Feb
27
Analysis of Sen. Hayes’s and Sen. Richter’s Amendments to CS/SB 1890
Analysis of Sen. Hayes’s and Sen. Richter’s Amendments to CS/SB 1890 Currently there are competing amendments to CS/SB 1890. They are identical in all respects, except Sen. Richter’s amendment would add Finality of Judgment. Below is an analysis encompassing both versions. Both amendments to CS/SB 1890 streamline the foreclosure process. Issues remain as to both … Read more
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Sep
16
PB Post | Bank Attorneys Warn 4th DCA Decision May “Dramatically” Change Florida Foreclosures
Florida Rules of Civil Procedure RULE 1.510 SUMMARY JUDGMENT (a) For Claimant. A party seeking to recover upon a claim, counterclaim, crossclaim, or third-party claim or to obtain a declaratory judgment may move for a summary judgment in that party’s favor upon all or any party thereof with or without supporting affidavits at any time … Read more
May
19
If They Get Away With This, The Amerikan Legal System is Doomed
The following are a collection of quotes from the court’s response to the ACLU lawsuit. I want laypersons to compare this wet blanket and non-responsive response with the legal scholarship that is reflected in the ACLU petition. The ACLU lawsuit is real, it is detailed, it is specific. It states facts and it makes real and well-founded arguments. The response fails to respond to any of the substantive issues raised and merely asks the appellate court to look the other way while legal carnage continues. Compare the ACLU Petition Here with the response which is quoted below….Did they really put these responses in writing?
WHEN WILL AMERICA WAKE UP? WILL AMERICANS WAKE UP?
IS IS ALREADY TOO LATE?
The foreclosing banks are often represented by out-of-town law firms with large case
loads and a correspondingly diminished attention to individual cases. The unexpected
volume and unanticipated permutations of the foreclosure crisis have caught the
banks unaware, often resulting in litigation paralysis. Case management is a means
of bringing some order to this chaotic scenario.
So the great majority of mortgage foreclosure cases will be resolved on preliminary
motions without the necessity of a full trial on the merits.
It is perhaps unfortunate that the form Order uses the term “docket sounding,”
since the term has little legal meaning. The term is not used anywhere in the Rules
of Civil Procedure, so there is no definition of it.
The salutary effect of using the term is that it does have some alarm value,
thereby impressing upon the parties and their counsel the importance of the scheduled
hearing and moving the case forward. Recall that the form Order issues only if the
foreclosure case has been languishing without any activity for at least months.
At around this point in the Merrigans’ foreclosure action the Bank of New
York lost the representation of its counsel. The Bank had been represented by the
David Stern law firm. Mr. Stern is under investigation by the Florida Bar, and he has
ceased representing mortgagees in the Twentieth Circuit. In many cases his firm has
formally withdrawn. In other cases, such as the instant one, his firm has simply
ceased representing its client.
The foreclosure action has now been pending for
over two years, and during this period the Merrigans have retained possession of the
mortgaged premises, presumably without payment on the mortgage.
It appears that this Response will be the only response the Court will receive
in this matter. The Bank of New York has counsel of record, but that counsel has
apparently made the unilateral decision to effect a de facto withdrawal. The contact
person for the Bank of New York is unknown. Much of the Petition is aimed at the
Twentieth Circuit anyway, so it is appropriate that the Circuit briefly discuss the
limits of prohibition relief.
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Mar
18
More Chaos in the Courtroom- False Deeds and the Case of The Disappearing Foreclosure Mill
At what point in time will this country wake up and realize just how much trouble we’re all in and hold the wrongdoers accountable?
That’s just a rhetorical question from me anymore, I increasingly think we’re all too far gone to make any sense of it anymore….
People filing false deeds to take over vacant homes has Palm Beach County’s clerk of courts warning owners to keep an eye on their property records the same way they do their credit reports. With hundreds of vacant houses countywide – fallout from the real estate boom and bust – Clerk Sharon Bock said her office is investigating an increase in suspect “quit claim” deeds filed on homes which are then rented to unsuspecting tenants or occupied by the scammers themselves.
A quit claim deed transfers interest in a property to a new recipient, but offers no guarantee of clear title. Although owner signatures are required on the deed, as well as notarization, Bock said advanced computer and copier technology has made forging documents easier.
