War on the Home Front | Mortgage Loan Investigations | Securitization Audits

Apr

This blog has been a great forum to discuss the occasional triumphs of justice and the victory of the rule of law over the fraud, the deceit and the abject criminality of the banks and their law firms. It has also been an open forum for me to discuss the frustrations over a legal system that is broken and a country that is in decline because we now routinely and systematically just ignore the Rule of Law. I enjoy sharing the victories, but today I share a devastating personal loss with an opinion that was just released in a case I filed in Florida’s Second District Court of Appeal.

The briefs and all of the attachments follow here in this post. I kept reading it and hoping for some glimmer, some bright spot in the middle of a drubbing, a bloody, awful loss, but I can find not a single redeeming element of this opinion….just a flat out shellacking. A gut punch. A sledge hammer to the forehead.

Despite the published opinion, this is not an appeal that I should have lost….from an academic, technical and legal standpoint. In a purely legal vacuum, relying solely upon the law, I think the law is totally on my side and I win. But the costs to the legal system had I prevailed were just too great…and so this tortured and tortuous opinion is now of record.

I desperately want feedback and very critical opinion on this appeal. I encourage every one of you to read each of the briefs, read the rule and share with me your opinions. Am I just so close to this issue that I am missing something or does an honest and objective reading of this case support the opinion that is published? Below is the Rule in question on appeal:

Fl.R.Civ.Pro. 1.020(j) Summons; Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice (emphasis added) or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period.

As briefed extensively, my reading of this rule leads me to the conclusion that the court has the authority to dismiss an action in it’s entirety. In this appeal, I argued that’s what the court did. But that’s not what the appellate court found. Reading the same rule, the court found as follows:

Clearly, the circuit court lacked authority under this rule to dismiss the action as to any defendant who had been properly and timely served.

To which I question, “Really? Where does the rule limit the court’s ability to dismiss the entire action? (without prejudice is the exact text of the rule)

I’m frankly just flabbergasted here. But I’m perfectly prepared to accept that I’m just too close to the action, and that maybe I’m just missing something. That’s why I want objective input. Please read the opinion…lay persons and lawyers alike. Print all the briefs out and study them. Become honorary appeals court justices for the day. You’re now officially appointed to The People’s Court Appellate Court Bench.

And there’s one HUGE issue here that is just totally not addressed at all. You see, the most profound issue….The issue of greatest Constitutional importance relates to the rights of third parties whose rights are completely ignored and violated by this opinion’s operation. I care desperately about people who have no attorney to stand up for them. But somehow that whole issue was totally lost. By this opinion’s operation, there is a poor, scared mother of four renting a home who is paying her bills, who has no notice that she is in danger but gets a knock at the door from the sheriff who tells her….”GET OUT NOW, LEAVE THIS HOME!”

That’s the most profound issue that seems to be lost in this opinion….but again, maybe I’m missing something here. I desperately want feedback and critical input here……

ResponsetoResponseFinal

responseappendix

Tweet this! Share and Enjoy:

Scridb filter

Mar

TWO PUBLISHED ORDERS ON VERIFICATIONS!

By Matthew D. Weidner, Esq. | Foreclosure Fraud, Weidner

23197Leave a Comment2011-03-23+11%3A04%3A40Matthew+D.+Weidner%2C+Esq.

It’s been more than a year now since the Florida Supreme Court passed a very simple rule. The Rule requires Plaintiffs to verify their complaint. All that means is they must be willing to say the allegations are TRUE AND CORRECT. That’s it folks. Nothing more. This isn’t the moonshot. And the effective date is February 11, 2010!!! Nothing mindblowing about that.

What is mind-blowing is the fact that the foreclosure mills continue to file complaints that are not even verified at all and if they are they are often not verified correctly. I think courts should be independently verifying that the complaints are verified correctly and dismissing them if they are not. Here are the synopsis of the orders, which are in Florida Law Weekly Supplement:

AURORA LOAN SERVICES, Plaintiff, v. TODD A. FLEETWOOD AND KRISTI FLEETWOOD, Defendant. Circuit Court, 19th Judicial Circuit in and for Indian River County. Case No. 31-2010-CA-073506. January 26, 2011. Cynthia L. Cox, Judge.
FINAL ORDER OF DISMISSAL

The verification must be included in the complaint itself for the Court to be certain that the affiant has read the actual allegations and to make it clear what is being verified. The purpose of the verification is to create accuracy and accountability. There is no provision in the rule for the filing of a separate verification in a separate document. Common sense dictates that without verification in the complaint itself, it would never be clear what the affiant reviewed and what allegations they verified. The rule does not permit qualifying or limiting language. The complaint needs to be verified by an employee or officer of the plaintiff, by an employee or officer of its loan servicer, or by the attorney who files the case. Designations such as”authorized agent”, “authorized signatory”, “authorized officer”, “representative of the plaintiff’s servicer”, “representative of the plaintiff” and the like are meaningless, insufficient and tell the reader nothing. The rule requires a clean, plain statement of accuracy by a person who actually verifies the truth of the claims made, and who is identified as being in a position to actually do so. This case seeks to foreclose a residential mortgage and was filed after the effective date of the rule amendment.

IT IS THEREFORE ORDERED AND ADJUDGED as follows:

1. This case is DISMISSED without prejudice. No other pleadings by the plaintiff will be permitted in this case, other than a request for rehearing if appropriate. If the plaintiff elects to file a new action to foreclose on the same property, it must be filed under a new case number and a new filing fee will be required.

2. The plaintiff may move for reconsideration within ten days, on the sole ground that the subject property is not residential property. A copy of the motion and any supporting memorandum must be provided to the undersigned. The Court may rule on the motion without a hearing. No hearing will be set unless determined by the Court to be necessary.

3. It is confiscatory of the Court’s time to have to address this matter. Repeat violations by the same firm, or by the same attorney, may result in imposition of personal sanctions, and issuance of an order directed to the attorney or firm to show cause why that attorney or firm should not be prohibited from filing further foreclosure cases in this Court.
Online Reference: FLWSUPP 1804NATI
Mortgages — Foreclosure — Complaint — Verification — Unverified foreclosure complaint filed after February 11, 2010, effective date of rule 1.110(b) is dismissed with leave to amend

NATIONSTAR MORTGAGE LLC, PLAINTIFF, v. CRAIG K. LUNT AND DOROTHEA C. LUNT, Defendant. Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 10-6330-CI-20. February 7, 2011. Honorable George Jirotka, Judge. Counsel: Karen Thompson, for Plaintiff. Matthew D. Weidner, for Defendant.

ORDER

THIS CAUSE came to be considered upon the Defendant’s Motion to Dismiss, this court having reviewed the Defendant’s motion and accepted the argument of counsel for Defendant who appeared in person and counsel for Plaintiff who appeared via telephone, it is hereby:

ORDERED AND ADJUDGED as follows:

1. The Defendant’s Motion To Dismiss/Motion For More Definite Statement asserted that the Florida Supreme Court, pursuant to Rule 1.110(b), mandated that residential foreclosure complaints shall be verified and that the effective date of the requirement was February 11, 2010.

2. Plaintiff argued that the change to Florida Rule of Civil Procedure was not effective until June 2, 2010 and that because the instant complaint was filed prior to June 2, 2010, the instant complaint was not required to be verified.

3. This court finds that the effective date of Florida Rule of Civil Procedure Rule 1.110(b) is February 11, 2010 and that all residential complaints defined by the Rule must be verified beginning February 11, 2010.

4. Because the instant complaint is not verified in any manner, by any party, the Defendant’s Motion to Dismiss/Motion For More Definite Statement is GRANTED and the case is dismissed except that the Plaintiff shall have thirty (30) days to amend their complaint.

Tweet this! Share and Enjoy:

Scridb filter

Mar

The “Newest” Fraudclosure Scandal- Service of Process Fraud….

By Matthew D. Weidner, Esq. | Weidner

22637Leave a Comment2011-03-12+17%3A11%3A57Matthew+D.+Weidner%2C+Esq.

The allegations and the evidence is not new, it’s like a mushroom cloud that will keep growing as more and more people understand their rights and take note of the fact that their rights have been violated. Every defendant in a foreclosure case is entitled to have the lawsuit personally handed to them, but in far too many cases, defendants are not actually receiving the lawsuits. Sometimes they are left on the doorstep, sometimes they receive it in the mail and in some cases, they do not receive it at all.

Title insurance companies and lenders need to be particularly concerned about these allegations because judgments based upon fraudulent service of process ARE VOID FOREVER! That’s right, there is no statue of limitations. There is no time limit to bring the challenge to the judgment and to invalidate the title founded upon that judgment.

The Dreaded Star Chambers Were Real…Now They’re Resurrected Here in The US

By Matthew D. Weidner, Esq. | Weidner

21928Leave a Comment2011-02-28+02%3A48%3A02Matthew+D.+Weidner%2C+Esq.

Many of the attorneys that are out there fighting for homeowners and consumers show the very highest honor and calling that is the profession of law. The attorneys that are fighting for homeownerrs– and especially those who articulate that the fight for homeowners is also a fight to protect the integrity of our courts, our judges and this heart and soul of this country– show the general public the highest calling of the profession.

But this fight is not without severe and profound consequences for those attorneys who soldier on in this battle….but this battle must be fought because the fundamental rights of every single American are at stake every single time a homeowner walks into a courtroom and every time a homeowner loses a home in a non judicial foreclosure proceeding. As I endure the very real attacks, I must continue to be clear that my objectives are to support and defend our country, our courts, our judges from what is occurring. I’ve been sharing some thoughts about how the attack on court laws and procedures had resulted in a fundamentally unfair system and wanted to share some feedback to those comments I received from Michael Olenick at Legalprise because I found his comments so powerful….

One thing I remember, is how similar the
Star Chamber resembles foreclosure court. People make bad comparisons
to the Chamber all the time and they’re usually wrong .. but rocket
docket really is a dead on parallel.

* The Star Chamber was mainly used for evictions. I’ll skip the
treatise in English land law except to say that was functionally the
same as a foreclosure.
* The torture you hear about was uncommon until the end, when the
Chamber became widely used for political persecution. The primary
purpose of the chamber was rigged foreclosure hearings. People
described it as eerily normal; out would come the chancellor (judge),
his helpers, and the defendant would have a brief rigged trial and
almost always lose. Not always, but almost always.
* Where the torture did happen was for lawyers of Star Chamber
defendants. I won’t go into detail — they’re horror stories — but
they absolutely sent a message you’d better not try to hard with a
Star Chamber defendant, if you decided to take those cases at all.
Lawyers were tortured .. history remembers them as heroes, though I’m
guessing that doesn’t help much. Defendants who couldn’t find a
lawyer to represent them — keeping in mind that virtually all
land-lords had plenty to pay — lost automatically.
* The hearings themselves were the same: trial by affidavit, it was
nearly impossible to cross-examine the affiant, perjury (a capital
offense back them) was widespread, common .. and ignored. They were
open or closed depending on the mood of the Chancellor.
* The whole point was to make sure money flowed back to the King.
Bascially, when the King wanted land — whether it was directly or
indirectly (to give to somebody else) — off went the landlord
(yesterday’s mortgage borrower) to the Chamber. The whole point was
money.
* Even the genesis of the Star Chamber may be land theft. Black, of
Black’s Law Dictionary, wrote the chamber came from the hebrew word to
record .. as in record and litigate land deeds. Historians later said
he was wrong, that there were stars on the court of the chamber. But
the chamber is still around and there are no stars, and nobody ever
wrote about stars, and Black would know — that was back in his time.

Of course, the Star Chamber defendants are how many of the settlers of
this country ended up here. After their minute or two at rocket
docket off they went to the new world. The Chamber is viscerally
hated in US history; when the Supreme Court writes about it (in
decisions as late as last decade) they always throw in an adjective
(ex: the dreaded Star Chamber, the wretched Star Chamber, etc..). Our
founders hated it so much they almost abolished equity courts but
realized some issues weren’t meant for juries so left it, but added
half the Bill of Rights to ensure it never came about again.

Read more about the Star Chamber and consider how the elements described can be applied to today’s judicial and especially non judicial foreclosure proceedings:

Star Chamber Tudor Place

Luminarium

Constitutional

Tweet this! Share and Enjoy:

Scridb filter

Feb

Star Chambers, First Thing We Do, Let’s Kill the Lawyers and The Suppression of Free Speech

By Matthew D. Weidner, Esq. | Weidner

21774Leave a Comment2011-02-25+02%3A37%3A02Matthew+D.+Weidner%2C+Esq.

