RED PILL/BLUE PILL SCENE (Play this first)

As I read through the brief submitted by the title industry in the Pino appeal, now pending before the Florida Supreme Court, I was reminded of the scene in The Matrix, and I realized that this state and this nation are indeed at a great crossroads.  Which direction will our court choose?  Will it make the difficult but correct choice and establish a bright line that demands our courts be respected and treated with the dignity our nation’s justice system deserves or will we continue to head down the dark and disastrous path that the banks have taken us down?

The brief filed by the land title association is about as bizarre as the pleading filed by the banks in the Glarum rehearing.  In both cases, the bankster fraud apologists point to blogs to suggest our courts should intercede on their behalf and excuse away all their crimes. Glarum here  I thought the Glarum rehearing brief was indeed out of bounds for citing press clippings as a basis to change an appellate court holding, but now this Pino brief comes in and just blows it out of the water.

The brief suggests that the Florida Supreme Court should issue an opinion that would essentially ratify all manner of fraud and error committed by the banksters in their reckless and even criminal acts.  That’s really what we’re talking about here.  We all know now that the banks engaged in conduct that ranged from reckless and sloppy to criminal.  Yes, fraud and violation of notary laws are crimes.  Unfortunately, that has to be repeated again because some folks, even some attorneys general and even courts are a bit fuzzy on the concept.  Fraud and violation of notary laws are crimes.

And while all that is bad, bad stuff, I find it truly bizarre that a brief filed in the Florida Supreme Court quotes at length a rather obscure, but respected website.  But the damndest thing about it is if you actually read the full blog post it rather argues against providing the relief sought in the brief.  The blog post makes it clear that in Florida law overturning final foreclosure judgments is extremely rare and very difficult…..as it should be.  But the blog post does not suggest, as the brief does, that title insurors should be able to rest free and clear when it’s proven that their minions have engaged in gross fraud or other abuse.

That’s really what we’re talking about here folks, this is the pill our nation has to choose.  Are we all going to sit aside and let the  bankers and their minions walk free from their crime scenes or will our nation’s courts step up, stand tall and chose the path of truth, of justice and the Rule of Law?

As I read this I realized the same two pills have been presented to the Florida Legislature in the two versions of foreclosure “reform” that are now pending….what path will they choose?  Will they accept the Finality of Judgment provision in Richter’s version, or will the legislature stand fast with the least horrific of a bad, bad piece of legislation?

And now, read the land title pleadings:

The residential mortgage foreclosure crisis has caused a host of problems for homeowners, lenders, and Florida’s court system. The Court addressed many of these problems by forming the Task Force on Residential Mortgage Foreclosures in 2009 and by adopting its recommended amendments to the Florida Rules of Civil Procedure in 2010. (Mostly ignored by the banks and largely irrelevant to the cases currently clogging our courts and judgments that have been entered. This is what we call a red herring.)

However, unlike some other states, the Court has not adequately addressed the protection of third party interests when otherwise final court proceedings are collaterally attacked, especially the interest of those who have purchased foreclosed real estate. (No, actually it’s pretty clear.  A final judgment is only subject to attack for gross fraud.)

Respectfully, if the Court is to give guidance to trial courts and litigants regarding collateral attacks against foreclosure actions (whether relief is sought under rule 1.540(b) or the use of inherent judicial powers) beyond the narrow facts of this case, it should give guidance on protecting the interests of third parties that purchase, finance and insure title to foreclosed properties. Recognition and protection of these neglected interests is vital to the integrity of our judicial system and to the ultimate resolution of the mortgage foreclosure crisis. (Here’s the real deal.  The title insurance companies are on the hook for hundreds of millions of dollars in claims based on the crimes and the fraud of their dogs.  But that’s the business they are in.  They underwrote the risk and now they want to skate away from it…When you lie down with dogs, you should expect fleas.)

This Court addressed the ownership concern in early 2010 by amending Florida Rule of Civil Procedure 1.110(b) to require that mortgage foreclosure complaints be verified and by giving trial courts greater authority “to sanction [mortgagees] who make false allegations.” (I challenge anyone in this world, find me one case. A single case, anything, where any Plaintiff has suffered any sanction for violating this rule.  Such a case does not exist, the banks first ignored the rule with impunity then cite other provisions of law to support their position that they are above the law….remember, the law they argue is, “A Thief Can Take A Home In Florida”)

Respectfully, if the Court is to give guidance to trial courts and litigants regarding collateral attacks in foreclosure actions (whether relief is sought under rule 1.540(b) or the use of inherent judicial powers) beyond the narrow facts of this case, it should make it clear that the interests of third parties who have purchased, financed, and insured title to foreclosed properties in reliance on the finality of a court action must be considered and properly protected. Recognition and protection of these neglected interests is vital to the integrity of our judicial system and to the ultimate resolution of the mortgage foreclosure crisis.  (This really gets to the heart of the matter.  The title insurance industry had a responsibility to reign in the gross abuses and blatantly criminal practices of their agents, but they chose not to do so.  They made a business decision that they should look the other way and ignore the exposure they were opening themselves up to, but they choose to let the crime spree continue.  Now they seek absolution from our state’s highest court.)

