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Jan
07

BOMBSHELL-BOMBSHELL-BOMBSHELL – COURT UPHOLDS INVALIDITY OF FORECLOSURES IN MASS!

By | Foreclosure Fraud, Weidner

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Bloomberg-foreclosure-newsHoly Moses, this is a biggie folk~!

Sound the alarms…..

What is surprising about these cases is….the utter carelessness with which the plaintiff banks documented titles to their assets…

The holder of an assigned mortgage needs to take care to ensure that his legal paperwork is in order.

Foreclosure is a powerful act with significant consequences, and Massachusetts law has always required that it proceed strictly in accord with the statues that govern it.

Strict compliance is necessary.

(Not my words, those come from the opinion itself.)

Ibanez-Case-JAN-2011

US Bancorp and Wells Fargo & Co. lost a foreclosure case in Massachusetts’s highest court that will guide lower courts in that state and may influence others in the clash between bank practices and state real estate law.

The state Supreme Judicial Court today upheld a judge’s decision saying two foreclosures were invalid because the banks didn’t prove they owned the mortgages.

“We agree with the judge that the plaintiffs, who were not the original mortgagees, failed to make the required showing that they were the holders of the mortgages at the time of foreclosure,” Justice Ralph D. Gants wrote. The court upheld a decision by Massachusetts Land Court Judge Keith C. Long in Boston.

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Feb
01

Important Florida Case – one way to get a foreclosure dismissed

By | Court Cases, Featured, Foreclosure Defense Research

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There is a recent decision out of the Sixth Judicial Circuit in FL (Pinellas County) that I believe warrants focus and analysis for homeowners and their attorneys. In Wachovia Mortgage v. Matacchiero, the Defendant filed a Motion to Dismiss (MTD) the case through her attorney. The basic premise of the MTD was that the Plaintiff lacked the “capacity to sue” the Defendant for foreclosure under Fla. Civ. Pro., Rule 1.120(a).

Most foreclosure attorneys are used to hearing (and arguing) the legal issue of “standing” and while standing is a very valid issue that should be questioned in every foreclosure case, the “capacity to sue”  is different. ‘Capacity to sue’ is an absence or legal disability which would deprive a party of the right to come into court.” Judge Rondolino, the presiding judge who signed the order granting the Defendant’s MTD, made the distinction right in his order.

In this case, the Plaintiff was, “Wachovia Mortgage FSB, F/K/A World Savings Bank.” The argument was simply that the Plaintiff failed to properly identify itself in the pleadings (complaint) and therefore the Defendant was deprived of knowing exactly who to answer or frame her responsive pleading to.

The Defendant’s argument: “Because the Plaintiff failed to “plead or specify in what capacity the Plaintiff brings suit and by failing to define or identify in any way the nature of its legal entity the Plaintiff has not plead that it has the capacity to maintain suit before this court.”

Notice point 4 of the Judge’s order where he specifically compares capacity to standing and note the differences.

The attorney in this case did a great job really analyzing the Defendant’s case and he obviously has a firm grasp on and working knowledge of the rules of civil procedure. He successfully attacked the legal deficiencies in this case and won on the merits of his well plead argument.

The majority of foreclosure cases are fraught with legal deficiencies. The problem I see is that few are truly analyzing the complaint, pleadings and allegations made by these institutional fraudsters to find these deficiencies and use them against the Plaintiffs. You know the old saying, “the devil is in the details.”

Hopefully, you’ll read the judge’s order and dive into the rules of civil procedure in your state and really learn something as to how “we should think” about foreclosure cases. The lesson here is to learn how to “frame” our thinking regarding foreclosure cases and to learn to look at the details. Look at what these Plaintiffs are truly alleging. The words they are using are not accidental and often we will find conflicting statements, inconsistencies and the like.

Use the rules of civil procedure as the guide and attack the missteps of these institutions. The rules define how the game is played. If a party fails to follow the rules they have a problem and if you have a rogue judge who doesn’t care about ensuring the rules are followed, these things need to be identifed, recorded and quantified so that you can set a case up for an appeal. The Appellate courts are in a position where they have to hold the parties (and judges) to following the well-established rules of civil procedure.

Now, what you are waiting for? If you need legal representation in a foreclosure matter (or even think you might), call Houk Law today to speak with us about all the reasons why you should consider retaining us to represent you… and why it makes complete economic sense as well!

We can be reached at 1-877-508-4848 ext. 0