DEMANDING AN END TO FORECLOSURE DEFENSE AND JUDGES ARE BENDING TO THOSE INTERESTS.

The blended political and economic realities that have infected our courtrooms plays out every day in courtrooms all across this state.  The most visible expression of this infection is the utilization of senior judges presiding over the foreclosure rocket dockets but other examples abound.  It can be seen every time a circuit court judge overlooks, even for a second and even when a foreclosure case is not defended, any of the rules of evidence, case law, statutory law or rules of procedure that should govern every foreclosure case.  This unprecedented pressure on our judicial branch represents a fundamental breakdown in our core governing principles.  The meltdown on Wall Street shows the consequences of ignoring rules and fundamental principles….

I shudder to think what will be the long term consequences of ignoring rules and principles in our courtrooms.

The article from today’s St. Petersburg Times illustrates just how intertwined our legislature has become with our judicial branch.  This article just scratches the surface and illustrates part of the larger economic and policy debate that has infected our courtrooms.  And while this article details legislative control over funding for buildings, consider that the legislature funds judicial salaries, court budgets and judicial pensions. With that in mind,

Is there any doubt that judicial decisions in the foreclosure courtroom are being impacted by economic considerations?

I recognize that it’s a bit naive to believe that our judges will stand up to these pressures and economic realities, but I’m confident that there are far too many good and intelligent judges out there who do see this foreclosure catastrophe for what it is and who share my concerns.

THE REAL QUESTION IS WHETHER OUR JUDGES WILL SHOW THE COURAGE NECESSARY TO STAND UP AND FIGHT FOR THE HEART AND SOUL OF OUR COURTS.

Tweet this!Tweet this! Share and Enjoy: Print Digg del.icio.us Facebook Google Bookmarks email FriendFeed Identi.ca LinkedIn Live MySpace PDF Ping.fm RSS StumbleUpon Technorati Tumblr Yahoo! Buzz Posterous Twitter Yahoo! Bookmarks

Scridb filter

Aug
08

A Very Bleak Picture- The End of America?

job-marketWhile this blog focuses primarily on foreclosures and legal issues, the fact of the matter is that the foreclosure crisis is a symptom of two pervasive wrongs that continue to lurk across this country.  The first is widespread and institutionalized fraud.  The Fat Cats and financial wizards, with the consent of our elected and appointed leaders, engineered a system that sucked billions of dollars in equity and wealth from the middle and lower class and concentrated that wealth in those at the top of the pyramid…and those in foreign countries.  Now that the wealth and equity has been sucked out of private hands, our courts and our local elected judges are being used to wrestle away the private property rights that were secured by the former privately-held wealth.

Unemployment- The Rot That Threatens To Destroy This Country

The second major wrong that has this country in the death grip is pervasive unemployment and underemployment.  The Wall Street Journal today reports that there are 14.6 million Americans looking for work, or 9.5% of the workforce. (See the full article here)  Now I think that number dramatically understates the scope of the problem because the figure does not account for all those people who are actually out of work or working and earning far less than they need to survive.  If those real numbers were factored in, the unemployment number would surge dramatically.  For the underemployed, I’m talking about any family where both are working, but are not making enough to cover the reasonable expenses of daily life.  Factor in the costs of the very basics…housing, food and medical care and the percentage of Americans who are not surviving is daunting.

Consider too the number of people employed by the US Military and the percentage of GDP attributable to that portion of our larger economy.  As of December 31, 2009 1,421,668 people are on active duty in the military with an additional 848,000 people in the seven reserve components.  The 2009 U.S. military budget is almost as much as the rest of the world’s defense spending combined and is over nine times larger than the military budge of China.  For FY 2010, Department of Defense spending amounts to 4.7% of GDP.  Now I’m a huge supporter of our military, but the point I’m making is that we cannot afford to stop any of our existing wars because we cannot have even a small percentage of unemployed combat trained veterans languishing stateside unemployed with nothing to do.

Foreclosures- What is the point?

Against this bleak background, the foreclosure crisis plays out.  Americans are unemployed and underemployed.  They’re being thrown out of their homes forcefully on the orders of circuit court judges.  The beneficiaries of these forced dispossessions are large financial institutions, foreign investment interests and federal governments agencies that are the ultimate owners of the debt.  We all acknowledge that most of these parties engaged in widespread and massive fraud in the creation and transfer of the debt obligations.  Through depositions and discovery we’re increasingly aware that the foreclosure mills and institutions are engaging in fraud in the litigation of these cases.  Even in those cases where there is not abject fraud, in some cases the legal standards applied to obtain foreclosure has been so diminished that it’s become a meaningless farce. (see foreclosure rocket dockets)  Rewarding those who committed fraud and the law firms that continue to diminish the rules of law and evidence that should apply in our courtrooms deeply offends my sense of fair play and right and wrong.  And against this background I ask, “Why are we permitting these foreclosures to continue?”  What will these bad actors (the lenders and their attorneys) do with these properties when the take them back?  Why are we not forcing these bad actors to permit homeowners to stay in their homes under terms that are reasonable under the circumstances?  The current modification schemes are not working and the lenders and their attorneys are not engaging in good faith  negotiations with homeowners. The point of foreclosure should be to return a non-performing and wasting asset into some better performing use….but in this economy and in this practical reality, the best performing use of residential property is to keep homeowners in their homes under terms that are fair and just.

Our Judges- The Only Hope We Have of Preserving What Liberties And Dignity Remain

People don’t want to be in foreclosure.  It’s embarrassing.  It’s painful. It’s gut wrenching.  Homeowners who are in foreclosure are largely not in foreclosure because they were reckless or irresponsible.  Naive, gullible, misinformed….perhaps, reckless and irresponsible….perhaps in some instances….but how does their unintended conduct compare with the intended conduct of the far more sophisticated party….the lenders that made the loans and the bag men that are now suing to foreclose?  Our local judges are the last line of defense against the inequitable conduct that brought us all to this place.  This is not just about foreclosure.  It’s not just about borrowing money and paying it back.  It’s very much about all the sophisticated shenanigans that was playing behind the scenes and continues to play out in courtrooms across this country.  The judges sitting on circuit court benches are by and large some of the brightest, most dedicated and intelligent people you’ll ever meet.  Some may have been a bit shell shocked as this crisis invaded their courtrooms, but I’m fairly certain that most now understand most of the issues that play out in this sordid foreclosure arena.  For those that still do not, we all need to do our job of telling the story in their courtroom until they get it.

Tweet this!Tweet this! Share and Enjoy: Print Digg del.icio.us Facebook Google Bookmarks email FriendFeed Identi.ca LinkedIn Live MySpace PDF Ping.fm RSS StumbleUpon Technorati Tumblr Yahoo! Buzz Posterous Twitter Yahoo! Bookmarks

Scridb filter
Aug
06

TAYLOR APPEAL JUST RELEASED- (DON’T GIVE UP! DON’T EVER GIVE UP!)

