Matt Weidner – Fighting For The American People

Posts Tagged ‘Florida Rules of Civil Procedure’

There are still far too many people around this country who do not understand why large segments of our population are expressing their discontent and are taking to the streets.

There numbers will continue to grow and there will still be many people who either really don’t understand or who willfully refuse to understand.  Worse still are the people who are buying into the notion that the angst and anger being expressed are not real or authentic.  These are the seeds of division and discontent that have been sown…and the division and divisiveness is being nurtured by government at all levels that is unable to grasp the significance and unwilling to respond.  Now granted, at this point in time there is precious little of a response that could be taken which would quell the smoldering discontent.

And the vast majority have no idea just how bad things really are.  With all this talk about the 1%, we’re completely losing site of the .01%…or those people who have any conception or understanding of the black magic being played that is our global financial system.  Sure, most folks have seen the vacation postcards from Greece and Italy and the European Union, but who but the .01% have any idea how the Vampire Squid has wrapped it’s tentacles around these picturesque postcard vacation spots?  And who among us can name all these countries, much less draw the lines on the map that show the dollars and euros coursing back and forth, the force the currency current buttressed by the hedge. Oh yes, the hedge.  The $72 trillion dollar Bank of American hedge, now owned by every single one of us.  And when the hedge trimmers come out who will be there to pick up the debris?  But never you mind, you peasants, you serfs, you slaves.  After all, isn’t there a game to watch?

Well that’s all far too big picture for anyone to really grasp.  Let’s focus for a good long time about something right here close to home.  Let’s talk about hapless defendants in a foreclosure case who went from owing $250,000 to owing more than $500,000 with the stroke of a judge’s pen, in a proceeding that happened behind their backs and in fact behind everyone’s backs…except that is for the banks and their lawyers who have special procedures in court, not accessible by you or I.  I’ve written about the Star Chambers….real courtrooms that existed in England, the very real horror stories from these courtrooms were in fact some of the most important factors that shaped the development of our entire legal system here in the United States.

Read Here and Here to understand that the Star Chambers are very much alive and well here in the United States of America.  But more importantly and with far greater authority, please read the commentary from a good appellate court judge with a very current and terrifying description of the Star Chambers in a short story entitled:  PhilllipsvCentenial. Now mind you, this is no piece of fiction.  It is very real. And it’s not ancient history, in fact it’s happening right now.

Every single American and certainly every single lawyer in this country must read the dissent in this opinion and ask just what kind of country has this become?

 I share with you all the briefs below and very much encourage you to read them carefully, parsing out the facts and understanding exactly what they mean.  And for those who do not understand why our streets are OCCUPIED and for those that wonder how the OCCUPATION will end, well just read the good words of the appellate judge:

To affirm what happened here requires that we turn a blind eye
to the Florida Rules of Civil Procedure, the Florida Bar Rules of Professional
Conduct, and the Code of Judicial Conduct, to say nothing of the Constitutions of
the United States and the State of Florida.

phillipsbrief

phillipsReply BRIEF

phillipsanswer

 

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One of the issues we’ve been hammering about for some time is the fact that virtually every affidavit submitted in support of summary judgment of foreclosure in Florida does not comply with the Florida Rules of Civil Procedure.

Specifically, I’ve virtually never seen an affidavit that complies with the rule that requires that sworn or certified copies of the books and records referred to in the affidavit be attached.

(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

FLORIDA RULES OF CIVIL PROCEDURE

That’s what makes the following memo so earth shattering…..my only question is….now that one circuit has issued such a motion, will the other circuits follow?  This really is an amazing development and is yet another powerful sign that our judges  are listening to us and that the environment is changing for the good of us all!

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The national press have turned their attention on Pinellas County, because this circuit “Gets It” when it comes to understanding the problems in the foreclosure courtrooms and our judges are doing something about it.

Read Today’s Washington Post Article Here

Chief Judge McGrady is not alone however.  Chief Judge Lee Hawthorne from the 12th Judicial Circuit in Sarasota County has likewise been very vocal and serious about ensuring fairness and equity is done in his courtrooms as well.

These two circuits really do “Get It” and citizens that live in these circuits are protected from the wanton abuses of the banks and foreclosure mills as a result of this. Just take a look at the form below that is being used in the 12th Circuit.  It represents a very practical way that judges can manage their caseload, enforce the Florida Rules of Civil Procedure and force the foreclosure mills to be held accountable for their grossly abusive practices that are causing extraordinary financial pain for all taxpayers, not just those who are in foreclosure.

foreclosureform1

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A requirement of every lawsuit filed in Florida courts is that they must be signed and affirmed by a licensed member of the Florida Bar.  I’ve long had a real problem with the sloppy, arrogant messes of signatures that appear on pleadings filed in these foreclosure actions and now I’ve got real suspicions that some of these signatures may not be of attorneys at all.

