Matt Weidner – Fighting With The American People

Posts Tagged ‘anthony rondolino’

The Fight for Homeowner’s Rights that we’re taking to the Florida State Capitol at 9:00 am tomorrow morning is not just about defending homeowner’s rights.  While that is key, it’s frankly much bigger than that. What we need judges, legislators and the public at large to understand is that the foreclosure crisis as it is now being played out in our country’s courts, presents a clear, present and grave threat to our most important branch of government….the judicial branch.

A Short Explanation of the Greatest Con in The History of Mankind And Why We’re Going to Tallahassee

This country and in fact the world economy was brought to its knees by the fraud and games played by the banksters. They conned the people when mortgages were originated, the institutions conned each other when the packaged and traded the pools of loans and they conned our retirement funds and the investment houses of our allies abroad when they packaged and sold these mulit-million dollar pools of consolidated fraud.

When the con was discovered, the federal government stepped in and payed off the investors because they were “too big to fail”….and the consters took more profits of the top of the bailouts.  When the feds provided money to rehabilitate the servicers and lenders (more than $75 billion to dates), they pocketed that money and are not using it to help the American people.  Now the lenders and servicers have moved the end product of their con into the courtrooms all across this state.  Rather than admit the problems they have and own up to the fraud and lies that have infected their entire industry-wide business practices, they are perpetuating the con artistry and creating still more fraud and deceit.

Document Mills filled with Robo Signers toil away 24 hours a day creating patently false or facially questionable documents based on instructions from the con artist lenders and the foreclosure mills they have retained.  The documents created in these mills almost never have any basis is known facts and are often patently incorrect.  When these documents are next formally or informally entered into court cases by attorneys, they become evidence.  The documents are not evidence that proves a right to foreclose….they’re the final piece of documentary evidence of an industry that went wildly out of control.  For too long, judges relied on this “evidence” as the basis to throw good homeowners out of their homes, but that is changing.  Defense attorneys have caught onto the patterns and practices of fraud and deceit and now judges are beginning to see this evidence not as evidence to support foreclosure, but Evidence of the Greatest Con In The History of Mankind.

We all need to support our judges….we all need to do our jobs better.  Preserve the evidence.  Hire court reporters for every single hearing. Examine all evidence carefully and make proper legal objections to that evidence.  Understand the rules that apply in court and the case law and statutes that govern our courts then make them apply in court cases.  Recently Judge Rondolino examined all the case law surrounding the introduction of affidavits in foreclosure cases and came to a conclusion I had months ago….the affidavits admitted in virtually every foreclosure case are completely inadmissible and cannot be used to grant foreclosure.  Read the transcript of this hearing here.  This issue first came to light when a third year law school student working with me, Michael Fuino, examined the process and questioned the basic assumptions we had all been operating under….the point is it took a third year law school student to catch an issue that we’ve all been incorrectly working under for years and which affects literally million of cases across this country.

The fast-food, Persian bazaar manner in which affidavits, assignments and other evidence are created and presented in our courts and the unfortunate way in which this “evidence” is accepted represents a fundamental breakdown in the ability of our courts to dispense justice.  Granting foreclosure is not a business process.  The Grant of Foreclosure is a judicial act and it deserves the same respect, dignity and thoughtfulness as any other judicial act.

Our courts are not assembly lines obliged to rapidly dispense Orders at the demand of Con Artists and their Lawyers.  Our courts are the last bastion of truth and hope and dignity in a crumbling world.  When a judge puts on that judicial robe he or she wields the awesome power of the Constitution of the United States and of the State he or she serves.  When the processes and evidence placed before our judges is so perverted that we lose sight of the awesome power we’ve instilled in our courts, then we’ve lost our way….and that cannot be allowed to continue.

Below is Greg Clark’s compelling video that explains how these processes are being used to perpetuate this fraud and below that are talking points that he will deliver in Tallahassee on Wednesday April 21 in the Capitol.  Together we will turn this around.  Justice demands it.

What’s wrong with MERS?

The issue I argue is that a ”Nominee” does not have the power or authority to assign. It is a very limited, really the lowest, form of agency.  They only have what is expressly granted them in the mortgage. The MERS mortgage does not grant MERS the authority to sell or transfer the mortgage loan nor the power to assign its duties as nominee. In fact the MERS mortgage itself fails as a conveyance for being indeterminate with its language being hopelessly vague and ambiguous and because splitting a mortgage away from its note, bifurcation, is not allowed at common law without rendering the mortgage a nullity. Furthermore, although it might be swallowed that MERS was agent enough to represent the original lender how can it possibly act as agent for subsequent note holders? an agency is not assignable. Further, how can there even be an agency created in the first instance between MERS and the original lender by virtue of the mortgage?: it was not signed
by either the principal or the agent, only the borrower.

