Mar
01
Action Alert | Florida Senior Judges to Violate Due Process Rights of Citizens Facing Fraudclosure Return as Early as Next Week!
FORECLOSURE FRAUD BY ROBO-SIGNING RETIRED JUDGES Just when you thought the Florida budget could take no more cutting, our legislators in their finite wisdom, are considering resurrecting the foreclosure “rocket docket” and you guessed it, staffing it with the same “robo-signing” retired judges of last year. These “robo” judges are to be paid $350.00 per … Read more
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Jan
10
Eyes on Florida’s Fourth DCA | Mill Lawyers Get Their Way with Florida Appellate Judges
First There Was Riggs, Then Glarum, Now Duke and McLean. When Florida’s Forth District Court of Appeals rules according to established law, rules of evidence, and statute in a way that is unfavorable to fraudclosing banks and their mill lawyers, the lawyers simply ask the judges in the 4th to change or clarify their opinion. … Read more
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Dec
29
Florida’s Pino Case Deja Vu | New York – Wells Fargo v McNee Case Shows Florida Judges How It’s Done
No Standing | New York Fraudclosure “Trick” and “Scam”, Magically Appearing Endorsement by Wells Fargo The McNee case was great. The bank wanted to voluntary dismiss the action, we said no chance and moved for sanctions. Then they used the new trick I spoke about when I was in Florida as the latest bank scam … Read more
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Nov
18
Breaking The Law… Again | ACLU, Florida Press Association, First Amendment Foundation Letter to Hillsborough County Chief Judge Menendez “Stop Blocking Citizens from Attending Foreclosure Court”
I can’t believe we are going through this AGAIN! Over the last few years we have come up against the courts blocking access to observers in foreclosure proceedings. Most recently, we received reports from observers and actual defendants being denied court access. What is this, the Star Chambers? Well, what we did, again, was got … Read more
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Nov
01
Time | Judges Are for Sale – and Special Interests Are Buying: A Campaign to ‘Intimidate America’s State Judges’
Now who woulda thunk… ~ Judges Are for Sale — and Special Interests Are Buying A new report details how big business and corporate lobbyists are packing courts with judges who put special interests ahead of the public interest The Occupy Wall Street movement is shining a spotlight on how much influence big-money interests have … Read more
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Oct
28
A View from the Bench (Foreclosure Mills) | Lawyers, Judges Debate Florida’s Foreclosure Backlog
Tobin said he wouldn’t call his new job “fun,” but said it was a natural evolution. “My job is to oversee the operation as best I can,” he said. “That was my job in the courthouse also.” ~ Thank you to everyone that came out to protest this event. ~ Lawyers, judges debate Florida’s foreclosure … Read more
Related posts:
- JQC Complaint | Florida Judges SELL OUT a View from the Bench. Oct 28th Ft. Lauderdale Protest Judicial Bias
- Road Trip | A View from the Bench Oct 28th Ft. Lauderdale Protest of Judicial Bias
- Victor Tobin of Marshall C. Watson along with the Akerman Senterfitt firm to Moderate a View From the Bench: Bankruptcy & Foreclosures – October 28
Oct
27
Road Trip | A View from the Bench Oct 28th Ft. Lauderdale Protest of Judicial Bias
Florida Judges are meeting with bank lawyers to discuss how to work together to kick more Floridians out of their homes. Would these judges meet with regular everyday Florida families (the 99%) to help them use the courts to keep their homes? Guess who’s moderating this forum! Yes, Victor Tobin who was the CHIEF JUDGE … Read more
Related posts:
- JQC Complaint | Florida Judges SELL OUT a View from the Bench. Oct 28th Ft. Lauderdale Protest Judicial Bias
- Victor Tobin of Marshall C. Watson along with the Akerman Senterfitt firm to Moderate a View From the Bench: Bankruptcy & Foreclosures – October 28
- DOES THE CORRUPTION EVER STOP!!! Broward Chief Judge Victor Tobin Gets Promotion, Leaves Bench For New Position At Marshall C. Watson
Oct
19
JQC Complaint | Florida Judges SELL OUT a View from the Bench. Oct 28th Ft. Lauderdale Protest Judicial Bias
Florida Judges SELL OUT a View from the Bench. Oct 28th Ft. Lauderdale Protest Judicial Bias Posted by L Florida Former Chief Judge Victor Tobin left the Broward Court to work at a fraudclosure mill which had been under investigation by the Florida Attorney General for foreclosure fraud in July 2011. He is moderating a forum with his former judge collegues to … Read more
Related posts:
- Victor Tobin of Marshall C. Watson along with the Akerman Senterfitt firm to Moderate a View From the Bench: Bankruptcy & Foreclosures – October 28
- KABOOM | Freddie Mac Takes Foreclosure Files from Fort Lauderdale-based Marshall C. Watson Law Firm
- Opinion Piece on Florida Rocket Dockets and Robo Judges by J. Thomas McGrady – Judges Fulfill Proper Role in State’s Foreclosure Crisis
Apr
11
INDYMAC SLAMMED/FOUND IN CONTEMPT BY FLORIDA JUDGE
Judges, especially here in Florida are increasingly making it clear that they are sick and tired of the banks and their abuses. not nearly as tired as consumers and their attorneys, but it’s getting close…..the following Order is a good read….