The Star Chambers were real. They are a critical force in our nation’s jurisprudence and it’s time that everyone takes the time to read and understand just exactly what they were. Read About Star Chambers Here

The Star Chambers are alive and well, as is the suppression of those who are trying desperately to stand up and fight….trust me, I know this first hand. As I’ve been sharing my travails and conflict, a friend shared with me some thoughts on the parrallels to today’s Rocket Docket and the evil Star Chambers. I want to thank him, and every one of you for your support, and ask that you consider his analysis:

* The Star Chamber was mainly used for evictions. I’ll skip the treatise in English land law except to say that was functionally the
same as a foreclosure.
* The torture you hear about was uncommon until the end, when the Chamber became widely used for political persecution. The primary purpose of the chamber was rigged foreclosure hearings. People described it as eerily normal; out would come the chancellor (judge), his helpers, and the defendant would have a brief rigged trial and almost always lose. Not always, but almost always.
* Where the torture did happen was for lawyers of Star Chamber defendants. I won’t go into detail — they’re horror stories — but
they absolutely sent a message you’d better not try to hard with a Star Chamber defendant, if you decided to take those cases at all.
Lawyers were tortured .. history remembers them as heroes, though I’m guessing that doesn’t help much. Defendants who couldn’t find a lawyer to represent them — keeping in mind that virtually all land-lords had plenty to pay — lost automatically.
* The hearings themselves were the same: trial by affidavit, it was nearly impossible to cross-examine the affiant, perjury (a capital
offense back them) was widespread, common .. and ignored. They were open or closed depending on the mood of the Chancellor.
* The whole point was to make sure money flowed back to the King. Bascially, when the King wanted land — whether it was directly or
indirectly (to give to somebody else) — off went the landlord (yesterday’s mortgage borrower) to the Chamber. The whole point was
money.
* Even the genesis of the Star Chamber may be land theft. Black, of Black’s Law Dictionary, wrote the chamber came from the hebrew word to record .. as in record and litigate land deeds. Historians later said he was wrong, that there were stars on the court of the chamber. But the chamber is still around and there are no stars, and nobody ever wrote about stars, and Black would know — that was back in his time.

Of course, the Star Chamber defendants are how many of the settlers of this country ended up here. After their minute or two at rocket docket off they went to the new world. The Chamber is viscerally hated in US history; when the Supreme Court writes about it (in decisions as late as last decade) they always throw in an adjective (ex: the dreaded Star Chamber, the wretched Star Chamber, etc..). Our founders hated it so much they almost abolished equity courts but realized some issues weren’t meant for juries so left it, but added half the Bill of Rights to ensure it never came about again.

Read next a case from the Florida Supreme Court which describes why Star Chambers are repugnant to our courts:

miami

Tweet this! Share and Enjoy:

Scridb filter

Jan

Unclean Hands as a Defense to Foreclosure

By Matthew D. Weidner, Esq. | Weidner

19914Leave a Comment2011-01-24+11%3A10%3A42Matthew+D.+Weidner%2C+Esq.

If you can get the trial court to listen, there are a mountain of cases which would help you prepare a defense to foreclosure based on the Plaintiff’s unclean hands or improper conduct….

“Although the unclean hands defense may be asserted in foreclosure cases when the parties are in privity, see, e.g., Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th DCA 1995); Lamb v. Pike, 659 So.2d 1385, 1387 (Fla. 3d DCA 1995), privity is not an essential element of the equitable defense. Unclean hands may be asserted by a defendant who claims that the plaintiff acted toward a third party with unclean hands with respect to the matter in litigation. See Yost v. Rieve Enters., Inc., 461 So.2d 178 (Fla. 1st DCA 1984) (“There is no bar to applying the doctrine of unclean hands to a case in which both the plaintiff and the defendant are parties to a fraudulent transaction perpetrated on a third party.”); see also Hauer v. Thum, 67 So.2d 643, 645 (Fla.1953) (“It would matter not that the [defendants] were parties to the fraudulent transaction nor that the fraud was perpetrated upon a third party.”); Marin v. Seven of Five Ltd., 921 So.2d 699, 700 (Fla. 4th DCA 2006) (“Generally, the conduct constituting the unclean hands must be connected with the matter in litigation.”) (citation omitted).”
Quality Roof Servs. v. Intervest Nat’l Bank, No. 4D08-3382, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 21 So. 3d 883; 2009 Fla. App. LEXIS 16086; 34 Fla. L. Weekly D 2205, October 28, 2009, Decided, Released for Publication November 13, 2009.
http://scholar.google.com/scholar_case?case=2031519821063683955

“A lender can be estopped from foreclosing on an accelerated basis, however, where the borrower establishes that the lender has unclean hands. See Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th DCA 1995).”
City First Mortg. Corp. v. Barton, No. 4D06-4419, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 988 So. 2d 82; 2008 Fla. App. LEXIS 10848; 33 Fla. L. Weekly D 1785, July 16, 2008, Decided, Released for Publication August 29, 2008.Rehearing denied by City First v. Barton, 2008 Fla. App. LEXIS 13005 (Fla. Dist. Ct. App. 4th Dist., Aug. 29, 2008)
http://scholar.google.com/scholar_case?case=13802610153250322485

Take a look at the full thread here

Tweet this! Share and Enjoy:

Scridb filter

Jan

2011- Rise of the JEDTI Warriors

By Matthew D. Weidner, Esq. | Foreclosure Fraud, Weidner

18537Leave a Comment2011-+Rise+of+the+JEDTI+Warriors2011-01-03+11%3A53%3A13Matthew+D.+Weidner%2C+Esq.

JEDTI= Jurists Engaged in Defense of Title Integrity

The first JEDTI group was formed by Clearwater, Florida attorney and title insurance expert Greg Clark. It’s a cohesive group of att0rney members with vast and varied legal backgrounds and areas of expertise, including appellate law, trial work, corporate and business transactional and litigation experience. The members are committed to defending judges and our courts and to sounding the alarm that today’s sloppy and improper foreclosure practices are going to have catastrophic consequences on property ownership in this country for decades to come. JEDTI presents both a warning and a solution.

During the last quarter of 2010, the rest of the world woke up to the dark storm clouds that cover our country, dark foreboding storm clouds full of rain and lighting that are soaking through and destroying the record title ownership system that is one of the foundations of this country. The existing mess will take years to clear up, but we can prevent the situation from getting worse by not moving forward on cases where real questions exist.

As we all dust off the dirt, the slop, the filth that was 2010, it’s time to clear the decks, flush out the toxic slop that clogs our courts and start fresh. We cannot continue the practice of foreclosure business as usual in 2011. We cannot continue the reckless race to summary judgment that caused so much uproar during the last half of 2010. Instead, it’s time for our courts to find legitimate, fair and rule-based reasons to dismiss many of the cases that clog the backlogged foreclosure docket. Failure to Prosecute, Failure to Serve Defendants, Failure to Verify, Failure to State a Cause of Action, Improper Plaintiff. All of these offer legitimate and appropriate reasons to dismiss the cases that are filed (and many forgotten) but which continue to choke our court systems.

Rather than ignore or dismiss Defendant’s Motions to Dismiss, our courts must respond to the arguments and recognize that granting motions to dismiss is an appropriate way to mete out judicial efficiency and be responsive to taxpayer demands that our courts do equity and manage taxpayer resources. The fact of the matter is that our courts and every single taxpayer in this state are subsidizing the improper practices of the foreclosure mills. The foreclosure mills made business decisions to cut corners and turn profits. They make millions while our courts struggle to keep up with their toxic deluge.

There are jurists across this state who are engaged in the battle not just the defense of title integrity but also the defense of our judges and court system in general. There are judges and private practice attorneys and attorneys that work with law enforcement and regulatory agencies who are battling every day to set all of this right and turn this around. We can never be certain what this new year will bring, but we all know the current state of affairs cannot continue.

We’ve all got to work together to usher in a new era of solutions to this problem that continues to grip our country. We need to show the general public the critical function that attorneys serve in the midst of this crisis by continuing the tireless service to our clients, our courts and our country. Let’s hope 2011 ushers in a new era and that real resolution can be reached.

Tweet this! Share and Enjoy:

Scridb filter

Dec

Flawed Service of Process Renders Foreclosures Void- Should Sheriffs Halt All Writs of Posesssion?

By Matthew D. Weidner, Esq. | Foreclosure Fraud, Weidner

17822Leave a Comment2010-12-23+11%3A58%3A41Matthew+D.+Weidner%2C+Esq.

Just this week, Ice Legal treated us all to another BOMBSHELL of an appellate court case….KWONG v. CTRYWD. HOME LOANS SER., 4D 10-1129 (Fla.App. 4 Dist. 12-15-2010).

Let’s all make sure we don’t miss the impact of this case and take an opportunity to talk about problems with potentially thousands of foreclosures that are polluting our court systems across the state. In the rush to drive this foreclosure bus off the cliff, our state has entrusted our entire civil justice system and in fact the very foundations of our economy in the hands of a small and as yet totally unidentified group of individuals known as “Special Process Servers”.

Here’s the deal…in the good old days only the Sheriff in each county was entrusted with the responsibility of assuring the courts that the defendants in each civil case actually received their summons and lawsuit. This first action in a lawsuit was recognized as being so important that we only trusted our elected and sworn sheriff with this task. When the Sheriff returned the summons to the court, that was proof positive that the defendant was actually served with the lawsuit and knew it was out there.

I haven’t done the legislative history on this, but somewhere along the way, it was decided that we could farm out this most critical function of our entire civil justice system to private parties. Take a close read of Florida Statues Chapter 48 and 49.

In my opinion, the statutory requirements are far too lax and I believe the entire regime is subject to abuse. I believe we’re going to find as we continue the post mortem examination of our economic and judicial breakdown that this system has been exploited. Service of Process is already being quashed in those cases where we can identify problems with the purported service (like the person wasn’t actually served). Now we need to closely examine all the people that were actually allegedly doing the service.

The entire system is set up to be exploited and I don’t think there’s nearly enough checks and supervision to ensure that the process has not been grossly abused. Because Special Process Servers are appointed by the Sheriffs in each county, and because I believe it’s prudent to conduct a review of the entire service of process system, I think our Sheriff’s should halt serving all Writs of Possession until the integrity of service of process in their county can be confirmed. A few basic questions that must be answered:

1) Is the process server’s appointment current, valid and active?

2) Does the purported signature of the process server match the signature on the return of service?

3) Is the process server complying with the strict and very clear requirements of statute?

4) Is the commissioned process server actually making the alleged service of process?

If the answer to any of those questions is “No”, then the entire case has to be started all over again. When we start uncovering evidence of systemic breakdown we’re going to be confronted with much larger problems and issues. What is the cumulative impact if a process server’s appointment was not renewed and she went out and served hundreds of lawsuits all across the county? What is the cumulative impact if a process server’s signature on returns of service does not match? Was someone else doing the purported service or was someone else filling out the return of service? Has anyone collected statistics on the attempts of service for process servers to determine whether all the alleged services are even statistically possible?

The Failure of the Process of Service of Process is another chapter in the revolting book called, The Failure of Everything and Everyone. At some point in the post mortem examination, we’ll have to examine the whole system, but for now, let’s just take a close look at each case and remember…..

Because strict compliance with statutory requirements of service is mandated, we conclude that failure to make the obligatory notations renders the service defective. We therefore reverse and remand for further proceedings. See Vidal v. Suntrust Bank, 41 So. 3d 401 (Fla. 4th DCA 2010).

Make no mistake, I’m a vocal and persistent defender of law enforcement and our Sheriffs. I want my law enforcement and judicial budgets pumped up. I want law enforcement officers well paid and budgets full. Now here’s a bombshell of a question…what if our Sheriffs departments across the state had been doing the service of process in the hundreds of thousands of foreclosure cases that have been filed and are currently pending? I’m no math wizard, but how ’bout we calculate the number of foreclosures filed in the county for 2009, then multiply by the average number of defendants. (Let’s not inflate that number with Unknown Spouses #4-#310 and Unknown Tenants #8- #240)

What you’re talking about is quite literally millions of dollars in revenue for each county’s law enforcement budget, paid for by the private sector that caused all this mess. As a consumer, a taxpayer, a voter, I would much rather see these millions of dollars being earned by my law enforcement and that money being used to pay for guns and cars and jobs and benefits for men and women who take an oath to Protect and Serve than seeing that money diverted into the hands of private companies with profit as a necessary business model.

This MULTI MILLION DOLLAR revenue issue for local law enforcement is yet another powerful reason why our courts need to clear the current backlog of stalled and flawed foreclosures through dismissals and force the firms to refile the cases….

Tweet this! Share and Enjoy:

Scridb filter

Dec

BOMBSHELL- MERS v. Azize- Florida’s Sixth Circuit Got Foreclosure Right Before the Crisis

By Matthew D. Weidner, Esq. | Weidner

16687Leave a Comment2010-12-05+13%3A28%3A10Matthew+D.+Weidner%2C+Esq.

The entire country knows that we are right in the middle of a real crisis. It’s a crisis of confidence that is shaking the very foundation of our country as we all question the economic, political and judicial systems we all live under. Clearly there are major problems in each of these systems. I find it interesting that Florida’s Sixth Judicial Circuit on Florida’s West Coast has received a good deal of outside press and other attention about this foreclosure crisis and wanted to dig a little deeper. The good judges of this circuit have had a problem with the way foreclosures have been conducted for a long time….as it turns out now….apparently with very good reason.