In short, the MERS mortgage is legally problematic and to me fails as an effective, valid conveyance in the first instance. Please take the time to read the Kansas Supreme Court decision in the Landmark v. Kesler case. Google: Kansas Kesler MERS. Also read the appellate opinion which was affirmed on appeal to the Kansas Supreme Ct.   We (JEDTI) have this issue before the 5th DCA in the Taylor Appeal (George Gingo’s case). it is fully briefed and ready for oral argument which we hope is scheduled for early summer.  MERS was and remains instrumental in cloaking and making invisible the real note holder, the owner and real party in interest, the guy we really owe the debt to. In essence using the MERS as a strawman lien holder prevents any meaningful, reliable title search to determine who is the right party to payoff; MERS does not take payoff checks, yet it holds the mortgage.

I believe its use has rendered our public title registration system useless as a means of verifying and assuring clear title. If the note owner/holder is the true lienholder then the creation and use of MERS has created the invisible lienholder which is the antithesis to why we have a public record in the first place. It’s use has also deprived our local county governments of recording revenue as the note holders/owners simply transfer/assign “electronically” to each other within this privately controlled matrix.

Imagine, if the law wants to abide the concept of MERS and give it a legal pass then why can’t I formed my own company and called it “DERS” Deed Electronic Registration System”, what’s good for title to mortgages should be good for title to the real estate itself: DERS would hold legal title to a deed to real estate as “nominee” and all subsequent transfers could be done electronically from sellers to buyers with out the need to record, all done privately, all out of site and control of the people, the government. Imagine the revenue the county and state would miss out on. Of course you would have to be a fee paying member to join my private, closely held company. Like starting my own little country with its own private tax collecting system, controlling economic information.

America’s economic vibrancy has always been based on its freedom of title information, neutrally kept in an egalitarian public record, and the rule of law, which cedes no monopolistic power, cloaked and hidden, over our property rights. Trusting our public record, giving it over to select, privately motivated, and unelected entities, does not promote a fair and level playing field for all investors nor a safe place to write title insurance to protect those investors. It seems pretty undemocratic at best.

And at worst seems to fit glove in hand with an unregulated Wall street as one of the reasons for, or indeed the very catalyst itself that enabled our economic meltdown.

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A week ago, the Wall Street Journal ran a story about Lender Processing Services and Sylvia Nuer.  My website, and others like 4clousre Fraud and Foreclosure Hamlet had been reporting on these issues for weeks prior to the story running.

In yet another example of our little corner of the world driving major news stories across the country, two stories first published on this site made it (again) into the Wall Street Journal.

Read Wall Street Journal Article Here

The case first involved a friend and fellow Foreclosure Fraud Fighter, Ralph Fischer… here (again) is the case referred to in the Wall Street Journal…they didn’t bother to print it or to give proper credit where credit is due, but read the post to get the details….if you’re a consumer and need a good foreclosure attorney Mr. Fisher’s phone number is written in on the third page.

The second story written involves friend and fellow Foreclosure Fraud Fighter, Mike Wasylik…here is his transcript and here is a link to his website.  Read the transcript and hear how a properly prepared and brilliant attorney properly argues his case.  Read importantly how Hon. Anthony Rondolino, a tough, ethical and concerned judge expresses his growing concerns about the mess that’s been dumped in his courtroom.  The judge has the right idea and that’s part of the message we’re taking to Tallahassee on Wed, April 21!

And to our friends at the Wall Street Journal.  Good job for reporting on what’s really happening in courtrooms across this state.  Please stay tuned and keep listening….next up is our Rally on Tally on Wednesday April 21.  Give us a call or shoot us a line, we’ll be happy to give you guys inside information on some even more earth shattering news about to break!

Kudos to 4closure Fraud and Foreclosure Hamlet…let’s all keep up the good work….the pressure is on!

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Years ago I filed a lawsuit on behalf of an out of state corporation client.  The opposing attorney filed a motion to dismiss because the corporation I was suing on behalf of was not registered with the Florida Secretary of State.  Fast forward to now when I’m building my practice on defending homeowners in foreclosure and the failure to register motion to dismiss issue is back…in a big way.