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Mar
15
Transcript From A Judge That Really “Get’s It”
Finally, a judge that finally is speaking freely about what happens in court every single day…..
the Court’s
experience with law firms in these
matters — when I have to touch a file
more times than I need to because of
sloppy, shoddy, negligent work done by
attorneys that rises to the level of
gross negligence, especially in a matter
like this, somebody’s losing their
house.
The idea that these cases should be
handled in some sort of factory fashion
may be okay for you but it is not okay
for the Court.
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Nov
19
ALERT! 2nd DCA Overturns Foreclosure Judgment Decision out of Lee County, Florida – Homeowner’s Case Valid
This was an expected decision. I think it’s safe to say that the original decision entered by Judge McHugh was either tainted with some sort of bias or can just be explained as a decision regardless of, no, in spite of, the Florida Rules of Civil Procedure and well established case law. Need anything more be said? Sure, I could write a book. But if Lee County Judges and others like them don’t start applying the RULES to ALL cases on their dockets and across the board, then it is likley that a good case will be made that Constitutional Rights of Homeowners are being violated en masse through a systemic failure of justice, decency, ethics and leadership.
That is essentially what meetings with the ACLU have directly focused on. Yes, First and Fourteenth Amendment Rights Violations. Not just by one judge but by a SYSTEM OF JUDGES, well, Florida Judges.
It is refreshing to see that there are some judges that actually hold values dear like integrity, honor, equity. You know, old, outdated, traditional values. Maybe better said: Founding Values.
I want to honor Pasco County Judge Susan Gardner and Sarasota County Judge Anthony Rondolino. Two people who care about the integrity of their profession and the system. They are doing good, honest work striving to maintain order and an ethical practice of law in this state. At the very bottom of this post I am inserting a recent story on Judge Gardner’s growing anger at bank and plaintiff’s bar attorney lawlessness… CLICK HERE to read full story on Tampa Tribune.
Imagine what our lives would be like today, as Americans, if our financial system and judicial system actually still had integrity. No, greed has consumed and greed is overcoming. Power Greed. Money Greed. It’s a deep perversion undermining America’s Greatness. But greed is rooted in the person, not the system. The system has simply become polluted with AwfulPeople. Not completely so as to lose hope. Not yet but the crossroads are here America. What path shall we take? What path will you take? Who will you elect? What will you tolerate around you?
Some in this foreclosure fight are fighting for a free home. That I believe to be wrong. We are all stakeholders in this thing we call America. The financial system is corrupt but the foundations of it are what makes us a great country that can be great again. I wouldn’t expect a home for free, that just doesn’t feel right in my gut. If I signed a Note, a promise to pay, then I need to live up to that. If my ability to pay has changed due to a loss of income, a rising payment or whatever, well, so be it. I might try to work things out, many have. The banks are not playing fair. They created such a convoluted mess I call “Subsidiary City.” I know that fraud is wrong. I know that overcharging people is wrong. I know that getting paid back 2-10 times as much as what was originally funded – and then trying to take a US Citizen’s home on top of it – feels wrong.
So I say that if we as a country are to pull through this and pull out of this with our country, our freedoms and Constitutional Rights intact – we ALL better figure out how to compromise. Greed will not let that happen. But we can overcome it and work together, Banks and Homeowners. Judges and Attorneys. Right and Left, Conservative and Liberal. We can agree to disagree about the little things. It’s the BIG things we need to be steely resolved to agreeing on. We have to go back to solid principles and values or we will destroy ourselves.
Well, anyway, heres’ the DCA Summary.
35 Fla. L. Weekly D2519a
Mortgage foreclosure — Trial court erred in entering summary judgment of foreclosure on basis of equitable subrogation in favor of plaintiff which had allegedly paid off two prior mortgages on homestead property — Summary judgment was improper because there were factual issues as to whether the prior notes and mortgages were satisfied after closing, and factual issue as to whether husband’s signature on earlier loan documents had been forged
PAMELA ANN BROTHERIDGE and JASON BROTHERIDGE, Appellants, v. OPTION ONE MORTGAGE CORPORATION and GRP LOAN, LLC, Appellees. 2nd District. Case No. 2D09-4893. Opinion filed November 17, 2010. Appeal from the Circuit Court for Lee County; Michael T. McHugh, Judge. Counsel: Daniel S. Cruz, Barbara Goolsby, and Michael Stirrup of Florida Rural Legal Services, Inc., Fort Myers, for Appellants. J. Matthew Belcastro and Suzanne M. Boy of Henderson, Franklin, Starnes & Holt, Fort Myers, for Appellees.
(ALTENBERND, Judge.) Pamela Ann and Jason Brotheridge appeal a judgment of foreclosure entered as a result of a motion for summary judgment. We conclude the record did not demonstrate that GRP Loan, LLC, was entitled to foreclose on the property under a theory of equitable subrogation when the trial court granted its motion for summary judgment. There were significant irregularities in the closing of the loan at issue, as well as in the execution of the loan documents, and the evidence before the trial court failed to demonstrate the nonexistence of a genuine issue of material fact. Therefore, the entry of summary judgment was improper and we reverse.
The Brotheridges are married and own a home in Cape Coral, Florida. In 1995, the home was encumbered by at least two notes and mortgages. The larger note with Centex Mortgage allegedly had an outstanding indebtedness of approximately $208,000. The smaller note, obtained to repair hurricane damage to the home, was a U.S. Small Business Administration loan for $70,000, allegedly with an interest rate of only 3.3 percent. Mrs. Brotheridge operated a pet store that was struggling and needed capital to keep the business open. She hoped to obtain that capital by refinancing the couple’s home.