The inquiry got me thinking about a case that started long before the crisis, way back in 2005. Way back then one of our good Circuit Court judges had a problem with the way he saw foreclosures being conducted in his courtroom. He specifically had a problem with the way a nominee or straw party, MERS or Mortgage Electronic Registration System, was filing thousands of foreclosure lawsuits and he questioned how MERS could act as the Plaintiff when it did not actually own the note or have a real interest in the underlying debt.

The interesting this is this judge sua sponte or on his own, called up all the cases in his docket where MERS was the Plaintiff. He exercised his judicial authority and conducted an inquiry of the facts and circumstances surrounding MERS’ participation in foreclosure litigation. It should be noted that in this particular case, no Defendant ever appeared or filed any pleading at all. But that did not stop the judge from raising his inquiry. He had questions about what was happening in his courtroom so he pulled all the cases and set up a formal inquiry. YOU MUST READ THE ENTIRE ORDER AND PAY ATTENTION TO THE DEEP INQUIRY BEING CONDUCTED BY THE JUDGE….

After the inquiry, the judge determined that MERS didn’t have the appropriate skin in the game to foreclose, so he dismissed this case AND ALL OTHER CASES in his docket where MERS was the Plaintiff. The Second District Court of Appeals subsequently reversed him on this, but there are several important points. First, the appellate court did not repudiate his entire line of inquiry or reasoning, they only suggested that it was a little too broad based on the facts before them in that particular case. Next, reading the appellate opinion carefully, you will note that in footnote number two the appellate court specifically noted that it was relevant for a Plaintiff to establish how and why it became entitled to enforce a mortgage. Finally, it is critical to note that even though the appellate court reversed the good trial judge in this case, MERS’ practice changed dramatically after this case and they almost never filed as a Plaintiff in the State of Florida again.

Azize was not a “Win” for MERS and the appellate court did not expressly repudiate the legal inquiry being conducted, the appellate court merely pointed out some technical problems with that particular case. The point is this circuit got the issues right long before foreclosures devolved into the morass they are today. Just think of how much better shape we’d all be in today if we had all stopped and paid attention to the questions asked by this judge in this case. What if the lenders and the plaintiffs in all these cases that are clogging our courts had taken the time and spent the effort to get their paperwork straight to show ownership clearly and without question way back in 2005? The mess that clogs our courts and pollutes our system of record title ownership was warned of very clearly and quite specifically long before it all spun so wildly out of control….if only we would have listened…..

MERS v. AZIZE

Order Dismissing MERS

Is this the next decision out of the Sixth Judicial Circuit on the Order and Magnitude of Azize?

StentzOrder

Tweet this! Share and Enjoy:

Scridb filter

Nov

IN RE: WILSON—SAND CANYON DOES NOT OWN ANY MORTGAGES OR SERVICING

By Matthew D. Weidner, Esq. | Foreclosure Fraud, Weidner

15964Leave a Comment2010-11-17+12%3A09%3A44Matthew+D.+Weidner%2C+Esq.

(I’ve been told to watch the case referred to in this blog, In Re: Wilson, a bankruptcy case filed in Louisiana…I don’t yet see the earth shattering impact of this case, but I’m told to stay tuned….it’s coming. This morning I share just one little nugget from the case.)

One of the biggest issues I’ve been screaming about for years now is the fact that in so many foreclosure cases no one has any real idea who the Plaintiffs or the parties are in the litigation. The technical legal point of dispute is “Failure of Capacity” which covers both the fact that these Plaintiff’s fail to plead or identify who they are i.e. Sand Canyon Corporation, a wholly owned subsidiary of the H and R Block Corporation. Instead corporation, fictitious names or trusts are entered as parties in litigation with no identification whatsoever which would allow me to serve them as a counter defendant or to pursue them later when the wave of title claims start crashing down in the years to come. The second component of the capacity challenge relates to the fact that in so many foreclosure cases, the straw plaintiff is acting in some vague and undefined representational capacity but that capacity is never, ever clearly defined.

I have won my “Failure of Capacity” argument virtually every time it is raised, but frankly it is not raised nearly enough, even by me. The position that must be taken and that is supported by all relevant case law is that I cannot litigate against a party or a witness or any entity that has entered evidence into a case that is not properly identified. i.e. XYZ Corporation, a Florida Corporation. (For more information on the entire subject, search this blog for the “Compendium of Capacity Cases”, which contains virtually all the cas law on the subject.)

One example of the practical application of the capacity argument is found below in a bankruptcy case pending in Louisiana, In Re: Wilson. I’ve been directed to this case some time ago and I’m told that it will have an explosive outcome at some point in time in the future. I admit that I’m a bit befuddled by the case right now because while I see problems with the case that are reflected in the Orders and pleadings, I don’t yet see the bombshells……but I am told they are coming.

For now, have a look at this stunning affidavit/admission. This should be powerful evidence to anyone out there battling foreclosure cases against Sand Canyon which is apparently a zombie corporation with no right to proceed with litigation, much less the apparently active corporate activities we all find them engaged in….yet another example of why I say…..

CAPACITY IS A CASE KILLER

sandcanyon

And another nugget from the case

inrewilsontrustee

Tweet this! Share and Enjoy:

Scridb filter

Oct

The Fallout From Allegations of Improper Foreclosures By David J. Stern

By MattWeidner | Weidner

14680Leave a Comment2010-10-20+10%3A30%3A18MattWeidner

The allegations contained within the depositions from former employees of David J. Stern are earth shattering. I was quoted as saying that I was speechless and that if the allegations are true, we are going to have a real crisis on our hands. The thing that absolutely boggles my mind and keeps me up at night is my inability to understand why foreclosure cases are being permitted to continue proceeding when there are substantiated allegations of gross abuses of the court process.

The most significant allegations involve improper or no service of process on the defendants. The typical rationale for continuing to grant summary judgments in foreclosure cases is that no defendant is present to contest the case. I believe the facts will show in the months and years going forward that Defendants were not properly served with some of these foreclosure cases. When there is fraud or flawed Service of Process at the outset, the entire judgment is Void thereafter.

And if they are willing to engage in fraudulent or flawed Service of Process, why in the world would the ensure that defendants receive notices of hearing…especially notices of Summary Judgment hearings? The number of clients that report not receiving any notices at all of hearings–who report that the first notice they get of a foreclosure sale is…the Final Judgment of Foreclosure mailed out by the Clerk of Court cannot be ignored.

Consumers who have been the victims of this improper practice are going to quite justifiably be wild with anger. The pending federal investigations are going to show what those of us in the fight have been saying all along….there are many consumers who have tried to make mortgage payments, who have mailed in paperwork and spent hours on the phone and have done their part to try and fulfill their mortgage obligations, only to have the lenders and servicers waste their time, destroy their paperwork and prevent them from fulfilling their obligations. All of that is bad enough, but what do you say to that homeowner when at the same time they are doing all of this, a court process is going forward that results in the sale of their home out from underneath them….and they had no notice of that hearing….or no service at all?

As an attorney, I am compelled by the quaint notion that we all have a responsibility to protect those around us from the abuses of the bigger and more powerful. I want everyone reading this to think about that immigrant family that has been tossed out of their home by a Plaintiff that had no right to do so. I want you to think about the broken, elderly man on Social Security who was the victim of a fast talking mortgage broker who pocketed tens of thousands in fees on a bad loan…a loan that’s now being foreclosed on by a Plaintiff based solely on a flawed assignment of mortgage.

Recent national polls show a dramatic shift in public opinion on the foreclosure crisis:

Fifty-two percent of likely voters said Wall Street investors and mortgage companies are to blame for most of the problems in the lending industry, while 35 percent faulted individuals who borrowed more than they could afford, the survey indicated. Those percentages changed from July 2008, when slightly more voters blamed borrowers than Wall Street investors and mortgage companies.

UPI Poll

Keep in mind that polls like this lag several months behind actual public opinion, which is changing daily. When the general press continues to hear the stories of abuse that is being visited upon Americans at the hands of the banks and institutions and their law firms, the general public is going to be seething with anger. And if you think we’ve got a mess on our hands now trying to sort out who owns and holds mortgages, just wait until we have to try and sort out competing title claims on homes that were sold or seized through improper foreclosures. There is no avoiding this. The claims are out there and they are real. When the general public learns of their right to personal service and of real notice of hearings and proceedings…and when we show that they did not receive notice….wow. As an example, have a read here at what is perhaps the first lawsuit that details the kind of facts I mentioned above. If there are only a thousand such cases in each county, we’ve got real problems and given the numbers reported on….that’s just going to be the beginning…

sternmotionforprotectiveorder

Tweet this! Share and Enjoy:

Scridb filter

Oct

Oops, I lost my summons! Oops, I lost my summons! (Repeat 9,000 times)

By MattWeidner | Weidner

14315Leave a Comment2010-10-14+10%3A43%3A39MattWeidner

Remember, Press Conference today at 10:30 in Orlando with U.S. Congressman Alan Grayson. If you’re press struggling to grasp how significant the whole ForeclosureGate controversy is…you should attend. If you are a homeowner in foreclosure, you should attend. If you’re just an everyday American who is sick and tired of the abuses of the banks and institutions that now own and run this country, you should attend. What happened to Nancy Jacobini should never, ever happen in this country and what’s still happening to every American stuck in this nightmare should not be allowed to continue.

IT WILL ONLY STOP WHEN WE ALL STAND UP TOGETHER AND DEMAND AN END TO THIS

WAKE UP, RISE UP, STAND TOGETHER AND STAND YOUR GROUND

SEE YOU IN ORLANDO AT 10:30 AM!

Our entire foreclosure process, and now a significant portion of the title to real property in this country now rests on the shoulders of largely unregulated, unpoliced and until now, unnoticed subset of the foreclosure mill/foreclosure cockroach community. The Private Process Servers. Who are process servers? In Florida, a Plaintiff must personally hand an original summons issued by the court, along with the lawsuit to every defendant in a foreclosure case. The Sheriff appoints private parties to serve these lawsuits on these people, but any knucklehead can become a process server. The requirements are to become a process server are defined in Florida Statutes, but here’s the bombshell.

THERE IS SO MUCH BAD SERVICE OF PROCESS FLOATING ACROSS THIS STATE THAT IT’S GOING TO MAKE THE ROBOSIGNER CONTROVERSY SEEM SMALL

What is bad service? Not actually serving the defendant in the case, but lying to the court and saying the person was served. You see, a process server must file with the court an Affidavit of Service, an original document where he swears to the court, “On February 1, 2o10 at 4:10 pm, I personally served Matthew Weidner with a copy of the lawsuit and summons at his home at 1229 Central, St. Petersburg 33705. Weidner was 5 feet 2 inches tall, black and weighed about 200 pounds.”

The problem is Matthew Weidner is white, 6 foot 1, weighs 165 and on February 1, 2010 at 4:10 pm he was on a flight bound for California….that service could never have happened so the process server lied. The big, big, big problem with service such as this example is…..

JUDGMENTS BASED ON FRAUDULENT SERVICE ARE VOID

Let that sink in and think about it. VOID. Not Voidable, but VOID AB INITIO or invalid from the outset. How many tens of thousands of titles to real property across this country are affected by this problem? Impossible to say at this point in time, but anecdotally, I see far too many cases of flawed service than we should ever permit. Elderly people, illiterate people, minorities that couldn’t avoid service or leave their homes even if they wanted to. And yet, the numbers of Affidavits of Diligent Search and Inquiry and Constructive Service in foreclosure cases is HUGE. No one was supervising the process servers. The lowly process server who got paid the same $25 if he was serving (or not serving) a foreclosure complaint on a $50,000 mortgage or a $5,000,000 mortgage. And now the fate of our entire title insurance industry and in fact our entire economy rests on the truth and veracity of the Affidavits of Service of Process that have been filed by these unregulated, unsupervised process servers.

Have a look at just two initial reports that were produced which provide some insight into this problem. How in God’s name have courts permitted this many summons to be lost? How in God’s name have we allowed so many foreclosure lawsuits to proceed based on constructive service? There are no legitimate answers to these questions. But then read the very lax requirements that are in place for process servers in this state. GOD HELP US ALL.

Copy of LostSummonsReport

constructiveService

Florida Statutes 48.021 Process; by whom served.

—

(1)All process shall be served by the sheriff of the county where the person to be served is found, except initial nonenforceable civil process, criminal witness subpoenas, and criminal summonses may be served by a special process server appointed by the sheriff as provided for in this section or by a certified process server as provided for in ss. 48.25-48.31. Civil witness subpoenas may be served by any person authorized by rules of civil procedure.

