Posts Tagged ‘allonge’
Allonge, Indorsement and Veal…it’s all so simple really.
Author: Matthew D. Weidner, Esq.
The post I did on Allonges got quite a bit of attention and a whole lot of comments, most along the lines of:
“I read what you wrote about allonges and see the cases that are cited, but that law was not applied in my case, what’s going on here?”
What’s going on here is a big fat stinking mess. A mess of apocalyptic proportions. And it’s a mess that was caused because all those damn homeowners just refuse to pay their mortgages. And because they refuse to work. And because they got sick. And because they lost their health insurance. And because they got divorced. Yeah, that’s the message. This whole mess is the fault of the American people and we’re going to make them pay! (That of course is the mantra of the “leadership” in this country and not at all what I believe.)
The fact of the matter is our country is in such a mess because the entire world is being ruled by a White Collar Criminal Oligarchy and, especially here in the United States, our laws are not being followed.
Laws existed to keep things orderly, to make things predictable and in the case of the laws of commerce the laws and rules existed to help ensure a level playing field among competitors in the marketplace. I used the word “existed” past tense because there’s much evidence that we’re just not sticking to the laws and rules anymore.
Mortgages and foreclosure were simple and clean for hundreds of years. You borrowed money from a bank, if you didn’t pay, they surrendered the original note to the court, told the court how much you owed and they foreclosed on the property.
But now it’s all a big fat stinking mess. And sorry Governor Scott and all you other big shots out there…it ain’t the lowly homeowner that screwed this all up. The American people did not want entire industries shipped offshore so they would have no jobs to pay their bills. The American people did not take simple laws and rules and basic accounting and record keeping and flush them all down the toilet. The American people did not engage in high flying Wall Street shenanigans and crimes that diverted billions of dollars out of this country.
But there are still people out there that blame the American people.
A mortgage loan has two key documents…..just two. A Promissory Note and A Mortgage. The rules on the mortgage are governed by the state’s real property laws…most of which have been on the books with little change from the very early days of this country. The rules governing the note are found in state statutes, the Uniform Commercial Code.
The Uniform Commercial Code is key because the Promissory Note is the most important document when you’re trying to foreclose the mortgage. The UCC is a body of law that has been drafted, refined and worked over by smart people for hundreds of years. Every few years a whole gaggle of smart people…lawyers, judges and other thinkin’ folks get locked in a huge room and they sit around tinkering with the words, tweaking them and refining them to make the laws and the rules better, and to respond to changes out in the real world.
Well, the UCC is very simple and real clear on promissory notes. You need the original to enforce the debt. Now there is a minor and very narrow exception, but the general rule is the original document is the key. (Now this is so basic, so elemental, such a bedrock principle that it was just incomprehensible to anyone with a few days of legal training to hear the Florida Mortgage Bankers Association tell the Florida Supreme Court that they purposely destroyed the notes, but that’s a whole other story.)
The UCC has real clear rules on how you transfer these original notes and who is authorized to enforce them….but the UCC and the drafters were totally blindsided by the explosion in the use of allonges. The UCC’s scant treatment of allonges might have been okay….for a little while…until the smart people could get together and establish clear rules on their use…if the people who were out there using allonges could be trusted…but if we’ve learned nothing else through all of this it should be, it must be that we cannot trust the financial services industries.
If nothing else the Wall Street Wizards and the Serpents of Securitization are guilty of gross and systemic incompetence and/or gross and systemic malfeasance…and/or gross and systemic fraud, lies and criminal conduct. It’s one or two or a combination of all three and from where I sit, there’s a whole lot of fraud and lies and criminal conduct involved….I say this based on the amount of money coursing through the world economy and the growing body of evidence about the lies and the fraud and the crimes from the top to the bottom of many of the financial transactions were all focused on.
HELLO $700 BILLION BAILOUT!
HELLO $8.5 BILLION BANK OF AMERICA SETTLEMENT!
HELLO BILLION DOLLAR “PROFITS” ON WALL STREET!