I appreciate everyone’s support  and good wishes after I announced I lost a summary judgment hearing earlier this week.  A summary judgment hearing was held on a rocket docket and Summary Judgment was granted after my objections during the hearing and despite the fact that I had two detailed Objections to the summary judgment filed.  I believe the good trial judge erred in granting Summary Judgment, so I’ve filed a Motion for Re-hearing of the Summary Judgment.

Several important lessons learned from this experience.  First, always make your objections in writing in advance of the hearing.  Next, always have a court reporter present at all hearings.  Finally, even when you follow these important rules, and do not prevail, DON’T GIVE UP.  Rehearing is the first line of attack, then if this doesn’t work, (if you’ve followed the advice above), you should have the tools necessary for a solid appeal.

MotionforReconsideration

And now, just released, the Taylor appeal decision….not good news,

taylorappealdecision

Tweet this!Tweet this! Share and Enjoy: Print Digg del.icio.us Facebook Google Bookmarks email FriendFeed Identi.ca LinkedIn Live MySpace PDF Ping.fm RSS StumbleUpon Technorati Tumblr Yahoo! Buzz Posterous Twitter Yahoo! Bookmarks

Scridb filter
Aug
06

Real Heroes in The Foreclosure Fight!

One of the most rewarding things about this epic battle that is the foreclosure fight is meeting homeowners and other advocates who are standing up and fighting for themselves and fighting for the heart and soul of our courthouses.

Our courts, our judges, our way of life is being transformed right before our eyes as real people are going into our courthouses and fighting for their homes and their own families.   If we do make it out of this profound economic crisis…and unfortunately that is very much uncertain at this point in time…our courts and our legal system will be better off.  It may be a bit of a difficult transition at first as courts have to cope with accommodating consumers, but from what I’ve seen our courts and our judges are adapting.

In some ways I’ll bet many of the judges appreciate seeing real people in their courtrooms.  For decades judges have slaved away, largely in obscurity with only other lawyers to interact with.  Now, they see real people and hear their stories first hand, not filtered through their lawyers.  Given the impossible task and pressures they are under, I think our judges are largely handling this crisis very well.  Keep supporting those who are out their doing their jobs and let’s all keep working to help every judge understand that the equities in these cases largely favor that homeowner standing in front of them.  Read below a comment made by a reader, because it really makes an important point we all should keep in mind….

Unbeknownst to many people, we have only seen the tip of the mortgage crisis.   The scariest part currently of this crisis is that people are losing hope.   They are becoming indifferent to losing their homes and are losing their pride in living the American dream.   The common consensus is “why bother…the bank doesn’t care…why should I?   I will just go rent.”  The American dream has gone from aspiring to own your own home to just hoping to keep your home.

Finally, please watch this video which features my friend and one of my heroes Lisa Epstein and the ForeclosureHamlet website.  It’s encouraging when the press is reporting the foreclosure story from the consumer point of view.  Stories like this one and the other recent article in Mother Jones are helping to shift the public discussion about foreclosures into a much more sophisticated discussion that considers both the root causes of this crisis and the potential long term consequences.

Make sure to watch the video here and KEEP UP THE GOOD FIGHT!

Tweet this!Tweet this! Share and Enjoy: Print Digg del.icio.us Facebook Google Bookmarks email FriendFeed Identi.ca LinkedIn Live MySpace PDF Ping.fm RSS StumbleUpon Technorati Tumblr Yahoo! Buzz Posterous Twitter Yahoo! Bookmarks

Scridb filter
Aug
05

THREE BOMBSHELLS~! 1)I Lost a Summary Judgment; 2)Obama Bailout; 3) Fannie/Freddie Issue New Attorney

1) Today I lost a summary judgment hearing. I’ve got to tell you I’m sickened, not just for the sense of loss I feel, but more importantly for what I view as a real problem in the courtroom.  My arguments were well founded and so were the dozens of other attorneys I saw in the courtroom, but we were all just shut down, denied. Summary Judgment Granted.  I will post my Motion to Vacate/Reconsideration soon.  The experience serves as a reminder to file all your objections (I filed two separate ones) and make sure you have a court reporter present. (I did)  Even though I did, I took a straight up gut punch to the belly loss today and it stings….bad.

obama-bailout2) I’ve been saying from the beginning of this crisis that it will take bold and dramatic federal intervention to make a dent in this crisis.  Reliable reports from a variety of sources report that a dramatic federal bailout of mortgages may be coming.  Click here for that report.

3) Finally, new guidelines were issued by Fannie/Freddie that limit referral fees and relationships among and between the foreclosure mills and the companies providing services to the mills….I can only wonder how these new regulations (and restatement of existing regulations) will affect certain providers of non legal back end services such as oh, I don’t know DJSP Enterprises…(That’s the non-legal component of The Law Offices of David Stern)  I can only wonder how this will impact the already tanking stock of DJSP…..click here for the FannieRelease.

And now back to my Motion for Rehearing/Motion to Vacate.

Tweet this!Tweet this! Share and Enjoy: Print Digg del.icio.us Facebook Google Bookmarks email FriendFeed Identi.ca LinkedIn Live MySpace PDF Ping.fm RSS StumbleUpon Technorati Tumblr Yahoo! Buzz Posterous Twitter Yahoo! Bookmarks

Scridb filter
Aug
04

How Can David Stern’s Office Just Ignore The Florida Supreme Court?

fake-foreclosure-documentsOne of the most frustrating things I find in the current foreclosure crisis is watching the big foreclosure mills just trample of the rights of real people and just ignore case law, rules of evidence and rules of the Florida Supreme Court.  I just cannot understand how they have been permitted to get away with it on such a massive scale.  I mean, what if lawyers just announced they would be ignoring rules of civil procedure….oh wait, that’s exactly what DJSP did with the following disclaimer in the SEC Prospectus:

The Supreme Court of Florida has recently taken an active role in ensuring that proper documentation is filed in a
foreclosure action by amending several rules of civil procedure and pertinent forms related to foreclosure actions filed in Florida….
However, DJS may not be successful in complying with these new rules.

Next, read carefully the attached Motion for Rehearing.  In it, Stern’s office attempts to justify ignoring the valid rules of the Florida Supreme Court.  The Supreme Court provided their response to this argument when it released the following response:

The motion for rehearing on in the alternative is hereby stricken as untimely.

(Apparently the words “shall become effective immediately upon release of this opinion” didn’t make it clear enough)

Now, when no less an authority than the Supreme Court issues an Order interpreting issues relating to their own validly-enacted rules, you would think that would be the end of it right?  Well, apparently that’s not the case.  Stern’s office makes a strained argument that somehow the Rule is not effective.  Forget about the fact that Strern’s office didn’t even file any request for rehearing or clarification….if they took issue with the new Rule, why didn’t they file a response or request for rehearing?  They did not.  So what should be the sanction if Stern and other mills have taken a gamble on a creative interpretation of court rules or procedure and that gamble is not correct?