(2)(a)The sheriff of each county may, in his or her discretion, establish an approved list of natural persons designated as special process servers. The sheriff shall add to such list the names of those natural persons who have met the requirements provided for in this section. Each natural person whose name has been added to the approved list is subject to annual recertification and reappointment by the sheriff. The sheriff shall prescribe an appropriate form for application for appointment. A reasonable fee for the processing of the application shall be charged.

(b)A person applying to become a special process server shall:

1.Be at least 18 years of age.

2.Have no mental or legal disability.

3.Be a permanent resident of the state.

4.Submit to a background investigation that includes the right to obtain and review the criminal record of the applicant.

5.Obtain and file with the application a certificate of good conduct that specifies there is no pending criminal case against the applicant and that there is no record of any felony conviction, nor a record of a mIsdemeanor involving moral turpitude or dishonesty, with respect to the applicant within the past 5 years.

6.Submit to an examination testing the applicant’s knowledge of the laws and rules regarding the service of process. The content of the examination and the passing grade thereon, and the frequency and the location at which the examination is offered must be prescribed by the sheriff. The examination must be offered at least once annually.

7.Take an oath that the applicant will honestly, diligently, and faithfully exercise the duties of a special process server.

(c)The sheriff may prescribe additional rules and requirements directly related to subparagraphs (b)1.-7. regarding the eligibility of a person to become a special process server or to have his or her name maintained on the list of special process servers.

(d)An applicant who completes the requirements of this section must be designated as a special process server provided that the sheriff of the county has determined that the appointment of special process servers is necessary or desirable. Each special process server must be issued an identification card bearing his or her identification number, printed name, signature and photograph, and an expiration date. Each identification card must be renewable annually upon proof of good standing.

(e)The sheriff shall have the discretion to revoke an appointment at any time that he or she determines a special process server is not fully and properly discharging the duties as a special process server. The sheriff shall institute a program to determine whether the special process servers appointed as provided for in this section are faithfully discharging their duties pursuant to such appointment, and a reasonable fee may be charged for the costs of administering such program.

(3)A special process server appointed in accordance with this section shall be authorized to serve process in only the county in which the sheriff who appointed him or her resides and may charge a reasonable fee for his or her services.

(4)Any special process server shall be disinterested in any process he or she serves; and if the special process server willfully and knowingly executes a false return of service or otherwise violates the oath of office, he or she shall be guilty of a felony of the third degree, punishable as provided for in s. 775.082, s. 775.083, or s. 775.084, and shall be permanently barred from serving process in Florida

Tweet this! Share and Enjoy:

Scridb filter

Oct

BOMBSHELL- UNCONSTITUTIONALITY OF ROCKET DOCKET TRANSCRIPT

By MattWeidner | Weidner

13966Leave a Comment2010-10-07+21%3A54%3A51MattWeidner

ARE FORECLOSURE ROCKET DOCKETS EVEN CONSTITUTIONAL?

That’s a very important question that must be analyzed carefully with special attention paid not just to the mechanism by which these courts have been implemented, but also taking into consideration exactly how these courts are working in the real world. By now most of us have sat through enough Foreclosure Rocket Docket proceedings to know just how much the deck feels stacked against the foreclosure defendant and frankly against any sense of fairness or consideration of the more significant issues in foreclosure…..important issues like…

DOES THIS PLAINTIFF EVEN HAVE THE RIGHT TO FORECLOSE?

HAS THE PLAINTIFF LAW FIRM COMMITTED FRAUD?

DO THE AFFIDAVITS AND ASSIGNMENTS SHOW OBVIOUS SIGNS OF FRAUD?

Such pesky details are largely ignored in the context of the Rocket Docket proceedings where the real emphasis is placed on churning through this docket as quickly as possible. (Nevermind that the Plaintiff’s themselves have announced they wish to suspend the proceedings. Nevermind that many of these Defendants either have no notice of the proceedings or are in a formal repayment plan.)

Earlier I reported on the Rocket Docket judge that asked, “So what’s this TARP I’m hearing about?” Just today, a defendant called to tell me about the totally disrespectfully and entirely impermissible treatment she received in a 9:00 a.m. Rocket Docket hearing where the judge advised her, “You’re going to lose your home and there is nothing you can do about it.”

This just cannot continue.

Well, one tough fighter decided that he would stick his neck out there and try to do something about it. I get a lot of calls from clients seeking representation in North Florida and encourage you all to contact Daniel W. Uhlfelder <daniel@dwulaw.com> for representation. For all you reporters and folks at bigger thinking folks out there, read his memo. As I know you folks know, we need your help down here….Dan’s Memo provides a framework.

But most importantly, read the transcript of the proceeding….

ROCKETDOCKETTRANSCRIPT

Is The Foreclosure Rocket Docket Constitutional?

Tweet this! Share and Enjoy:

Scridb filter

Sep

WHERE IS THE OUTRAGE? WHERE IS THE FURY? WHERE IS THE PRESS?

By Matthew D. Weidner, Esq. | Weidner

127651 Comment2010-09-02+10%3A52%3A04Matthew+D.+Weidner%2C+Esq.

Whenever anyone’s substantive rights are being destroyed, we all need to be concerned, very concerned. The stories below present, in terrifying detail, a phenomena that is occurring all across this state. Basic, fundamental and key Constitutional Rights are being trampled upon. Forget for just a moment about the “minor” violations that are occurring in foreclosure courtrooms and how this represents such an abdication of the sacred oath taken by our judges to uphold the law and protect and defend the Constitution.

One of the key principles of our entire system of government is that it is open for full inspection at all times and that the rowdy mob that is the American people are not just able to participate in the government….they are absolutely required to participate in their government. Most importantly, all courtrooms must be free, open and accessible to the people. This is so whether the court is hearing small claims cases, death penalty cases or even foreclosure cases. The fact that judges now feel emboldened to ignore the Constitution so that they can rush along doing the important job of serving the banks and foreclosure mills (Yes, even the mills that are investigation by the Florida Attorney General) is a terrifying testament to a fundamental breakdown in our system of government.

This cannot be allowed to continue. Read the excerpts below and understand that once major violations of Constitutional rights like the right to open access are permitted, judges will not just wake up of their own volition and honoring those rights again…..they will get comfortable in closed courtrooms and that’s the way it will stay…..

Monday Aug 23, 2010. Court room 4A Palm Beach County Courthouse. I was with a friend who had a hearing at 9am. We were greeted by the Floor Receptionist and told we had to wait for our team……Now they are calling them teams…….the Plaintiff and the Defendant……..my friend was Pro Se. We still had to wait for the Plaintiff to arrive……She was 20 minutes late………there was an armed guard outside the door of Court room 4A. As we approached to enter, with our team, I was asked if I was party to the hearing I said I was with my friend, the next best friend, and observing , the guard told me I could not go in. I asked why, she said because I was not a party to the case, I said I have never been refused entrance before, and the guard said I could not go in. I asked if she was denying the public the right to enter the courtroom and she told me I would have to wait outside…….that there was not enough room…….I waited outside for 10-15 minutes made a couple of phone calls and then she said I could go in…….There were plenty of seats when I went in…….So I was rather concerned that I was denied access to our public court rooms. But you feel helpless up against them….I felt like my rights were being violated……

“On 8/30, I had a Summary Judgment Foreclosure hearing on Palm Beach County’s “Rocket Docket”. The judge spoke for 14 minutes to the crowd, of mostly pro se defendants, about how they should just agree to the summary judgment and the plaintiffs, (whose attorneys (Shapiro & Fishman had a dedicated courtroom and to whom he referred to as “my attorneys”) would be gracious (Ha!) enough to allow them to stay in their homes for 120 days if needed (even though the statute says he only has to give them 30). When it came to hearing arguments which were fully briefed and provided to the court (pursuant to the instructions of the Divisions head judge) he only allowed 30-60 seconds for argument, failed to read any of the papers, failed to review the plaintiff’s foreclosure package,flatly ignored the Affidavit filed in Opposition, ignored my plea for a trial, signed the judgment and dismissed me. I never was permitted to even read the proposed judgment or to examine the “newly discovered” allonge which Shapiro’s counsel said I had no right to see. Thank God I had a court reporter!”

I want to know why attorneys who practice in these courtrooms are allowing this to occur. I want to know why the press (national and regional) are not covering this issue. Shame on both groups for allowing this unprecedented attack on our fundamental rights to continue. Why are defense attorneys allowing this to occur? Why are you not taking these pro se and observers by your side and demanding that they be permitted into THE COURTROOMS THAT THEY PAID FOR, THAT THEY OWN, THAT OUR FOREFATHERS SHED BLOOD TO KEEP OPEN? That Sheriff only has a gun and that judge has no authority when he seeks to exercise it in a manner so repugnant to the Constitution.

WHY ARE ATTORNEYS AND PRESS NOT STANDING UP TO FIGHT THIS TYRANNY?

Tweet this! Share and Enjoy:

Scridb filter

Jul

Mass Extinction of Pools Becomes Clearer

By LH | Foreclosure Blog News, Homeowner Resources

11069Leave a Comment2010-07-29+14%3A33%3A16LH

Our good friend “Anonymous” has piped up with more vital information and expressed it more succinctly than I did.

“The senior tranches have largely already been paid and closed. Since the junior tranches are paid only if there is left over current payment – after the senior tranches have been paid. Thus, junior tranches are paid nothing (this is evident in investor lawsuits – damages do not deduct foreclosure recovery). If anything remains today from the toxic mortgage loan securitizations, it is the residual tranche – which has likely been resecuritized into a separate Trust – that is not a current pass-through security – but, rather, synthetically derived from a dismantled original Trust structure. “

Editor’s Note: In other words, if you have a high quality loan wherein you have a high credit score and received relatively good terms, it was in the “senior tranches.” The senior tranches were paid and closed. They were paid from the meager proceeds of the junior tranches, from insurance, credit default swaps etc. Bottom Line: If you got one of those mortgages, it has almost certainly been paid in full. So why are they still collecting your payments? Because they can.

Your obligation has most likely been satisfied long ago without any rights of subrogation. If you are in foreclosure now with one of these loans, the “Trustee” is in actuality out of the picture because the “Trust” was closed out (IF IT EVER LEGALLY EXISTED). All of this leads to the politically incorrect conclusion that people gt their houses for “nothing.” But that is not true.

ALL THE MONEY THAT WAS OWED ON THAT LOAN HAS BEEN PAID. WHY SHOULD ANYONE COLLECT ANYTHING FURTHER?

More comments from “Anonymous”

2010/07/29 at 5:47 am

This is a very important post. I have been aware of cases where the defendant is sent to mediation without first identifying the real creditor. Some here have stated that the real party issue is not relevant because eventually the plaintiff will get his “ducks in a row” and proceed with the foreclosure under the real party name.

Not identifying the real party in court is not only fraud but also deprives the defendant of direct and timely negotiation with the real party true creditor. Thus, damages accrue to the defendant.

Although real party, in my opinion, is the single most important issue, I am not seeing courts enforce discovery to ascertain the real party. Once it can be established that the real party is not before the court, all the produced documents are also subject to question. I have seen cases where the real party is at issue – but most of the cases simply state that the plaintiff does not have standing – without attempting to demonstrate why the plaintiff is not the real party.

Since foreclosure cases most often are indicative of securitization, knowing the chain of sale/assignment in a securitization is crucial. Also, knowing what the “investors” are entitled to is important. Again, while I think this post is very important – i disagree with “there is nothing left to pay the investors who advanced money into a pool from which some mortgages were funded” 1) any investors who indirectly funded a “pool” – did not directly fund mortgages and 2) tranche “investors” – for which there a limited number of tranches – were only entitled to current income pass-through – not foreclosure recovery (which is not current and not passed on to pass-through security investors. (However, the residual tranche is not a pass-through – and is usually held by the servicer – who may -or may not be the current creditor). 3) the Trust is likely dissolved.

The fact that mediation is being conducted without identification of the current creditor – in whose name any modification must be contracted – is simply additional fraud upon the borrower defendant. This fraud is akin to “loan modification” scams that are being currently investigated by some state Department of Justices.

How and why the courts are allowing this to happen – and actually promoting it – is beyond me.

Editor’s Note: Legally this puts us at the horns of a dilemma. If we want to travel the path of “PAID IN FULL” then we are treading on the thin ice of accepting or admitting that the loan was actually legally and correctly assigned and indorsed into the pool, in addition to the usual “free house” talk. If we travel the path of UNSUCCESSFUL ATTEMPTED ASSIGNMENT then we get to the conclusion that the loan is still owned by the originating lender, who was PAID IN FULL at the time of the loan closing, but still is the owner of record. If we travel both paths, we are presenting a highly complex argument that most judges won’t understand. This is why the winners out there are not making big splashes with exotic legal arguments (even though they would be right), the winners are getting down to the details that any Judge would understand — SHOW ME THE TRUST DOCUMENT, SHOW ME THE NOTE, SHOW ME THE ASSIGNMENT, SHOW ME THE INDORSEMENT, SHOW ME THE ACCOUNTING, SHOW ME THE CREDITOR ETC.

