Greg Clark is a brilliant Clearwater, Florida attorney who has been a practicing title attorney for 30 years.  For hundreds of years, a title attorney’s job was to examine all of the records that related to a property and then issue an attorney’s opinion of title or title insurance policy confirming that if his client purchased the property or lent money against the property, they were doing so free of any claims by another other person or party who might claim an interest in the property.  I say that the job “used to be” because after the development of the Mortgage Electronic Registration System or MERS, no attorney can tell you what other party might claim an interest in the property because that information is locked away deep inside a private company…MERS.  A mortgage is recorded in the county public records, but who owns it and who may have any rights to that mortgage is a closely held secret.

Kessler, Azize, New Millennial, BAC Funding The Cases That Crack MERS

A good example of what goes wrong in the secret system is a case called JP Morgan v. New Millennial, a Pinellas County case that was decided correctly by Judge Douglas Baird, who was unfortunately reversed by the Second District Court of Appeal.  I’m going to write a full post on this case later, but it is an important case to know and understand so I post the entire case here. Support for Greg’s important argument is found in a Kansas Supreme Court case, Kessler v. Landmark, which is found here.  A fascinating thing about the Kessler opinion out of way far away Kansas is that it cites another Pinellas County Case, Azize v. MERS, found here.  Now here’s what’s fascinating about the Azize opinion.  MERS “won” that case…the Second DCA found that they could proceed with the foreclosure cases they had filed, but even though they “won” the case, neither MERS nor lenders cite that case or want courts to pay attention to that case.  The reason why is found in footnote number 2:

Although the complaint does not allege how or why MERS came to be the  owner and holder of the note, the trial court’s dismissal wasnot based on this deficit.Since the trial court did not base its ruling on this issue,we offer no opinion as to whether the complaint fails to
properly plead a cause of action without this information being alleged.

By now everyone’s read the BAC Funding case, so I won’t waste time with the opinion, what I will share is the appellate brief that most people haven’t read.  The brief answers many of the questions that are not adequately explained in the Order, and the brief is the important, “secret” information…the “secret” brief can be found here.  This brief should be provided to every judge who hears foreclosure cases to help them apply the BAC opinion to cases in their courtroom that match the facts described in the BAC brief.

What do we know about secrets when they relate to public policy? What place do secrets have in our of public court systems?

Secrets are bad news in almost every context, but they’re especially bad when it comes to matters of public policy and our court systems.  So anyway, Greg Clark makes a brilliant argument that the MERS system is a total violation of real property laws that have existed for literally hundreds of years and that the consequences of this system that violates the law are going to be catastrophic.  Greg posted a comment to my recent questions about the MERS system….I struggled with his argument at first, but as he explains below, the problem is not all that complex and the fundamental violations of law are pretty clear:

Let me give you the short answer to your question of “why the MERS assignments”, if Johns Gillian and its progeny applies: IT DOESN’T and the higher ups, who didn’t want to spend $10.50 (to our clerks of court) to do just one extra assignment, know it.

You see, the original introduction of MERS was post closing, that is, the note and mortgage were, at inception, put into the name of the original lender so you had compliance with the rule of common law, of unity of title of the note and mortgage into one holder. It was after that that the unenforceable attempt at splitting the note from the mortgage, by assignment, occurred, which assignment Florida law holds as a nullity (see Vance, Sobel, etc.).

So the assignment being invalid simply means that you go back “revert’ to the original transaction which was clean and unified in one holder, thus John/Gillian would have applied.

But now it doesn’t because of that extra $10.50 the lenders and mers wanted to pocket. Almost immediately after they started the post closing assignments lenders saw that $10.50 expense and decided to instead split the note and mortgage at the closing, AT INCEPTION, and, in essence, keep the money for themselves (ah, multiplied by 50 or 60 million loans that works out to 5 or 6 billion dollars if my math is right). Problem is that Florida law, which follows the common law of almost every state in the union states that bifurcation of the mortgage from the note renders the mortgage unenforceable, a nullity, was ignored.