“It’s terrible when someone steals your identity, but imagine what it’s like when someone steals your home,” Bock said. “Some of this isn’t just isolated incidents, it’s literally criminals with the intent to defraud.”
“Florida Rules of Civil Procedure require that attorneys file a proper Motion to Withdraw from any case which they no longer plan to represent,” said Eunice Sigler, a spokeswoman for the 11th Judicial Circuit Court in Miami-Dade County. “We are currently researching various options, including any remedies available through the Florida Bar.”
Palm Beach County Chief Judge Peter Blanc said this week he’s also trying to figure out how to proceed.
“Stern has provided notice he will no longer be attorney of record, but the court is unable to recognize it,” Blanc said. “I’m told we’re getting more stipulations of substitute counsel but not anywhere near the number we should have.”
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Mar
01
Arzuman- In doing so, the plaintiff’s case fell into a dark void in the courthouse….
The Florida Rules of Civil Procedure Mean Something.
How much they mean remains to be seen.
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Feb
23
Forget What You Think You Know About Justice…A Scathing Article on Fraudclosure Court
I am so far beyond disturbed anymore. I was disturbed a year ago after we went to Tallahassee and demanded a moratorium on foreclosures because of all the evidence of major problems. I am sickened by what is happening in our courtrooms. Courtrooms no longer symbolize for me the highest aspirational qualities of our country. In the last several weeks I’ve been beaten up in courtrooms all across this state and I am convinced our court system has been consumed by the same evil and perversions that are wreaking havoc on the rest of our country and economy.
The sad thing is we’ve all become too weak to do anything about it….and for that, we deserve the government we’ve not got…..
Dubbed the ‘rocket docket’, the county’s foreclosure track cruises through several hundred cases daily, many ending in judgments for the lender and the subsequent scheduling of a foreclosure sale.
In the process, critics say, the docket tramples basic rules of civil procedure and due process. They point to the speed with which judges move cases along, and the emphasis on an expedited trial or summary judgment versus discovery.
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Dec
03
Another MASSIVE victory- Curious Implications!?!
One of the issues we’ve been hammering about for some time is the fact that virtually every affidavit submitted in support of summary judgment of foreclosure in Florida does not comply with the Florida Rules of Civil Procedure.
Specifically, I’ve virtually never seen an affidavit that complies with the rule that requires that sworn or certified copies of the books and records referred to in the affidavit be attached.
(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
FLORIDA RULES OF CIVIL PROCEDURE
That’s what makes the following memo so earth shattering…..my only question is….now that one circuit has issued such a motion, will the other circuits follow? This really is an amazing development and is yet another powerful sign that our judges are listening to us and that the environment is changing for the good of us all!
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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.)
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Nov
10
Foreclosure Complaints Must Be Verified- Without Qualification!
Florida Rules of Civil Procedure 1.110
(a) Forms of Pleadings. Forms of action and technical forms for seeking relief and of pleas, pleadings, or motions are abolished.
(b) Claims for Relief. …..
When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, (emphasis added) the document filed shall include an oath, affirmation, or the following statement:
“Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”
Oct
05
Washington Post- Pinellas County Takes A Leadership Role in Putting An End To Foreclosure Chaos
The national press have turned their attention on Pinellas County, because this circuit “Gets It” when it comes to understanding the problems in the foreclosure courtrooms and our judges are doing something about it.
Read Today’s Washington Post Article Here
Chief Judge McGrady is not alone however. Chief Judge Lee Hawthorne from the 12th Judicial Circuit in Sarasota County has likewise been very vocal and serious about ensuring fairness and equity is done in his courtrooms as well.
These two circuits really do “Get It” and citizens that live in these circuits are protected from the wanton abuses of the banks and foreclosure mills as a result of this. Just take a look at the form below that is being used in the 12th Circuit. It represents a very practical way that judges can manage their caseload, enforce the Florida Rules of Civil Procedure and force the foreclosure mills to be held accountable for their grossly abusive practices that are causing extraordinary financial pain for all taxpayers, not just those who are in foreclosure.
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Sep
25
The Stephan/GMAC Foreclosure Fiasco Is Just The Start- Next, Are The Attorney Signatures Real?
A requirement of every lawsuit filed in Florida courts is that they must be signed and affirmed by a licensed member of the Florida Bar. I’ve long had a real problem with the sloppy, arrogant messes of signatures that appear on pleadings filed in these foreclosure actions and now I’ve got real suspicions that some of these signatures may not be of attorneys at all.