Take a close look at the attorney signatures that appear on the complaints that are filed and on the lis pendens and motions.  Next, look that attorney’s signature up on mortgages for their homes that are recorded in the counties where these attorneys work.  The mortgage signatures are presumably their real signatures, but look at the “signatures” that are on the pleadings.  If the signatures that are on those pleadings are not of the attorney as they are required to be according to the Florida Rules of Civil Procedure, this would be a Bombshell at least as big as the Stephan announcement.

Up next, more GMAC affidavits that are withdrawn

gmacaffidavitwilson

gmacWithdrawal of Affidavit

By the way, these notices cannot just go out in contested cases, they must be withdrawn in every single case in which they were filed, contested or not.  Are our courts equipped to match those withdraws up to the cases they are filed in?  How many taxpayer dollars will be spent processing these withdraws?  Worse yet, how many foreclosure rocket docket judgments will be granted since this withdraw issue came out?  How many of our Senior Judges who are presiding over these foreclosure gas chambers are even aware of these issues?  (I know the ones that I have made aware of this were totally aware of anything…they are even unaware of the AG investigations….)

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What if the Florida Supreme Court issued a Rule and lawyers ignored it?  We’ll find out now that things are explicitly clear.  You see, the Millionaire Foreclosure Mills have been ignoring the rule, based on a patently absurd and completely without merit argument that the Rule was not final (forget that it is titled “Final Rule”).

You don’t need to be a lawyer to read the Rule and understand that their willful failure to follow the rule based on an argument that had ABSOLUTELY NO MERIT WHATSOEVER. It makes me furious that this argument was being picked up by news media and even some judges. (See Sarasota Tribune article here.)

So now that things are 100% totally, crystal clear are courts going to

START ENFORCING THE LAWS OF THE FLORIDA SUPREME COURT?

Read the Order Denying re-hearing here:

Florida Supreme Court DENIES Foreclosure Mill

Read the text of the rule below.  I challenge anyone to come up with a legitimate explanation of how the verification requirement could be interpreted by anyone with a 8th grade education, much less a legal education, in any way other than the rule says what it says and it is effective February 11, 2010.

supremecourtrule

So what about the tens of thousands of cases filed by the Millionaire Mills in willful violation of the rules of the Florida Supreme Court?  Well, have a little looksie at this Rule and apply it to this situation:

Florida Rules of Civil Procedure 1.420

(b) Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

BUT HERE’S WHERE IT GETS GOOD:

(d) Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. If a party who has once dismissed a claim in any court of this state commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.

So let’s get out there and get those cases and help the Millionaire Mills give a little something back to our court system with new filing fees, and give something back to consumers when they are forced to pay attorney’s fees to dismiss cases that should never have been filed.

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The following is a touching, sad and brilliantly-written essay provided to me by a client.  From time to time, we lose sight of the fact that foreclosure is not just some abstract court case.  There are real losers here.  When a defendant loses, he’s your neighbor and when justice is ignored and he loses, he loses not just his home, but his dignity, his well-being, his trust in government and his place in this world.  Some of our judges, in the rush to push things along, probably have lost sight of the concepts of equality and courts of equity and fundamental fairness.  They are tired, they are weary, they are overworked.  That being said, I believe that if judges across this state read this article below….if advocates and homeowners across the country read this article, we would all take a step back from the foreclosure sale docket and develop a new way to deal with this Wall Street Crisis that has infected our courtrooms.

Take the time to read this article slowly….please let me know if it moves you as much as it moved me.

Foreclosure proceeding and the mockery of justice

My opinion is that in the foreclosure arena, our justice system is badly broken. Many Courtrooms have simply become nothing more than “defendant slaughterhouses”. The purpose of this article is to document what is occurring every day in courtrooms across our nation and to show how defendants, especially pro se defendants in mortgage foreclosure actions, are facing extreme bias and therefore a travesty of justice that is severely impairing their Constitutional rights to due process, and no one seems to care.

