Matt Weidner – Fighting For The American People

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Maybe if I keep repeating this over and over people will start to get it.  Or maybe if I start repeating it, then others repeat it, and if we all start making this argument, our courts will start to consider this argument.

The lenders in mortgage foreclosure cases never intended mortgage notes to be negotiable. 

They intended the notes and indeed all the obligations to be transferred via the Pooling and Servicing Agreements!!!  That’s why they drafted Pooling and Servicing Agreements!  The problem is, when this whole stinking mess blew up, they left the notes and the trusts and the whole business model spread around on the ground like a blown up building.  The servicers and plaintiffs picked up the promissory notes and now come waving them in court making reckless and absurd arguments that are not supported by case law or any legal analysis.

Look at the promissory notes, look at the statute:

HOW CAN ANYONE ARGUE THE NOTES IN FORECLOSURE CASES MEET THE DEFINITION IN STATUTE?

My analysis and exploration of this CRUCIAL issue comes at a very important time for all of us….as Max Gardner is bringing his seminar on negotiability to Orlando in March.

MAX GARDNER’S SEMINAR ON NEGOTIABIILTY

We all need to start prepping this argument, and we all need to start exploring and ripping this argument up among and between ourselves before we bring it live before judges. This argument and this critical discussion could represent a Titanic sea change in cases all across this state.  I encourage everyone to get prepped on this issue make plans to attend Max Gardner’s Seminar.

First, read this very detailed law review article:

HOW NEGOTIABILITY FOULED UP THE SECONDARY MARKET

And finally, here is a motion where I started to flush these issues out in my cases:

Memo of Law Regarding Non-NegotiabilityPUBLISH

VIDEO ANALYSIS OF HOUSE BILL 213

WATCH IT LIVE

As Matt Stoller first reported, the banks are throwing fist fulls of cash to the banks and tossing a few pennies back at the serfs, the American People. Matt Stoller This of course is a big “DUH?” to anyone who has watched this whole deal go down.  From the first disclosures of Tom Miller’s collection of obscene amounts of campaign cash from the banks to Pam Bondi’s benefactors in the banking community. (Bondi, Bankers BFF)

I do not understand why we permit attorney generals to accept campaign cash at all and have been SCREAMING ABOUT IT here.

Not like you needed any more proof of the sellout but see Neil Barofsky and Eric Schneideman Sells Out

One of two things are going to happen in this country.  Americans are either going to continue to roll over and watch as their paychecks, their children’s paychecks and their grandchildren’s paychecks are turned over to the banks or they are finally going to wake  up and go all wild in the street, Greek style.

I’m betting that eventually, heads will literally roll. There will be chaos and rioting in the streets and that violence and extraordinary suppression will occur.  I think the militarization of our nation’s civilian law enforcement evidences an acknowledgement on the part of our government that this is coming.  I see more and more each day solid American citizens crossing the line into angry rebel patriots who are going to  rebel when pushed too far…..I fear for us all when this happens…

Neil Barofsky on Bloomberg

Ah Pino. Pino v. Bank of New York. Remember that line from Florida’s 4th District Court of Appeals…

“many, many mortgage foreclosures appear tainted with suspect documents,”

We all know this remains true, even today but everyone, including judges and appellate courts and the legislature and attorneys general from all across the country want us all just to forget that statement. Ignore it all they say, it doesn’t matter.  Get back to work people and stop with all your complaining.  But really folks, think about the commentary on our judicial system, on our government on a theory of governance when this situation is allowed to persist.  The banks of course are quite content to demand we all just forget about all this.  They tell me in court, “even if you could prove fraud, it doesn’t matter”.

That folks is what your nation has become. The bank asks the Florida Supreme Court to ignore fraud:

A trial court does not have jurisdiction and authority under Rule 1.540(b) or under its inherent authority to grant relief from a voluntary dismissal where the motion alleges fraud on the court in the proceedings but no affirmative relief on behalf of the plaintiff has been obtained from the court.

I find the following statement most laughable, if indeed things were not so serious, but it’s laughable because the rule they cite has first been routinely ignored by the banks and then never enforced...

As to mortgage foreclosures, if there have been in the past “many, many” foreclosures “tainted with suspect documents” (Appendix A at 5), opening the door to relitigating voluntary dismissals which may have occurred in those cases (assuming that there have been both numerous “suspect documents” and voluntary dismissals) would cause more harm than benefit to the efficient operation of the courts. The Court amended Florida Rule of Civil Procedure 1.110(b) to require verification of “ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate,” and the Court provided “greater authority to sanction plaintiffs who make false allegations.”

and this:

The Rule Amendments were more than aspirational, they bolstered the standard for responsible lawyering in future foreclosures. If there were problems with cases filed and voluntarily dismissed before the rule amendment, reopening those cases would not serve the interests of a judicial system that has sought to manage foreclosure litigation efficiently and effectively. Creating a new wave of review of previously dismissed mortgage voluntary dismissal cases would promote unnecessary unsettled expectations and be counterproductive for litigants and trial courts.