But back to allonges…our courts should have been requiring the lenders to present and surrender original promissory notes in foreclosure. Our courts should have been requiring clear pleading on who owns the billions of dollars in promissory notes that are being foreclosed upon. Our courts should have been requiring clear, proper endorsements and evidence of ownership. But they didn’t and they are not. And so the problems will continue to pile on. Things will only get worse. We cannot just walk away from all of this.
Two decisions below reflect several interesting aspects of the battles that are raging all across America. In Re: Veal offers the most comprehensive and technical discussion of ownership, holder and the legal framework established by the Uniform Commercial Code. Taylor v. Deutsche Bank is a case study in what happens when the Uniform Commercial Code is not applied…the decision reflects a collision between the Uniform Commercial Code and our laws on real property. It’s an aberrant decision for many reasons, not the least of which because it asserts a power not provided within our existing understanding of the whole MERS system. The Taylor decision asserts that MERS can assign notes…a power not argued by the Plaintiffs in the case and not even raised as part of the appellate arguments. The proof that it is an aberrant decision, at odds with the intentions of MERS itself is found in the fact that this decision is not cited or championed by the industry….it simply opens a Pandora’s box that not even the industry wants opened….(I have a personal connection to this case, having argued the case before the Fifth Circuit Court of Appeals and it remains a real head scratcher among the legal community.)
The Allonge- Billions of Dollars in Commerce Hangs on A Single Scrap of Paper
Author: Matthew D. Weidner, Esq.
Forget about The Constitution, forget about The Bill of Rights, a far more important document exists in this country and it’s called….The Allonge!
Those other old and forgotten documents are just, well, old and forgotten. Relics. Memories. Pesky annoyances that get in the way of the real thing of today and that is…The Efficient Flow of Commerce. The allonge is actually an old, old thing…older in fact than those other two old things that we should all stop talking so much about. The allonge sat around in an abandoned neighborhood at the intersection of law and commerce, forgotten and unused, never spoken of by judges and scarcely mentioned in any statute or the Uniform Commercial Code anywhere in the country until some brilliant mind in the Department of Commerce, Division of Securitization decided to drive through the rough section of town, past the whinos and blown out buildings and pick up that cast off old man called Allonge and take him for a ride.
And one hell of a ride it’s been.
The one widely circulated bit of scholarship on the subject Getting Attached Do your legal search and research high and low, all across the country and the above document is about all you’re gonna find. Not many opinions and those that do exist all head back to the same place…Black’s Law Dictionary…and the definition of allonge.
The key part, the essential element of the magical power of the allonge is that it was only ‘sposed to be used when there was no space on the note to make an endorsement….but that has not stopped the Sorcerers of Securitization from just totally ignoring this essential element of the Allonge and conjuring up one page hanging allonges and just dropping them in court files all over this country.
By now we all know what’s going on. At first the Dark Side didn’t even bother with getting the original promissory notes…..any old Affidavit of Lost Note would do….never mind that most of these Affidavits did not comply with the essential factual requirements of an Affidavit of Lost Note…namely personal knowledge that the affiant lost the note…most affidavits merely state, “The note is lost” and then some add for good measure, “Whoopsie!”
Then some pesky attorneys started asking questions about these affidavits and where the notes were and things started changing….First, foreclosures just ground to a halt….all across the country. Maybe part of it has to do with the inexplicable comments made by the Florida Mortgage Banker’s Association when they admitted the industry went about destroying original notes. Huh? You did what? You Destroyed Original Notes? What a Hoot! What a Gas….Read More Here!
On and then there’s all those admissions in cases like Kemp v. Countrywide describing how the Big Shot Banks just ignored all the fundamental law and rules on original notes.
But back to the Allonge. Oh the powerful and mighty Allonge.
But what’s really the point of all this? What do it matter? Does it Really Madder? Well, yeah, it really does.
These ain’t just technicalities that don’t mean ‘nuttin. The purpose behind original notes and chain of custody and endorsements is to protect against fraud and abuse and to ensure that the financial services industry is not cheating….(They couldn’t possibly be cheating or lying…could they?) We can trust Goldman…and BofA….and JPMorgan….can’t we?
The Den of Thieves commonly known as Wall Street would not possibly pledge the same original notes into multiple trusts, thereby increasing the value of each pledge many times over…would they? They wouldn’t do this even if they knew they were totally unregulated and it would be nearly impossible to catch for years and years down the road….would they?