Capacity is Almost Never Plead In Foreclosure Cases

I have consistently argued that Florida law and Florida Rules of Civil Procedure require a plaintiff to be properly identified in order to maintain their lawsuit.  Properly identified means in the body of the complaint the full corporation or entity name is described along with its state or jurisdiction of registration.  (i.e. Bank of America a North Carolina Corporation or Bank of America a National Association chartered pursuant to the National Banking Act.)  In the vast majority of foreclosure cases filed in this state, the Plaintiff fails to identify who it is, how it is chartered and how it has the authority to bring the suit.  At best, you might find a plaintiff identified as, “U.S. Bank, N.A.”  What does “NA” stand for?  On a beer bottle it means “Non Alcoholic”. (I know this because it is written out.) While I’m 100% certain what it means in a foreclosure case, I’m pretty sure it means, “National Association”.  I’m also pretty sure that in some instances when the Plaintiff is “US Bank, NA” that plaintiff may (emphasis added) be exempt from some state laws.   I say may because I’ve actually read the National Banking Act and I’m very clear about the exemption/preemption language in the Act.  Some acts of NA plaintiffs are exempt and some state laws are preempted….but many more (and potentially the important ones) are not.  Taking deposits and collecting money is clearly exempted, but I’m not at all convinced that engaging in trust related activities is.  I’m also pretty sure that breaking down doors and unilaterally repossessing a borrower’s home without court process is not preempted by state law either. Anyway, the point is, Plaintiffs must be required to plead out their capacity at the start of these cases so that a whole range of other issues related to the Plaintiff’s action are on the table from the front end.

I’ll follow up more on this case later, but after this Order was issued, the Plaintiff amended their complaint to add yet a third party into the mix…the mortgage was written by World Savings, then they assert that World Savings was assumed by Wachovia, but that after they filed Wachovia was assumed by Wells Fargo….and so now a third party who conceivably has an interest in this case is being drawn in.  Problem is, the version of “Wells Fargo” they plead in is different than the evidence they attached to their amended complaint to prove up that Wells Fargo was the proper party in interest…so I’ve filed a Second Motion to Dismiss in this case…..stay tuned.

The full text of the opinion as published in the Florida Law Weekly is found below: Online Reference: FLWSUPP 1702MATA

Mortgages — Capacity to sue — Where plaintiff has failed to plead or specify in what capacity it brings suit and failed to define or identify nature of its legal entity, plaintiff has not pled capacity to sue — Capacity to sue may be raised by motion to dismiss where defect appears on face of complaint — Case dismissed without prejudice WACHOVIA MORTGAGE, FSB F/K/A WORLD SAVINGS BANK, Plaintiff, v. ANNE MATACCHIERO, Defendant. Circuit Court, 6th Judicial Circuit in and for Pinellas County. Case No. 08-16936-CI-13. December 15, 2009. Anthony Rondolino, Judge. Counsel: Brianna Finch. Matthew Weidner.

ORDER

THIS MATTER, having come on consideration from the Defendant’s Motion to Dismiss, filed by counsel for Defendant Matthew Weidner, this Court having reviewed the pleadings filed in this matter and accepted argument of counsel who appeared before the Court, it is hereby, ORDERED AND ADJUDGED that:

1. In its Motion to Dismiss, counsel for Defendant noted that the only identification of the Plaintiff appears in the caption of the Complaint and the first paragraph where the Plaintiff is identified simply as, “Wachovia Mortgage, FSB, F.K.A., World Savings Bank”. The Plaintiff’s name is not set off or specified within the body of the Complaint or in any other pleading nor is any description provided to explain the legal nature of the entity or to define what the initials “FSB” stand for.

2. Counsel for Defendant, in its Supplemental Memoranda in Support of Motion to Dismiss, cited Florida Rules of Civil Procedure Rule 1.120(a) Pleading Specific Matters which provides that:

(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. . . .When a party desires to raise an issue asto the legal existence of any party, the capacity of any party to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, that party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.

3. Counsel for Defendant also cited Florida Rules of Civil Procedure Rule 1.110(b) which requires that a Complaint include a “short and plain statement of the grounds upon which the court’s jurisdiction depends. . .” Counsel for Defendant asserted that by failing 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.

4. “Capacity to sue” is an absence or legal disability which would deprive a party of the right to come into court. 59 Am.Jur.2d Parties § 31 (1971). This is in contrast to “standing” which requires an entity have sufficient interest in the outcome of litigation to warrant the court’s consideration of its position. Keehn v. Joseph C. Mackey and Co., 420 So.2d 398 (Fla.App. 4 Dist. 1982)

5. Counsel for Plaintiff introduced a Response to Defendant’s Motion to Dismiss in which it claimed the Plaintiff was both a Federal Savings Bank and not required to register with the Secretary of State in order to establish capacity and that it was a foreign corporation and exempt from registration pursuant to Florida Statute 607.1501. The inconsistent allegations made in Plaintiff’s response are not facts that have been plead and such facts must be plead so that Defendant may respond to them through a responsive pleading.

