Matt Weidner – Fighting For The American People

Posts Tagged ‘capacity and foreclosure’

Look back at how long I’ve been screaming about “Capacity“.  CAPACITY, CAPACITY, CAPACITY.  No one has any idea who many of the entities are that brought suits to foreclose over the last several years, especially when they were plaintiffs of the alphabet soup variation, “the XSIS 2206- Alt Trust”.  What is that?  Where is that? Who is that?  Those are all questions judges should have been asking for years…especially before they granted that alphabet soup zombie trust the right to throw their neighbor out into the street.  Instead, the oft repeated judicial phrase was, “You haven’t paid your mortgage so I’m granting Summary Judgment.”  Far worse in my mind than a homeowner not paying a $1,000/month mortgage is a judge granting a $200,000 judgment to a zombie alphabet soup plaintiff.  Who owns those homes that you granted foreclosure to now your honor?  Who was that judgment assigned to after the fact?  Who or what took title to that property?  Why did no one care to think about all of this?

We screamed CAPACITY!  We screamed STANDING!  We screamed FRAUD!

Like Alice in Wonderland or the Twilight Zone, some judges claimed they couldn’t see anything.  Now it turns out that in many cases not only did they not have CAPACITY, not only did they not have STANDING, not only were the committing FRAUD.  They also had NOTHING, NADA, ZILCH.

The minions of this profound evil will turn this around on the judges that I hold such profound respect for.  They will shrug their shoulders and say, “We were just the proponents of our client’s case, it was the judge’s job to review the files and make sure we were not committing fraud.”  What about that retired couple that got thrown out into the street two years ago but their home still stands vacant?  What about that latino couple with a poor grasp of the language and our legal system, the husband defeated and destroyed because he could not keep the home he had bought for his family?  The single mom that did her best but just couldn’t keep her head above water?

All of them defeated by zombie trusts and a legal system too concerned with doing the bidding of the banks and institutions that were bailed out with our money.  The question is not how bad all this is or how deep it will go.  That sinking, sickening pit in all of our stomachs answers those questions. The real question is how will we work to make it right to all those people that were wronged?

We must all start with the perspective that our economy, our neighborhoods, our homeowner’s and condo associations are far better off with homeowners in those homes.  We must understand there is a powerful American ethic that homeowners want to pay a mortgage, they want to be bought into the system.  I’ve done hundreds of homeowner refinances and purchases.  When a homeowner signs those documents, there is fear, but there is pride.  Pride that I have a mortgage.  A sense of purpose that now I’m going to work and pay this mortgage for this home I own.  That was all tossed out the window in this brief flicker of time that was the securitization frenzy.

It’s now time to provide homeowners with a track to stay in their homes and support their communities.  We put our realtors, our appraisers, our contractors, our people back to work in our communities.  We collect mortgage payments from homeowners who are in these homes then we wait for the Wall Street Fat Cats to come on down and prove up their claim to the money and the mortgages that our elected circuit court judges are supervising.  The process is self-funding.  The infastructure and administrative capacity are already in place through the existing mediation programs that are up and running in circuits across the state.  The funding is in place once our courts turn away from the unfairness of the $9.6 million rocket dockets and focus on Stability for Florida Families.  The program is detailed below:

Florida Statute 69.021.

Capacity Part 1:

capacitymemo

Fla. R. Civ. Pro. 1.120(a) provides that

[i]t 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. (emphasis added)The initial pleading served on behalf of a minor party shall specifically aver the age of the minor party. When a party desires to raise an issue as to 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. Bold emphasis added

Capacity Part 2:

capacitywasylik

“Capacity to sue” is an absence of 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. 4th DCA 1982)

Capacity Part 3:

capacity

The issue of capacity to sue may be raised by motion to dismiss where the defect appears on the face of the complaint. See 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)

An issue I’ve been fighting in court long before the foreclosure crisis began is the issue of “Capacity”, which in layman’s terms means, tell me who this Plaintiff that is suing my client is so that I can first determine if they have the legal ability to sue my client. Then we’ll get to work on determining whether they in fact have the right to collect anything from my client. (Despite what the paperhangers and robosigners have produced, these plaintiffs have no clear right to foreclose.)

It’s an amazing thing that in the vast majority of foreclosure cases, no-one has any idea who the plaintiff suing the homeowner is.  Not the Plaintiff’s attorney, not the homeowner, not the defense attorney and unfortunately, not even the judge.  I say no one has any idea because capacity is not even plead or alleged in the complaint…it’s just not part of their word processor program it they apparently don’t want to go through the effort to plead it.  You see, basic rules of legal pleading require the parties in a lawsuit to be properly identified so we know exactly who is before the court.  Correct pleading would look something like this:

“Plaintiff XYZ Bank is a Federal Bank Chartered under the National Banking Act with it’s principal place of business in Des Moines, Iowa.”

Problem is you’ll never see this proper pleading in the typical foreclosure mill complaint….as a result it is not at all clear who the Plaintiff is in the litigation…and therefore it is not clear that the Plaintiff has even properly invoked the jurisdiction of the court.  There are a whole range of other issues that flow from this…such as the cases where the Plaintiff makes an ex-parte motion to substitute party plaintiff, or when the certificate of title is assigned or substituted for another party.  All of this is totally improper but it goes on all the time.. Some judges get it, (see my published case from Pinellas County Judge Anthony Rondolino, Wachovia v. Matacherro) where the judge required that the plaintiff properly identify themselves as a condition of proceeding with the case.

The unregulated, unregistered, unknown shadow entities that are filing foreclosures across the country (i.e. Deutsche Bank as Trustee for the IXIS trust) raise real questions that must be answered….who are they?  Where are the registered?  Who are the real parties in interest?  Other questions that flow from these questions is why the judges, Florida Attorney General, Florida’s Chief Financial Officer and Florida Governor (and their counterparts in every state) are allowing unregistered, unregulated, unknown entities take title to bajillions of dollars worth of property in this state without even bothering to give us an address to send their checks to….think about it…we don’t even have a proper address to mail them a thank you letter.

If we’ve learned anything about the collapse of the economy and issues like the Bernie Madoff scandal, the power players play by an entirely different set of rules and our government institutions and leaders lack the will to challenge their power. There is something terribly amiss when judges are taking their neighbors homes and with a stroke of a judicial pen granting it to some shadow entity that no-one can identify and who were not sure plays by any sort of rules.  Another practical consideration is, as a title attorney, the properties that are taken back through foreclosure cannot be properly conveyed without proper identification of the trust that purported to own it….at the time of filing the complaint.

There are two recent Supreme Court cases that address some of the issues surrounding capacity, (Watters v. Wachovia and Cuomo v. Clearinghouse) but the following links take you to sites that offers a complex explanation of why these cases and why capacity is so important….read on and here