Remember that the Rules of Evidence (used ever so occasionally in the context of foreclosure) and the Uniform Commercial Code are fundamentally intended to protect against fraud and to protect all parties in commercial transactions. “All parties” in the context of such a big part of our entire economy includes not just the homeowner and lender in a foreclosure transaction…no siree…it includes the entire world which should be able to depend on an accurate and trustworthy financial system….do you think we have an accurate and trustworthy financial system?
Finally, consider all of that in the context of a case where these issues are being expertly litigated. Very, very good stuff here….
The Title Insurance Issues at The Heart of The Foreclosure Fraud Crisis
Author: MattWeidner
Just a small sampling of the serious title issues that will be raised in years to come and will result in challenges to tens of thousands of foreclosure judgments across this county and which will expose the title insurance underwriters to an unimaginable volume of title claims….I can only imagine that federal intervention will be required….read on.
Perform Complete Title Search $15.95 + TPC
A title search is the very first step in performing a foreclosure. If your title search is not done properly, no matter what happens later, you’re going to have problems….real problems. I have been a title agent for years and I can tell you that there is no way on God’s green earth that I would go anywhere near performing a title search on even the smallest property without being paid an amount of money that would allow me to do the job correctly. A proper examination of title, in the simplest and easiest case, would take anywhere from a half an hour to an hour. Anything beyond the most basic title search would require quite literally hours of examination, hard work and study.
Cure Defective Mortgage $12.95 + TPC
“Defects” come in all different varieties…was the legal description incorrect? Was the marital status or name incorrect? Were pages not recorded or no recorded correctly? Whatever the case, “curing” these errors takes time and can be very difficult. There is just no way this reflects the real cost of doing this critical work and who actually has the right to correct a mortgage if the error was made by the original mortgagee years prior who is probably long gone out of business? I very much question whether a subsequent mortgagee has the legal authority or right to correct errors made so long ago without Order of the court.
And now we get to the real damming elements from this list. Take a careful look at each of the items on this list because these critical pieces of paper are where so many of the problems exist with the foreclosure cases that have been churned through over the last several years and it is these documents that will provide the fertile ground for challenging titles and judgments for years to come. The list suggests that LPS is creating these documents….we also know that LPS or their employees were executing these documents. The real question is whether those executing these documents had even the slightest authority or legal capacity to execute these key documents. Any old person can sign documents all day long, but if the person signing the documents lacks the specific corporate authority or prerequisite legal basis to sign the documents, then they HAVE NO LEGAL FORCE OR EFFECT.
Understand that the documents listed below are the key and core documents that courts have relied upon to grant tens of thousands, perhaps hundreds of thousands of foreclosure judgments across the country. We will be carefully examining these documents over the years to come. The examination will focus on whether the person who signed these documents had any authority whatsoever to sign the documents. Some questions. If an originating lender has been in bankruptcy or has been a dissolved corporation since 2006/2007, how could LPS (or any other document mill) get documents signed on behalf of that defunct corporation? Done properly, a federal bankruptcy trustee will authorize agents to sign on behalf of bankrupt corporations and supervise their actions, but how many bankruptcy trustees authorized the robo signers to sign for all these bankrupt subprime lenders who make up the bulk of the mortgagees in these cases?
And here’s a good one…..under the Uniform Commercial Code, the technical legal requirement for an allonge is that it must be “so permanently affixed to a note so as to become a part of that document”…..earlier comments to to the Code made it clear that an allonge was only to be used when an endorsement could not be stamped on the note itself….but here is the billion dollar question…..
What business does LPS or any document mill have in producing allonges when those should only be in custody/control of the entity that is in possession of the original “wet ink” promissory note?
Create Lost Note Affidavit $12.95 + SH
Create Note Allonge $12.95 + SH
Create Missing Intervening Assignment $35.00 + TPC
Record Prepared Assignments $12.95 + TPC
Cure Defective Assignment $12.95 + TPC
Read carefully the Motion to Dismiss that I filed in one of my cases, drafted by a brilliant lawyer who works with me, Michael Fuino. I submit that this memo was the first and most comprehensive document which addresses the issues surrounding Allonges. Read the detailed legal history and research that we conducted.