Take a close look at the attorney signatures that appear on the complaints that are filed and on the lis pendens and motions. Next, look that attorney’s signature up on mortgages for their homes that are recorded in the counties where these attorneys work. The mortgage signatures are presumably their real signatures, but look at the “signatures” that are on the pleadings. If the signatures that are on those pleadings are not of the attorney as they are required to be according to the Florida Rules of Civil Procedure, this would be a Bombshell at least as big as the Stephan announcement.
Up next, more GMAC affidavits that are withdrawn
By the way, these notices cannot just go out in contested cases, they must be withdrawn in every single case in which they were filed, contested or not. Are our courts equipped to match those withdraws up to the cases they are filed in? How many taxpayer dollars will be spent processing these withdraws? Worse yet, how many foreclosure rocket docket judgments will be granted since this withdraw issue came out? How many of our Senior Judges who are presiding over these foreclosure gas chambers are even aware of these issues? (I know the ones that I have made aware of this were totally aware of anything…they are even unaware of the AG investigations….)
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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.
Aug
28
New strategy attacks validity of affidavits
Foreclosure Crisis
New strategy attacks validity of affidavits
August 26, 2010
hen it comes to fighting foreclosures, homeowners and their lawyers may have found a new strategy to score courtroom victories.
Defense lawyers across the state are increasingly attacking the validity of affidavits that owners of notes must file with the courts as part of the foreclosure process. Attorneys like Dustin Zacks, of the firm Ice Legal in West Palm Beach, are successfully arguing that plaintiffs — usually a trust that owns the note or the servicer of the note — are violating court rules by filing affidavits with no records attached to support their foreclosure suits. The records include details of the loan, borrower fees and payment history.
The Florida Rules of Civil Procedure (Rule 1.510) states that “sworn or certified copies” of all records referred to in the affidavit must be attached as evidence in the foreclosure case.
The rule helps ensure that homeowners’s due process rights aren’t violated — namely that the lender has to prove it is entitled to press its claim.
By: Paola Iuspa-Abbott
Dustin Zacks
In a foreclosure suit, the plaintiff’s affidavit outlines how much the homeowner owes, asserts that there are no unresolved disputes between the lender and borrower and that the home is legally ready to be sold.
Judges rely on the affidavits as critical evidence when they hand down a summary judgment in favor of the lenders, which paves the way for the sale of a property at a foreclosure auction. Since most foreclosure cases are unopposed, the validity of the affidavits and compliance to the rules have rarely been questioned.
When a summary judgment is denied — because an affidavit is flawed, among other reasons — the homeowner can face the lender at trial.
A deficient affidavit can be the difference between homeowners losing their properties through a summary judgment or going to trial, Zacks said.
“These affidavits are the linchpin of cases when they are trying to win a house at summary judgment,” he said. “A summary judgment cuts short [a homeowner’s] right to a full trial.”
Several judges and lawyers say deficient affidavits are rare in most other civil cases, but are rampant in foreclosure cases.
“Our entire judicial system is under attack as a result of this foreclosure process,” said St. Petersburg lawyer Matthew Weidner, who blogs about foreclosures. “Judges, just like us, have just sort of overlooked this in the midst of this crisis.”
AG’s Investigation
Foreclosure firms are increasingly under scrutiny for questionable practices, including the alleged falsification of documents. Earlier this month, Florida Attorney General Bill McCollum launched a probe into the Law Offices of David J. Stern in Plantation; the Law Offices of Marshall C. Watson in Fort Lauderdale; and Shapiro & Fishman, with offices in Boca Raton and Tampa.
McCollum’s office is investigating whether the three law firms submitted false affidavits or fabricated court documents to obtain final judgments against homeowners.
The Law Offices of David J. Stern and Shapiro & Fishman deny wrongdoing and have filed motions to quash or modify the subpoenas issued by the AG office.
Defense lawyers, who have been filing civil lawsuits against the foreclosure law firms, welcomed the investigation. They claim some plaintiff lawyers are rushing through large volumes of foreclosures on behalf of lenders, often improperly serving notice on homeowners or filing false pleadings.
Some judges say they don’t have the resources nor it is their job to make sure every affidavit is proper, but at least two said they are interested in hearing the argument.