To the Judges and attorneys that are exceptions to the abomination I am about to describe, I apologize in advance. While there are Judges and attorneys that still have a deep respect for the law, ethics, and the principles of unbiased justice, unfortunately they are becoming few and far between, especially on the plaintiff’s team. In my opinion, many of the “Officers of the Court” representing the plaintiffs, demonstrate a clear disrespect and even contempt for the law, justice, the Constitutional rights of the defendant, the Florida Rules of Civil Procedure, and the burden of proof on the plaintiff.  They often violate the oath they took when they were admitted to the Florida Bar. They operate on the premise that the “ends justify the means” and their version of “justice” is pre-determined , regardless of the law, the Florida Rules of Civil Procedure, the actual evidence, the facts, Court rulings, DCA rulings, etc. They operate with an air of arrogance as if they are above the law and that Judges will grant them their wishes of pre-determined “justice” at their will and beckon call. Every single day, in courtrooms across the fruited plain, justice is being made a mockery of and people are losing their homes, many times based on criminal fraud and perjury committed by fraudsters that are “Officers of the Court” and their co-conspirators, the plaintiffs who willing manufacture the fraudulent documents they need to perpetuate their fraud. Judges, who choose to ignore this fraud, become their partners in crime in this travesty of justice. While there are some Judges that seem to be waking up, unfortunately far too many are still “turning a blind eye” to many of the fraudsters’ shenanigans.

To those of you that think I am mistaken or overly harsh I reply. On several occasions I have spoken with quite a few defense attorneys, as well as other defendants, and in virtual unison, the majority all express the same sentiments and concern. Some of the things I will address in this article, defense attorneys share with me in confidence. They are in a difficult situation. Some of the things I am about to say, they would like to say, however the reality is that they are inhibited since they will probably have to face the same Judge in other cases. I am not restricted in that manner. Being pro se, this is my one shot and everything is on the line. I only get one go around and I will speak my mind. The elephants in the rooms have been ignored and tiptoed around for too long.

While defense attorneys face the same obstacles I have, in attempting to defend their clients, the problems are magnified for the pro se defendant. Judges and the Officers of the Court seem to have little respect for a pro se defendant and seem to think and act like they can walk all over them, almost acting as if they are not even there. The plaintiffs’ attorneys are so arrogant that I have personally witnessed them bringing pre-prepared orders to a hearing on a defendant’s motions to dismiss, ready for the Judge to sign, with the plaintiff prevailing. This reeks of “pre-determined” justice. In these hearing, the plaintiff’s counsel often does not even have to argue their case or refute anything the defendant presents. They seem to “know” that the Judge will summarily rule in the plaintiff’s favor regardless of the defendant’s arguments or the facts and the law. What is this all about? Do they “know” something that the defendant doesn’t? Something smells about this.

I think it is safe to say that no defendant in their right mind wants to defend a foreclosure case pro se. Every defendant would love to have a legal “dream team” defending their case. The harsh reality is that many pro se defendants simply have no other choice than attempt to represent themselves for obvious financial reasons. This is the “elephant in the room” and the Judges, the plaintiffs, and the foreclosure mill attorneys, are well aware of this. I maintain that this is an enabling factor, permitting Judges, plaintiffs, and foreclosure mill fraudsters to ignore the law, ignore the Florida Rules of Civil Procedure, and “manufacture” and file fraudulent, legally insufficient, false assignments, affidavits, notes, and other documents, committing fraud on the Court in the process, virtually without fear of sanction or reprisal. This same “gang of co-conspirators” is aware that the defendant, especially one that is pro se, is very unlikely to have the resources or the wherewithal to appeal their case when their home is taken from them and they are forced to move out, many times based on intentional fraud on the Court. Even when there are valid legal reasons for appeal, the conspirators know that the probability of an appeal is very unlikely. They count on this as they openly perpetrate their fraud, denying the defendant their Constitutional rights to due process along the way.

Most foreclosures in Florida are prosecuted through several large “foreclosure mills” such at the Florida Default Law Group, P.L., David J. Sterns, P.A., Marshall C. Watson, P.A., and Shapiro. These firms often follow a “template” with a very high priority on either getting the Clerk of the Court to default the defendant, and if unsuccessful in that endeavor, in rushing to get the Court to grant a summary judgment against the defendant. Very low on their priority is actually litigating the cases on issues of law and fact and allowing the defendant due process.

In their rush to default the defendant or gain a summary judgment, in their minds, the “end” justifies the “means”. Attorneys in these foreclosure mills virtually ignore the Florida Rules of Civil Procedure all along the way, and count on the Judges to ignore this reality. They will stop at nothing. They will lie to the Court, manufacture and file false documents and affidavits, file documents with the Court without noticing the defendant, and use every other trick in the book to deny the defendant due process in defending himself. They will refuse to litigate the case, refuse to answer requests for admission, refuse to produce documents, refuse to answer interrogatives, engage in ex parte communications with the Court, acting as if the defendant is not even there and has no right to be heard or to due process. Even when these egregious violations of law and the Florida Rules of Civil Procedure, by the plaintiffs and their counsel, are pointed out to the Court, the Judges often turn a blind eye towards this unethical conduct, intentional fraud on the Court, perjury, and even criminal acts, perpetuated in an attempt to deny the defendant due process.