(I also believe that Fuino’s memo and motions challenging affidavits was the first and most authoritative legal research on the affidavit issues that broke with Jeffrey Stephan, but that will be the subject of another post.)
WHERE IS THE OUTRAGE? WHERE IS THE FURY? WHERE IS THE PRESS?
Author: Matthew D. Weidner, Esq.
Whenever anyone’s substantive rights are being destroyed, we all need to be concerned, very concerned. The stories below present, in terrifying detail, a phenomena that is occurring all across this state. Basic, fundamental and key Constitutional Rights are being trampled upon. Forget for just a moment about the “minor” violations that are occurring in foreclosure courtrooms and how this represents such an abdication of the sacred oath taken by our judges to uphold the law and protect and defend the Constitution.
One of the key principles of our entire system of government is that it is open for full inspection at all times and that the rowdy mob that is the American people are not just able to participate in the government….they are absolutely required to participate in their government. Most importantly, all courtrooms must be free, open and accessible to the people. This is so whether the court is hearing small claims cases, death penalty cases or even foreclosure cases. The fact that judges now feel emboldened to ignore the Constitution so that they can rush along doing the important job of serving the banks and foreclosure mills (Yes, even the mills that are investigation by the Florida Attorney General) is a terrifying testament to a fundamental breakdown in our system of government.
This cannot be allowed to continue. Read the excerpts below and understand that once major violations of Constitutional rights like the right to open access are permitted, judges will not just wake up of their own volition and honoring those rights again…..they will get comfortable in closed courtrooms and that’s the way it will stay…..
Monday Aug 23, 2010. Court room 4A Palm Beach County Courthouse. I was with a friend who had a hearing at 9am. We were greeted by the Floor Receptionist and told we had to wait for our team……Now they are calling them teams…….the Plaintiff and the Defendant……..my friend was Pro Se. We still had to wait for the Plaintiff to arrive……She was 20 minutes late………there was an armed guard outside the door of Court room 4A. As we approached to enter, with our team, I was asked if I was party to the hearing I said I was with my friend, the next best friend, and observing , the guard told me I could not go in. I asked why, she said because I was not a party to the case, I said I have never been refused entrance before, and the guard said I could not go in. I asked if she was denying the public the right to enter the courtroom and she told me I would have to wait outside…….that there was not enough room…….I waited outside for 10-15 minutes made a couple of phone calls and then she said I could go in…….There were plenty of seats when I went in…….So I was rather concerned that I was denied access to our public court rooms. But you feel helpless up against them….I felt like my rights were being violated……
“On 8/30, I had a Summary Judgment Foreclosure hearing on Palm Beach County’s “Rocket Docket”. The judge spoke for 14 minutes to the crowd, of mostly pro se defendants, about how they should just agree to the summary judgment and the plaintiffs, (whose attorneys (Shapiro & Fishman had a dedicated courtroom and to whom he referred to as “my attorneys”) would be gracious (Ha!) enough to allow them to stay in their homes for 120 days if needed (even though the statute says he only has to give them 30). When it came to hearing arguments which were fully briefed and provided to the court (pursuant to the instructions of the Divisions head judge) he only allowed 30-60 seconds for argument, failed to read any of the papers, failed to review the plaintiff’s foreclosure package,flatly ignored the Affidavit filed in Opposition, ignored my plea for a trial, signed the judgment and dismissed me. I never was permitted to even read the proposed judgment or to examine the “newly discovered” allonge which Shapiro’s counsel said I had no right to see. Thank God I had a court reporter!”
I want to know why attorneys who practice in these courtrooms are allowing this to occur. I want to know why the press (national and regional) are not covering this issue. Shame on both groups for allowing this unprecedented attack on our fundamental rights to continue. Why are defense attorneys allowing this to occur? Why are you not taking these pro se and observers by your side and demanding that they be permitted into THE COURTROOMS THAT THEY PAID FOR, THAT THEY OWN, THAT OUR FOREFATHERS SHED BLOOD TO KEEP OPEN? That Sheriff only has a gun and that judge has no authority when he seeks to exercise it in a manner so repugnant to the Constitution.