The whole thing is a disgrace. The “thing” being our justice system as recreated by the banks. The banks have made a mockery of a judicial system that lasted for several hundred years.  Can this system last any longer when The People rightly dispute its legitimacy?  And can you really argue with any person who asserts they no longer respect the authority of any branch of the United States Government, state or federal given what we all see happening all around us every single day?  Is this country, as recreated by the banks, any better than the most corrupt governments our world has ever known?

Part of the answer to those questions will be answered when the Florida Supreme Court hears then decides the Pino case…..

pinobony

I’ve had my posterior region handed to me on several key arguments because, quite frankly, I did not do my job correctly. Now, the second part of that is that even after exhaustive legal research, there is a lack of current case law that supports my argument, but that’s just the technical problem.  The real issue is I failed to support my argument to withstand proper legal inquiry.  So I want to turn several out to the larger community and see whether anyone else can take a better crack at these things.

Issue #1- In Florida, a spouse is a necessary party in a homestead foreclosure.  A spouse is a necessary party to the mortgage being foreclosed, she signs the contract. The Florida Constitution protects spouses from forced sale, even after the primary spouse’s death.  I think each party to the mortgage, each spouse, must receive a letter of default as a condition precedent to foreclosure.  Now, the banks assert the provision that “Notice to one borrower is notice to all” but they conveniently forget the rest of the sentence, “(u)nless Applicable Law provides otherwise”.

So help me out people, does the Applicable Law, starting with Florida’s Constitutional homestead protections, require that a spouse in a homestead mortgage receive a notice of default?  Remember, the purpose of those “innocent spouse” protections are so that a spouse has notice before the other spouse’s conduct (concealed from the innocent spouse and kids) divests the family of the homestead….

So chew on this argument and please give me feedback….should we all just walk away and not make this argument again or should it be fought for?

When a mortgage contains a clause which provides that a lender “shall” give notice to a borrower before accelerating the amounts due, this language creates a condition precedent which must be satisfied before a lender is entitled to a foreclosure judgment.  See Konsulian v. Busey Bank, 61 So. 3d 1283 (Fla. 2d DCA 2011); Laurencio v. Deutsche Bank, 65 So. 3d 1190 (Fla. 2d DCA 2011); Bryson v. BB&T, 36 Fla. L. Weekly D2582a (Fla. 2d DCA 2011); Goncharuk v. HSBC Mortgage Servicing, Inc., 62 So. 3d 680 (Fla. 2d DCA 2011); Taylor v. Bayview Loan Servicing, 74 so 3d 1115 (Fla. 2d DCA 2011); Wroblewski v. American Home Mortgage, 68 So. 3d 431 (Fla. 5th DCA 2011); Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009).
Indeed, where such a clause resides in a mortgage, and a foreclosing lender fails to give such notice, dismissal is the proper remedy.  See Rashid v. Newberry Federal Savings and Loan Association (Rashid II), 526 So. 2d 772 (Fla. 3d DCA 1988).
“[O]nly when the option [to accelerate a debt] is exercised in an effective manner does acceleration take place.” Florida Zippo, Inc. v. Prudential Insurance Company of America, 579 So.2d 192 (Fla. 3^rdDCA 1991).

Argument

Further, to the extent that this provision is ambiguous, the Florida Supreme Court states that courts “are obligated to construe the ambiguity against the draft and in favor of the [defendant]” Auto-Owners Insurance Co. v. Anderson, 756 So.2d 29, at 36 (Fla. 2000).

Requiring Notice only be Sent to One Borrower is Expressly Prohibited by Applicable Florida Law
Florida’s constitution places the spouse of homestead property into a heightened position:

Florida Constitution, Article 10, Section 4. Homestead; exemptions.—

(c)The homestead shall not be subject to devise if the owner is survived by spouse or minor   child, except the homestead may be devised to the owner’s spouse if there be no minor         child. The owner of homestead real estate, joined by the spouse if married, may           alienate the homestead by mortgage, sale or gift and, if married, may by deed           transfer the title to an estate by the entirety with the spouse. If the owner or spouse is          incompetent, the method of alienation or encumbrance shall be as provided by law.           Emphasis added.

The purpose of homestead law is to “protect and preserve the interest of the family in the family home” and “promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law” “[I]t is clear that the homestead provision is to be liberally construed in favor of maintaining the homestead property.” Snyder v. Davis, 699 So.2d 999 (Fla. 1997)

1. Further, with regards to the rights of the spouse, courts have consistently held that “the owner of mortgaged property is an indispensable party to an action to foreclose a mortgage on that property.” Further, courts have held that “it was improper to allow a foreclosure against [one spouse’s] interest alone.” Lambert v. Dracos, 403 So.2d 481 (Fla. 1^st DCA 1981).