Matt Weidner – Fighting For The American People

Posts Tagged ‘bac funding’

Tomorrow’s Oral Arguments before the 5th Circuit Court of Appeals, beginning at 9:00 a.m. is one of the most important appellate foreclosure cases to be argued in a very long time.

Along with Verizzo, BAC Funding, Frost and Regions, this case has the distinct possibility of changing the landscape for foreclosure defense not just in this state but nationwide.  Indeed the eyes of the entire country are focused on this important case….and you have the opportunity to see it all go down live.  I am profoundly grateful to the community of foreclosure defense advocates who are fighting to hold the practice of foreclosure law to the very highest levels of professionalism and practice.  It is a tremendous honor to be part of this experience, and I am especially grateful to April Charney, Greg Clark, George Gingo, Randal Reder, Daniel Rock, Dominic Salfi, David Acosta and all the other committed advocates who have supported this effort.

LOG ON HERE AT 9:00 AM THURSDAY MORNING, SELECT LIVE ORAL ARGUMENTS FOR A LIVE STREAMING VIDEO OF THE ARGUMENT

Log on and participate in this fundamental and so very important part of our American judicial experience!

After arguments, I will be again posting all cases relied on and other important documents.  Today I want to share with you an important document that includes many of the most important cases that any advocate needs to know in every single foreclosure case.

This comprehensive share of documents can be found here:

TABLE OF CASES-Weidner (Mortgage)

Next, here is a very important case that deals with he unfortunate and all too common situation when homeowners working with their lenders to resolve foreclosure and do not participate in their foreclosure case, believing that their loss mitigation efforts count as their response to the case.  A homeowner should be relieved from this error, as indicated in the case here:

setasideworkingwithlender

The following video link takes you to a video of Oral Arguments that were heard in a case in the 5th District Court of Appeals in Volusia County, Florida.  The Oral Argument was handled by former judge and respected attorney Dominic Salfi who practices in Central Florida and whose website can be found here.  He’s certainly a powerful advocate with more than 40 year’s of experience that attorney and consumers should consider retaining whenever they need powerful support on their cases.

Pay attention to the substance of the arguments and the questions asked by the Appellate Court judges.  Note and understand their growing concern and rising awareness of the substantive problems with foreclosure cases in general.  The most critical lesson we all need to take from this is the need first to always have a court reporter whenever contested matters are to be heard.  Second as we are increasingly aware that the vast majority of evidence presented by these foreclosure mills lacks the proper evidentiary basis to support its admissability for Final Judgment purposes, make sure to make your objections to their evidence early and often.

Raise issues of standing and the veracity/authenticity of evidence initially at Motion to Dismiss and continue to raise and preserve these issues when you can ethically do so.  Even if you are denied at Motion to Dismiss, keep in mind that you are building an appellate record.

BAC Funding which addresses the impropriety of Summary Judgments in foreclosure was just released when this case was argued, but  BAC, along with all of the other cases cited on this blog and elsewhere, provide us with the roadmap and framework to make our proper evidentiary objections.  Remember, it’s not the trial court’s job to object to evidence submitted, it’s up to every one of us to make our objections of record and file and preserve these objections.

The video takes a minute or two to load, but it’s well worth your effort to take the time and listen to it in its entirety.  Unfortunately, this court denied the argument and affirmed the grant of summary judgment.  While that was certainly not good news in this particular case, the questions of the judges are very valuable to us all.

Video link: Futrell vs HSBC

The Second District Court of Appeals brought us BAC Funding, Verizzo and now add Howell to your list of must-cite cases whenever you go to argue against Summary Judgment.  These lines of cases stand for the proposition that, for all proper purposes, Summary Judgments should not be granted in foreclosure cases as they are currently plead and practiced by the  foreclosure mills.  Although it is not cited as a foreclosure case, it in fact was a foreclosure and the same analysis applies.  Read on and enjoy:

35 Fla. L. Weekly D1215d
Civil procedure — Summary judgment — Error to enter summary judgment to quiet title and for ejectment before the filing of answer where plaintiff did not establish to a certainty at hearing on motion that no answer which defendant might properly serve could present a genuine issue of fact
DAVID B. HOWELL and DAVE B. HOWELL, LLC, Appellants, v. ED BEBB, INC., Appellee. 2nd District. Case No. 2D09-3664. Opinion filed May 28, 2010. Appeal from the Circuit Court for Polk County; Karla Foreman Wright, Judge. Counsel: Matthew J. Conigliaro, Annette Marie Lang, and Stephanie C. Zimmerman of Carlton Fields, P.A., St. Petersburg, for Appellants. Thomas C. Saunders of Saunders Law Group, Bartow, for Appellee.
(WHATLEY, Judge.) David B. Howell and Dave B. Howell, LLC (collectively referred to as Howell) filed this direct appeal of a final summary judgment to quiet title and for ejectment entered in favor of Ed Bebb, Inc. We conclude that Bebb did not establish that it was entitled to summary judgment at this stage in the pleadings and reverse.
Bebb filed an amended complaint against Howell asserting counts to quiet title, take possession of real property, require specific performance, foreclose on a mortgage, and for ejectment. Howell filed a motion to dismiss, and while the motion was pending, Bebb filed a motion for summary judgment. After a hearing on Bebb’s motion, the circuit court entered final summary judgment in favor of Bebb.
Generally, “[a] movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). But if “a plaintiff moves for summary judgment before the defendant has filed an answer, ‘the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.’ ” BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 937-38 (Fla. 2d DCA 2010) (quoting Settecasi v. Bd. of Pub. Instruction of Pinellas County, 156 So. 2d 652, 654 (Fla. 2d DCA
1963)). Thus, the standard to establish entitlement to summary judgment requires the plaintiff to establish that “the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.” Id. at 938.
The trial court in the present case appears to have used the wrong standard in ruling on Bebb’s motion for summary judgment, as it asked Howell if he had filed any affidavits or anything that would create a material issue of fact. At the hearing on the motion for summary judgment, Howell noted issues of material fact that could be raised in an answer to the complaint. However, Bebb based its argument for summary judgment on the failure of Howell to file affidavits establishing genuine issues of material fact. On appeal, Bebb does not contend that it established to a certainty at the hearing that no answer which Howell might properly serve could present a genuine issue of fact.
Accordingly, it was improper to enter summary judgment in favor of Bebb at this stage in the pleadings, and we reverse the judgment and remand for further proceedings.
Reversed and remanded. (NORTHCUTT and LaROSE, JJ., Concur.)

Far too many foreclosure cases are granted through summary judgment.  The standard set for the grant of summary judgment based on decades of case law is very, very high, but this procedure has become an accepted part of daily foreclosure practice.  It’s time to review the Rule and the case law and compare the strict legal principles detailed in the Rule and the cases with the way foreclosure is being practiced.

Given the widespread abuses by the Plaintiff law firms and the known issues of material facts regarding evidence submitted by lenders, it’s time for us all to step back and question whether any circuit court has the resources necessary to effectively review files such that Summary Judgment is appropriate.  In this rush to push cases through, critical pieces are being missed, the judiciary is being turned into a meat grinder and serious title problems will have to be addressed for years to come.

Two of the most important cases that put Summary Judgments in context were actually appealed and WON on appeal not by attorneys, but by Pro Se Advocates.  That should both inspire attorneys to step up our game and not be afraid of appeals and help advocates know that they have a place in courtrooms as well.  Key issues are making sure you properly object to all the evidence that is improperly submitted and which will not support summary judgment.  My guess is circuit court judges are aware enough of the serious issues that they will not risk appeal just so a Millionaire Foreclosure Mill will get another property back.

An awesome site that provides all the Florida Rules of Civil Procedure online is….Florida Rules of Civil Procedure OnLine click on that link for the index to the site and bookmark it….for the link directly to the Florida Rule of Civil Procedure 1.510 click this link.

The great thing about the site is it provides excellent case law updates for each rule and as you’re drafting your motions, you can just cut and paste the text of the rules directly into your motions.

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The Florida Supreme Court has made it clear that Plaintiffs must establish the basic facts they claim entitle them to foreclose prior to filing, with the implementation of the new Verified Complaint Rule.

The Second DCA has made it clear that the Plaintiff’s facts must be established prior to granting foreclosure bacfunding, verizzo. The Fourth DCA has made it clear that the Plaintiff’s facts must be established prior to granting foreclosure riggsfourth.

Most circuit court judges, recognizing the clear mandates of the Supreme Court and the District Courts of Appeals are now (finally) requiring the Plaintiffs to come before them with proper allegations in order to withstand a Motion to Dismiss.  In many courtrooms, gone are the days when sloppy allegations and contracts between parties not before the court are enforced, but this is unfortunately not the case across the state.

Attached below are a few recent circuit court Orders which confirm the growing consensus that Plaintiffs must provide a proper evidentiary and pleading basis in order to proceed with their cases.  In addition to those found here, a search of Florida Law Weekly reveals similar Orders from across the state. When you know you’re going into a hostile courtroom, make sure you copy all these decisions, cite them in your memos and motions and leave the cases with the judge.  He or she may not grant your motion, but in quiet times of reflection, they may take the time to read the Orders and then the powerful judicial intellect will shift to join the growing consensus against the Putrid Plaintiff’s Practice.  Read on and enjoy:

Ordermtd, Order+Granting+Motion+to+Dismiss-1, orderjirotka, capacity

More, much More about the Rally later…much to be fearful of and much more work to be done…but that’s for tomorrow…for now

The opinion is short and sweet, so I won’t take much time to comment other than to say….

NO MORE SUMMARY JUDGMENTS OF FORECLOSURE

Read on….

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