This basic principal against note/mortgage splitting was reiterated in the U.S. Supreme court in the Carpenter case a long time ago, even before Johns/Gillian.  To date their exists no statutory or case law abrogating this fundamental concept of property law, which we inherited from English common law, unmodified.

MERS and the foreclosing lender proxies simply hoped (and still hope) they can moonwalk away from the scene of this title failure with these invalid assignments hoping no one notices the fact that an assignment can rise no higher in dignity that the failure of title upon which it is based.

Whats more, even poetic, is that the “MERS mortgage” (even if the court wants to ignore this fundamental failure of title at inception) contains no right, in the grant of the mortgage, allowing MERS to assign its duties as NOMINEE or to transfer or otherwise assign the mortgage.

They have painted themselves into a legal corner.

I’ve been practicing dirt law for some 30 years, writing title, crafting grant language, and chaining ownership, etc. and I understand that most if not all judges were former litigators who simply have no knowledge beyond their law school years in this subcategory of transactional practice and procedure, other than rubber stamping SJs presuming the plaintiffs bar will not lead them into error. (see and read the recent BAC Funding case out of our 2d DCA)

Its the same reason most people sit down and sign closing papers without thinking or reading them: because we have (or had) a solid and fair system or real property law in place for nearly a thousand years behind it each and every one of those deals.

It is now in great doubt whether it is fair or solid or even legal, with the disabling injection of the MERS mortgage and invisible lender lien holder now clouding our record titles.

Anyhow, what mystifies me most is why they took such a big chance. You would have thought that they would have at least tried to adopt nationwide recording/title law changes to allow the MERS mortgage splitting concept. I mean, they undertook the UCC article 9 changes which passed the 50 states to allow the securitization of debt, but they forgot to include the MERS configuration into the changes. They just assumed the real estate mortgage would simply tag along like a caboose into article nine. They rolled the bones that they could circumvent each states legislature and do a private deal with MERS. They likely feared the states would object to the degradation of their record title statutes and the evisceration of their public recording systems, not to mention the loss of recording fee revenue.

MERS, by the way is a privately owned company funded and financed by the big box lenders and, guess who else? The major title insurance companies and ALTA (American Land Title Association). This conflict of interest relationship does not allow for the independent accounting or transparency the public should have when it comes to the biggest investment of our lives. A guy like me who wants to investigate title to make sure my client gets a clean and clear deed or new mortgage can’t determine by relying on the public title records who owns the old mortgage loan that needs to be paid off. We simply run into the MERS strawman and have to hope they give us true and accurate info – if they give us any info at all – as to who to payoff to free title.

MERS is not a government agency looking out for the interests of the public. MERS is a profit driven closely held corporation. They openly seek to privatize all of our public records as they relate to real estate mortgages. Absolute power through control of information.

Absolute power, vested in the hands of private corporate interests.

Hardly egalitarian in a free democracy and open economy.

And this is why note/mortgage splitting, something that is already in derogation of our common law, should not be allowed.

Its just bad business.

JEDTI

G.

http://www.gregorydclarklaw,com

I attach here a copy of an Order signed by Judge Charles Roberts in Sarasota on February 26, 2010.  Please take time to read it carefully.  In it, the judge makes specific findings of fact that the Plaintiff:

1. Failed to show it was entitled to foreclose;

2. Failed to show it was the holder of the note and mortgage;

3. Failed to establish any admissible evidence to show that it validly held the note and mortgage.

Caught one Stinking Fish….How Many Got Away?

The fact that these major issues were caught is good.  The problem is, how many tens of thousands? tens of hundreds of thousands? millions? of judgments of foreclosure have been signed across the country when the Plaintiff:1. Failed to show it was entitled to foreclose 2. Failed to show it was the holder of the note and mortgage 3. Failed to establish any admissible evidence to show that it validly held the note and mortgage.