I am of the opinion that entire circuits should adopt programs like the one adopted by the Twelfth Circuit where the court reviews complaints and dismisses them on its own motion if they are not in compliance with the rule.  I frankly cannot understand why taxpayer dollars should be used to subsidize knowingly improper conduct by the Millionaire Foreclosure Mills or why this conduct goes on with no sanction.

Our judges are under incredible political pressures to clear their foreclosure dockets and dismissing cases when the millionaire foreclosure mills knowingly violate the rules and waste judicial resources is an appropriate sanction that could generate millions of desperately needed revenue for our courts and their overworked staff.  I have yet to have Stern’s office set one of my Motions to Dismiss on this issue for hearing, but I promise I’ll be loaded for bear and I will have a court reporter present if they ever develop enough confidence in their argument to set it for hearing.

Well, enough of my editorializing, read the work below, tear it apart and please share your comments and insight.  I hope that by sharing this Motion and argument we’ll all be better prepared to oppose these positions.

David Stern- Motion for Rehearing

David Stern- Memo in Support of Motion to Dismiss

David Stern- Opposition to Motion To Dismiss

David Stern- Motion to Dismiss Non Verified

Finally, on a related topic, read a recent Palm Beach Post Article on Fraudulent Assignments of Mortgage it provides an interesting counter point to the detailed and researched reporting that appeared in today’s Mother Jones news.  We’re all in this fight together people.  Remember, they’re our courtrooms…..not theirs!

Tweet this!Tweet this! Share and Enjoy: Print Digg del.icio.us Facebook Google Bookmarks email FriendFeed Identi.ca LinkedIn Live MySpace PDF Ping.fm RSS StumbleUpon Technorati Tumblr Yahoo! Buzz Posterous Twitter Yahoo! Bookmarks

Scridb filter
Aug
01

Saturday open thread

Talk amongst yourselves. [...] Read the rest »

Apr
16

The Americans Who Risked Everything

The Americans Who Risked Everything
by Rush Limbaugh

My father, Rush H. Limbaugh, Jr., delivered this oft-requested address locally a number of times, but it had never before appeared in print until it appeared in The Limbaugh Letter. My dad was renowned for his oratory skills and for his original mind; this speech is, I think, a superb demonstration of both. I will always be grateful to him for instilling in me a passion for the ideas and lives of America’s Founders, as well as a deep appreciation for the inspirational power of words which you will see evidenced here:

“Our Lives, Our Fortunes, Our Sacred Honor”

It was a glorious morning. The sun was shining and the wind was from the southeast. Up especially early, a tall bony, redheaded young Virginian found time to buy a new thermometer, for which he paid three pounds, fifteen shillings. He also bought gloves for Martha, his wife, who was ill at home.Thomas Jefferson arrived early at the statehouse. The temperature was 72.5 degrees and the horseflies weren’t nearly so bad at that hour. It was a lovely room, very large, with gleaming white walls. The chairs were comfortable. Facing the single door were two brass fireplaces, but they would not be used today. The moment the door was shut, and it was always kept locked, the room became an oven. The tall windows were shut, so that loud quarreling voices could not be heard by passersby. Small openings atop the windows allowed a slight stir of air, and also a large number of horseflies. Jefferson records that “the horseflies were dexterous in finding necks, and the silk of stockings was nothing to them.” All discussing was punctuated by the slap of hands on necks.

On the wall at the back, facing the president’s desk, was a panoply — consisting of a drum, swords, and banners seized from Fort Ticonderoga the previous year. Ethan Allen and Benedict Arnold had captured the place, shouting that they were taking it “in the name of the Great Jehovah and the Continental Congress!”

Now Congress got to work, promptly taking up an emergency measure about which there was discussion but no dissension. “Resolved: That an application be made to the Committee of Safety of Pennsylvania for a supply of flints for the troops at New York.”

Then Congress transformed itself into a committee of the whole. The Declaration of Independence was read aloud once more, and debate resumed. Though Jefferson was the best writer of all of them, he had been somewhat verbose. Congress hacked the excess away. They did a good job, as a side-by-side comparison of the rough draft and the final text shows. They cut the phrase “by a self-assumed power.” “Climb” was replaced by “must read,” then “must” was eliminated, then the whole sentence, and soon the whole paragraph was cut. Jefferson groaned as they continued what he later called “their depredations.” “Inherent and inalienable rights” came out “certain unalienable rights,” and to this day no one knows who suggested the elegant change.

A total of 86 alterations were made. Almost 500 words were eliminated, leaving 1,337. At last, after three days of wrangling, the document was put to a vote.

Here in this hall Patrick Henry had once thundered: “I am no longer a Virginian, sir, but an American.” But today the loud, sometimes bitter argument stilled, and without fanfare the vote was taken from north to south by colonies, as was the custom. On July 4, 1776, the Declaration of Independence was adopted.

There were no trumpets blown. No one stood on his chair and cheered. The afternoon was waning and Congress had no thought of delaying the full calendar of routine business on its hands. For several hours they worked on many other problems before adjourning for the day.

Much To Lose

What kind of men were the 56 signers who adopted the Declaration of Independence and who, by their signing, committed an act of treason against the crown? To each of you, the names Franklin, Adams, Hancock and Jefferson are almost as familiar as household words. Most of us, however, know nothing of the other signers. Who were they? What happened to them?I imagine that many of you are somewhat surprised at the names not there: George Washington, Alexander Hamilton, Patrick Henry. All were elsewhere. Ben Franklin was the only really old man. Eighteen were under 40; three were in their 20s. Of the 56 almost half – 24 – were judges and lawyers. Eleven were merchants, nine were landowners and farmers, and the remaining 12 were doctors, ministers, and politicians.

With only a few exceptions, such as Samuel Adams of Massachusetts, these were men of substantial property. All but two had families. The vast majority were men of education and standing in their communities. They had economic security as few men had in the 18th Century.

Each had more to lose from revolution than he had to gain by it. John Hancock, one of the richest men in America, already had a price of 500 pounds on his head. He signed in enormous letters so that his Majesty could now read his name without glasses and could now double the reward. Ben Franklin wryly noted: “Indeed we must all hang together, otherwise we shall most assuredly hang separately.”

Fat Benjamin Harrison of Virginia told tiny Elbridge Gerry of Massachusetts: “With me it will all be over in a minute, but you, you will be dancing on air an hour after I am gone.”