Pablo Samsing, a mortgage broker with Prime Time Mortgage, contacted Mrs. Brotheridge over the telephone. He led her to believe that she could refinance the home at an interest rate of 8.9 percent and obtain approximately $50,000 to use in her business. Prime Time Mortgage apparently applied for the financing with Option One Mortgage Corporation. Various documents that were part of that application contain what, at this point in the litigation, must be assumed to be the forged signatures of Mr. Brotheridge.
On the day of the closing, a notary public, Maureen Calderone, came to the Brotheridges’ home. At that time, Mrs. Brotheridge first learned that the note would bear an interest rate of 12.45 percent. It is undisputed that Mrs. Brotheridge signed the note and mortgage at that time, borrowing approximately $325,000.
The note and mortgage also contain the purported signature of Mr. Brotheridge, allegedly witnessed by Mrs. Calderone’s husband, Kevin J. Calderone. Mrs. Calderone, as a notary, signed the documents, claiming that she identified Mr. Brotheridge from his Florida driver’s license. It is undisputed that he has a Canadian driver’s license. Mrs. Brotheridge denies that Mr. Brotheridge or Mr. Calderone were present at the closing. Expert testimony currently establishes that the signature of Mr. Brotheridge on these documents is a forgery. Thus, at summary judgment, the trial court was required to assume that Mr. Brotheridge had not signed the documents or otherwise been involved in this loan transaction.
Mrs. Brotheridge has never paid anything on this obligation and, with the assistance of counsel, has tried to rescind the loan. In all probability, the obligation is now far larger than the value of the home. The fact that she has lived in the home for several years without making any arrangements to pay this obligation clearly troubled the trial court.
At some point Option One assigned its rights to GRP Loan, LLC. It then moved for summary judgment in this case, maintaining that it was at least entitled to recover the amount of $278,728.47 that allegedly was applied to pay off the two prior mortgages. Significantly, it relied exclusively on dollar amounts described in the settlement statement at the closing to establish its right to foreclose. The trial court granted that summary judgment, reserving the Brotheridges’ right to proceed on their counterclaims. Thereafter, without resolving the counterclaims, it entered the final judgment of foreclosure that is now pending on appeal.
There admittedly is some authority for the theory that a lender can obtain an equitable lien by virtue of equitable subrogation, not on its own loan documents but based on earlier loans that were paid off in refinancing. See Palm Beach Sav. & Loan Ass’n, F.S.A. v. Fishbein, 619 So. 2d 267 (Fla. 1993); Suntrust Bank v. Riverside Nat’l Bank of Fla., 792 So. 2d 1222 (Fla. 4th DCA 2001). We note, however, that in Fishbein, the earlier notes and mortgages had been executed by both the husband and wife and that it was the husband who had forged his wife’s signature on the documents for the new loan. 619 So. 2d at 268. Suntrust Bank involved a situation in which a bank lost its priority inadvertently. 792 So. 2d at 1223. Thus, these cases are not factually similar to this case. This case may involve misconduct by a mortgage broker and a notary. From the record, it is not clear whether their possible misconduct can or should be attributed to Option One and GRP Loan, LLC.
Given the major irregularities at the closing, however, we are unwilling to assume that the settlement statement at that closing is dispositive of this foreclosure. GRP Loan, LLC, did not place any notes or mortgages from Centex Mortgage or the U.S. Small Business Administration in the record. There is no proof that those notes and mortgages were satisfied after the closing. In fact, the only indication that they may have been satisfied by this transaction is a reference to them in the settlement statement. We conclude that the trial court erred in accepting the reference in the settlement statement as proof of what the lender actually did with the proceeds of this loan after closing with Mrs. Brotheridge. There is also nothing to indicate that Mr. Brotheridge ever executed those earlier loan documents; thus, he is suffering a foreclosure of his homestead with no proof that he signed or agreed to the loan. We agree with the Brotheridges that factual issues as to the foreclosure and their counterclaims exist that should be resolved before their home goes to a forced sale.
Even assuming that the earlier notes and mortgages were properly executed by the husband and wife and were satisfied by virtue of this new loan, we question whether an equitable lien under a theory of equitable subrogation should give GRP Loan, LLC, the right to immediate foreclosure under these circumstances. GRP Loan, LLC, had no rights under those earlier documents until the trial court gave it equitable rights. At that point, GRP Loan, LLC, may have received the equitable right to obtain future payments from the Brotheridges under the terms of those earlier loans, which were more favorable to the Brotheridges. However, nothing in this record suggests the Brotheridges were ever extended the opportunity to make payments on those notes to GRP Loan, LLC. Without proof of any default on those earlier notes and being, at worst, in default on forged notes, we are not entirely convinced that this record at summary judgment entitled GRP Loan, LLC, to receive an immediate equitable right to foreclose on this property and, in particular, on Mr. Brotheridge’s homestead.
Reversed and remanded. (DAVIS, J., and WILLIAMS, CHARLES E., ASSOCIATE JUDGE, Concur.)
* * *
Oct
01
Foreclosure Fraud Factories explained by Congressman Alan Grayson
Ok, for the record, I’m not a fan of Rep. Alan Grayson but hey, we agree on everything he says in this video and I mean everything. Because I’m a Patriot and not a Democrat OR Republican, this video makes it my blog today.