On the other hand, the defendant is held to very strict standards and is virtually helpless as these “Officers of the Court” from the foreclosure mills perpetrate their tricks, deceit, and fraud on the defendant and the Courts. Just let a defendant miss a deadline for filing a response and see what happens. On the other hand, the fraudsters, bearing the title of “Officers of the Court”, can ignore the rules and miss deadlines at will without penalty. Judges regularly allow the fraudsters to correct improper and legally deficient filings, to ignore the Florida Rules of Civil Procedure, to ignore requests for production, and allow responses to requests for admissions submitted months and months after the deadline for a response has passed, to name just a few of the travesties of justice being perpetrated. In hearings on a single motion to dismiss, for example a motion to dismiss for lack of proper notice, Judges are often ignoring the evidence and refusing to grant the defendant’s request for dismissal as well as issuing a “blanket dismissal” of all of the defendant’s pending and unheard motions, without a hearing on the individual motions. It is vey clear that the “end” is an attempt to clear the path to granting summary judgment without due process and in the eyes of the fraudsters, the “end justifies the means”. The fraudsters do not want a case to go to trial because they lack the evidence to back up their lies. They depend instead on fraudulent, manufactured evidence to gain a summary judgment.  Not only should these fraudsters be harshly sanctioned, many of them should be behind bars.

The only hope and prayer a pro se defendant has, is to incur the expense of having a Court Reporter at every hearing. By having a Court Reporter present there is at least a chance that some semblance of justice will be maintained since the hearing is on the record and the proceedings can be reviewed on appeal. I maintain that it is a virtual death wish, especially for a pro se defendant, to go to a hearing without a Court Reporter present. Many of the rulings and orders coming out of the pre-trial hearings are valid grounds for appeal but remember, the fraudsters are aware that that the defendant probably does not have the financial resources or the wherewithal to appeal the case. This is especially true after their home has been virtually stolen from them without due process or only a “lip service” version of due process, and they have been evicted from their home. I maintain that this is part of their strategy. Since the majority of homeowners will not appeal an adverse ruling for financial and other reasons, the fraudsters know they have nothing to lose. They know that if the homeowner, even with valid grounds for appeal, throws in the towel, case closed, they win, end of story. In the unlikely case that the homeowner does appeal and by chance is successful, then the worse case scenario they are likely to face is that the case will be reprimanded back for further proceedings. In other words, they would be right where they were. They play the odds. Why litigate and allow due process to run its course when the odds are in your favor.

At this point, less you doubt my claims, let me reassure you that I speak from a position of first hand experience. In addition to defending myself in two foreclosure cases, I have researched many foreclosure cases before the Courts. Based on my research, I feel that in 80 to 90% of the cases before the Court, fraudulent pleading and evidence is involved. A stark reality of the foreclosure process is that upwards of 80% to 90% or higher, of those that face foreclosure simply walk away, not putting forth any defense. The fraudsters know this and count on it. Those 10% to 20% or so that attempt a defense face an uphill battle against the “beast” in a judicial process that is heavily biased toward the plaintiff and the fraudsters representing them. This is especially so in the case of a pro se defendant.

When the pro se defendant attempts a defense, it is almost like being in the Super Bowl, down 13 points with less than two minutes to go and the plaintiff’s team on your one-yard line with a first and goal. Winning or even getting the benefit of due process is seemingly a virtual impossibility. Remember, the pro se defendant often has little resources, and must learn both the law, the Florida Rules of Civil Procedure, the defense, and the offense, and the execute an efficient game plan while in the process of learning and fending off the “tricks”,  “deception”, and often blatant fraud, perpetuated by the plaintiffs and the fraudsters, also known as “Officers of the Court”, that represent them. On top of all that, the pro se defendant, and even those represented by counsel, must hope and pray that the Judge will be fair and unbiased, intervening and disallowing fraud, requiring adherence to the Florida Rules of Civil Procedure, as well as objectively insuring a level playing field and allowing due process to run its course. Oh yea, did I forget to mention making a living and putting food on the table at the same time? It is a daunting task, I know, I have been there and am still living and experiencing the nightmare. Let me tell you about a couple of these proceedings and hearings that will illustrate what I am referring to.

J.P. Morgan sued me on a first mortgage. They filed the action on December 18, 2008. I was served on January 5, 2009. The foreclosure mill representing J.P. Morgan was the Florida Default Law Group, P.L. I responded to the complaint within the allotted time, filing 5 motions to dismiss on January 23, 2009. I properly noticed the Florida Default Law Group, P.L of these five motions with copies via certified mail and I have a return receipt showing they received the filings. The Court docket reflected my filings and the filings were in the physical file. That did not stop the fraudsters however. Without noticing me, on April 14, 2009 the fraudsters filed a Motion for Default, attesting in their filing that I had filed no response with the Court and that they had received no papers from me. What a bunch of liars. Remember, I have a certified mail receipts showing that they received my filings. I guess it is “acceptable” for “Officers of the Court to lie to the Court. Luckily, the Clerk checked the file and denied the liars and fraudster’s motion for default.