These men knew what they risked. The penalty for treason was death by hanging. And remember, a great British fleet was already at anchor in New York Harbor. They were sober men. There were no dreamy-eyed intellectuals or draft card burners here. They were far from hot-eyed fanatics yammering for an explosion. They simply asked for the status quo. It was change they resisted. It was equality with the mother country they desired. It was taxation with representation they sought. They were all conservatives, yet they rebelled.It was principle, not property, that had brought these men to Philadelphia. Two of them became presidents of the United States. Seven of them became state governors. One died in office as vice president of the United States. Several would go on to be U.S. Senators. One, the richest man in America, in 1828 founded the Baltimore and Ohio Railroad. One, a delegate from Philadelphia, was the only real poet, musician and philosopher of the signers. (It was he, Francis Hopkinson not Betsy Ross who designed the United States flag.)Richard Henry Lee, a delegate from Virginia, had introduced the resolution to adopt the Declaration of Independence in June of 1776. He was prophetic in his concluding remarks: “Why then sir, why do we longer delay? Why still deliberate? Let this happy day give birth to an American Republic. Let her arise not to devastate and to conquer but to reestablish the reign of peace and law.

“The eyes of Europe are fixed upon us. She demands of us a living example of freedom that may exhibit a contrast in the felicity of the citizen to the ever-increasing tyranny which desolates her polluted shores. She invites us to prepare an asylum where the unhappy may find solace, and the persecuted repost.
“If we are not this day wanting in our duty, the names of the American Legislatures of 1776 will be placed by posterity at the side of all of those whose memory has been and ever will be dear to virtuous men and good citizens.”

Though the resolution was formally adopted July 4, it was not until July 8 that two of the states authorized their delegates to sign, and it was not until August 2 that the signers met at Philadelphia to actually put their names to the Declaration. William Ellery, delegate from Rhode Island, was curious to see the signers’ faces as they committed this supreme act of personal courage. He saw some men sign quickly, “but in no face was he able to discern real fear.” Stephan Hopkins, Ellery’s colleague from Rhode Island, was a man past 60. As he signed with a shaking pen, he declared: “My hand trembles, but my heart does not.”

“Most Glorious Service”

Even before the list was published, the British marked down every member of Congress suspected of having put his name to treason. All of them became the objects of vicious manhunts. Some were taken. Some, like Jefferson, had narrow escapes. All who had property or families near British strongholds suffered.· Francis Lewis, New York delegate saw his home plundered — and his estates in what is now Harlem — completely destroyed by British Soldiers. Mrs. Lewis was captured and treated with great brutality. Though she was later exchanged for two British prisoners through the efforts of Congress, she died from the effects of her abuse. · William Floyd, another New York delegate, was able to escape with his wife and children across Long Island Sound to Connecticut, where they lived as refugees without income for seven years. When they came home they found a devastated ruin. · Philips Livingstone had all his great holdings in New York confiscated and his family driven out of their home. Livingstone died in 1778 still working in Congress for the cause. · Louis Morris, the fourth New York delegate, saw all his timber, crops, and livestock taken. For seven years he was barred from his home and family. · John Hart of Trenton, New Jersey, risked his life to return home to see his dying wife. Hessian soldiers rode after him, and he escaped in the woods. While his wife lay on her deathbed, the soldiers ruined his farm and wrecked his homestead. Hart, 65, slept in caves and woods as he was hunted across the countryside. When at long last, emaciated by hardship, he was able to sneak home, he found his wife had already been buried, and his 13 children taken away. He never saw them again. He died a broken man in 1779, without ever finding his family. · Dr. John Witherspoon, signer, was president of the College of New Jersey, later called Princeton. The British occupied the town of Princeton, and billeted troops in the college. They trampled and burned the finest college library in the country.

Judge Richard Stockton, another New Jersey delegate signer, had rushed back to his estate in an effort to evacuate his wife and children. The family found refuge with friends, but a Tory sympathizer betrayed them. Judge Stockton was pulled from bed in the night and brutally beaten by the arresting soldiers. Thrown into a common jail, he was deliberately starved. Congress finally arranged for Stockton’s parole, but his health was ruined. The judge was released as an invalid, when he could no longer harm the British cause. He returned home to find his estate looted and did not live to see the triumph of the Revolution. His family was forced to live off charity. · Robert Morris, merchant prince of Philadelphia, delegate and signer, met Washington’s appeals and pleas for money year after year. He made and raised arms and provisions which made it possible for Washington to cross the Delaware at Trenton. In the process he lost 150 ships at sea, bleeding his own fortune and credit almost dry
· George Clymer, Pennsylvania signer, escaped with his family from their home, but their property was completely destroyed by the British in the Germantown and Brandywine campaigns.
· Dr. Benjamin Rush, also from Pennsylvania, was forced to flee to Maryland. As a heroic surgeon with the army, Rush had several narrow escapes. · John Martin, a Tory in his views previous to the debate, lived in a strongly loyalist area of Pennsylvania. When he came out for independence, most of his neighbors and even some of his relatives ostracized him. He was a sensitive and troubled man, and many believed this action killed him. When he died in 1777, his last words to his tormentors were: “Tell them that they will live to see the hour when they shall acknowledge it [the signing] to have been the most glorious service that I have ever rendered to my country.” · William Ellery, Rhode Island delegate, saw his property and home burned to the ground.

Thomas Lynch, Jr., South Carolina delegate, had his health broken from privation and exposures while serving as a company commander in the military. His doctors ordered him to seek a cure in the West Indies and on the voyage, he and his young bride were drowned at sea. · Edward Rutledge, Arthur Middleton, and Thomas Heyward, Jr., the other three South Carolina signers, were taken by the British in the siege of Charleston. They were carried as prisoners of war to St. Augustine, Florida, where they were singled out for indignities. They were exchanged at the end of the war, the British in the meantime having completely devastated their large landholdings and estates.· Thomas Nelson, signer of Virginia, was at the front in command of the Virginia military forces. With British General Charles Cornwallis in Yorktown, fire from 70 heavy American guns began to destroy Yorktown piece by piece. Lord Cornwallis and his staff moved their headquarters into Nelson’s palatial home. While American cannonballs were making a shambles of the town, the house of Governor Nelson remained untouched. Nelson turned in rage to the American gunners and asked, “Why do you spare my home?” They replied, “Sir, out of respect to you.” Nelson cried, “Give me the cannon!” and fired on his magnificent home himself, smashing it to bits. But Nelson’s sacrifice was not quite over. He had raised $2 million for the Revolutionary cause by pledging his own estates. When the loans came due, a newer peacetime Congress refused to honor them, and Nelson’s property was forfeited. He was never reimbursed. He died, impoverished, a few years later at the age of 50.

Lives, Fortunes, Honor

Of those 56 who signed the Declaration of Independence, nine died of wounds or hardships during the war. Five were captured and imprisoned, in each case with brutal treatment. Several lost wives, sons or entire families. One lost his 13 children. Two wives were brutally treated. All were at one time or another the victims of manhunts and driven from their homes. Twelve signers had their homes completely burned. Seventeen lost everything they owned. Yet not one defected or went back on his pledged word. Their honor, and the nation they sacrificed so much to create is still intact. And, finally, there is the New Jersey signer, Abraham Clark.He gave two sons to the officer corps in the Revolutionary Army. They were captured and sent to that infamous British prison hulk afloat in New York Harbor known as the hell ship Jersey, where 11,000 American captives were to die. The younger Clarks were treated with a special brutality because of their father. One was put in solitary and given no food. With the end almost in sight, with the war almost won, no one could have blamed Abraham Clark for acceding to the British request when they offered him his sons’ lives if he would recant and come out for the King and Parliament. The utter despair in this man’s heart, the anguish in his very soul, must reach out to each one of us down through 200 years with his answer: “No.”