Rep. Grayson is right on and I’m doing my part to help his video go viral in the hopes that our Florida legislature, Supreme Court and the Florida judiciary actually has the spine to step up and bring the foreclosure fraud to a screeching halt in this state by instituting system-wide procedures and a cautious judiciary as a stop-gap to bring this problem under control. What has been happening in nearly every foreclosure case in Florida (and nationally for that matter) is criminal. Serious crimes are being committed and they need to be investigated properly and prosecuted with the full force of the law. Robo-signers, attorneys, paralegals, doc processing executives, bank executives and all of their ilk need to be named in federal and state indictments – and we should very well see a few Florida judges thrown into that mix as well because from what I have seen and experienced, there are several of them complicit in the scheme to defraud homeowners and deny them of their basic rights to due process. At the very least, a number of the Florida judges should be brought up on ethics complaints and lose their seat as a judge because they have violated their oaths and have knowingly and willfuly denied due process to thousands upon thousands of Florida citizens.
And again, all of this is major reminder that WHO we vote for (including judges) really, really matters. I hope you are reminded of this come election day and that you conduct your own due diligence before you vote for anyone!
Sep
23
Washington Post- Are Florida Judges Ignoring Their Duties?
The Jeffrey Stephan story has spread like wildfire, but now the press is starting to ask the kind of tough questions that need to be asked of the judges who are ultimately responsible for accepting the flawed “evidence” and pleadings of attorneys and for signing the orders that throw their neighbors out onto the streets. Some judges understand the consequences of their actions and realize that if they do not review the files in front of them they are no better than the Robo Signers who are now the target of so much press heat.
Other judges, like the retired trial judge quoted in the article, seem totally unconcerned about such issues as fundamental and pervasive fraud choking our circuit courtrooms. I suppose one needn’t be concerned with such issues if you won’t be facing the angry mob of electors who will hold you accountable.
At least we have our press to count on. In the months and years to come, our press will be pouring through court files to examine all the fraud and mistakes that exist. Remember court files, emails and all other correspondence are public documents in Florida and there are going to be more examples of abdicated responsibility than the papers will have room to print.
KEEP FIGHTING!
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Sep
22
HOT OFF THE PRESS! Florida’s 3rd DCA overturns Summary Judgment against Homeowner
Here you go folks! One more case where the Florida District Court of Appeals is sending a strong message to the lower courts around Florida that they cannot just simply ignore well-established law and the Florida Rules of Civil Procedure just because it’s a “Foreclosure Case” and the judges are overwhelmed with them. They simply cannot continue to ignore the basic elements of due process and rules of civil procedure. The very fact that the majority of foreclosure cases end in a summary judgment should draw the ire and attention of every Florida legislator, politician, and the Florida Supreme Court. In no other area of law do the cases end in Summary Judgment with this type of frequency or percentage.
To put it simply: The vast majority of Florida Judges are applying completely different rules of evidence, procedure and ethics to Foreclosure Cases as opposed to any and all other types of cases. Combined with the obvious facts that systemic fraud is running amok in the system and the fact that the Florida Attorney General’s office and the FBI are investigating the firms that handle the large majority of foreclosure cases statewide, there should be an immediate reversal in what is clearly an unspoken mandate by the Administrative Judges in every FL Judicial Circuit – which, obviously, is to cram these foreclosure cases through as fast as their rubber stamp and gavel can be applied.
I suggest they start paying attention to the bullhorn in their ears… enjoy the case below (if you’re a homeowner or advocate thereof).
35 Fla. L. Weekly D2106b
WASHINGTON L. SANCHEZ, Appellant, vs. LASALLE BANK NATIONAL ASSOCIATION, ETC., Appellee. 3rd District. Case No. 3D09-2095. L.T. Case No. 09-4074. Opinion filed September 22, 2010. An Appeal from the Circuit Court for Miami-Dade County, Mark King Leban, Judge. Counsel: John H. Ruiz and Hector A. PeÑa, for appellant. Butler & Hosch, Beth A. Norrow, and Thomasina Moore, for appellee.
(Before GERSTEN, SHEPHERD, and LAGOA, JJ.)
(PER CURIAM.) Washington Sanchez (“Sanchez”) appeals from a summary final judgment for foreclosure in favor of LaSalle Bank National Association, as Trustee for Merrill Lynch First Franklin Mortgage Loan Trust (“LaSalle”). We reverse.
Sanchez defaulted under the terms of his mortgage, and LaSalle filed suit for mortgage foreclosure. In response, Sanchez filed an answer and affirmative defenses. Among other things, Sanchez alleged that LaSalle did not comply with the federal Truth-in-Lending Act (“TILA”), 15 U.S.C. § 1601 et seq.
Thereafter, LaSalle responded to the affirmative defenses, and moved for summary judgment. Shortly before the hearing on the motion for summary judgment, Sanchez moved to add additional affirmative defenses. The trial court granted Sanchez’ motion, but then sua sponte struck all of Sanchez’ affirmative defenses. The trial court also granted LaSalle’s motion for summary judgment.
On appeal, Sanchez asserts that the trial court erred in striking his affirmative defenses and entering summary judgment. LaSalle contends the trial court properly struck the affirmative defenses because they were not specific or supported. We agree with Sanchez.