I believe there are tens of thousands, maybe hundreds of thousands of judgments entered across the state (millions across the country?) where this is the case. I believe depositions of key employees at document preparation mills and foreclosure mills is going to reveal assembly line document fabrication which purports to give Plaintiffs a basis for forecloure, when no proper evidentiary basis exists.  At some point in time in the foreclosure files that the mills have rushed through are going to be carefully examined..if not by defense attorneys what about junior lienholders, certificate holders, bondholders, investment firms….when that happens now we’re talking major problems.

What happens when the assignments of mortgage were improper/fraudulent on their face?

What happens when the note and mortgage and allegations contained within the pleadings are all inconsistent, yet Final Judgment was entered based on “facts” that are of record that do not support that judgment?

And now my final question of the post….WHY ARE PLAINTIFF’S FIRMS/LENDERS BOTHERING TO GET ASSIGNMENTS OF MORTGAGES AT ALL? If Johns v. Gillian and the law as it exists is that lenders do not need an assignment of mortgage, why bother with word processing hundreds of thousands of assignments of mortgages in law firms and document mills all across the country?  In many cases, lenders are coming to the table with original notes. Ignore for the moment how they got them and what entity purports to hold them.  Ignore for the moment that the endorsements/allonges are sloppy/inconsistent/questionable on their face.  Even if a proper lender couldn’t come up with a note, they could still re-establish the note through a copy and there would be no need whatsoever (if the whole “mortgage is but an incident to the debt” argument remains valid) to have an assignment of mortgage.

Why are document mills and foreclosure mills working weekends and around the clock to spit out assignments that purport to transfer mortgages out of MERS and other lenders/entities and into other entities that we no nothing about?

How are we allowing tens of hundreds of millions of dollars to be transferred into things like “The IXIS 2006 Certificateholder, Asset Backed Trust”?

Do judges/courts have any idea who these entities are?  (I’ll answer that one, the answer is no.)

Why are courts across the country transferring bajillions of dollars into alphabet soup entities that no one has any idea who controls or where they are located or what rules apply?

Why Are Courts in Florida Continuing to Rely on Legal Reasoning That Existed in 1938?

Remember that the Johns v. Gillian “mortgage is but an incident to the debt” reasoning applied in tiny little town where parol documentation and other evidence existed that supported the foreclosing lender’s claim to ownership of both the note and the mortgage. Remember Johns v. Gillian is a 1938 case! The judge probably knew everyone in his courtroom (he probably knew the lawyers since they were snot nosed kids running around town kicking cans.  He probably walked past or rode a horse past the property in question each day.  And remember the Johns reasoning applied decades before MERS was even conceived of….Johns simply cannot stand true in the MERS environment…here is Greg Clark’s splitting/Kessler v. Landmark reasoning….Johns only applies when the mortgage and note were not separated right from the very beginning.…How can the Johns reasoning apply in the MERS environment?

Consider all the cases, including WM Specialty v. Saloman and Chemical Residential v. Rector….assignments were of record in those cases and other evidence existed to support claims of ownership.  There is almost no additional evidence of ownership or interest in the cases that are being shoved through courts other than a few questionable documents…..but again the burning question….

Why The Assignments of Mortgage?

Courts across the country have been granting banks foreclosure when they have scant evidence or documentation to support the granting of foreclosure.  Let’s be clear what’s happening here.  When a judge grants a Plaintiff foreclosure, that’s a claim that potentially puts hundreds of thousands of dollars in that Plaintff’s pocket.  Not so long ago, it was relatively clear that the Plaintiff was the party entitled to collect the money–their name was on the loan docs and the borrower made their payment to that lender over the course of the loan.  It was also relatively clear how much the Plaintiff was owed.  The Plaintiff kept the books and they largely did a fair job in keeping and presenting those records to the court in order to get their judgment

An On-Going Epidemic of Affidavit, Assignment and Evidence Fraud on The Court.