The 56 signers of the Declaration Of Independence proved by their every deed that they made no idle boast when they composed the most magnificent curtain line in history. “And for the support of this Declaration with a firm reliance on the protection of divine providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.”

My friends, I know you have a copy of the Declaration of Independence somewhere around the house – in an old history book (newer ones may well omit it), an encyclopedia, or one of those artificially aged “parchments” we all got in school years ago. I suggest that each of you take the time this month to read through the text of the Declaration, one of the most noble and beautiful political documents in human history.There is no more profound sentence than this: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness…”These are far more than mere poetic words. The underlying ideas that infuse every sentence of this treatise have sustained this nation for more than two centuries. They were forged in the crucible of great sacrifice. They are living words that spring from and satisfy the deepest cries for liberty in the human spirit. “Sacred honor” isn’t a phrase we use much these days, but every American life is touched by the bounty of this, the Founders’ legacy. It is freedom, tested by blood, and watered with tears. - Rush Limbaugh III

Feb
22

Synopsis of the Homeowner Affordability and Stability Plan

On February 18, 2009, President Obama announced his Homeowner Affordability and Stability Plan, designed to help up to 7-9 million families avoid foreclosure by restructuring or refinancing their mortgages.  There are three main elements.

1.  GSE Refinancing for Responsible Homeowners Suffering from Falling Home Prices.

Fannie Mae and Freddie Mac (the government sponsored enterprises, or GSEs) will refinance the mortgages for 4-5 million homeowners with loans owned or guaranteed by the GSEs. The streamlined refinancing program is designed to help borrowers with loan-to-value ratios above 80 percent up to 105 percent.

2.  $75 Billion Homeowner Stability Initiative to Reach up to 3 to 4 Million At-Risk Homeowners

The goal of the 3-year Homeowner Stability Initiative is to reduce the monthly payment of homeowners to affordable levels using $75 billion from TARP and the GSEs.  The program will be available for home owner-occupants “at risk of imminent default” even if they are current in making mortgage payments, as well as those already delinquent.  It will only apply to mortgages at or below the GSE conforming loan limits.

Key elements of the plan: 

  • The lender world first be required to reduce rates, without assistance, so the monthly payment does not exceed 38 percent of borrower income (debt-to-income ratio of 38 percent). After that, federal assistance would be used to match, on a dollar-for-dollar basis, further reductions to bring the debt-to-income ratio down to 31 percent.
  • After 5 years, the rate could increase gradually to the loan rate in effect at the time of the modification.
  • Lenders may reduce monthly payments by reducing principal. Federal assistance would share the cost (up to the amount the lender would receive for reducing interest rates).
  • As an incentive to loan servicers, they will receive $1,000 up front for each qualified loan modification. For borrowers who stay current on the modified loan, servicers will receive a monthly “pay for success” fees up to $1,000 a year for 3 years.
  • As an incentive to borrowers, borrowers will receive a monthly reduction in their mortgage balance, up to $1,000 a year for 5 years.
  • As an additional incentive to help borrowers avoid going into delinquency, servicers will receive $500 and mortgage holders will receive $1,500, if they modify at-risk mortgages before the borrower becomes delinquent.
  • As an incentive for lenders to modify more mortgages, the Obama plan-together with the FDIC-has developed a partial guarantee initiative. The Treasury Department will establish an insurance fund of up to $10 billion to discourage lenders from foreclosing on mortgages, by limiting their lose if home prices decline more than expected. Mortgage holders of modified mortgages could receive a payment on each modified loan, linked to home price index declines.
  • Treasury will establish uniform guidelines for loan modifications, working with bank regulators and the FDIC. All financial institutions receiving Financial Stability Plan assistance will have to agree to follow the guidance. The GSEs will use the guidance for their loans, and the government will work to apply them “when permissible and appropriate” to all federally owned or guaranteed loans, including Ginnie Mae, FHA, Treasury, Federal Reserve, FDIC, VA and Agriculture loans.

The plan includes other elements, including:

  • Strong oversight – We won’t hold our breath until this happens. We may die waiting…
  • “Allow Judicial Modification of Home Mortgages During Bankruptcy for Borrowers Who Have Run Out of Options.” Only mortgages under GSE loan limits would qualify. Homeowners must first seek a loan modification. Legislation is needed. The plan also anticipates legislation to give FHA and VA authority to pay partial claims if there is a bankruptcy or voluntary loan modification so holders of FHA and VA guaranteed loans are not hurt.
  • Funding for displaced renters and neighborhood stabilization.
  • Improving Hope for Homeowners and other FHA programs.

3.  Supporting Low Mortgage Rates by Strengthening Confidence in Fannie Mae and Freddie Mac

The Obama Plan beefs up the current support for the GSEs.

The Treasury Department is doubling, from $100 billion to $200 billion for each GSE, its pledge to invest money to make sure that the GSEs maintain a positive net worth.  This will further assure that the federal government is committed to maintaining the mission of the GSEs.  In a statement issued today, Director Lockhart described this mission as “providing much-needed liquidity, stability and affordability to the housing market at this time.”  He went on to say that doubling the commitment “should remove any possible concerns debt and mortgage-backed securities investors have about the strong commitment of the U.S. Government to support Fannie Mae and Freddie Mac.”  He expects the increased commitment to help keep interest rates low, which will help both current and future homeowners.  The additional $200 billion is from HERA in connection with the conservatorship, not from the Financial Stability Plan or TARP.

 Treasury will continue to buy GSE MBSs, as announced when the GSEs were placed into conservatorship.

The GSEs will be able to increase their portfolios by $50 billion to $900 billion, and increase their outstanding debt.   

The Administration will work with the GSEs to support state housing finance agencies.

[END]

Ok, folks, that’s a quick summary of the proposals. There are some good measures here. However, I am extremely wary that any of this will actually result in true help on the street. We have seen hundreds of billions already wasted. Oversight was promised and none to speak of was actually provided in any effective measure.

Feb
15

Fraudulent Foreclosure Filings Happening Every Day

I’m outraged at what’s happening every day in courtrooms all over this country, especially here in Lee County, Florida. The Civil Rights of Homeowners are being violated regularly. This is truth and I can prove it. Because I’m heavily involved in helping people in foreclosure, among other things, I get the opportunity to look at the legal paperwork. Between my 8 years of banking and real estate experience and over 1000 hours of legal research into the foreclosure crisis, I know what to look for.