The first hearing in the case was on June 30, 2009, a scheduled 5-minute hearing on my MOTION TO DISMISS COMPLAINT BECAUSE PLAINTIFF FAILED TO STATE A CAUSE OF ACTION. I had a Court Reporter present at the hearing so the hearing is on the record. When the plaintiff filed the case, they did not attach a copy of the note or any assignments to the initial complaint; they only attached a copy of the alleged mortgage. Within the four corners of their pleading, it was deficient under the Florida Rules of Civil Procedure, statute, and case law, and did not show in any way that the plaintiff had standing. The plaintiff was not the lender on the copy of the mortgage filed with the complaint.

The hearing was in the Judges’ chambers, rather than in the open Courtroom. My impression, based on how things transpired, was that it took the form of a sort of pre-trial discussion or conference, rather than a hearing on merits of my motion. When I attempted to present my argument in the 2 and ½ minutes that I expected to be allotted, the Judge attempted to cut me off. I requested that I be allowed to present my arguments and facts and the Judge then allowed me to present most of my argument. The opposing counsel for the plaintiff offered no argument or opposition to the points I made. He sat there like a bump on a log. Instead, the Judge addressed me and suggested that the plaintiff’s failure to attach a copy of the alleged note and all assignments to the initial pleading, was not of concern, that those “things would all come out later as the proceeding progressed”. When I attempted to provide the Judge with case law from the DCA that supported my argument for dismissal, his response was that “those kinds of decisions are for the Appellate Courts”. In addition, he then brought up my other four motions to dismiss.  I think he was trying to dismiss them all without a hearing. I reminded him that the hearing was not on those motions, that it was scheduled only on this one motion and the discussion ended. I am grateful that I had a Court reporter present. In the end, the Judge denied my MOTION TO DISMISS COMPLAINT BECAUSE PLAINTIFF FAILED TO STATE A CAUSE OF ACTION. He ordered the plaintiff to file a copy of the note and assignment within 10 days. They complied and filed an assignment that is false on its face, obviously a fraudulent manufactured document. In addition, though fraudulent, the assignment is dated after the date of filing of the complaint, proving they did not have standing when they filed the action.

In the hearing, and on the record, I noted that opposing counsel had not noticed me on several things they had filed with the Court, and reaching them for communication was difficult. I requested the opportunity to review the final order before it was submitted to the Court. The Judge concurred that I must be allowed to review the order before it was submitted to the Court and instructed opposing counsel to provide the proposed order for my review before submitting it to the Court. They did not comply with the Judge’s instruction. They never supplied the proposed order for my review and instead submitted it to the Court, to a different Judge who was not even present at the hearing, who then signed the order, which contained things that I objected to. One thing was that it gave the impression that I had not filed an answer to the complaint which I already had, as clearly reflected on the docket, and which I also informed the Court of on the record in the hearing. I then filed a motion for a rehearing in opposition to the order, which the Judge then denied.

This hearing left me somewhat puzzled for the above reasons and as the proceedings seemed to be different from the many cases that I have reviewed. I felt, that the Judge, rather than opposing counsel, argued the plaintiff’s position for them. The thought entered my mind that he sounded like counsel for the plaintiff. Motions to dismiss are valid filing when there are issues regarding cause of action, standing, notice etc. The Florida Rules of Civil Procedure, state and federal statutes, and case law all confirm that the rules and the law must be followed in filing a complaint and that when they are not, they are valid reasons to dismiss. The Judge ignored all of this.

I left the hearing with the feeling that rather than have my arguments heard and ruled on based on their merits and the law at the trial Court level, I may have to depend on an appeal.  If I should lose and be evicted from my home, this might make my initial arguments somewhat moot, since my family would be displaced and my home sold at auction. It was very clear to me that the playing field was not level and the burden of proof on the plaintiff was simply, “we say it is so, so it’s true.”

The next hearing on was on September 30, 2009, a  scheduled 5 minute hearing, on my MOTION TO DISMISS COMPLAINT  FOR LACK OF PROPER NOTICE, the proceedings took a similar track.  I had a Court Reporter present so the hearing is on the record.