I find it all very infuriating and insulting. The world knows now what was done and who did it all.  Well, actually the truth is we don’t know all of it because no one in any position of power or leadership has had the courage or the sense enough to dig into all this and ferret out exactly how bad things really are.  Attorneys that do try to seek out the truth and fight the banks are attacked, persecuted and punished.  All the while, the architects and operators of the biggest crime spree ever committed on a people walk free……

pinoalta

Next up, a takedown of the garbage submitted by the banksters themselves.  I had to take a few deep breaths before I begin to sink into the filth that this piece is….but you go ahead, get started with it.  A few of my favorite quotes to get us all started:

The Amici do not condone, in any way, intentional misconduct in the foreclosure process or the initiation of judicial proceedings without proper documentation. (Good ladies and gentlemen, good.)

Here, upon becoming aware of the allegations that the assignment was fraudulent, BNY Mellon decided to exercise its absolute right to terminate the litigation voluntarily without prejudice, in order to correct a potential flaw in the case. The right thing was done, albeit under uncomfortable circumstances. (Potential flaw, uncomfortable circumstances)

Sometimes, a litigant learns that its pre-suit perception of the facts is incorrect. (And in foreclosure we just fabricate documents to make our post suit facts comport with our pre suit perceptions.)

He merely argued that a phony assignment, discovered in a separate, unrelated case of Stern’s, indicated that the assignment of Pino’s mortgage was suspicious. After declaring that “all those at Plaintiff’s counsel’s firm who participated in the execution, witnessing and the notarization of the assignment of mortgage in an unrelated case did so with the intent of committing a fraud on this court,” without citation or explanation, Pino leapt to the bold conclusion that the deficient assignment in the unrelated case constituted “sufficient grounds for believing the mortgage assignment in the instant case was similarly backdated.” (I had to delete the comment I first wrote about this paragraph….)

pinobankers

All Pino Briefs and Motions

MUST READ FROM 4ClosureFraud and Lynn Syzmoniak

This nation is collapsing under the weight of a flawed, fraudulent and criminal economic and political system. The epicenter is indeed Wall Street, that den of sin and inequity where the wealth and wages of an entire nation are sucked in and concentrated then swirled around before it all goes disappearing down some drain and flushed into a world unknown.

We don’t know where the money goes or why because the traders and the bankers and the hedge fund managers and executives consistently used a portion of their ill-earned gains to pay off the elected and appointed “leaders” and convince them either not to inquire where the money was going or to accept absurd and/or complex explanations that defy our understanding.  Geithner, Paulson, Bernake, Johnson, Bush, Bush, Clinton and every elected member of Congress and every elected official who sits in any seat in this country.  They are all responsible.  At some point in time perhaps some of them understood where this was going and what they were doing.  Hank Paulson spent his entire career at Goldman Sachs and Geithner was born, bred and baptized by the banks…no surprise that their worldview is entirely focused on supporting these institutions.

And what’s going on closer to home, down where all this trouble manifests itself in our daily lives?  More unemployment, extraordinary inflation, a further collapsing economy and all of this laid on top of a seething anger and discontent that is bubbling all across this country.  It is beyond dispute now that extraordinary abuses of our financial, economic and legal system were occurring all across this state….we see some people taking to the streets in New York.  But Florida?  It’s been years now since the public first learned of all the investigations.  And what has come of those investigations?  Nothing.  They all still walk free….it’s time to wake up.

A former colleague, friend and top manager of fallen foreclosure titan David J. Stern complains in a new deposition that she was laid off via email, lied to about her position in the law firm and ignored when she voiced concerns about the feverish pace at which foreclosures were processed.

Cheryl Samons, the former second-in-command of Stern’s Plantation-based firm, was deposed in April in relation to a class-action lawsuit filed by former Stern employees. The suit alleges workers were terminated last fall without the 60 days notice required by federal law .

A Miami federal judge approved class-action status for the case Monday.

The deposition, which was posted on a foreclosure defense attorney’s blog Thursday, offers some insight into how the firm grew to become the largest so-called “foreclosure mill” in the state before falling apart amid allegations of robo-signing and the announcement of the Florida attorney general’s investigation. Palm Beach Post

California Attorney General Kamala D. Harris pulled out of settlement negotiations with the nation’s biggest banks over alleged foreclosure abuses, calling the proposed deal “inadequate for California homeowners.”

The decision by Ms. Harris delivers a serious blow to efforts by the Obama administration and 50 state attorneys general to forge a $25 billion settlement with the nation’s largest banks over “robo-signing” and other questionable foreclosure practices.