MANY THANKS, ANONYMOUS!!!

Filed under: bubble, CDO, CORRUPTION, Eviction, evidence, expert witness, foreclosure mill, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, STATUTES, trustee Tagged: creditor, fraud, mediation, REAL PARTY IN INTEREST

Jul

Florida: Watch out for Conciliation/Mediation Scam

By LH | Foreclosure Blog News, Homeowner Resources

11014Leave a Comment2010-07-28+16%3A28%3A16LH

Florida :Watch out for Conciliation/Mediation Scam
———————————————————————-
Florida Default Group is emailing foreclosure defense attorneys with emails stating “Per your request, conciliation will be scheduled for your client…” that is how the are scamming even REPRESENTED defendants out of their right to a third party mediation (not that they are going to work anyway).

As I myself have witnessed on many occasions, some mill attorneys, or LOCAL COUNSEL, like Peter Porcaro local counsel for Stern’s office, bring pro se defendants out of the courtroom, smooth talk them into an agreement where there is an “extended sale date 120 days into the future, and an agreement for “conciliation” (which differs from mediation because mediation for primary residences cost the plaintiff $750 each and also there is a mediator) and a waiver of mediation. Conciliation is at no cost to the plaintiff and is between the two parties without a mediator. There is no explanation of mediation vs conciliation and no telling that the FL Supreme Court mandates mediation unless it is waived. There is no acknowledgment of months if not years of frustrated attempts at “conciliation” in terms of loan mods or short sales or deeds in lieu and how the defendants have a right to mediation. If any issues regarding the veracity and/or authenticity of the documents in the court file are raised, the answer given in these hallway dirty dealings, is “I’m not involved with that. I don’t work for their office.”

The same thing happens with all the mills. Attached is what the defendant in a Marshall Watson case walked away with…..just read it to see …………

See for yourselves. Stand outside of courtroom 10H or the other “foreclosure mill courtrooms” and watch this play out.

Sincerely,
Lisa Epstein
ForeclosureHamlet.org

Filed under: foreclosure

Jun

David Stern SMACKDOWN- 4th DCA Appellate Court Reversal of Summary Judgment of Foreclosure!

By LH | Foreclosure Blog News, Homeowner Resources

8750Leave a Comment2010-06-10+18%3A09%3A52LH

Somebody get me the full text of this opinion

David Stern SMACKDOWN- 4th DCA Appellate Court Reversal of Summary Judgment of Foreclosure!

Today, June 10, 2010, 5 hours ago | Matthew D. Weidner, Esq.

see blog

My thanks to the superstars at Ice Legal in West Palm for sharing the latest good decision out of the 4th DCA which covers Broward County, West Palm and other counties on the East Coast of Florida.

Read this opinion carefully, it is yet another repudiation of the summary judgment of foreclosure procedures widely being used in courtrooms across the state.

This opinion and others should make it absolutely clear that circuit courts cannot grant summary judgment when any objection is made whatsoever. It’s not up for the defendant to prover her case at summary judgment, only to put into question the Plaintiff’s case. At that point, summary judgment is no longer on the table for Plaintiffs.

As a practical matter, I don’t see how they proceed with final judgments and the high evidentiary burdens a real trial would create.

Filed under: foreclosure

Jun

Lender Processing Services, Inc. Contact Info

By LH | Foreclosure Blog News, Homeowner Resources

8481Leave a Comment2010-06-03+13%3A51%3A56LH

In the secured offices (and network operations center) of this entity is the REAL STORY about the fraud being perpetrated upon the U.S. Court system and every post 2001 borrower, whether they are in distress or not. Here is where the system works its charms — from avoiding actual title reports, relying upon much less expensive credit reports, to the fabrication and probable forgery of thousands of documents in hundreds of thousands of foreclosures.

In law there is a duty to preserve evidence once party is aware of litigation concerning that evidence. If you are filing a fraud count you might want to consider naming LPS as a co-defendant. Either way you definitely want to issue a subpoena for their records concerning your loan.

Contact Kyle Lundstedt
and tell him to stop harassing us.

Lender Processing Services, Inc.

601 Riverside Avenue
Jacksonville, FL 32204

General Information: 904.854.5100
Toll-free (U.S. only): 800.991.1274
Fax: 904.854.4124

E-mail: mortgage.marketing@lpsvcs.com

Filed under: CASES, CORRUPTION, Eviction, expert witness, foreclosure, foreclosure mill, foreign relations, Forensic Analysis Workshop, GTC | Honor, HERS, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, trustee, workshop Tagged: duty to preserve evidence, evidence, fabircation of evidence, HERS, Kyle Lundstedt, Lender Processing Services, LPS, network operations center

May

If the money was free then why does anyone owe it?

By LH | Foreclosure Blog News, Homeowner Resources

8035Leave a Comment2010-05-23+13%3A50%3A35LH

VERY Interesting dialogue. Like Socrates, it makes its point by analogy. If the free money came from the borrower, there would be no question about whether the “bank” was owed the money — in fact it would be the “bank” that owed the money to its customer. So why is it OK for them to claim the money when they got the free money elsewhere INCLUDING the borrower through his tax dollars? I got this from the comment board. The submission was from someone who got it from “Taxcore.”

—————————————————————

your attorney could make use of any of the following, but just in case… I recently got this from “Taxcore:”
For those that may have wondered how a loan works in a fiat currency debt based banking system here it is. Here’s how a “bank loan” really works.
Interviews with bankers about a foreclosure. The banker was placed on the witness stand and sworn in. The plaintiff’s (borrower’s) attorney asked the banker the routine questions concerning the banker’s education and background.
The attorney asked the banker, “What is court exhibit A?”
The banker responded by saying, “This is a promissory note.”
The attorney then asked, “Is there an agreement between Mr. Smith (borrower) and the defendant?”
The banker said, “Yes.”
The attorney asked, “Do you believe the agreement includes a lender and a borrower?”
The banker responded by saying, “Yes, I am the lender and Mr. Smith is the borrower.”
The attorney asked, “What do you believe the agreement is?”
The banker quickly responded, saying, ” We have the borrower sign the note and we give the borrower a check.”
The attorney asked, “Does this agreement show the words borrower, lender, loan, interest, credit, or money within the agreement?”
The banker responded by saying, “Sure it does.”
The attorney asked, `”According to your knowledge, who was to loan what to whom according to the written agreement?”
The banker responded by saying, “The lender loaned the borrower a $50,000 check. The borrower got the money and the house and has not repaid the money.”
The attorney noted that the banker never said that the bank received the promissory note as a loan from the borrower to the bank. He asked, “Do you believe an ordinary person can use ordinary terms and understand this written agreement?”
The banker said, “Yes.”
The attorney asked, “Do you believe you or your company legally own the promissory note and have the right to enforce payment from the borrower?”
The banker said, “Absolutely we own it and legally have the right to collect the money.”
The attorney asked, “Does the $50,000 note have actual cash value of $50,000? Actual cash value means the promissory note can be sold for $50,000 cash in the ordinary course of business.”
The banker said, “Yes.”
The attorney asked, “According to your understanding of the alleged agreement, how much actual cash value must the bank loan to the borrower in order for the bank to legally fulfill the agreement and legally own the promissory note?”
The banker said, “$50,000.”
The attorney asked, “According to your belief, if the borrower signs the promissory note and the bank refuses to loan the borrower $50,000 actual cash value, would the bank or borrower own the promissory note?”
The banker said, “The borrower would own it if the bank did not loan the money. The bank gave the borrower a check and that is how the borrower financed the purchase of the house.”
The attorney asked, “Do you believe that the borrower agreed to provide the bank with $50,000 of actual cash value which was used to fund the $50,000 bank loan check back to the same borrower, and then agreed to pay the bank back $50,000 plus interest?”
The banker said, “No. If the borrower provided the $50,000 to fund the check, there was no money loaned by the bank so the bank could not charge interest on money it never loaned.”
The attorney asked, “If this happened, in your opinion would the bank legally own the promissory note and be able to force Mr. Smith to pay the bank interest and principal payments?”
The banker said, “I am not a lawyer so I cannot answer legal questions.”
The attorney asked, ” Is it bank policy that when a borrower receives a $50,000 bank loan, the bank receives $50,000 actual cash value from the borrower, that this gives value to a $50,000 bank loan check, and this check is returned to the borrower as a bank loan which the borrower must repay?”
The banker said, “I do not know the bookkeeping entries.”
The attorney said, “I am asking you if this is the policy.”
The banker responded, “I do not recall.”
The attorney again asked, “Do you believe the agreement between Mr. Smith and the bank is that Mr. Smith provides the bank with actual cash value of $50,000 which is used to fund a $50,000 bank loan check back to himself which he is then required to repay plus interest back to the same bank?”
The banker said, ” I am not a lawyer.”
The attorney said, “Did you not say earlier that an ordinary person can use ordinary terms and understand this written agreement?”
The banker said, “Yes.”
The attorney handed the bank loan agreement marked “Exhibit B” to the banker. He said, “Is there anything in this agreement showing the borrower had knowledge or showing where the borrower gave the bank authorization or permission for the bank to receive $50,000 actual cash value from him and to use this to fund the $50,000 bank loan check which obligates him to give the bank back $50,000 plus interest?”
The banker said, “No.”
The lawyer asked, “If the borrower provided the bank with actual cash value of $50,000 which the bank used to fund the $50,000 check and returned the check back to the alleged borrower as a bank loan check, in your opinion, did the bank loan $50,000 to the borrower?”
The banker said, “No.”
The attorney asked, “If a bank customer provides actual cash value of $50,000 to the bank and the bank returns $50,000 actual cash value back to the same customer, is this a swap or exchange of $50,000 for $50,000.”
The banker replied, “Yes.”
The attorney asked, “Did the agreement call for an exchange of $50,000 swapped for $50,000, or did it call for a $50,000 loan?”
The banker said, “A $50,000 loan.”
The attorney asked, “Is the bank to follow the Federal Reserve Bank policies and procedures when banks grant loans.”
The banker said, “Yes.”
The attorney asked, “What are the standard bank bookkeeping entries for granting loans according to the Federal Reserve Bank policies and procedures?” The attorney handed the banker FED publication Modern Money Mechanics, marked “Exhibit C”.
The banker said, “The promissory note is recorded as a bank asset and a new matching deposit (liability) is created. Then we issue a check from the new deposit back to the borrower.”
The attorney asked, “Is this not a swap or exchange of $50,000 for $50,000?”
The banker said, “This is the standard way to do it.”
The attorney said, “Answer the question. Is it a swap or exchange of $50,000 actual cash value for $50,000 actual cash value? If the note funded the check, must they not both have equal value?”
The banker then pleaded the Fifth Amendment.
The attorney asked, “If the bank’s deposits (liabilities) increase, do the bank’s assets increase by an asset that has actual cash value?”
The banker said, “Yes.”
The attorney asked, “Is there any exception?”
The banker said, “Not that I know of.”
The attorney asked, “If the bank records a new deposit and records an asset on the bank’s books having actual cash value, would the actual cash value always come from a customer of the bank or an investor or a lender to the bank?”
The banker thought for a moment and said, “Yes.”
The attorney asked, “Is it the bank policy to record the promissory note as a bank asset offset by a new liability?”
The banker said, “Yes.”
The attorney said, “Does the promissory note have actual cash value equal to the amount of the bank loan check?”
The banker said “Yes.”
The attorney asked, “Does this bookkeeping entry prove that the borrower provided actual cash value to fund the bank loan check?”
The banker said, “Yes, the bank president told us to do it this way.”
The attorney asked, “How much actual cash value did the bank loan to obtain the promissory note?”
The banker said, “Nothing.”
The attorney asked, “How much actual cash value did the bank receive from the borrower?”
The banker said, “$50,000.”
The attorney said, “Is it true you received $50,000 actual cash value from the borrower, plus monthly payments and then you foreclosed and never invested one cent of legal tender or other depositors’ money to obtain the promissory note in the first place? Is it true that the borrower financed the whole transaction?”
The banker said, “Yes.”
The attorney asked, “Are you telling me the borrower agreed to give the bank $50,000 actual cash value for free and that the banker returned the actual cash value back to the same person as a bank loan?”
The banker said, “I was not there when the borrower agreed to the loan.”
The attorney asked, “Do the standard FED publications show the bank receives actual cash value from the borrower for free and that the bank returns it back to the borrower as a bank loan?”
The banker said, “Yes.”
The attorney said, “Do you believe the bank does this without the borrower’s knowledge or written permission or authorization?”
The banker said, “No.”
The attorney asked, “To the best of your knowledge, is there written permission or authorization for the bank to transfer $50,000 of actual cash value from the borrower to the bank and for the bank to keep it for free?
The banker said, “No.”
Does this allow the bank to use this $50,000 actual cash value to fund the $50,000 bank loan check back to the same borrower, forcing the borrower to pay the bank $50,000 plus interest? ”
The banker said, “Yes.”
The attorney said, “If the bank transferred $50,000 actual cash value from the borrower to the bank, in this part of the transaction, did the bank loan anything of value to the borrower?”
The banker said, “No.” He knew that one must first deposit something having actual cash value (cash, check, or promissory note) to fund a check.
The attorney asked, “Is it the bank policy to first transfer the actual cash value from the alleged borrower to the lender for the amount of the alleged loan?”
The banker said, “Yes.”
The attorney asked, “Does the bank pay IRS tax on the actual cash value transferred from the alleged borrower to the bank?”
The banker answered, “No, because the actual cash value transferred shows up like a loan from the borrower to the bank, or a deposit which is the same thing, so it is not taxable.”
The attorney asked, “If a loan is forgiven, is it taxable?”
The banker agreed by saying, “Yes.”
The attorney asked, “Is it the bank policy to not return the actual cash value that they received from the alleged borrower unless it is returned as a loan from the bank to the alleged borrower?”
“Yes”, the banker replied.
The attorney said, “You never pay taxes on the actual cash value you receive from the alleged borrower and keep as the bank’s property?”
“No. No tax is paid.”, said the crying banker.
The attorney asked, “When the lender receives the actual cash value from the alleged borrower, does the bank claim that it then owns it and that it is the property of the lender, without the bank loaning or risking one cent of legal tender or other depositors’ money?”
The banker said, “Yes.”
The attorney asked, “Are you telling me the bank policy is that the bank owns the promissory note (actual cash value) without loaning one cent of other depositors’ money or legal tender, that the alleged borrower is the one who provided the funds deposited to fund the bank loan check, and that the bank gets funds from the alleged borrower for free? Is the money then returned back to the same person as a loan which the alleged borrower repays when the bank never gave up any money to obtain the promissory note? Am I hearing this right? I give you the equivalent of $50,000, you return the funds back to me, and I have to repay you $50,000 plus interest? Do you think I am stupid?”
In a shaking voice the banker cried, saying, “All the banks are doing this. Congress allows this.”
The attorney quickly responded, “Does Congress allow the banks to breach written agreements, use false and misleading advertising, act without written permission, authorization, and without the alleged borrower’s knowledge to transfer actual cash value from the alleged borrower to the bank and then return it back as a loan?”
The banker said, “But the borrower got a check and the house.”
The attorney said, “Is it true that the actual cash value that was used to fund the bank loan check came directly from the borrower and that the bank received the funds from the alleged borrower for free?”
“It is true”, said the banker.
The attorney asked, “Is it the bank’s policy to transfer actual cash value from the alleged borrower to the bank and then to keep the funds as the bank’s property, which they loan out as bank loans?”
The banker, showing tears of regret that he had been caught, confessed, “Yes.”
The attorney asked, “Was it the bank’s intent to receive actual cash value from the borrower and return the value of the funds back to the borrower as a loan?”
The banker said, “Yes.” He knew he had to say yes because of the bank policy.
The attorney asked, “Do you believe that it was the borrower’s intent to fund his own bank loan check?”
The banker answered, “I was not there at the time and I cannot know what went through the borrower’s mind.”
The attorney asked, “If a lender loaned a borrower $10,000 and the borrower refused to repay the money, do you believe the lender is damaged?”
The banker thought. If he said no, it would imply that the borrower does not have to repay. If he said yes, it would imply that the borrower is damaged for the loan to the bank of which the bank never repaid. The banker answered, “If a loan is not repaid, the lender is damaged.”
The attorney asked, “Is it the bank policy to take actual cash value from the borrower, use it to fund the bank loan check, and never return the actual cash value to the borrower?”
The banker said, “The bank returns the funds.”
The attorney asked, “Was the actual cash value the bank received from the alleged borrower returned as a return of the money the bank took or was it returned as a bank loan to the borrower?”
The banker said, “As a loan.”
The attorney asked, “How did the bank get the borrower’s money for free?”
The banker said, “That is how it works.”
GOOD LUCK!