Once again it was held in the Judge’s chambers, rather than in the open courtroom. The proceedings were like a Déjà vu of the first hearing. Once again it took the form of a sort of pre-trial discussion or conference, rather than a hearing on the merits of my motion. Just as in the first hearing, when I attempted to present my argument in the 2 and ½ minutes I expected to be allotted, the Judge again attempted to cut me off. I requested that he allow me the opportunity to present my case and was able to present most of my argument. Once again, the opposing counsel for the plaintiff offered no argument or opposition to the points I made. Instead, the Judge again then addressed me and told me that my concerns “may be valid” but that “he would not dismiss this case on a motion to dismiss because the appellate Court would” “throw it right back to him”. Again, it appeared that my argument against the plaintiff’s failure to notice me that they were accelerating the alleged note and mortgage, per the terms of the mortgage was not of concern regarding my motion to dismiss. When I attempted to provide the Judge with case law from the DCA that supported my argument, his response left me with the impression that I might have to depend on appeal at the DCA level, rather than at the trial Court level should I lose and be displaced from my home. One interesting point is that the DCA case I handed him was a DCA case in which the DCA reversed his prior ruling in a case, refusing to grant the defendant’ motion for the very reasons I was arguing that very day. In other words, the case reversed him for his ruling in a prior case as he was ruling that very day on my motion. Can you believe that? He ignored the case and ruled against me anyway.

In addition, the Judge then brought up my other motions to dismiss and dismissed all of them without a hearing. In the end, the Judge denied my motion to dismiss and all other outstanding motions to dismiss to that date, including the ones that were not yet heard. Maybe he was mad at me for showing him the case where the DCA had overruled him. Who knows?

Similar to the first hearing, as mentioned, I felt that the Judge rather than opposing counsel, argued the plaintiff’s position for them. Motions to dismiss are valid filing when there are issues regarding cause of action, standing, notice etc. The Florida Rules of Civil Procedure, state and federal statutes, and case law all confirm that the rules and the law must be followed in filing a complaint and that when they are not, they are valid reasons to dismiss.

As I left the hearing, I was more convinced than ever that rather than have my arguments ruled on based on their and the law at the trial Court level, I may have to depend on an appeal. Of course that might mean that I may evicted from my home, all making my initial arguments somewhat moot, if my family is displaced and my home is sold at auction.

Here is another thing. In this hearing, the Judge also ordered mediation. I attended the mediation and paid $240.00 for the “pleasure” of doing so. The mediation was a total joke. I was the only one prepared to mediate. The foreclosure mill sent to junior “fraudsters in training” to the mediation that had no idea regarding the issues in the case. The plaintiff was going to participate via telephone. The mediation was held at the foreclosure mill, the offices of the Florida Default Law Group, P.L.  The junior fraudsters could not even figure out how to operate the conference telephone. We wasted over 30 minutes until they finally gave up and we used a cell phone. The representative for the plaintiff had no ideas regarding the issues of the case. The representative for the plaintiff wasn’t there to mediate, the person just restated what they alleged I owed them. I attempted to negotiate but the person had no interest. I doubt that the person representing the plaintiff had full and complete settlement authority The plaintiff as not even aware of the second mortgage case they had filed. In the end, the plaintiff agreed to send me some “loan modification documents” and to consolidate the cases. They did neither in the coming months. As we left the mediation, the mediator told me that I was the only one prepared to mediate. As I mention I had the “pleasure” of paying $240.00  for this worthless dog and pony show, a pretend mediation just going through the motions with no real mediation, ordered by the Court.

I was forced to mediate with a plaintiff that I do not feel owns the alleged note, does not have standing to bring this action, has filed a false assignment with the Court in an attempt to perfect the chain of title, and has not properly accelerated the alleged note. I have questioned, in motions before the Court and in affidavits that I have filed with the Court, the validity of the copy of the alleged note and the validity of my alleged signature on the copy of the note they supplied, as well as the validity of the alleged assignment. I have noted to the Court on the record that there are others that claim ownership to the alleged note, which conflicts with statements and filings with the Court by the plaintiff. In fact, the forms that opposing counsel has given me requesting detailed financial information prior to the mediation, confirm on their face that the plaintiff is not the owner of the alleged note as affirmed in their initial complaint. While there are many other valid issues of fact and law that have not been resolved, I was ordered to mediate with the plaintiff that I believe is not even the owner of the note and does not have standing to bring this action. There are other issues as well but I will leave explaining them at another time.

One thing that really bothers me is that while I have complied with the Florida Rules of Civil Procedure in attempting to defend myself in this instant action, the plaintiff has not. They have not proved they even have standing to bring this action, or are the holder in due course, or even the actual owner of the note.  They have refused to litigate the case, relying instead on attempts to trick the Court into defaulting me or giving them a summary judgment, which they are not entitled to by statute, under case law, or under the Florida Rules of Civil Procedure. Plaintiff’s counsel has filed false affidavits, a bogus assignment that is false on its face, prepared after the filing of the first mortgage action, in an attempt to rush the case through the Court and deny me due process. They have supplied statements and documents that, on their face, conflict with previous statements they have made or documents they have filed. They have refused to litigate this case, they have refused to provide anything I have requested and need to defend myself in my request for production. They have failed to respond to my answer or avoid or refute my numerous affirmative defenses. They have admitted things which are fatal to their action or even standing to bring this action.