Her actions follow the withdrawal of New York from the talks. Without the participation of California and New York in the negotiations, banks will be far less likely to agree to the multibillion dollar settlement that federal and state officials have spent months pursuing.

California remained a critical constituent for any deal because it has more borrowers who are underwater, or owe more than their homes are worth, than any other state. California also has more borrowers that are behind on their mortgages or in foreclosure than any other state but Florida. Wall Street Journal

There is just so much that is disturbing in this country, in our communities and especially in our court systems. I used to live under the delusion that our courts were somehow above most of the fraud and corruption that exists in the larger world….that judges had the desire and the initiative to sniff out lies and fraud….and especially campaigns of long term and systemic fraud and abuses.

I remember after Florida’s Attorney General announced investigations into most of the foreclsoure mills operating in Florida thinking that surely, someone was going to step in and stand up for truth, for justice, for right and wrong….for the Rule of Law.  After the Florida Bar announced investigations into the crime scene that our courtrooms had become, I was certain that the curtain would be rolled back and the hammer would drop.  After Fannie Mae’s foreclosure baron David Stern just walked away from hundreds of thousands of cases pending in foreclosure courtrooms all across this state and after he was the target of one lawsuit after another, I thought, surely the Bar or someone might oh, I don’t know, swat him on the wrist.  Or at least take away the keys to one of his yachts or maybe take the keys to one of his many extraordinary vehicles…..but nothing has happened.

And it looks like nothing will happen.  So what exactly does this say about our country today?  And what does this say about where we are heading as a nation?

Read the Wall Street Journal Report 

This is some real good writing here folks:

It is universally understood that professionalism requires attorneys to
exercise restraint in the practice of law. Flame-throwing and hyperbole are frowned
upon, and this would seem to be especially true in appellate work. There are times,
however, when restraint and modulation seem to be at odds with the dedicated
attorney’s desire, and indeed obligation, to get his or her point across in an effective
manner.
In this case, the friction between orthodoxy and advocacy is ratcheted skyward
by the omnipresent and potentially prejudicial mischaracterizations of Appellant’s
case and legal theory contained in the district court’s dismissal order and the
Appellees’ brief. The polite language of the traditional legal lexicon would seem
inadequate to sufficiently express the degree of disapproval with which such
statements should rightly be received by any and all honorable courts, including the
one before whom Appellant is now privileged to press his cause. Whether the result
of intentional misdirection, or the subconsciously selective analysis of Appellant’s
case and pleadings, these false descriptions of Appellant’s claim are sorely in need
of repudiation by this Court. Justice demands nothing less.

figueroareply

I have moved to have three, count ‘em three, foreclosure sales set aside and canceled this week alone because of problems or irregularities with the foreclosure process. I give a lot of credit to one of the new foreclosure plaintiff firms in the state, Phelan Hallihan, for immediately recognizing a problem with one of their files and working very hard to help me make it right.  Incidentally, this was not a problem they created, rather a problem caused by foreclosure bad boy (still no punishment) David Stern. Most frustrating though, even though I’ve got this good firm working with me to do the right thing, I’m getting real resistance from the court about setting this sale aside.  The court did not grant my well-pleaded motion to cancel the sale and here we are two weeks later, with the support of the Plaintiff’s firm and still no Order.

The problem is our courts have become obsessed with numbers.  Clearing those cases, moving them along.  Granting judgments.  We need to help our courts understand that the numbers do not matter.  And to the extent our courts are focused on the numbers, we need to use the numbers of backlogged cases to demand proper funding from the legislature.

And mediation….more on mediation….we all need to redouble the efforts to focus in on mediation.  The mediation programs across the state have not been very successful, but we absolutely cannot give up on them.  I know lenders are frustrated at the perceived high cost, but if they kill the program, they’re going to live to regret it.  We all need to burrow down and use the mediation process to separate out the cases so we can focus on what must be the new plan to deal with Foreclosures in Florida:

Work through all non-homestead foreclosures first, then move on to homestead foreclosures!

That’s right, just think about it.  The Plaintiff mills have to focus on results for their investors and clients and they’re all focused on speed and clearance rates.  I think the servicers and the foreclosure firms should burrrow down and focus all their efforts where homeowners are not in the properties and leave homeowners alone to work with the servicer on mods for a few months.  Order an inspection, or get a certification and if it’s not homestead fast track it through!  As a m matter of fact, look at this:

702.065 Final judgment in uncontested proceedings where deficiency judgment waived; attorney’s fees when default judgment entered.—

But back to the issue at hand.  Courts must be more willing to cancel sales because there are problems out there caused by all the mess still clogging our court system…and the appellate court spoke and said:

(“In circumstances such as these where the moving party’s allegations raise a colorable entitlement to rule 1.540(b)(3) relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing, is required.”).

NOVASTAR V. BUCKNOR