In response to the massive wave of foreclosure business, Plaintiffs and lenders have started churning out completely improper work product that does not fulfill the basis requirements of competent legal practice.  They are also churning out work product that is fraudulent and completely without any factual basis…i.e.

• If the Plaintff’s firms need an assignment of mortgage to give their Plaintiff the right to foreclose, they don’t bother getting it from the party that owns the mortgage, they simply create a fraudulent document and file it with the court;
• If the Plaintiff’s firm needs an affidavit to support how much they claim to be owed by the Defendant they do not get it from a source that is competent to provide that testimony and they do not attach any documents to support the amount claimed due as required by law, they merely have a nameless face sign an affidavit that says any old thing and submit that to the court;
• If the Plaintiff’s firm needs to get formal service on a Defendant, sometimes they don’t wait around for the process server to actually track that person down, they just lie say they attempted to get service on the person and file that lie to the court. (And when the process service company is owned by the Plaintiff’s firm, they’ll charge exorbitant fees for doing so.)

An Unfair Burden on The Judiciary

Anywhoo, the point is we’re all aware of all this conduct….and so much more.  Unfortunately the judiciary is just bursting at the seams with so many new cases that they just cannot keep up.  Their staff are just overwhelmed…the judges cannot possibly be expected to render the best legal work they expect of themselves, but they’re trapped in an uncomfortable and untenable situation.  In partial response, the courts are adopting new procedures that will be very damaging in the long run….like summarily passing cases through without much actual review or consideration.

The Result of The Unfair Burden on the Judiciary- Unsupported Judicial Opinions

The net result of the pressure placed on the judiciary is bad orders and bad title work and opinions coming out.  The Second DCA just released their BAC Funding v. US Bank opinion.  That opinion shuts the door on many of the bad processes and procedures that are now plaguing courts in this circuit and others.  The reply brief that was submitted in that case illustrates what harm can come when Orders of the court are issued without proper hearing.  In this case a Summary Judgment of Foreclosure was entered without a hearing.  Although there were many problems with the file from the outset and both sets of attorneys new this, the trial court had instituted a process of not bothering to hold hearings on these cases.  The results are the trial court entered judgment when they should not have…and now we’ve got a wonderful appeal.

The entire BAC Funding Brief can be found here it is a clear and concise illustration of what goes wrong when courts engage in summary procedures without considering important facts. I’ve previously complained about ex-parte Motion to Dismiss Denial practice because I’m concerned that our courts will face much greater problems going forward if they respond to the overwhelming increase in case loads with summarily dismissing cases.  I have profound respect for our courts and want to help them work though this crisis without causing greater problems down the road.

For years, perhaps decades, it was a relatively simple matter for banks to take homes back in foreclosure. They appeared before a judge, demanded the home and the judge granted it.  Up until very recently, there were not many appellate court decisions that addressed foreclosure cases and the procedures adopted by courts that allowed foreclosures went largely unexamined by the outside world.  One important side effect of this wave of foreclosure litigation is that attorneys, judges and consumers have now begun to closely examine the  entire foreclosure process.  This close examination reveals real flaws in the court processes and procedures that awarded foreclosure to banks for decades in this state.

As I’ve now examined the process, there are several key areas of concern that I believe should prevent judges from granting foreclosure in the current system:

1. Plaintiffs in foreclosure cases must present some legitimate, admissible evidence they are entitled to foreclose on the mortgage.

2. A related issue, but improperly blended together with the first by many is, Plaintiff’s must prove they possess the right to enforce the note.

The first thing to understand is a mortgage loan transaction, and a foreclosure case seeking to enforce that loan transaction is based on two separate and distinct documents, 1)The Mortgage; 2) The Note.  Under the current system, Plaintiffs file cases with copies of mortgages that are easily copied from the public records.  There is often no connection in the documents, either in the mortgage or note, between the Plaintiff in the case and the name on the note and mortgage which clearly state that a party other than the Plaintiff has the legal capacity to enforce that contact.  In many cases, the Plaintiff fails to even attach the copy of the note that is at issue in the case.