6. Counsel for Defendant represented to the Court that his research revealed few Florida Court opinions which address the issue of capacity to sue, but urged this Court to consider Federal Court opinions interpreting Federal Rule of Civil Procedure 9(a) from which Florida Rule of Civil Procedure Rule 1.120(a) is derived.

7. The issue of capacity to sue may be raised by motion to dismiss where the defect appears on the face of the complaint. Hershel California Fruit Products Co. v. Hunt Foods, 111 F. Supp. 603 (1975), quoting Coburn v. Coleman, 75 F. Supp. 107 (1974); Klebano v. New York Produce Exchange, 344 F.2d (2nd Cir. 1965).

8. Failure to raise the issue of a Plaintiff’s capacity by a specific negative averment has been held to constitute a waiver of that defense. McDonough Equip. v. Sunset Amoco West, 669 So.2d 300 (Fla.App. 3 Dist. 1996); Plumbers Loc. U.N. 519, Miami Fla. v. Serv. Plbg., 401 F. Supp, 1008 (1975); and see Sun Val. American Land Lease, 927 So.2d 259 (Fla.App. 2 Dist. 2006); Shaw v. Stutchman, 105 Nev. 128 (1989).

9. The Defendant’s Motion to Dismiss is GRANTED and the case is dismissed without prejudice except that the Plaintiff shall have twenty (20) days from the date of this Order to file an Amended Complaint to address the matters raised within the Defendant’s Motion to Dismiss. 10. If the Plaintiff Amends its Complaint the Defendant shall have twenty (20) days from the date of receipt of Amended Complaint to file its responsive pleading.

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A Motion to Dismiss filed by Matthew Weidner that was granted by Pinellas County  Judge Anthony Rondolino was recently published in the Florida Rules Reporter.  The published citation, which challenges the capacity of Plaintiffs to file foreclosure lawsuits against Defendants without proving their legal capacity to do so has the potential to grind foreclosure cases across the country to a halt.

For more information on the publication, click here.

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On December 16, 2009 Pinellas County Circuit Court Judge Anthony Rondolino granted a Motion to Dismiss which was filed by St. Petersburg attorney Matthew D. Weidner on December 16, 2009.  The foreclosure case was filed by Wachovia Mortgage against Weidner’s Client, Pinellas County resident Anne Matacchiero.

Weidner’s Motion to Dismiss asserted that because the entity filing the lawsuit was not properly identified as a Florida corporation, that Plaintiff could not continue its pursuit of the case according to Florida states and rules of civil procedure that restrict the activities of out of state corporations.

According to Weidner, the ruling has major impact on foreclosure cases filed across the State of Florida and in Pinellas and Hillsborough County in particular because the Plaintiff’s are not identified as required by law in the vast majority of cases.  Weidner further claims that, “If this argument was effectively made and the same ruling issued, it could result in approximately 70% of the cases currently pending in Pinellas County being dismissed.”

Does the Plaintiff have the right to foreclose?

Whether the Plaintiff that has filed foreclosure cases across the country has the capacity or the standing to maintain the lawsuits they’ve filed is increasingly becoming a key issue in many cases.  The majority of the loans that are being foreclosed on in courts around the country are no longer held by the bank or mortgage company that made the loan in the first place.  When the Plaintiff filing the lawsuit is not the original lender, real questions exist about whether they have the legal authority required to be pursuing the foreclosure case against the homeowner.  An even more complicated issue exists when the Plaintiff filing the lawsuit is not a corporation, but is a trust company or some other exotic or shadow entity that claims to be pursuing the foreclosure case on behalf of another entity as is often the case.

Can the Plaintiff produce the documents necessary to foreclose.

Much attention has been given over the last several months to the fact that oftentimes, the Plaintiffs filing foreclosure lawsuits are not able to produce the basic documents they need to file a foreclosure lawsuit, much less all the documents they need to produce in order to win a foreclosure case. Examples of documents that need to be produced include the note, assignment of mortgage and an accurate statement of account.  Because many lenders cannot even prove they are qualified or entitled to appear in court, they never get the point of producing the documents necessary to effectively proceed with their foreclosure case.

For more information, contact Matt Weidner at www.mattweidnerlaw.com

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