Filed under: foreclosure

May

is it one of them or is it all of them? Mr. Cuomo, are you listening?

By LH | Foreclosure Blog News, Homeowner Resources

7689Leave a Comment2010-05-18+08%3A28%3A07LH

According to two EMC analysts, they were encouraged to just make up data like FICO scores if the lenders they purchased loans in bulk from wouldn’t get back to them promptly

Editors’ Note: With Bear Stearns “underwater” it is difficult to come up with scenario where there won’t be criminal charges brought against the bankers and traders who worked there. They are low-hanging fruit, easily made the scape goat and easily subject to inquiry since nobody has any allegiance to them. They have no reason to stay silent except for self-incrimination. If some are offered immunity they will sing like birds in the meadow.

On the other hand Cuomo is aiming for the wrong target and could end up losing his cases unless he aims right. If this report is correct, then Cuomo is looking for the the real criminal culprit in the ratings fraud. What is wrong with that approach is that he is attempting to single out ONE defendant out of a group. They ALL knew, as the article goes on to say, what they were doing with ratings, just as they all knew what was going on with property appraisals just as they all knew that there was no underwriting of the loans.

Underwriting, which was the process of verifying the loan data from soup to nuts was abandoned because the party initiating the loan had no dog in the race. They were using investor dollars to fund the loan. Their income was based upon closing the loan without regard to risk. In fact, as has now been acknowledged after three years of me harping on the subject, the more likely it was that the loan would fail, the higher the profit and fees to everyone.

In the world of securities, underwriting was once the product of verifying the facts and risks of an investment through “due diligence”. Like the home loans there was no due diligence underwriting. The object was to sell something that LOOKED good even though they knew the loss was a sure thing — something the investment bankers needed and wanted.

They wanted the investments to fail because they were selling it (securitizing specific loans, parts of loan pools and entire loan pools) into multiple SPV packages, effectively selling the same loans over and over again.

They were taking the yield spread caused by the lower rate the investors were willing to accept because they perceived the investment as being little or no risk. The loan interest charged to borrowers was much higher, sometimes by multiples. This causes a SPREAD, which means that in order to give the investors the dollar income they we re expecting, they could promise, based upon exhibits that were fabricated in part, that the investor would get the desired revenue. But the income was coming from loans to borrowers at much higher “nominal” rates. In plain language they were able to invest only a portion of the investors money into funding mortgages that were guaranteed to fail. The rest of the money they kept for themselves. Each time they re-sold the security as described above, the entire proceeds were kept by the ivnestment banking house. As long as the pools failed, nobody would demand an accounting.

The investors might make claims for the losses but they were stuck with being tagged as qualified investors who should have known better, even if they were some small credit union who had no person on staff capable of performing verification or due diligence on the investment in mortgage-backed securities.

But fund managers (especially those who received bonuses due to the higher returns they reported) were highly unlikely candidates to demand an accounting since they either had no clue or cared less as to what was REALLY done with the proceeds of their investment. AND then of course there are the fund managers who may or may not have overlooked, through negligence of intentionally, the quality of these investments. They may have received some sort of perks or kickback for investing in these dog-eared securities. Since the manager is in charge, he or she would be required to ask for things that they really don’t want to hear about.

The ratings companies were put in the exact same position as the the appraisers of the homes subject to mortgage. Play or die. Here is what we assisted you in coming up with a human and computer algorithm to arrive at the value of this investment. In securities, the value was expressed as AAA down to BBB and below. Here are the securities which we reverse engineered to fit that algorithm. Now give us the triple ratings as we agreed, take our fees which are higher now for your cooperation and don’t ask any questions. If someone did ask questions or raised alarms at the ratings agency or appraisal companies they were blacklisted.

So you tell me — is it one of them or is it all of them? Mr. Cuomo, are you listening? Contrary to the report below, this is no grey area. It is really very simple. Just because you have a pile of documentation doesn’t make it theft. Look at the result to determine the intent. That’s what you are supposed to do in Court.

More Corruption: Bear Stearns Falsified Information as Raters Shrugged

MAY 14 2010, 2:25 PM ET | Comment

Made up FICO scores? Twenty-minute speed ratings to AAA? If government prosecutors like New York Attorney General Andrew Cuomo want answers to why the mortgage-backed securities market was so screwed up, they should talk to Matt Van Leeuwen from Bear Stearn’s servicing arm EMC.

Reports indicated on Thursday that Cuomo is pursuing a criminal investigation surrounding banks supplying bad information to rating agencies about the quality of the mortgages they signed off on. But so far he hasn’t been able to prove where in the chain of blame the due diligence for the ratings broke down.

What Cuomo needs to establish is: whose shoulders does it fall on to verify the information lenders were selling to investment banks about the quality of their loans? And who was ultimately responsible for the due diligence on the loans that created toxic mortgage securities that were at heart of our financial crisis?

False Information and the Grey Area

Employed during the go-go years of 2004-2006, and speaking in an interview taped by BlueChip Films for a documentary in final production called Confidence Game, Van Leeuwen sheds some light onto the shenanigans going on during the mortgage boom that might surprise even Cuomo. As a former mortgage analyst at Dallas-based EMC mortgage, which was wholly owned by Bear Stearns, he had first-hand experience working with Bear’s mortgage-backed securitization factory. EMC was the “third-party” firm Bear was using to vet the quality of loans that would purchase from banks like Countrywide and Wells Fargo.

Van Leeuwen says Bear traders pushed EMC analysts to get loan analysis done in only one to three days. That way, Bear could sell them off fast to eager investors and didn’t have carry the cost of holding these loans on their books.

According to two EMC analysts, they were encouraged to just make up data like FICO scores if the lenders they purchased loans in bulk from wouldn’t get back to them promptly. Every mortgage security Bear Stearns sold emanated out of EMC. The EMC analysts had the nitty-gritty loan-level data and knew better than anyone that the quality of loans began falling off a cliff in 2006. But as the cracks in lending standards were coming more evident the Bear traders in New York were pushing them to just get the data ready for the raters by any means necessary.

In another case, as more exotic loans were being created by lenders, the EMC analyst didn’t even know how to classify the documentation associated with the loan. This was a data point really important to the bonds ratings. When Bear would buy individual loans from lenders the EMC analyst said they couldn’t tell if it should be labeled a no-doc or full doc loan. Van Leeuwen explains, “I wasn’t allowed to make the decision for how to classify the documentation level of the loans. We’d call analysts in Bear’s New York office to get guidance.” Time was of the essence here. “So, a snap decision would be made up there (in NY) to code a documentation type without in-depth research of the lender’s documentation standards,” says Van Leeuwen.

Two EMC analysts said instead of spending time to go back to the lender and demand clarification, like if verification of income actually backed these loans, the executives at Bear would just make the loan type fit. Why? One EMC analyst explains, “from Bear’s perspective, we didn’t want to overpay for the loans, but we don’t want to waste the resources on deep investigation: that’s not how the company makes money. That’s not our competitive advantage — it eats into profits.”

Twenty Minutes for AAA

It’s easy to paint Bear as the only villain here — but what were the rating agencies thinking?

Susan Barnes of Standards and Poor’s testified before Congress last month saying banks like Bear were responsible for due diligence in the transactions described above: “For the system to function properly, the market must rely on participants to fulfill their roles and obligations to verify and validate information before they pass it on to others, including S&P.”

Yet, was it reasonable for agencies to stand behind ratings when due diligence was done by an affiliate of Bear? That’s like buying a car from a guy whose mechanic brother said it was great, and then finding out it was a lemon.

Equally amazing was how responsive the raters were even on the big deals. Van Leeuwen says, “The raters would provide a rating on a $1 billion security in 20-30 minutes.” Describing it as “a rubber stamp,” Van Leeuwen said that the ratings agencies slavish devotion to their computer models “was vital” because it allowed Bear to “cram mortgages through the process.”

The greatest asset Bear had in its quest to squeeze every ounce of profit from the mortgage-backed securities market was the methodology of the big ratings agencies. The bankers knew what kind of loan detail was needed to get that coveted AAA rating. After they prepped the rating agencies for what they ‘thought’ they loans would look like, they would buy loans in bulk, and then spend a day scrubbing them.

Bear’s decision to cut corners and to fail to take the time to make sure the raters got correct information about the quality of loans was big no-no. But rating bonds based on fast reactions, instead of thoughtful analysis and reliable due diligence, also might place some responsibility on the agencies’ shoulders.

Filed under: foreclosure Tagged: AAA rating, BEAR STEARNS, BlueChip Films, Confidence Game, congress, criminal violations, Cuomo, EMC analysts, fabricated documents, Falsified Information, HERS, ratings, S&P, Standards and Poor's, Susan Barnes, Van Leeuwen

May

Non-judical sale is not exactly a foreclosure

By LH | Foreclosure Blog News, Homeowner Resources

71621 Comment2010-05-08+08%3A34%3A40LH

The problem is that a statute passed for judicial economy is now being used to force the burden of proof onto the borrower in the foreclosure of their own home

I think the main issue in non-judicial states is what does “non-judicial” mean.