The Three Appellate Court Cases That Form The Core of Foreclosure in Florida

Defense attorneys routinely challenge the facts that the contracts the Plaintiffs are suing upon show that a party other than the Plaintiff is entitled to enforce the documents.  The Plaintiffs argue, “Just ignore the names on those documents, we’re the banks and we’re entitled to foreclose”.  The next step of the argument is that Plaintiffs argue, “When we present the original Note, that’s all we need to do and foreclosure must be granted.  Unfortunately, judges across the country have bought those arguments in thousands of cases.  The entire universe of cases that support these (in my opinion) incorrect propositions is very small, but the primary cases are:

WM SPECIALTY MORTGAGE v. SALOMON, 874 So.2d 680  (Fla.App. 4 Dist. 2004)

JEFF-RAY CORP. v. JACOBSON, 566 So.2d 885 (Fla.App. 4 Dist. 1990)

JOHNS, ET UX., v. GILLIAN, ET AL., 134 Fla. 575 (1938).

Click on the links and print them out, they’re just about all you need to know about  foreclosure in Florida.  If you know each of these three cases, you know just about all the cases that have been used to improperly grant foreclosure in cases across the state.  The crazy thing is the legal reasoning used to support the most questionable aspect of the current foreclosure judicial decision-making, that is not requiring a Plaintiff to show an assignment of mortgage is found Johns, a case that was published in….1938!  Consider how different the legal and financial markets were in 1938, when mortgages and lenders were largely isolated in the counties where the mortgages were located…and here is the one paragraph that, in my estimation has led to thousands, if not hundreds of thousands of improper foreclosures across the country:

  However, it has frequently been held that a mortgage is but an
incident to the debt, the payment of which it secures, and its
ownership follows the assignment of the debt. If the note or
other debt secured by a mortgage be transferred without any
formal assignment of the mortgage, or even a delivery of it, the
mortgage in equity passes as an incident of the debt, unless
there be some plain and clear agreement
to the contrary, if that be the intention of the parties. Jones,
on Mortgages, Vol. 2, Sec. 1033; Collins v. W.C. Briggs, Inc.,
98 Fla. 422, 123 So. 833; Miami Mortgage & Guaranty Co. v. Drawdy,
99 Fla. 1092, 127 So. 323.

The fourth case has been released by the Second District Court of Appeals, and when it is final, it will be the nuclear bomb that goes off in Plaintiff’s Foreclosure Firms Across the State.

Read this gem of an opinion in a case titled BAC Funding v. US BANK and now you know all you need to know about foreclosures in Florida!  The key points from this brand spanking new case that turns foreclosures on their heads are as follows:

• Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage.  Accordingly, the documents before the trial court at the summary judgment hearing did not establish U.S. Bank’s standing to foreclose the note and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor. (This language is key because it directs the courts to demand an evidentiary basis for documents, not just the documents themselves.)

• Regardless of whether BAC answered the complaint, U.S. Bank was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor.  Whether U.S. Bank did so through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer, it was nevertheless required to prove that it validly held the note and mortgage it sought to foreclose.  See Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1st DCA 1998) (The key word here is “validly”.  The Plaintiff cannot just show up in court with the documents, it must validate them and authenticate the documents for the court to consider.)

• The incomplete, unsigned, and unauthenticated assignment attached as an exhibit to U.S. Bank’s response to BAC’s motion to dismiss did not constitute admissible evidence establishing U.S. Bank’s standing to foreclose the note and mortgage, and U.S. Bank submitted no other evidence to establish that it was the proper holder of the note and/or mortgage. (The Plaintiff must introduce authenticated, properly introduced evidence to proceed.)