“It is a genuine question that should be raised,” said Miami-Dade Circuit Judge Jennifer Bailey. “The question is, where should each judge draw the line about the degree of investigation they are going to do on these affidavits? There is no clear answer.”
In June, Zacks persuaded Palm Beach Circuit Judge Howard Harrison Jr. to deny a motion for summary judgment because of a flawed affidavit.
Page 1 of 3
http://www.dailybusinessreview.com/news.html?news_id=64829&stripTemplate=1 8/26/2010
Harrison told a representative of the Bank of New York, the loan’s trustee, that it needed to produce the loan records rather than having an employee of the plaintiff attorney or the loan servicer attest that documents are in order before signing the affidavits.
“It basically just says he looked at and plugged some numbers in,” Harrison said, according to a transcript of a June 29 hearing. “If they are not contested, that’s fine. But where somebody just basically says, ‘I looked at the records,’ this is it. That’s not enough for me to agree.”
Harrison’s ruling gave Elizabeth and David Mosquera a temporary break. The couple owes $1 million on a six-bedroom Wellington home they bought for $1.4 million in 2007, according to Palm Beach County property records. The couple fell behind on their mortgage payments last year.
In May, Zacks got Palm Beach Circuit Judge Jack Cook to strike an affidavit that did not include records. Now it will be up to Wells Fargo Bank, as trustee, to file a new affidavit.
Challenging Rule
In addition to requiring a copy of the records, Rule 1.510 also says that the person signing the affidavit must have personal knowledge of the facts of the case. That can be a challenge since most loans have been sold several times since they were originated and have been processed by different servicers. Many notes and mortgages are not available for review.
Since the foreclosure crisis started in 2008, it has become common for plaintiff lawyers and servicers to assign an employee to sign hundreds of affidavits, even though they usually are not familiar with the cases.
“I’d like to see in one of these cases where a defense lawyer cross examines, takes a deposition of these people [so] we can see whether they ought to be charged with perjury for all of these affidavits,” Pinellas Circuit Judge Anthony Rondolino said during an April 7 hearing.
At that hearing, he vacated a summary judgment he granted in January in favor of GMAC Mortgage.
Rondolino reconsidered his decision after defense lawyer Michael Wasylik of Dade City asked for a rehearing to challenge GMAC’s affidavit, which did not include any sworn or certified documents.
Rondolino said he hasn’t seen many defense lawyers use flawed-affidavit arguments as a defense, “but when they do raise these issues, I listen to the argument carefully.”
Wasylik said summary judgements that were granted based on insufficient affidavits can be appealed and set aside. “If courts are fooled into granting judgments … it could be disastrous for Florida’s real estate,” he said.
Attorney Mark Romance, with Richman Greer in Miami, said people who lost their homes to foreclosure can appeal a judgment that was the result of an insufficient affidavit or on a mistake.
“That doesn’t help necessarily the person whose home has been foreclosed upon and sold … but they can still get some relieve from the court,” he said.
Nonjudicial process?
The Florida Bankers Association is pushing state lawmakers to make the foreclosure process nonjudicial so lenders can repossess properties faster.
It can take more than a year for uncontested cases to move through the overworked court system and several years if a homeowner defends the case.
A bill proposed by the FBA to make foreclosures nonjudicial failed earlier this year during the legislative session in Tallahassee. The industry group is considering re-introducing the bill in the 2011 session, said Anthony DiMarco, the FBA’s executive vice president and director of government affairs.
“Everybody has the right to a defense, but if they do it just to slow down the process, they are just going to slow down the [recovery of the housing market,]” DiMarco said. “And the faster we get through all this, the faster we are going to get to the end of the crisis and we can move on.”
Paola Iuspa-Abbott can be reached at (305) 347-6657.
Filed under: CASES, CORRUPTION, Eviction, evidence, expert witness, foreclosure, foreclosure mill, GTC | Honor, HERS, investment banking, Mortgage, Motions, Pleading, securities fraud, Servicer, trustee Tagged: affidavits, DUSTIN ZACKS, evidence, Florida, ICE LEGAL, Paola Iuspa-Abbott
Aug
09
The Economic Realities of our Judicial Branch
When our forefathers conceived of this once great nation, a key principle was the necessity for each of the three branches to be separate and insulated from one another. Great pains were taken especially to insulate the judicial branch from the other three branches. (Writing “the other three branches” was a typo in the original draft, but I left it in…a slip perhaps…maybe the other branch is the heretofore hidden kleptocracry that has recently become so powerful in this country.)