WHY ARE ATTORNEYS AND PRESS NOT STANDING UP TO FIGHT THIS TYRANNY?
Your Affidavit To Support Foreclosure Says You Have Personal Knowledge…Do You Have ANY Personal Knowledge? NO!
Author: Matthew D. Weidner, Esq.
Another day, another sickening example of court process just thrown in the garbage and “evidence” used to support foreclosure that isn’t evidence at all. Attached here is yet another example of a deposition taken from the Foreclosure Defense Superstars at Ice Legal in West Palm Beach. I want every practitioner and consumer in the state to read this deposition and see what we mean when defense attorneys (and increasingly judges) recognize that foreclosures are granted every single day across this state with not one piece of admissible evidence.
Add this deposition to all the other extraordinary examples of awesome legal work provided to the community by Ice Legal. If there is any law firm in the state that has taken any other depositions or provided anything close to the exceptional work of Ice Legal, please stand up….otherwise, Ice Legal gets my vote as
BEST FORECLOSURE DEFENSE FIRM IN THE STATE
But enough about them, let’s get to the real star of this show, Ms. Beth Cottrell. If you’ve seen any foreclosures in this state, chances are you’ve seen her name. You see, Ms. Cottrell is one of the most prolific robo signers in the country and certainly in this state. Her department, by her own testimony, is responsible for signing upwards of 18,000 documents a month.
That’s 18,000 documents that form the sole basis upon which a neighbor’s home is taken away from them and by which judges transfer millions, perhaps hundreds of millions of dollars to entities based on Ms. Cottrell’s signature….now that’s a pretty powerful pen huh? Problem is, as you will read in the affidavits, Ms. Cottrell has no basis to provide such testimony.
So for all the judges out there that continue to sign summary judgments based on such flawed affidavits…how can you do so in good conscience?
Attorneys for Plaintiffs and The Florida Bar…what are the ethical consequences for false or misleading evidence?
The Florida Bar…what are the ethical consequences for institutionalized presentation of false and misleading evidence?
The depos are here:
Some lowlights from the deposition:
Q. And I’ll ask you about the first page of the affidavit. It states that upon oath you depose on personal knowledge. Did you have personal knowledge of everything that you testified to in this affidavit?
A. My personal knowledge is based on what they have put in here, what the staff put in here.
Q. Well, just I’ll ask you in regards to the entire affidavit. This was an introductory paragraph I believe referring to the entire affidavit. It stated you deposed on personal knowledge. As to everything in the affidavit, did you have personal knowledge?
Q . And did you do anything to verify that there was no genuine issue as to any material fact in this case?
A. No.
Q. Did you look at anything to enable you to say that there was no issue as to material fact?
A. I’m sorry. I don’t understand the question.
Q. Sure. Outside of this affidavit, did you look at anything to enable you to say that there is no genuine issues of material fact?
A. No.
Q. Also in paragraph 1 you stated “That plaintiff is entitled to enforce the note and mortgage.” Again, did you have personal knowledge of that?
A. No knowledge.
Q. Did you do anything to verify that statement?
A. No.
A Brilliant Appeal That Details The Differences Between Endorsement of Note and Assignment of Mortgage
Author: Matthew D. Weidner, Esq.
Too many practitioners lose site of the fact that a foreclosure case is based on two separate and distinct documents, the Promissory Note or the agreement to repay an amount borrowed and the Mortgage which secures that promise against the piece of property. Both documents are separate and each has its own distinct set of rules that govern how they are exchanged between parties from closing of the loan transaction until a foreclosure is filed. These same distinct set of rules govern how the documents are presented and entered into evidence in the actual foreclosure case.
Quite simply, one set of rules applies to the Note part of the foreclosure equation and an entirely different set applies to the mortgage component. Understanding these rules is a key component in drafting Motions to Dismiss and fighting Summary Judgment. Thanks to Foreclosure Fraud Fighter George Gingo for “sharing with the class”. For an excellent foreclosure defense attorney in the Brevard/321 area, contact George directly at ggingo@yahoo.com.
Read the following appeal for an excellent discussion of these issues along with all relevant case law. taylorappeal