Garbage in = Homeowner Out

The typical foreclosure case filed by any one of the foreclosure mills across the state like David Stern, Marshall Watson and Florida Default Law is an unprofessional mish mash of conclusory and often inconsistent statements from which no court should enter summary judgment against a defendant.  The pleadings within the complaint are sloppy and wrong from the outset and further confusion is thrown because the documents the Plaintiff attaches to the complaint are inconsistent with the allegations contained within the complaint.  For years now, the foreclosure mills have churned out garbage lawsuits that show an utter lack of respect for the courts and astounding arrogance.  Courts are starting to push back against these improper practices, but rather than correct the problems and comply with the rules, the lenders and their thugs are trying to make an end run around the courts entirely, get out from under the court’s scrutiny and make a fast-track to repossess homes with the obscenely titled, “The Florida Consumer Protection and Homeowner Credit Rehabilitation Act”, more about that later…now back to what’s happening in courts.

Pleading Problems? We Ain’t Got No Stinkin’ Pleading Problems….Not So Fast, The Florida Supreme Court Says You Do!

Primarily I’m talking about those cases where the complaint asserts, “Plaintiff owns and holds the note and mortgage, and is entitled to enforce them”, while the note and mortgage attached to the complaint provide, “MERS is the Lender and is entitled to enforce them”.  A standard line of foreclosure defense is to attack these inconsistencies through a Motion to Dismiss or a Motion for More Definite Statement.  The solutions from the Plaintiffs side would be simple…plead the complaint properly from the outset and attach the documents and evidence that are necessary to support the claims made and which the court should ultimately require to be part of the case file before granting summary judgment of foreclosure.  The Plaintiff’s failure to plead these elements up and attach the evidence required from the outset wastes judicial resources, leads to improper reward for Plaintiffs that are not entitled and forces homeowners into fights with parties that have no legitimate claims against them.  My statements regarding these issues are validated by the new rules just published by the Florida Supreme Court which provide:

Rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment are:

(1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate;
(2) to conserve judicial resources that are currently being wasted on inappropriately pleaded “lost note” counts and inconsistent allegations;
(3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and
(4) to give trial courts greater authority to sanction plaintiffs who make false allegations.

The new mandatory rule, that is effective February 11, 2010 will really help to curb the abuses cited.  This rule, when combined with the new clear directions from the Second DCA opinion in BAC Funding v. US Bank, show that the upper courts have had it with the abuses of foreclosure mills and their partners in crimes, the law firms they’ve hired to do the perpetuate their problems.

Courts Should Not “Connect the Dots” In Order To Grant Summary Judgment

Although this should be the case, in the vast majority of cases courts are simply relying on inferences and speculation, assuming facts that are not part of the record and granting summary judgment to Plaintiffs that may never have been entitled to take a homeowner’s home.  The case law is clear, judgments must be based on the facts and evidence that is of record and there are clear prohibitions against supplying essential pleading elements by inference or speculation.  See Alvarez v. E Camp; A Produce Corp.  708 So.2d 997, (Fla. 3rd DCA 1998)(citing Ocala Loan Co. v. Smith, 155 So.2d 711 (Fla. 1st DCA 1963); see also Edwards v. Maule Indus., Inc., 147 So.2d 5 (Fla. 3rd DCA 1962) (Thank you to David Acosta from Case Clarity for this cite.)

Although courts frequently ignore these important details and assume facts or “connect the dots” in the rush to clear foreclosure dockets without confirming that facts are of record, Plaintiffs and unscrupulous attorneys produce a whole range of documents and evidence to help connect the dots and get past the problematic details in the file.  I’m talking primarily about post-filing assignments of mortgages and mysterious endorsements or allonges that appear on notes.  We know from evidence collected across the country that law firms and document creation mills across the country employ “Robo Signers” who merely sign documents all day long with no regard whatsoever to the “facts” contained within those documents or their “knowledge” of those facts.  As a standard practice now, I issue a subpoena duces tecum to every affiant and assignor that appears in a file.  These robo signers will not sit for deposition and the case will fail because the Foreclosure Machine doesn’t want another deposition of the  infamous, Erica Johnson Seck. (Read about that in this post. )