The foreclosure crisis features center stage the most dramatic assault on the fundamental principle of separation of powers witnessed during this generation. The legislature in this state in particular has made it very clear to our elected circuit court judges…
YOU JUDGES MUST CLEAR THIS FORECLOSURE DOCKET
Legislators are not concerned with pesky details like the law, the Uniform Commercial Code and they’re certainly not concerned with details like Rules of Civil Procedure and the Evidence Code. They don’t care about practical economic realities like what will be done with foreclosed homes in a state with 25% unemployment. They don’t care that they Yankee Fat Cats and foreign investors sucked billions of dollars of equity from this state. They don’t care that all this foreclosing sucks more money out of this state and concentrates that wealth in Yankee Fat Cats and foreign investors. What the legislature does care about is the well funded banking and mortgage industries that contribute to their campaigns…
THOSE INTERESTS ARE DEMANDING AN END TO FORECLOSURE DEFENSE AND JUDGES ARE BENDING TO THOSE INTERESTS.
The blended political and economic realities that have infected our courtrooms plays out every day in courtrooms all across this state. The most visible expression of this infection is the utilization of senior judges presiding over the foreclosure rocket dockets but other examples abound. It can be seen every time a circuit court judge overlooks, even for a second and even when a foreclosure case is not defended, any of the rules of evidence, case law, statutory law or rules of procedure that should govern every foreclosure case. This unprecedented pressure on our judicial branch represents a fundamental breakdown in our core governing principles. The meltdown on Wall Street shows the consequences of ignoring rules and fundamental principles….
I shudder to think what will be the long term consequences of ignoring rules and principles in our courtrooms.
The article from today’s St. Petersburg Times illustrates just how intertwined our legislature has become with our judicial branch. This article just scratches the surface and illustrates part of the larger economic and policy debate that has infected our courtrooms. And while this article details legislative control over funding for buildings, consider that the legislature funds judicial salaries, court budgets and judicial pensions. With that in mind,
Is there any doubt that judicial decisions in the foreclosure courtroom are being impacted by economic considerations?
I recognize that it’s a bit naive to believe that our judges will stand up to these pressures and economic realities, but I’m confident that there are far too many good and intelligent judges out there who do see this foreclosure catastrophe for what it is and who share my concerns.
THE REAL QUESTION IS WHETHER OUR JUDGES WILL SHOW THE COURAGE NECESSARY TO STAND UP AND FIGHT FOR THE HEART AND SOUL OF OUR COURTS.
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Aug
09
The Economic Realities of our Judicial Branch
When our forefathers conceived of this once great nation, a key principle was the necessity for each of the three branches to be separate and insulated from one another. Great pains were taken especially to insulate the judicial branch from the other three branches. (Writing “the other three branches” was a typo in the original draft, but I left it in…a slip perhaps…maybe the other branch is the heretofore hidden kleptocracry that has recently become so powerful in this country.)
The foreclosure crisis features center stage the most dramatic assault on the fundamental principle of separation of powers witnessed during this generation. The legislature in this state in particular has made it very clear to our elected circuit court judges…
YOU JUDGES MUST CLEAR THIS FORECLOSURE DOCKET
Legislators are not concerned with pesky details like the law, the Uniform Commercial Code and they’re certainly not concerned with details like Rules of Civil Procedure and the Evidence Code. They don’t care about practical economic realities like what will be done with foreclosed homes in a state with 25% unemployment. They don’t care that they Yankee Fat Cats and foreign investors sucked billions of dollars of equity from this state. They don’t care that all this foreclosing sucks more money out of this state and concentrates that wealth in Yankee Fat Cats and foreign investors. What the legislature does care about is the well funded banking and mortgage industries that contribute to their campaigns…
THOSE INTERESTS ARE DEMANDING AN END TO FORECLOSURE DEFENSE AND JUDGES ARE BENDING TO THOSE INTERESTS.
The blended political and economic realities that have infected our courtrooms plays out every day in courtrooms all across this state. The most visible expression of this infection is the utilization of senior judges presiding over the foreclosure rocket dockets but other examples abound. It can be seen every time a circuit court judge overlooks, even for a second and even when a foreclosure case is not defended, any of the rules of evidence, case law, statutory law or rules of procedure that should govern every foreclosure case. This unprecedented pressure on our judicial branch represents a fundamental breakdown in our core governing principles. The meltdown on Wall Street shows the consequences of ignoring rules and fundamental principles….