Where is the due process in all of this? Where is the equity? Where is the justification for allowing this case to go forward without these issues being resolved?

If one studies the case law from around the country and reads the news regarding foreclosure proceedings, they will find that there is a history of improper filings, sloppy paperwork, and even intention fraud on the part of lenders that are seeking to foreclose, as well on the part of the attorneys representing them. New evidence of this fraud, often ignored by the Courts is coming to light daily. Some Judges are beginning to get it. Unfortunately, many of these Judges are out of state, in New York, Ohio, and Massachusetts. When will the majority of Judges in Florida wake up to what is going on?

I realize that I am pro se but I do not think that means that I am not entitled to due process or that I leave my Constitutional rights at the Courthouse steps. All I ask for is a level playing field and that all parties are required to follow the rules.

On September 14, 2009 J. P. Morgan filed a second action against me. This action was for an equity line that was an extension of the first mortgage through an open-end feature in the original loan. This open-end equity loan was secured by the same mortgage against the property. The foreclosure mill they used was Albertelli Law.  I guess J.P. Morgan was unhappy with the slow progress by the Florida Default Law Group, P.L. in the first mortgage action so they chose another foreclosure mill for this action.  I was served with the action on September 22, 2009. This case was with a different Judge. I responded to the complaint within the allotted time, filing a Motion for an expansion of time to respond to the complaint on October 9, 2009.  I then filed.3 Motions, and Answer with affirmative defenses, an Affidavit, and a Request for Production. I noticed the Albertelli Law on all of these filings via certified mail and I have a return receipt showing they received the filings. The Court docket reflected my filings and the filings were in the physical file. That did not stop the fraudsters however. Without noticing me, on November 23, 2009 the fraudsters filed a Motion for Default, attesting in their filing that I had filed no response with the Court and that they had received no papers from me. What a bunch of liars. Remember, I have a certified mail receipt showing that they received my filings. I guess it is “acceptable” for “Officers of the Court to lie to the Court. Luckily, the Clerk checked the file and denied the liars and fraudster’s motion for default.

The first hearing in the case was on April 20, 2010, a scheduled 5 minute hearing on my MOTION TO DISMISS COMPLAINT BECAUSE OF LACK OF PROPER NOTICE. I had a Court Reporter present at the hearing so the hearing is on the record. When the plaintiff filed the case, they had not noticed me that they were accelerating the note and giving me 30 days to cure the default prior to filing a foreclosure action as required by the terms of the mortgage.

As I mentioned, this action was before a different Judge, not the Judge that was presiding over the first mortgage suit. The hearing was held in the Judges’ chambers, rather than in the open Courtroom. I had a Court reporter present so the hearing is on the record. In the hearing, I presented my position asserting that the plaintiff did not comply with the terms of the mortgage in that they failed to send me an acceleration letter, accelerating the mortgage and giving me 30 days to cure the default, prior to filing the instant foreclosure action, as specified in paragraph 18 of the mortgage. I had also filed an affidavit affirming the fact that they had not complied with the terms of the mortgage and had not properly noticed me that they were accelerating the note and giving me 30 days to cure the default.

In the hearing, the Judge questioned the plaintiff’s counsel, asking them if they were able to provide any evidence or affidavit to refute my claim of their lack of properly accelerating the mortgage. They could offer no evidence except their “claim they did”. The plaintiff’s counsel tried to object that this was not an evidentiary hearing and therefore, their “claim that they did” should suffice. The Judge then gave the plaintiff’s counsel the choice of scheduling an evidentiary hearing on the matter or of a dismissal of the complaint, giving the plaintiff 20 days to amend the complaint showing evidence that they had properly noticed me and accelerated the mortgage 30 days prior to filing suit, in accordance with the terms of the mortgage. The counsel for plaintiff, declined the evidentiary hearing and the Judge ordered that my Motion to Dismiss was granted, giving the plaintiff 20 days to amend the complaint and provide evidence that they had properly notice me and accelerated the mortgage 30 days prior to filing the instant action.

I thought I had won the hearing on my motion.

The Judge then began to lecture me as if I was a deadbeat. He asked me if I was simply trying to get out of paying my mortgage. I found this line of discussion offensive, inappropriate, and uncalled for. I told the Judge that I simply wanted my day in Court, due process to raise my defenses and the issues of law and fact regarding this action. I told him I wanted justice and the opportunity for due process guaranteed under the Constitution.