Generally, the striking of pleadings is not favored. See, e.g., Menke v. Southland Specialties Corp., 637 So. 2d 285 (Fla. 2d DCA 1994); Costa Bell Dev. Corp. v. Costa Dev. Corp., 445 So. 2d 1090 (Fla. 3d DCA 1984). Florida Rules of Civil Procedure authorize a trial court sua sponte to strike a pleading which is “redundant, immaterial, impertinent or scandalous,” and, upon a party’s motion, a pleading which is sham. Fla. R. Civ. P. 1.140(f), 1.150. A trial court, however, should not strike a pleading sua sponte on the ground that it is legally insufficient, or because the party subsequently may not be able to prove his or her allegations. Bay Colony Office Bldg. Joint Venture v. Wachovia Mortgage Co., 342 So. 2d 1005 (Fla. 4th DCA 1977).
Here, the trial court, on its own motion, struck Sanchez’ affirmative defenses without finding them redundant, immaterial, impertinent, scandalous or a sham. Apparently, the trial court deemed the defenses to be lacking in specificity and support. Neither of these grounds warrants the sua sponte dismissal of Sanchez’ affirmative defenses.
Accordingly, we reverse the final summary judgment, and remand the cause for further proceedings.
Reversed and remanded.
Sep
21
GMAC Halts Foreclosures in 23 States – Admitting Improper Affidavits
Anyone on the front lines of the War on the Home Front could utter a collective No Sh!$ to this Headline. It’s just that what we’ve been saying and really, shouting from the rooftops, for the last TWO YEARS! is finally getting through to the media, the judiciary (sort of) and many other players in this systemic mess we have come to know as the ‘Rocket Dockets’ across this country. We’ll give the 20th Judicial Circuit (out of Lee County, Florida) judges the credit for inventing their ingenious (or is that disingeniuous?) rocket docket term.
Folks, we’re still scratching the surface of this massive iceberg we call the foreclosure system in this country. There is so much fraud, misrepresentation and outright thievery taking place that it is really beyond the comprehension of the normal, honest working man and woman in this country. The foreclosure machine in this country (collectively the financial institutions, Wall Street, document outsourcing firms and the foreclosure attorneys working for God knows who) will ultimately make Bernie Madoff look like an angel in comparsion. Really.
So as this news begins to incubate in the hearts and minds of the state judges around the country (or are most of them too jaded and prejudiced to care?) along with state Attorney General’s (are you listening and reading?), just sit back and enjoy the way this plays out because I promise you, we are just getting started with Act I of the Foreclosure Machine Meltdown.
Enjoy…
Ally Says GMAC Mortgage Mishandled Affidavits on Foreclosures
By Dakin Campbell and Lorraine Woellert – Sep 21, 2010
Ally Financial Inc., whose GMAC Mortgage unit halted evictions in 23 states amid allegations of mishandled affidavits, said its filings contained no false claims about home loans.
The “defect” in affidavits used to support evictions was “technical” and was discovered by the company, Gina Proia, an Ally spokeswoman, said in an e-mailed statement. Employees submitted affidavits containing information they didn’t personally know was true and sometimes signed without a notary present, according to the statement. Most cases will be resolved in the next few weeks and those that can’t be fixed will “require court intervention,” Proia said.
“The entire situation is unfortunate and regrettable and GMAC Mortgage is diligently working to resolve the situation,” Proia said. “There was never any intent on the part of GMAC Mortgage to bypass court rules or procedures. Nor do these failures reflect any disrespect for our courts or the judicial processes.”
State officials are investigating allegations of fraudulent foreclosures at the nation’s largest home lenders and loan servicers. Lawyers defending mortgage borrowers have accused GMAC and other lenders of foreclosing on homeowners without verifying that they own the loans. In foreclosure cases, companies commonly file affidavits to start court proceedings.
“All the banks are the same, GMAC is the only one who’s gotten caught,” said Patricia Parker, an attorney at Jacksonville, Florida-based law firm, Parker & DuFresne. “This could be huge.”
No Misstatements
Aside from signing the affidavits without knowledge or a notary, “the sum and substance of the affidavits and all content were factually accurate,” Proia wrote in the e-mail. “Our internal review has revealed no evidence of any factual misstatements or inaccuracies concerning the details typically contained in these affidavits such as the loan balance, its delinquency, and the accuracy of the note and mortgage on the underlying transaction.”
Affidavits are statements written and sworn to in the presence of someone authorized to administer an oath, such as a notary public.
GMAC told brokers and agents to halt evictions tied to foreclosures on homeowners in 23 states including Florida, Connecticut and New York and said it may have to take “corrective action” on other foreclosures, according to a Sept. 17 memo. Foreclosures won’t be suspended and will continue with “no interruption,” Proia said in a statement yesterday.
10,000 a Week
In December 2009, a GMAC Mortgage employee said in a deposition that his team of 13 people signed “a round number of 10,000” affidavits and other foreclosure documents a month without verifying their accuracy. The employee said he relied on law firms sending him the affidavits to verify their accuracy instead of checking them with GMAC’s records as required. The affidavits were then used to complete the process of repossessing homes and evicting residents.
Florida Attorney General William McCollum is investigating three law firms that represent loan servicers in foreclosures, and are alleged to have submitted fraudulent documents to the courts, according to an Aug. 10 statement. The firms handled about 80 percent of foreclosure cases in the state, according to a letter from Representative Alan Grayson, a Florida Democrat.
“It appears that the actions we have taken and the attention we’ve paid to this issue could have had some impact on the actions that GMAC took today, but we can’t take full credit,” Ryan Wiggins, a spokeswoman for McCollum, said yesterday in a telephone interview.