I think in your argument you do NOT want to concede that they wish to foreclose. What they want to do is execute on the power of sale in the deed of trust WITHOUT going through the judicial foreclosure process as provided in state statutes.

You must understand that the opposition is seeking to go around normal legal process which requires a foreclosure lawsuit. THAT would require them to make allegations about the obligation, note and mortgage that they cannot make (we are the lender, the defendant owes us money, we are the holder of the note, the note is payable to us, he hasn’t paid, the unpaid balance of the note is xxx etc.) and they would have to prove those allegations before you had to say anything. In addition they would subject to discovery in which you could test their assertions before an evidentiary hearing. That is how lawsuits work.

The power of sale given to the trustee is a hail Mary pass over the requirements of due process. But it allows for you to object.

The question which nobody has asked and nobody has answered, is on the burden of proof, once you object to the sale, why shouldn’t the would-be forecloser be required to plead and prove its case? If the court takes the position that in non-judicial states the private power of sale is to be treated as a judicial event, then that is a denial of due process required by Federal and state constitutions.

The only reason it is allowed, is because it is private and “non-judicial.” The quirk comes in because in practice the homeowner must file suit. Usually the party filing suit must allege facts and prove a prima facie case before the burden shifts to the other side. So the Judge is looking at you to do that when you file to prevent the sale.

Legally, though, your case should be limited to proving that they are trying to sell your property and that you have meritorious defenses. That SHOULD trigger the requirement of re-orienting the parties and making the would-be forecloser file a complaint (lawsuit) for foreclosure.

Then the burden of proof would be properly aligned with the party seeking affirmative relief (i.e., the party who wants to enforce the deed of trust (mortgage), note and obligation) required to file the complaint with all the necessary elements of an action for foreclosure and attach the necessary exhibits.

They don’t want to do that because they don’t have the exhibits and the note is not payable to them and they cannot actually prove standing (which is a jurisdictional question). The problem is that a statute passed for judicial economy is now being used to force the burden of proof onto the borrower in the foreclosure of their own home. This is not being addressed yet but it will be addressed soon.

Filed under: CASES, CDO, CORRUPTION, Eviction, expert witness, foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, investment banking, Investor, Motion Practice and Discovery, Servicer, STATUTES, trustee, workshop Tagged: BURDEN OF PROOF, judicial event, judicial foreclosure, non-judicial, object to the sale, power of sale, trustee

Apr

MOTION PRACTICE: US Bank Tossed Out for Fabrication of Documents, Failure to Respond to Discovery and Fraud Upon the Court

By LH | Foreclosure Blog News, Homeowner Resources

6276Leave a Comment2010-04-08+04%3A25%3A23LH

harpster US BAnk Tossed Out for Failure to Respond to Discovery and Fraud Upon the Court

Plaintiff has failed to produce answers to the Interrogatories for a period of 26 months, between the time the Interrogatories and the Request for Production were served on January 8, 2008 and the date of the hearing on the Motion to Compel took place on March 1,2010. Additionally, the court finds that the Plaintiff failed to produce responses to the Request for Production propounded in July 2009.

Defendant’s Motion in Limine/Motion to Strike was based on an allegation that the Assignment of Mortgage was created after the tiling of this action, but the document date and notarial date were purposely backdated by the Plaintiff to a date prior the filing of this foreclosure action.

The court specifically finds that the purported Assignment did not exist at the time of filing ofthis action; that the purported Assignment was subsequently created and the execution date and notarial date were fraudulently backdated, in a purposeful, intentional effort to mislead the Defendant and this Court. The Court rejects the Assignment and finds that is not entitled to introduction in evidence for any purpose. The Court finds that the Plaintiff does not have standing to bring its action. (See BAC Funding Consortium, Inc. ISOAIATIMA v. Genelle Jean-Jacques, Serge Jean-Jacques, Jr. and U.S. Bank National Association, as Trustee fo rthe C-Bass Mortgage Loan Asset Backed Certificates, Series 2006-CBS (2nd DCA Case No. 2f)~08-3553) Feb. 12,2012.)

The Assignment, as an instrument of fraud in this Court intentionally perpetrated upon this court by the Plaintiff, was made to appear as though it was created and notarized on December 5, 2007. However, that purported creation/notarization date was facially impossible: the stamp on the notary was dated May 19,2012. Since Notary commissions only last four years in Florida (see F .S. Section 117.01 (l )), the notary stamp used on this instrument did not even exist until approximately five months after the purported date on the Assignment.

Filed under: CDO, CORRUPTION, Eviction, expert witness, foreclosure, foreclosure mill, HERS, Investor, Mortgage, Servicer Tagged: BAC Funding Consortium, C-Bass Mortgage Loan Asset Backed Certificates, fabricating documents, fraud on the court, HERS, Inc., Motion IN Limine, MOTION TO COMPEL, motion to strike, Series 2006-CBS, US BANK

Mar

TILA Rescission Revived Without Tender

By LH | Foreclosure Blog News, Homeowner Resources

5532Leave a CommentTILA+Rescission+Revived+Without+Tender2010-03-17+14%3A26%3A05LH

Max Gardner’s Protoge Achieved This result as Reported Max’s Current Newsletter:

Editor’s Note: Most of what we have seen reported indicates that although TILA is clear in is legislative expression that NO TENDER is required for the rescission remedy under TILA, Judges don’t like it. It seems they feel that Big Bad Borrowers are taking advantage of Bambi Banks. Yet here is a case where the Judge DID apply the law as written.

TILA was written with teeth, but Judges are reluctant to apply it. Yet on its face TILA possesses the strongest remedy against predatory loan practices in existence. It allows the borrower to declare a rescission which requires the alleged lender to (a) step forward (which they don’t want to do) (b) file a satisfaction of mortgage and (c) negotiate return of the money, less of course any claims for damages that the borrower has claimed and can prove.

This comes back to the issue of the real creditor, the pretender lender etc. In the current environment, there is nobody around who actually has the authority to satisfy a mortgage. But TILA addresses that too. It says that by operation of law the security instrument is void not voidable. Thus the mortgage or deed of trust no longer applies because it is void even if it was properly recorded. In turn, this means the debt, if any, has been converted from secured to unsecured.

The bargaining power of the borrower cannot be overstated if this provision of TILA is applied. By eliminating the secured aspect of the mortgage, the loan is easily stripped down to fair market value less damages, attorneys fees, interest paid, etc. We can only hope that we see more application of law as written and less hip-shooting from the bench creating uncertainty and complexity where the law could not be more clear.

Defendant U.S. Bank, N.A., as Trustee for the LXS2007-4N Trust (“U.S. Bank”), seeks dismissal under Federal Rule of Civil Procedure 12(b)(6) of a complaint filed by plaintiff
homeowner Henry Botelho. Specifically, U.S. Bank claims that Botelho cannot state a claim for rescission of his mortgage loan under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., unless he alleges a present ability to tender the loan proceeds. As discussed in
further detail in the Order, such an allegation is not necessary for Botelho’s case to survive the pleading stage.
Accordingly, U.S. Bank’s motion is denied.
Hat tip to Boot Camp Grad Carmen Dellutri http://www.ca11.uscourts.gov/opinions/ops/
200814991.pdf

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage Tagged: 15 U.S.C. § 1601, Botelho, FRCP 12(b)(6), LXS2007-4N Trust, rescission, tender, TILA, Truth in Lending Act, U.S. Bank

Mar

Sample Interrogatories

By LH | Foreclosure Blog News, Homeowner Resources

5252Leave a CommentSample+Interrogatories2010-03-11+17%3A04%3A18LH

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION – ESSEX VICINAGE

——————————————————————X Civil Action

Deutsche Bank National Trust Company, As Trustee Of

Argent Securities, Inc. Asset Backed Pass Through Certificates, Series 2004-PW1

Docket Number: XXX

REQUEST FOR

INTERROGATORIES

Plaintiff(s),

vs.

XXX; John Doe,

Husband Of XXX XXX Avenue

Rosedale, NY 11422

Defendant(s)/Pro Se ——————————————————————X

REQUEST FOR DISCOVERY: INTERROGATORIES

i). Defendant, XXX, serves these interrogatories on Deutsche Bank National Trust Company, as authorized by Case Management Order dated September 30, 2009, and by the Federal Rule of Civil Procedure 33. Deutsche Bank National Trust Company must serve an answer to each interrogatory separately and fully, in writing and under oath within 30 days after service to: XXX, XXX Ave., Rosedale, NY 11422.

INSTRUCTIONS

ii). These requests for interrogatories are directed toward all information known or available to Deutsche Bank National Trust Company – not its lawyer, Ralph F. Casale, Esq. – including information contained in the records and documents in Deutsche Bank National Trust Company’s custody or control or available to Deutsche Bank National Trust Company upon reasonable inquiry.

iii). Each request for interrogatory is to be deemed a continuing one. If, after serving an answer, you obtain or become aware of any further information pertaining to that request, you are requested to serve a supplemental answer setting forth such information.

iv). As to every request for interrogatory which an authorized officer of Deutsche Bank National Trust Company fails to answer in whole or in part, the subject matter of that request will be deemed confessed and stipulated as fact to the Court.

v). Kindly attach additional sheets as required identifying the Interrogatory being answered. You have a continuing obligation to update the information in these Interrogatories as you acquire new information. If no such update is provided in a reasonable period of time that you acquired such information, it may be excluded at trial or hearing.

DEFINITIONS

vi). “You” and “your” include Deutsche Bank National Trust Company and any and all persons acting for or in concert with Deutsche Bank National Trust Company.

vii). “Document” is synonymous in meaning and equal in scope to the usage of this term in Federal Rule of Civil Procedure 34(a) and includes computer records in any format. A draft or non-identical copy is a separate document within the meaning of this term. The term “document” also includes any “tangible things” as that term is used in Rule 34(a).

viii). Parties. The term “plaintiff” or “defendant”, as well as a party’s full or abbreviated name or a pronoun referring to a party, means the party and, where applicable, (his/her/its) agents, representatives, officers, directors, employees, partners, corporate parent, subsidiaries, or affiliates.

ix). Identify (person). When referring to a person, “identify” means to give, to the extent known, the person’s full name, present or last known address, telephone number, and when referring to a natural person, the present or last known place of employment. Once a person has been identified in compliance with this paragraph, only the name of that person needs to be listed in response to later discovery requesting the identification of that person.

x). Identify (document). When referring to a document, “identify” means to give, to the extent known, the following information: (a) the type of document; (b) the general subject matter of the document; (c) the date of the document; (d) the authors, address, and recipients of the document; (e) the location of the document; (f) the identity of the person who has custody of the document; and (g) whether the document has been destroyed, and if so, (i) the date of its destruction, (ii) the reason for its destruction, and (iii) the identity of the person who destroyed it.

xi). Relating. The term “relating” means concerning, referring, describing, evidencing, or constituting, directly or indirectly.

xii). Any. The term “any” should be understood in either its most or its least inclusive sense as necessary to bring within the scope of the discovery request all reasons that might otherwise be construed to be outside of its scope.

REQUEST FOR INTERROGATORIES

1. Please identify each person who answer these interrogatories and each person (attach pages if necessary) who assisted, including attorneys, accountants, employees of third party entities, or any other person consulted, however briefly, on the content of any answer to these interrogatories.

ANSWER:

2. For each of the above persons please state whether they have personal knowledge regarding the subject loan transaction.

ANSWER:

3. Please state the date of the first contact between Deutsche Bank National Trust Company and the borrower in the subject loan transaction, the name, address and telephone number of the person(s) in your company who was/were involved in that contact.

ANSWER:

4. Please identify every potential party to this lawsuit.

ANSWER:

5. Please identify the person(s) involved in the underwriting of the subject loan. “Underwriting” refers to any person who made representations, evaluations or appraisals of value of the home, value of the security instruments, and ability of the borrower to pay.

ANSWER:

6. Please identify any person(s) who had any contact with any third party regarding the securitization, sale, transfer, assignment, hypothecation or any document or agreement, oral, written or otherwise, that would effect the funding, closing, or the receipt of money from a third party in a transaction that referred to the subject loan.

ANSWER:

7. Please identify any person(s) known or believed by anyone at Deutsche Bank National Trust Company who had received physical possession of the note and allonges, the mortgage, or any document (including but not limited to assignment, endorsement, allonges, Pooling and Servicing Agreement, Assignment and Assumption Agreement, Trust Agreement, letters or email or faxes of transmittals including attachments) that refers to or incorporates terms regarding the securitization, sale, transfer, assignment, hypothecation or any document or agreement, oral, written or otherwise, that would effect the funding, or the receipt of money from a third party in a transaction, and whether such money was allocated to principal, interest or other obligation related to the subject loan.