Our court systems are in bed with Corporate Banking Institutions. They may not be being paid off to ignore the violations but I describe being “in bed” with these fraudsters as simply “allowing them to get away with outright fraud and extortion.”

Let me illustrate my point with a Hypothetical Scenario: I create a company called “Countywide Home Loans.” I find a homeowner who is 90 days behind on their mortgage (this is easy because I can buy that list of people from the Credit Reporting Agencies like Equifax or Experian).

Countywide Home Loans files a foreclosure complaint against Jose and Maria Sanchez (my fictitious homeowners).
In our foreclosure complaint we allege and state the following to the Court:

  1. Countywide Home Loans owns and holds the mortgage and note;
  2. The Mortgage we attach to the Foreclosure Complaint has the Mortgagee listed as America’s Wholesale Lender on it, NOT Countywide Home Loans (but oh well);
  3. We allege that the Mortgage has been assigned to Countywide Home Loans by America’s Wholesale Lender; but we do not include that purported assignment of mortgage in our Complaint;
  4. We allege that the Note has been lost and we are seeking to re-establish the Lost Note under Florida Statute 673.3091; we were in possession of the Note when it was lost; we had the right to enforce it when it was lost; the loss was NOT the result of a transfer and we cannot reasonably obtain the Note because its whereabouts cannot be determined (these are the elements required to actually re-create a Note out of thin air in Florida)
  5. We state that the borrower is in Default on the loan and owes us $223,191.65 according to the Note that they executed which we own and had the right to enforce when the Note was lost;
  6. We therefore ask the court for final judgment of foreclosure based on the “facts”stated in our Complaint.

This is exactly what happens about 2000+ times per month in Lee County, Florida. The filings of Plaintiffs (institutions) look exactly like this, more or less, in every case. The case above, if I filed it, could be rushed through the court system in about 90 days with a 98% probability of success.

If the borrower/homeowner did not contest the allegations by Responding to the Foreclosure Complaint that I filed and served them with, I would gain a Default Judgment against them within 30 days. I could Motion for Summary Judgment and file the necessary Affidavits and get a hearing in about 30 more days. I would be granted Summary Judgment guaranteed as the Judges presiding over these cases DO NOT even lift an eye of caution or inspection as to the validity of any of these allegations by the Plaintiffs. I would literally be granted Final Judgment on the case within about 45 days from the granting of Summary Judgment. A Foreclosure Sale would be granted and take place at which point Certificate of Title would be issued to Countywide Home Loans.

Voila! Countywide Home Loans, Inc. just took a home from a Homeowner! No questions asked. The allegations in my complaint were patently false. The judicial system did not ask even one question or inspect the truthfulness of my allegations. The foreclosure is slammed through the system at record paces through the so-called “ROCKET DOCKETS” our judges here in Lee County call them.

Folks, this is it. This is no sensationalist story. There is no exaggeration here. This is happening thousands of times each month in our court systems! Only, the homeowners are real, the institutions are real and they are illegally seizing and evicting homeowners. These Institutions (like Wells Fargo, Bank of America, Lasalle Bank, Deutsche Bank, Countrywide, Citimortgage, Wachovia, etc.) DO NOT own these loans or mortgages in 9 out of 10 cases (maybe higher), yet they are alleging they do own the Note and Mortgage and have the right to foreclose. The Court Systems are NOT requiring them to prove it with valid documentation and worse, the Courts are completely ignoring clear cases of outright FRAUD by these institutions! When they do produce some documentation, it is fabricated and lacks authenticity most of the time. This can be quantified and proven. Fact.

 

Here’s an article written by Gretchen Morgenson from the NY Times to give further context:

December 28, 2008
Fair Game

A Mortgage Paper Trail Often Leads to Nowhere

WITH home prices in free fall and mortgage delinquencies mounting, pressure to modify troubled loans is ratcheting up.

But lawyers who represent candidates for modifications say the programs are hobbled by the complexity of securitization pools that hold the loans, as well as uncertainty about who actually owns the notes underlying the mortgages.

Problems often emerge because these notes — which are written promises to repay the full amount of a mortgage — weren’t recorded properly when they were bundled by Wall Street into pools or were subsequently transferred to other holders.

How can a loan be modified, these lawyers ask, if the lender cannot prove that it actually owns the note? More and more judges are asking the same thing about lenders trying to foreclose on borrowers.

And here is another hurdle: Most loan servicers — the folks responsible for handling all the paperwork surrounding monthly mortgage payments — aren’t set up to handle all of the details involved in a modification.

Loan servicing operations are intended to receive borrowers’ payments; producing loan histories and verifying that payments were received or junk fees were not applied is considerably more labor intensive. This cuts into profits.

“These servicers are not staffed up and they don’t have a chance in the world to do the stuff they are supposed to do,” said April Charney, a consumer lawyer at Jacksonville Legal Aid. Many servicers continue to stonewall troubled borrowers who ask for a history of their loan payments and fees, she said.

“This is your biggest, hugest expense — your home — and when you ask for a life-of-loan history your servicer tells you to get lost,” she said. “And when you ask for a list of charges in the loan history that’s not going to happen.”

So even if loan modifications were to rise rapidly, it is unclear that borrowers can trust what lenders tell them about what they owe.

Consider a federal bankruptcy court case in Colorado. It involves two borrowers who got into trouble on their loan but agreed, under a bankruptcy plan, to make revised mortgage payments to get back on track.

The lender in the case is Wells Fargo, and last Monday the judge overseeing the matter took a tough stance on the bank’s recordkeeping and billing practices.

In June 2004, Brandon M. Burrier and Denon A. Burrier received a $183,126 loan for a property in Arvada, Colo. The note was later transferred to Wells Fargo, court filings show.

The Burriers fell behind on their loan and in February 2007, they filed a Chapter 13 bankruptcy, agreeing to pay $12,000 that Wells Fargo said they owed. Chapter 13 bankruptcies allow debtors to retain their property and work out a repayment plan based on their income and the level of their indebtedness.

The Burriers’ payment plan was confirmed by the bankruptcy court in August 2007; last December, a second plan requiring higher payments was approved by the court.

Two months later, Wells Fargo told the court that the Burriers had failed to make four of their payments and that it should be allowed to begin foreclosure proceedings.

The Burriers denied that they had missed payments, but in April, to keep their home, they agreed to make double payments to cover the ones Wells Fargo claimed they had missed.

If the borrowers could prove that the mortgage checks were submitted, Wells Fargo said, their account would be credited and they would no longer have to make up the payments. The proof required by Wells Fargo and approved by the court was “valid, accurate and true copies” of the front and back of the checks the borrowers sent in.

Last August, the parties were back in court, with Wells Fargo stating that the borrowers had failed to comply with the deal. Ms. Burrier testified that she had asked her local bank repeatedly for proof of the payments made to Wells Fargo, but had had no luck. The payments to Wells Fargo were processed electronically, she learned, and that meant it did not return the checks to her bank.