‘Committed Fraud’
In August, Florida Circuit Court Judge Jean Johnson blocked a Jacksonville foreclosure brought by Washington Mutual Bank N.A. and JPMorgan Chase Bank, which had purchased the failed bank’s assets, and Shapiro & Fishman, the companies’ law firm. Documents eventually showed that the mortgage on the house was in fact owned by Washington-based Fannie Mae.
WaMu and the law firm “committed fraud on this court,” Johnson wrote. JPMorgan had presented a document prepared by Shapiro showing the mortgage was sold directly to WaMu in April 2008.
Tom Ice, founding partner of Ice Legal PA in Royal Palm Beach, Florida, said a fourth law firm representing GMAC in recent weeks has begun withdrawing affidavits signed by the GMAC employee.
“The banks are sitting up and taking notice that they can’t use falsified documents in the courtroom,” Ice said. “There may be others doing the same thing. They’re going to come back and say, ‘We’d better withdraw these,’” Ice said in a telephone interview.
Alejandra Arroyave, a lawyer with Lapin & Leichtling, a law firm in Coral Gables, Florida, who represented the employee at his December 2009 deposition, didn’t respond to a request for comment. A phone call to the employee wasn’t returned.
Mortgage Market
GMAC ranked fourth among U.S. home-loan originators in the first six months of this year, with $26 billion of mortgages, according to Inside Mortgage Finance, an industry newsletter. Wells Fargo & Co. ranked first, with $160 billion, and Citigroup Inc. was fifth, with $25 billion.
Iowa Assistant Attorney General Patrick Madigan said the implications of Ally’s internal review and the GMAC employee’s deposition could be “enormous.”
“It would call into question whether other servicers have engaged in similar practices,” Madigan said in a telephone interview. “It would be a major disruption to the foreclosure pipeline.”
To contact the reporters on this story: Dakin Campbell in San Francisco at dcampbell27@bloomberg.net; Lorraine Woellert in Washington at lwoellert@bloomberg.net.
To contact the editors responsible for this story: Alec McCabe at amccabe@bloomberg.net; Lawrence Roberts at lroberts13@bloomberg.net.
®2010 BLOOMBERG L.P. ALL RIGHTS RESERVED.
Nov
09
Finally, a Judge Willing to Hold Lenders/Servicers Accountable!
I have to say that reading the below order from Judge Arthur Schack is refreshing. It’s also disappointing because there are so few judges out there today willing to do what he is doing. The majority of Florida judges are cowboys who don’t really care about legal standards and rules of civil procedure. They routinely grant motions for Summary Judgment even when there are clear issues of material fact in the case or even when there is still outstanding disovery that the Plaintiff servicer/trustee hasn’t complied with. They routinely hear a Motion to Dismiss AND a Motion for Summary Judgment on the same day/time! It’s ridiculous and despicable all at the same time.
The bottom line is that most judges in Florida and other states trample on the civil rights of homeowners and deny them due process because of their “personal views” on the issues of foreclosure. I highly encourage homeowners to organize in their communities and march on the steps of their local courthouse and protest what their elected judges are doing and not doing to uphold the law as Judge Schack is doing in this case.
Judge Schack also provides some great points that attorneys and pro se litigants should focus on in their case(s). Read carefully and learn the elements that he is stipulating because there are fine points of law that he his holding the plaintiff in this case to. Enjoy…
HSBC Bank USA, N.A. v. Valentin N.Y.Sup.,2008. NOTE: THIS OPINION WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE. Supreme Court, Kings County, New York.
HSBC BANK USA, N.A., as Indenture Trustee for the Registered Noteholders of Renaissance Home Equity Loan Trust 2005-3, Renaissance Home Equity Loan Asset-Backed Notes, Series 2005-3,, Plaintiff, v. Candida VALENTIN, Candide Ruiz, et. al., Defendants. No. 15968/07. Jan. 30, 2008. Vincent P. Surico, Esq., De Rose & Surico, Bayside, for Plaintiff. No Opposition submitted by defendants to plaintiff’s Judgment of Foreclosure and Sale. ARTHUR M. SCHACK, J. *
1 Plaintiff’s application, upon the default of all defendants, for an order of reference, for the premises located at 572 Riverdale Avenue, Brooklyn, New York (Block 3838, Lot 39, County of Kings) is denied without prejudice. The “affidavit of merit” submitted in support of this application for a default judgment is not by an officer of the plaintiff or someone with a power of attorney from the plaintiff.
Leave is granted to plaintiff, HSBC BANK USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3 (HSBC), to renew its application for an order of reference upon presentation to the Court of compliance with the statutory requirements of CPLR § 3215(f), with “an affidavit of facts” executed by someone who is an officer of HSBC or has a valid power of attorney from HSBC.
Further, the Court, upon renewal of the application for an order of reference requires a satisfactory explanation to questions with respect to: the assignment of the instant nonperforming mortgage loan from the original lender, Delta Funding Corporation to HSBC Bank; the employment history of one Scott Anderson, who assigned the instant mortgage to HSBC, yet in a case I decided last month, HSBC Bank, N .A. v. Cherry, 18 Misc.3d 1102(A), swore in an affidavit to be HSBC’s servicing agent; and the relationship between HSBC, Ocwen Federal Bank, FSB (OCWEN), Deutsche Bank and Goldman Sachs, who all seem to share office space at 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409 (Suite 100). Background Defendants, Candida Valentin and Candide Ruiz, borrowed $340,000 from Delta Funding Corporation, on June 23, 2005.