ANSWER:

8. Please identify all persons known or believed by anyone in Deutsche Bank National Trust Company or any affiliate to have participated in the securitization of the subject loan including but not limited to mortgage aggregators, mortgage brokers, financial institutions, Structured Investment Vehicles, Special Purpose Vehicles, Trustees, Managers of derivative securities, managers of the company that issued an Asset-backed security, Underwriters, Rating Agency, Credit Enhancement Provider.

ANSWER:

9. Please identify the person(s) or entities that are entitled, directly or indirectly to the stream of revenue from the borrower in the subject loan.

ANSWER:

10 Please identify the person(s) in custody of any document that identifies the loan servicer(s) in the subject loan transaction.

ANSWER:

11. Please identify any person(s) in custody of any document which refers to any instruction or authority to enforce the note or mortgage in the subject loan transaction.

ANSWER:

12. Other than people identified above, identify any and all persons who have or had personal knowledge of the subject loan transaction, underwriting of the subject loan transaction, securitization, sale, transfer, assignment or hypothecation of the subject loan transaction, or the decision to enforce the note or mortgage in the subject loan transaction.

ANSWER:

13. Please state address, phone number, and employment history for the past 3 years of Tamara Price, Vice President, Argent Mortgage Company, LLC, “designated as the Assignor” of the mortgage loan to Deutsche Bank National Trust Company (Assignment of Mortgage recorded in Essex County Register’s Office on June 25, 2008).

ANSWER:

14. Please state the date on which Argent Mortgage Company, LLC (originator) sold the mortgage loan to Ameriquest Mortgage Company (Seller and Master Servicer).

ANSWER:

15. Please state the date on which Ameriquest Mortgage Company (Seller and Master Servicer) sold the mortgage loan to Argent Securities, Inc. (Depositor).

ANSWER:

16. Did Argent Mortgage Company, LLC (originator) or previous servicers of this account receive any compensation, fee, commission, payment, rebate or other financial considerations from Ameriquest Mortgage Company (Seller and Master Servicer) or any affiliate or from the trust funds, for handling, processing, originating or administering this loan?

ANSWER:

17. If yes, please describe and itemize each and every form of compensation, fee, commission, payment, rebate or other financial consideration paid to Argent Mortgage Company, LLC, the originator or previous servicers of this account by Ameriquest or any affiliate, or from the trust fund.

ANSWER:

18. Please identify any party, person or entity known or suspected by Deutsche Bank National Trust Company or any of your officers, employees, independent contractors or other agents, or servants of your company who might possess or claim rights under the subject loan or mortgage and/or note.

ANSWER:

19. Please identify the custodian of the records that would show all entries regarding the flow of funds for the subject loan transaction prior to and after closing of the loan. (Flow of funds, means any record of money received, any record of money paid out and any bookkeeping or accounting entry, general ledger and accounting treatment of the subject loan transaction at your company or any affiliate including but not limited to whether the subject loan transaction was ever entered into any category on the balance sheet at any time or times, whether any reserve for default was ever entered on the balance sheet, and whether any entry, report or calculation was made regarding the effect of this loan transaction on the capital reserve requirements of your company or any affiliate.)

ANSWER:

20. Please identify the auditor and/or accountant of your financial statements or tax returns.

ANSWER:

21. Please identify any attorney with whom you consulted or who rendered an opinion regarding the subject loan transaction or any pattern of securitization that may have effected the subject loan transaction directly or indirectly.

ANSWER:

22. Please identify any person who served as an officer or director with Deutsche Bank National Company or Argent Mortgage Company LLC commencing with 6 months prior to closing of the subject loan transaction through the present. (This interrogatory is limited only to those people who had knowledge, responsibility, or otherwise made or received reports regarding information that included the subject loan transaction, and/or the process by which solicitation, underwriting and closing of residential mortgage loans, or the securitization, sale, transfer or assignment or hypothecation of residential mortgage loans to third parties.)

ANSWER:

23. Did any investor/certificate holder approve or authorize foreclosure proceedings on XXX’s property?

ANSWER:

24. Please identify the person(s) involved or having knowledge of any insurance policy or product, plan or instrument describing over-collateralization, cross-collateralization or guarantee or other instrument hedging the risk of default as to any person or entity acting as an issuer of any securities or certificates. (Such instrument(s) relate to the composition of a pool, tranche or other aggregation of assets that was created, included or referred to the subject loan and the pool or aggregation was transmitted, transferred, assigned, pledged or hypothecated to any entity or buyer. A person who “transmitted, transferred, assigned, pledged or hypothecated” refers to any person who suggested, approved, received or accepted the composition of the pool or aggregation made or confirmed representations, evaluations or appraisals of value of the home, value of the security instruments, ability of the borrower to pay.)

ANSWER:

25. Please identify the person(s) involved or having knowledge of any credit default swap or other instrument hedging the risk of default as to any person or entity acting as an issuer of any securities or certificates. (Such instrument(s) relate to the composition of a pool, tranche or other aggregation of assets that was created, included or referred to the subject loan.)

ANSWER:

Submitted by: XXX

XXX Ave

Rosedale, NY 11422

CERTIFICATE OF SERVICE

I, I, XXX certify that on this 29th day of the month of October, 2009.

1. A true copy of the 10-page Request for Interrogatories was served on The New Superior Court of New Jersey, Chancery Division – Essex Vincinage, at 212 Wasington Street, Eighth Floor, Newark, New Jersey.

2. A copy of the foregoing was mailed on October 28, 2009 to

Dated: Queens New York

This _________ day of ___________ 2009 XXX

XXX Ave

Rosedale, NY 11422

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: ability to pay, accounting records, Ameriquest Mortgage Company, Appraisal, Argent Mortgage company, Assignment and ASsumption Agreement, certificate holder, Depositor, Deutsch Bank, disocvery, Essex County, forensic analysis, FRCP 34(a), interrogatories, Master Servicer, National Trust Company, originator, pooling, PSA, receipt of money, Servicing, Tamara Price, third party payments, underwriting

Feb

Let the In-Fighting Begin… HUGE case for Florida Homeowners

By LH | Court Cases, Featured, Foreclosure Defense Research, Homeowner Resources

47211 Comment2010-02-13+01%3A02%3A21LH

Fresh off the press of the 2nd District Court of Appeals, today the Fla. 2nd DCA issued a stunning shot across the bow of US financial institutions by reversing a trial court’s decision to grant summary judgment in favor of US Bank, NA.

CLICK HERE for a copy of the Final Order issued today, February 12, 2010.

What is absolutely hilarious about this case is that the homeowners were NOT involved in the case. Rather, BAC Funding Consortium Inc., who was the 2nd mortgagee in the case, appealed the trial courts decision and alleged that US Bank, NA did not have standing to foreclose. Oh the irony… we knew this would happen but it is certainly fun to watch it start to happen. Banks suing Lenders; Lenders suing Trustees; Investors suing Servicers. Much more to come… that’s a promise.

The essence of BAC’s argument? Summary judgment for the plaintiff in mortgage foreclosure action was premature where plaintiff had failed to establish standing to foreclose — Plaintiff moving for summary judgment before an answer is filed must establish that defendant could not raise any genuine issues of material fact if defendant were permitted to answer complaint — Because exhibit to plaintiff’s complaint conflicts with allegations concerning standing and exhibit does not show that plaintiff has standing to foreclose mortgage, plaintiff did not establish entitlement to foreclose mortgage — Incomplete, unsigned, and unauthenticated assignment attached as exhibit to plaintiff’s response to defendant’s motion to dismiss did not constitute admissible evidence establishing standing to foreclose note and mortgage.

The appellate court agreed and said,
“Despite the lack of any admissible evidence that U.S. Bank validly held the note and mortgage, the trial court granted summary judgment of foreclosure in favor of U.S. Bank. BAC now appeals, contending that the summary judgment was improper because U.S. Bank never established its standing to foreclose.

The summary judgment standard is well-established. “A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). When a plaintiff moves for summary judgment before the defendant has filed an answer, “the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.” Settecasi v. Bd. of Pub. Instruction of Pinellas County, 156 So. 2d 652, 654 (Fla. 2d DCA 1963); see also W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So. 2d 979, 980 (Fla. 2d DCA 1988) (holding that when plaintiffs move for summary judgment before the defendant files an answer, “it [is] incumbent upon them to establish that no answer that [the defendant] could properly serve or affirmative defense it might raise” could present an issue of material fact); E.J. Assocs., Inc. v. John E. & Aliese Price Found., Inc., 515 So. 2d 763, 764 (Fla. 2d DCA 1987) (holding that when a plaintiff moves for summary judgment before the defendant files an answer, “the plaintiff must conclusively show that the defendant cannot plead a genuine issue of material fact”). As these cases show, a plaintiff moving for summary judgment before an answer is filed must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.

In this case, U.S. Bank failed to meet this burden because the record before the trial court reflected a genuine issue of material fact as to U.S. Bank’s standing to foreclose the mortgage at issue. The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative. See Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So. 2d 394, 395-96 (Fla. 2d DCA 1995); see also Philogene v. ABN Amro Mortgage Group, Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006) (“[W]e conclude that ABN had standing to bring and maintain a mortgage foreclosure action since it demonstrated that it held the note and mortgage in question.”). While U.S. Bank alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the mortgage attached to the complaint lists “Fremont Investment & Loan” as the “lender” and “MERS” as the “mortgagee.” When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000) (“Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss.”); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations “have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable”). Because the exhibit to U.S. Bank’s complaint conflicts with its allegations concerning standing and the exhibit does not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not establish its entitlement to foreclose the mortgage as a matter of law.

Moreover, while U.S. Bank subsequently filed the original note, the note did not identify U.S. Bank as the lender or holder. U.S. Bank also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage. Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage. Accordingly, the documents before the trial court at the summary judgment hearing did not establish U.S. Bank’s standing to foreclose the note and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor.”
[END]

The part that I underlined is especially important to note… US Bank actually filed the original note in the record but the Note apparently lacked any endorsement in favor of US Bank, and, presumably did not have a blank endorsement either. The appellate court also did NOT accept the bogus assignment that US Bank filed – and we have certainly seen ALOT of highly questionable assignments flying off the desks of document production factories like LPS (Lender Processing Services), the Law Office of David J. Stern PA and FIS Foreclosure Solutions.

This is a fantastic case for attorneys and homeowners in Florida. There is a tremendous amount of legal ammunition in this case if you read the decision carefully and parse it out paragraph by paragraph.

UPDATE:

CLICK HERE to view the Class Action Lawsuit filed against Deutsche Bank, US Bank, LPS and DocX on Feb. 17, 2010 for committing fraud in foreclosure cases for creating unauthenticated mortgage assignments.

Feb

Important Florida Case – one way to get a foreclosure dismissed

By LH | Court Cases, Featured, Foreclosure Defense Research

4527Leave a Comment2010-02-01+13%3A49%3A17LH

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

TWO PUBLISHED ORDERS ON VERIFICATIONS!

The “Newest” Fraudclosure Scandal- Service of Process Fraud….

The Dreaded Star Chambers Were Real…Now They’re Resurrected Here in The US

Star Chambers, First Thing We Do, Let’s Kill the Lawyers and The Suppression of Free Speech

Unclean Hands as a Defense to Foreclosure

2011- Rise of the JEDTI Warriors

Flawed Service of Process Renders Foreclosures Void- Should Sheriffs Halt All Writs of Posesssion?

BOMBSHELL- MERS v. Azize- Florida’s Sixth Circuit Got Foreclosure Right Before the Crisis

IN RE: WILSON—SAND CANYON DOES NOT OWN ANY MORTGAGES OR SERVICING

The Fallout From Allegations of Improper Foreclosures By David J. Stern

Oops, I lost my summons! Oops, I lost my summons! (Repeat 9,000 times)

BOMBSHELL- UNCONSTITUTIONALITY OF ROCKET DOCKET TRANSCRIPT

WHERE IS THE OUTRAGE? WHERE IS THE FURY? WHERE IS THE PRESS?

Mass Extinction of Pools Becomes Clearer

MANY THANKS, ANONYMOUS!!!

Florida: Watch out for Conciliation/Mediation Scam

David Stern SMACKDOWN- 4th DCA Appellate Court Reversal of Summary Judgment of Foreclosure!

Lender Processing Services, Inc. Contact Info

If the money was free then why does anyone owe it?

is it one of them or is it all of them? Mr. Cuomo, are you listening?

More Corruption: Bear Stearns Falsified Information as Raters Shrugged

Non-judical sale is not exactly a foreclosure

MOTION PRACTICE: US Bank Tossed Out for Fabrication of Documents, Failure to Respond to Discovery and Fraud Upon the Court

Sample Interrogatories

Let the In-Fighting Begin… HUGE case for Florida Homeowners

Important Florida Case – one way to get a foreclosure dismissed

Quick Browse | Pick A Category

Connect with Us Immediately

Daily Dose of Inspiration

Popular Tags & Terms Cloud

Foreclosure News

Need Internet Marketing?