The borrowers did produce bank statements showing that the checks Wells said were missing were actually cashed by “WFHM,” an entity that they assumed was Wells Fargo Home Mortgage.

But Tara E. Gaschler, the lawyer representing the borrowers, said that Wells Fargo continued to maintain that it hadn’t received the money.

The bank flew in an expert to testify that all checks received by Wells Fargo from borrowers in Chapter 13 cases were processed by hand, Ms. Gaschler said. “Even when presented with bank statements, they told the court there must be some mistake,” she added.

Finally, Wells Fargo demanded that the Burriers provide the routing number of the account at Wells Fargo that their money went into. If they could not, the bank said, they would have to keep making extra payments.

But Sidney B. Brooks, the judge overseeing the case, was clearly dismayed by the bank’s performance.

In his opinion, he fumed that Wells Fargo had asked the borrowers for canceled checks as proof of payment, even though such checks were often not available. Wells Fargo’s request for canceled checks was especially troubling, the judge said, given that the bank was a proponent of the 2003 law that allowed banks to stop returning canceled checks to customers.

The only institution that could have the original checks is Wells Fargo, he concluded.

“The payments have, evidently, been lost in a black hole of the creditor’s organization or through accounting mismanagement,” the judge wrote. “This is a major lender/mortgage loan servicer where the left hand does not know what the right hand is doing — the collection department does not know what the check processing and accounting departments are doing.”

Because this is not the first time the judge has encountered problems in Wells Fargo’s operations, he is considering sanctions on the bank.

“This dispute might portend a widespread abuse of collection practices or creditor overreaching,” he wrote, “demanding of debtors what it, the creditor itself, is unable to provide: accurate and reliable record keeping and billing practices.”

A spokesman for Wells Fargo said: “We are currently reviewing the court’s opinion to determine whether or not an appeal is appropriate. The Burrier case is quite factually specific, and we disagree with the court’s conclusions. We are confident that our payment processing practices are accurate and sound.”

Ms. Gaschler says that this kind of dispute is becoming more common in her practice and that borrowers wind up losing too often.

“A lot of times clients don’t keep canceled checks or maybe their bank account was closed and they can’t go and get the proof,” she said. “The bank gets that extra money for as long as the debtor can keep it up and when they can’t they are pushed out of their homes.”

While judges are starting to see how flawed loan servicers’ systems can be, those rushing to modify loans may not be as aware of the problems.

In the interests of fairness, modification programs should require life-of-loan histories from servicers and a justification of each entry. New loans, especially ones backed by taxpayers, are no place to bury dubious fees or extra borrower payments to cover those that were allegedly, but not actually, missed.

Jan
10

Loan Rescission and TILA Violations

I recently started a blog post about TILA Violations and what these violations can mean for the financial institutions. This is a BIG can of worms for them because a large percentage of home loans were funded in violation of the federal TILA statute and its implementing regulations found in Regulation Z.

In short, if a TILA violation is found within 3 years of closing on a refinance transaction of the borrower’s primary residence, the debtor/borrower can “rescind the loan.” By serving notice to the lender of the debtor’s action to rescind the loan, the lender has “20 days to return all finance charges, downpayment monies, etc.” to the borrower and must also “remove all security interests on the property” in 20 days.

If the lender fails to do so, it is in violation of TILA requirements, mainly 15 USC §1635 and, according to paragraph “b” of this section, there are some huge implications for both debtor and creditor if the creditor does not comply with these requirements.

Here’s a sample case that you can read as evidence of how powerful this remedy can be: Belini v. WAMU

Call or email me if you want help pursuing a TILA violation against you. These are cases for attorneys to take up and we have an extensive network of attorneys that we can help you get in touch with.

Jan
10

Fred Thompson on the Economy

Fred Thompson drives home the point as to WHY we need to fight the “War on the Home-Front”

Jan
10

Poll: Are you fed up? Click to Take Poll

[polldaddy poll=1264663]

Jan
10

The gloves need to come off… the war needs soldiers.

American citizens are in a literal war… right here at home and for our homes. We have witnessed the largest failure of leadership in our nation’s history since the beginning of the 21st Century.

I’m fed up. I’m outraged. I’m taking the gloves off… What I’m witnessing daily – both locally and nationally - is beyond ridiculous… I’m tired of being fleeced by our government and big business. I’m tired of corporate scandals and government sweeping it under the rug… no, encouraging it by bailing them out and funding incompetence, greed and corruption.

Millions of Americans are losing their homes. Make no mistake about it, this was all preventable. But now we are losing our jobs, our incomes and our homes while the government takes more of our tax dollars and pays off white-collar criminals by wrapping these bailouts in a package of “necessity.”

This blog is dedicated to fighting the WAR ON THE HOME-FRONT. Fighting the war against corrupt government… fighting the war for our homes… fighting the war against apathy and malaise.

Feel free to rant and rave here on this blog… I certainly hope you’re fed up too! I hope you demand action and change! I hope you use your vote to spur those changes on and I hope you get involved in this space so that we can send a large shout out to all those who preside over us in government that WE WILL FIGHT THIS WAR!

The gloves are off… let the fight begin.

Jan
10

New Mortgage Bankruptcy Bill a Good Solution

Legislation designed to stem foreclosures by allowing bankruptcy judges to erase some mortgage debt will be introduced by Congressional Democrats on Tuesday, and hopes are high that it will pass after a similar plan failed last year. See Full Story Here.

Since the servicers, banks and investors thus far have failed to do anything logical in this housing mess, the idea of letting bankruptcy judges apply some logic and have the power to rework mortgages for homeowners who are stuck is a great idea.

Servicers are filing foreclosures as fast as they possibly can and cramming them through the various states at a sickening pace. Our civil court judges and clerks of the courts are participating in this massive scheme as well going as far as being publicly proud of their “rocket dockets” where 300-400 foreclosure cases are jammed through a 2-3 hour period. Shameful.

Shameful because 95%+ of all of these cases are filed fradulently. Shameful because judges are allowing institutions to take people’s homes without so much as raising an watchful eye to ensure that there is an ounce of integrity or truthfulness in the allegations lodged by the Plaintiff’s complaint.

So, here’s what happens… a servicer takes a home in foreclosure. The family is forcefully removed and forced to move into a different home (probably owned by another bank or even the same servicer). The institution sells the foreclosed home for about 80-90% of current value (although the FDIC predicts it’s about 70% of current value).

So let me give you a real live scenario of how illogical what they’re doing truly is: The family that was just removed owed $210,000 on the loan at a 7% interest rate. The home’s current value is $125,000. The bank will sell it for $105,000. The family could afford a mortgage of $150,000 at 5.5% interest rate. After closing costs, attorneys fees, etc. the bank/servicer will net about $95,000 on that home.