The note and mortgage were recorded in the Office of the City Register, New York City Department of Finance on July 14, 2005, at City Register File Number (CRFN) 2005000395517. Delta Funding Corporation, by Mortgage Electronic Registration Systems, Inc. (MERS), its nominee for the purpose of recording the mortgage, assigned the note and mortgage to plaintiff HSBC, on May 1, 2007, with the assignment recorded on June 13, 2007 at CRFN 2007000306260.
Plaintiff’s moving papers for an order of reference fails to present an “affidavit made by the party,” pursuant to CPLR § 3215(f). The application contains an April 23, 2007-affidavit by Jessica Dybas, who states that she is “a Foreclosure Facilitator of OCWEN LOAN SERVICING, LLC, servicing agent and attorney in fact to the holder of the bond and mortgage sought to be foreclosed herein.”On that date, the note and mortgage were still held by MERS, as nominee of Delta Funding Corporation. For reasons unknown to the Court, MERS, as nominee of Delta Funding Corporation, or plaintiff HSBC failed to provide any power of attorney authorizing OCWEN to go forward with the instant foreclosure action.
Further, even if HSBC authorized OCWEN to be its attorney in fact, Ms. Dybas is not an officer of OCWEN. She is a “Foreclosure Facilitator,” a job title unknown to this Court. Therefore, the proposed order of reference must be denied without prejudice. Leave is granted to plaintiff HSBC to comply with CPLR § 3215(f) by providing an “affidavit made by the party,” whether by an officer of HSBC or someone with a valid power of attorney from HSBC. *2 Further, according to plaintiff’s application, the default of defendants Valentin and Ruiz began with the nonpayment of principal and interest due on January 1, 2007. Yet, four months later, plaintiff HSBC was willing to take an assignment of the instant nonperforming loan. The Court wonders why HSBC would purchase a nonperforming loan, four months in arrears?
Additionally, plaintiff HSBC must address a third matter if it renews its application for an order of reference. In the instant action, as noted above, Scott Anderson, as Vice President of MERS, assigned the instant mortgage to HSBC on May 1, 2007. Doris Chapman, the Notary Public, stated that on May 1, 2007, “personally appeared Scott Anderson, of 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409.”In HSBC Bank, N.A. v. Cherry, at 3, I observed that: Scott Anderson, in his affidavit, executed on June 15, 2007, states he is Vice President of OCWEN. Yet, the June 13, 2007 assignment from MERS to HSBC is signed by the same Scott Anderson as Vice President of MERS. Did Mr. Anderson change his employer between June 13, 2007 and June 15, 2007. The Court is concerned that there may be fraud on the part of HSBC, or at least malfeasance. Before granting an application for an order of reference, the Court requires an affidavit from Mr. Anderson describing his employment history for the past three years. Lastly, the court notes that Scott Anderson, in the MERS to HSBC assignment gave his address as Suite 100. This is also the address listed for HSBC in the assignment. In a foreclosure action that I decided on May 11, 2007 (Deutsche Bank Nat. Trust Company v. Castellanos, 15 Misc.3d 1134[A] ), Deutsche Bank assigned the mortgage to MTGLQ Investors, L.P. I noted, at 4-5, that MTGLQ Investors, L.P.: According to Exhibit 21.1 of the November 25, 2006 Goldman Sachs 10-K filing with the Securities and Exchange Commission … is a “significant subsidiary” of Goldman Sachs…. [T]he January 19, 2007 assignment has the same address for both the assignor Deutsche Bank and the assignee MTGLQ Investors, L.P., at 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409.
The Court will not speculate about why two major financial behemoths, Deutsche Bank and Goldman Sachs share space in a West Palm Beach, Florida office suite In the instant action, with HSBC, OCWEN and MERS, joining with Deutsche Bank and Goldman Sachs at Suite 100, the Court is now concerned as to why so many financial goliaths are in the same space. The Court ponders if Suite 100 is the size of Madison Square Garden to house all of these financial behemoths or if there is a more nefarious reason for this corporate togetherness.
If HSBC seeks to renew its application for an order to reference, the Court needs to know, in the form of an affidavit, why Suite 100 is such a popular venue for these corporations. Discussion Real Property Actions and Proceedings Law (RPAPL) § 1321 allows the Court in a foreclosure action, upon the default of the defendant or defendant’s admission of mortgage payment arrears, to appoint a referee “to compute the amount due to the plaintiff.” In the instant action, plaintiff’s application for an order of reference is a preliminary step to obtaining a default judgment of foreclosure and sale. (Home Sav. Of Am., F.A. v. Gkanios, 230 A.D.2d 770 [2d Dept 1996] ). *3 Plaintiff has failed to meet the requirements of CPLR § 3215(f) for a default judgment. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316 of this chapter, and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party… Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party’s attorney. [Emphasis added]. Plaintiff has failed to submit “proof of the facts” in “an affidavit made by the party.”The affidavit is submitted by Jessica Dybas, “a Foreclosure Facilitator of OCWEN LOAN SERVICING, LLC, servicing agent and attorney in fact to the holder of the bond and mortgage sought to be foreclosed herein.” There must be an affidavit by an officer of HSBC or a servicing agent, possessing a valid power of attorney from HSBC for that express purpose. Additionally, if a power of attorney is presented to this Court and it refers to pooling and servicing agreements, the Court needs a properly offered copy of the pooling and servicing agreements, to determine if the servicing agent may proceed on behalf of plaintiff. (EMC Mortg. Corp. v. Batista, 15 Misc.3d 1143(A) [Sup Ct, Kings County 2007]; Deutsche Bank Nat. Trust Co. v. Lewis, 14 Misc.3d 1201(A) [Sup Ct, Suffolk County 2006] ).