I shudder to think what will be the long term consequences of ignoring rules and principles in our courtrooms.
The article from today’s St. Petersburg Times illustrates just how intertwined our legislature has become with our judicial branch. This article just scratches the surface and illustrates part of the larger economic and policy debate that has infected our courtrooms. And while this article details legislative control over funding for buildings, consider that the legislature funds judicial salaries, court budgets and judicial pensions. With that in mind,
Is there any doubt that judicial decisions in the foreclosure courtroom are being impacted by economic considerations?
I recognize that it’s a bit naive to believe that our judges will stand up to these pressures and economic realities, but I’m confident that there are far too many good and intelligent judges out there who do see this foreclosure catastrophe for what it is and who share my concerns.
THE REAL QUESTION IS WHETHER OUR JUDGES WILL SHOW THE COURAGE NECESSARY TO STAND UP AND FIGHT FOR THE HEART AND SOUL OF OUR COURTS.
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Aug
04
How Can David Stern’s Office Just Ignore The Florida Supreme Court?
One of the most frustrating things I find in the current foreclosure crisis is watching the big foreclosure mills just trample of the rights of real people and just ignore case law, rules of evidence and rules of the Florida Supreme Court. I just cannot understand how they have been permitted to get away with it on such a massive scale. I mean, what if lawyers just announced they would be ignoring rules of civil procedure….oh wait, that’s exactly what DJSP did with the following disclaimer in the SEC Prospectus:
The Supreme Court of Florida has recently taken an active role in ensuring that proper documentation is filed in a
foreclosure action by amending several rules of civil procedure and pertinent forms related to foreclosure actions filed in Florida….
However, DJS may not be successful in complying with these new rules.
Next, read carefully the attached Motion for Rehearing. In it, Stern’s office attempts to justify ignoring the valid rules of the Florida Supreme Court. The Supreme Court provided their response to this argument when it released the following response:
The motion for rehearing on in the alternative is hereby stricken as untimely.
(Apparently the words “shall become effective immediately upon release of this opinion” didn’t make it clear enough)
Now, when no less an authority than the Supreme Court issues an Order interpreting issues relating to their own validly-enacted rules, you would think that would be the end of it right? Well, apparently that’s not the case. Stern’s office makes a strained argument that somehow the Rule is not effective. Forget about the fact that Strern’s office didn’t even file any request for rehearing or clarification….if they took issue with the new Rule, why didn’t they file a response or request for rehearing? They did not. So what should be the sanction if Stern and other mills have taken a gamble on a creative interpretation of court rules or procedure and that gamble is not correct?
I am of the opinion that entire circuits should adopt programs like the one adopted by the Twelfth Circuit where the court reviews complaints and dismisses them on its own motion if they are not in compliance with the rule. I frankly cannot understand why taxpayer dollars should be used to subsidize knowingly improper conduct by the Millionaire Foreclosure Mills or why this conduct goes on with no sanction.
Our judges are under incredible political pressures to clear their foreclosure dockets and dismissing cases when the millionaire foreclosure mills knowingly violate the rules and waste judicial resources is an appropriate sanction that could generate millions of desperately needed revenue for our courts and their overworked staff. I have yet to have Stern’s office set one of my Motions to Dismiss on this issue for hearing, but I promise I’ll be loaded for bear and I will have a court reporter present if they ever develop enough confidence in their argument to set it for hearing.
Well, enough of my editorializing, read the work below, tear it apart and please share your comments and insight. I hope that by sharing this Motion and argument we’ll all be better prepared to oppose these positions.
David Stern- Motion for Rehearing
David Stern- Memo in Support of Motion to Dismiss
David Stern- Opposition to Motion To Dismiss
David Stern- Motion to Dismiss Non Verified
Finally, on a related topic, read a recent Palm Beach Post Article on Fraudulent Assignments of Mortgage it provides an interesting counter point to the detailed and researched reporting that appeared in today’s Mother Jones news. We’re all in this fight together people. Remember, they’re our courtrooms…..not theirs!
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Feb
01
Important Florida Case – one way to get a foreclosure dismissed
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
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