Do you see my point here? If you take into account the interest that the family would pay on the modified loan over the course of the next 5, 10 or 30 years. The modified loan is worth 2-3 times the $150,000. But no, the bank would rather create documents and paper trails to foreclose on the home, kick a family out of their home and take a massive loss on the sale of the foreclosure. All this when they could have logically modified the loan and turned a profit on the loan through a bona fide modification of the family’s loan.

This madness occurs thousands of times a day in our country and it’s high time that the government use some of the billions of taxpayer dollars to protect the taxpayer instead of greedy, corrupt institutions that have been the major cause of this housing meltdown.

Jan
09

Investigate that Note!

A law firm I work with had a case the other day that underscores the importance of this post… the Plaintiff (Taylor, Bean & Whitaker Mortgage Corp.) in the case was pushing for Summary Judgment. In preparation, they filed the “Original Note and Certified Copy of the Mortgage” in the case record. They also filed an “Affidavit in Support of Motion for Summary Judgment” the same day. The Affidavit was given and signed by an employee named Erla Carter-Shaw who was supposedly in charge of the record keeping, etc. In her “affidavit” she alleged that the Note had not been endorsed to anyone else and thus Taylor, Bean & Whitaker was the owner of the Note. Now, mind you that they had originally filed for a “Re-establishment of the Note” in the original Complaint because they alleged that it had been lost or destroyed… Well, purportedly, they found that original Note and they alleged it hadn’t been endorsed at all. Well, we investigated the Note they attached in their filing and what do you know, there’s an endorsement on the last page of the Note! It was endorsed in blank and guess who had signed the endorsement stamp? Oh yeah, you guessed it, Erla Carter-Shaw. So she alleges in her Affidavit that the Note has NOT been endorsed and then she attaches an Endorsed Note alleged to be the original.

Another simple but important issue to investigate is the Note that the Plaintiff actually attaches (if and when they do attach a copy of the Note). What you want to zero in on are the endorsements on the Note (or usually, the lack thereof). Understanding the securitization process is key in what you’re looking for on the Note. The endorsements should absolutely follow the chain of ownership from Originator to Seller to Sponsor/Master Servicer to Depositor to Trustee. If you’re not seeing at least 3 endorsements on the Note then you know that this is NOT an original Note regardless of what’s alleged and/or claimed as to its authenticity. We know Portfolio Lending is a dinosaur and literally >95% of all residential loans made since the late 1990′s are/were securitized. Given these facts, we know exactly what to look for.

Here’s a real example from an actual SEC Filed Prospectus linked to a real live Trust (called RFMSI Series 2007-S8 Trust) for more context…
1. Homecomings Financial was the original Lender to John Doe. Homecomings Financial is the “Originator” and “Seller” of this loan and they are the actual “Payee” on the Note the borrower signed at closing.
2. Before the loan even closed, Homecomings Financial knew it was selling this loan to a company called “Residential Funding Company, Inc.” (RFC). RFC always appears as the “Sponsor” and “Master Servicer” in the Prospectus filings with the SEC. – I’ve read well over a dozen Prospectus filings regarding RFC and their roles as Master Servicer NEVER deviates.
3. Homecomings Financial sells the loan (in a pool of loans) to RFC. Here is where you should see the FIRST ENDORSEMENT on the last page of the Note. It’s usually a stamped endorsement that says “Pay to the Order of, Without Recourse” and then you’ll see “Residential Funding Company, Inc.” just below that and the signature of an authorized signor for Homecomings Financial. That’s Endorsement #1.
4. Now, RFC isn’t going to hang on to this Note (pool of Notes) for very long. They have already setup an arrangement to sell these loans (Notes) to a company called “Residential Mortgage Securities I, Inc..” well in advance. This company is called the Depositor. They purchase the loans/notes (the entire pool) from RFC.
5. Here’s where you should see the SECOND ENDORSEMENT on the last page of the Note. “Pay to the Order of, Without Recourse” to Residential Mortgage Securities I, Inc.
6. Residential Mortgage Securities I, Inc., as Depositor is now going to Deposit these loans into the Trust and endorse the Notes to the Trustee.
7. US Bank National Association is the Trustee in this transaction as disclosed in the Prospectus, Form 424B5 (which you can actually get online at www.sec.gov by doing a search on EDGAR; if you know the name of the Trust, you can plug that name in exactly as it appears in a Google Search bar surrounded by quotes and you’ll get all the filings on that specific Trust usually)
8. Here’s where you should see the THIRD ENDORSEMENT on the last page of the Note… payable to US Bank National Association.

Now, what’s material here is that in this particular foreclosure case, the Plaintiff was “Residential Funding Company, Inc.” – here’s a short Quiz question, “Who is Residential Funding Company, Inc.?”
Do you think they own this Note? Even if they actually have the original, it doesn’t mean they’re the holder in due course or the real party in interest. But, if you file a Request for Production of Documents in the foreclosure case the Plaintiff probably won’t respond or they ‘ll try to object to your request. Why? Because, if they can find the original Note it will have these Endorsements on it showing the chain of transfers on it and they will have just produced evidence to the court which clearly evidences that they ARE NOT the owner and holder of the Note as they alleged in their Summons and Complaint.

Now, if you can believe it, we have cases where they have produced the note with endorsements on the last page that DIRECTLY contradict their allegations in the complaint. The attorney’s that work for many of these foreclosure mills aren’t very bright nor do they even understand these things often times.

Thus, you can attack this point in the form of misrepresentation or fraud on the court by showing the court the SEC filings from the Trust that this loan was deposited into. The Form 424B5 (Prospectus) will clearly disclose the parties involved, the chain of ownership and their roles. This is your evidence (as an Exhibit) that the Note in question is either not an original or there are some serious issues with its authenticity or that it contradicts their allegations. No opposing counsel will want a judge to get his/her eyes on this and will usually suspend their prosecution of a foreclosure case if you make your case right with them first via phone. We draft a Motion to Dismiss and attach the evidence as an Exhibit (the SEC Filings) and in the Motion to Dismiss will be points and elements outlining the misprepresentation on the part of counsel and the Plaintiff. My wife will then send this to opposing counsel first and find out what they want to do…

Lastly, often times we’ll see some endorsement(s) on a separate page (not on the last page of the Note) or an “allonge” to the Note. This can be attacked as well. An allonge is easy to create after the fact as it is not an actual part of the Note. Check your state statutes but most states will require endorsements to be on the last page of the Note as long as there is room on the last page. You can easily fit 4-5 endorsements on the last page of a Note.

When the law firm gets a new case, our goal is to raise enough doubt to survive Summary Judgment. Once you survive any motion for Summary Judgment, these cases get dropped off the map. We also request a jury trial in every case along with a Request for Production. If the Plaintiff doesn’t produce what we request (and they usually won’t) for reasons stated above, you’ve got yourself a case. Hope this helps all you folks out there trying to figure out how best to fight these boys at their own game.