Also, the instant application upon defendants’ default must be denied because even though it contains a verified complaint, the attorney’s verification is insufficient to meet the requirements of CPLR § 3215(f). The Court, in Mullins v. Di Lorenzo, 199 A.D.2d 218 [1st Dept 1993], instructed that “a complaint verified by counsel amounts to no more than an attorney’s affidavit and is therefore insufficient to support entry of judgment pursuant to CPLR 3215.”Citing Mullins v. Di Lorenzo, the Court, in Feffer v. Malpeso, 210 A.D.2d 60, 61 [1st Dept 1994], held that a complaint with not more than an attorney’s affidavit, for purposes of entering a default judgment “was erroneous and must be deemed a nullity.” Professor David Siegel, in his Practice Commentaries (McKinney’s Cons Laws of NY, Book 7B, CPLR C3215: 16) explains that Mullins v. Di Lorenzo is in point here. Perhaps the verified complaint can do service as an affidavit for various purposes within the litigation while the contest is on … but it will not suffice to put an end to the contest with as drastic a step as a default at the outset. It must be kept in mind that even an outright “affidavit” by the plaintiff’s attorney on the merits of the case-except in the relatively rare circumstances in which the attorney happens to have first-hand knowledge of the facts – lacks probative force and is usually deemed inadequate by the courts to establish the merits. A fortiori, a verified pleading tendered as proof of the merits would also lack probative force when the verification is the attorney’s. [Emphasis added ] *4 In Blam v. Netcher, 17 AD3d 495, 496 [2d Dept 2005], the Court reversed a default judgment granted in Supreme Court, Nassau County, holding that: In support of her motion for leave to enter judgment against the defendant upon her default in answering, the plaintiff failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts (seeCPLR 3215(f): Goodman v. New York City Health & Hosps. Corp. 2 AD3d 581 [2d Dept 2003]; Drake v. Drake, 296 A.D.2d 566 [2d Dept 2002]; Parratta v. McAllister, 283 A.D.2d 625 [2d Dept 2001] ). Accordingly, the plaintiff’s motion should have been denied, with leave to renew on proper papers (see Henriquez v. Purins, 245 A.D.2d 337, 338 [2d Dept 1997] ). (See Hazim v. Winter, 234 A.D.2d 422 [2d Dept 1996]; Finnegan v. Sheahan, 269 A.D.2d 491 [2d Dept 2000]; De Vivo v. Spargo, 287 A.D.2d 535 [2d Dept 2001]; Peniston v. Epstein, 10 AD3d 450 [2d Dept 2004]; Taebong Choi v. JKS Dry Cleaning Eqip. Corp., 15 AD3d 566 [2d Dept 2005]; Matone v. Sycamore Realty Corp., 31 AD3d 721 [2d Dept 2006]; Crimmins v. Sagona Landscaping, Ltd., 33 AD3d 580 [2d Dept 2006] ). Therefore, the instant application for an order of reference is denied without prejudice, with leave to renew.
The Court will grant plaintiff HSBC an order of reference when it presents: an affidavit by either an officer of HSBC or someone with a valid power of attorney from HSBC, possessing personal knowledge of the facts; an affidavit from Scott Anderson clarifying his employment history for the past three years and what corporation he serves as an officer; and, an affidavit by an officer of HSBC explaining why HSBC would purchase a nonperforming loan from Delta Funding Corporation, and why HSBC, OCWEN, MERS, Deutsche Bank and Goldman Sachs all share office space in Suite 100.
Conclusion Accordingly, it is ORDERED, that the application of plaintiff, HSBC BANK N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3, for an order of reference for the premises located at 572 Riverdale Avenue, Brooklyn, New York (Block 3838, Lot 29, County of Kings), is denied without prejudice; and it is further ORDERED, that leave is granted to plaintiff, HSBC BANK N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3, to renew its application for an order of reference for the premises located at 572 Riverdale Avenue, Brooklyn, New York (Block 3838, Lot 39, County of Kings), upon presentation to the Court, within forty-five (45) days of this decision and order, of: an affidavit of facts either by an officer of HSBC or someone with a valid power of attorney from HSBC, possessing personal knowledge of the facts; an affidavit from Scott Anderson, describing his employment history for the past three years; an affidavit from an officer of plaintiff HSBC BANK N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3, explaining why plaintiff would purchase a nonperforming loan from Delta Funding Corporation and why plaintiff *5 HSBC BANK N.A., shares office space at Suite 100, 1661 Worthington Road, West Palm Beach, Florida 33409, with Ocwen Federal Bank FSB, MortgageElectronicRegistrationSystems, Inc., Deutsche Bank and Goldman Sachs. This constitutes the Decision and Order of the Court. N.Y.Sup.,2008. HSBC Bank USA, N.A. v. Valentin Slip Copy, 18 Misc.3d 1123(A), 2008 WL 239932 (N.Y.Sup.), 2008 N.Y. Slip Op. 50164(U) END OF DOCUMENT