Finally, there are two other major issues in Pleadings and the evidence that will be the subject of two separate posts.  First, the blending together of the Mortgage Foreclosure Count and the Action on the Note Count.  The note and mortgage are two distinct documents and contracts and the counts on both should be separate, but they almost never are.  This is a problem that has gone on unchecked and frankly unchallenged for too long.  Next, there is a pervasive problem with the affidavits that are often the sole basis for granting summary judgment against, “The Defendants”.  I only caught this problem last night, but it’s a huge problem that permeates cases across the state! So what’s the key?

Drop subpoenas for every witness, affiant, assignor and robo signer in the file.  If the signatures and statements are legitimate, there should be no problem making them appear…reality is that’s just not going to happen, but it’s nice to see the highest court in the State of Florida confirming and affirming what good foreclosure defense attorneys have been saying from the beginning.

Ex-Parte Orders Denying Motions To Dismiss- THE COURTHOUSE IS CLOSED TO LOCAL HOMEOWNERS WHO PAY TO KEEP IT OPEN!

Last week I reported a rumor that judges in Pinellas County were going to begin denying Motions to Dismiss without having a hearing on the matter and accordingly, without fully considering the legal issues and facts contained within the Defendant’s motion.  Those rumored orders have begun to surface, with the judges including the following findings in the Orders:

• No evidentiary issues are presented by Motion and the court is thus able to rule w/o hearing.

• Complaint contains all necessary allegations to state a cause of action for foreclosure.

• Court must assume all facts alleged in complaint are true and must confine itself to four corners. Temples v. Fla. Indus. Const, 310 So. 2d 326

• Fact that Plaintiff are not named mortgagee is not basis for dismissal; assignees has same status as if named in mortgage. Foster v. Foster 703 So. 2d 1107

• Plaintiff has alleged that is is holder of note. Being the holder of negotiable instrument is all that is necessary to have standing & mortgage note is a negotiable instrument per Fla. Stat 673.1041; Mason v. Rubin, 727 So.2d 283.

A fundamental issue raised in many Defense Motions to Dismiss is that the note and mortgage attached to the complaint say that one creditor is owed the money sued upon and thus has the right to collect the money from the borrower, while the form allegations contained within the Plaintiff’s poorly-drafted complaint provide that another party (namely the Plaintiff) has the right to collect the money claimed in the lawsuit.  When challenged on these crucial details, the Plaintiffs often commit fatal evidentiary and pleading issues by submitting false affidavits questionable endorsements and bogus assignments of mortgage.

Contrary to the recent court orders which assert that these inconsistencies are irrelevant, there are a wealth of court orders from across the state that make it very clear that documents attached to a complaint are important. (They are after all the entire basis for the lawsuit.) Bottom line is the Plaintiff must provide some evidentiary basis to establish their right to be suing the Defendant.  A sampling of such cases provide:

• When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000)
• Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss.  Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d 1157, 1159 (Fla. 3d DCA 2008)
• When there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable. Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971)

Ex-Parte Orders That Swims Against The Current

The foregoing are just a few of the cases and legal basic research will provide any pro-se litigant with an armful of case law to support the proposition that the contracts attached to a foreclosure complaint must match up with the allegations contained within the complaint.  These are seasoned and well-established cases that make the point but the even more exciting developments are the recently issued Second District Court of Appeals Case BAC Funding v. US Bank and the new Supreme Court Rules of Civil Procedure (Copies of which are posted elsewhere in this blog) which require the Plaintiff to verify or sign the Complaint under oath as a condition of filing the lawsuit.  It is fantastically ironic that these new ex parte Orders of Denial were released in the same week that the new Rules of Civil Procedure were released and the new Second District Court of Appeal case was published.  These developments reflect a clear shift in the foreclosure landscape which conflicts with the lower court ex-parte orders….I’m predicting a quick reversal of this new ex-parte process.