This discussion then led to my telling the Judge that the plaintiff was suing me in two different Courts, on two separate actions, both actions on the same mortgage and that this was a splitting of a cause for action and that the cases should be consolidated since it was the same mortgage. The Judge had his judicial assistant check the dockets to confirm what I said and he agreed and ordered that the cases to be consolidated.

At the conclusion of the hearing, I requested that the Judge summarize, for the record, what he was ordering. He said he was issuing the following two orders, the first one granting my motion to dismiss For lack of Proper Notice, giving the plaintiff 20 days to amend their complaint evidencing that they had in fact noticed me and accelerated the mortgage 30 days prior to filing suit. The second order was that the two cases to be consolidated. I requested that I be allowed to prepare the two orders but the Judge allowed the plaintiff’s counsel to prepare the two orders.

On the record, I asked that I be given the opportunity to review both orders before they were submitted to the Court. The plaintiff’s counsel agreed that he would allow me an opportunity to review the orders BEFORE  they were submitted to the Court. I gave the plaintiff’s counsel, my contact information.

On April 24, 2010 via e-mail, I received the order for consolidation.  I immediately contacted Albertelli Law via phone and e-mail and asked where the second order was, the one granting my motion to dismiss, giving the plaintiff 20 days to amend their complaint and provide evidence that they did in fact notice me and accelerate the mortgage 30 days prior to filing suit. The Albertelli Law’s legal assistant, Regina Davis, told me that the second order, granting my motion to dismiss would be done later. I insisted that they both be done at the same time and submitted to the Court at the same time. It was then that she informed me that the order to consolidate had already been sent to the Court, without my having a chance to review it. Needless to say this was upsetting as they had agreed to allow me to review it prior to submitting it to the Court. I requested that the second order be sent to me immediately for my review. They knew I was upset about how they were handling these orders so they rushed to send me the second order, granting my motion to dismiss.

I do not believe these fraudsters had any intention of submitting this second order to the Court because I had prevailed in the hearing. I do not believe they ever submitted it to the Court. Once again, these “officers of the Court” lied and took out their “bag of tricks”. They rushed the order to consolidate the cases, which I was never given an opportunity to review, to the Judge and he signed it on May 5, 2010. The fraudsters then filed an Amended complaint on May 3, 2010 which did not include evidence that they had properly noticed me which was the reason the Judge has allowed them to amend the complaint. Instead, it was amended to drop the count to reestablish the note.

On May 5, 2010, I received a copy of the amended complaint that Albertelli filed with the Court on May 3, 2010. The amended complaint was not amended in accordance with the issues at hand in the April 20^th hearing in that it does not provide evidence that they properly noticed me and accelerated the mortgage 30 days prior to filing suit. It does not refute the affidavit I filed or the assertions I made in the hearing that resulted in the Judge’s order granting my motion to dismiss. Their amended complaint does not cure the defect that was the VERY ISSUE in the April 20^th hearing and which was the basis for the Judge granting my motion to dismiss. Instead, the plaintiff’s amended complaint changes their pleading in the initial complaint, dropping a count. They did not petition the Court to amend their complaint in fashion so in amending the complaint in the manner they did, they violated the Florida Rules of Civil Procedure once again. There amended complaint is also unverified.

On May 6, 2010, I received via regular mail, a copy of the Judge’s order to consolidate the two cases, dated May 5, 2010. I contacted the Judge’s judicial assistant and asked about the second order and she was of no help. I then prepared the second order that the fraudsters probably never submitted to the Court and personally took it to the Judge with a letter explaining the matter.

To date, I have not received a copy of the signed second order, granting my motion to dismiss for lack of Proper Notice. I believe that Albertelli Law intentionally delayed or did not submit this second order because I prevailed and they are unable to present evidence that they properly noticed me and accelerated the mortgage 30 days prior to filing suit. I believe they are once again trying to “trick” the Court, as they have done in the past when they attempted to default me, affirming to the Court that I had not filed an answer when the Court file and the docket clearly reflected that I had filed an answer. The reality is that they cannot prove that they properly noticed me without “manufacturing” evidence, which many of these foreclosure firms have been known to do. Maybe they are reluctant to do it in this case since there is so news about lenders and their counsel “manufacturing” fraudulent affidavits, assignments, even notes and filing them with the Court. Lender Processing Services and the Florida Default Group, P.L. both are currently under investigation for that very practice.

In my letter to the Judge I explained my concern that Albertelli Law was playing games, hoping to make his order, granting my motion to dismiss, of no effect, by either not filing it, or hoping it will be disregarded since the Judge has signed the order consolidating the cases, the order they eagerly rushed to the Judge. I attached an order, per his ruling in the hearing, for his signature. He has not signed it. I also explained that I was concerned that their filing of an amended complaint on May 3, 2010, which does not address the issues litigated in the April 20^th hearing as the Court intended, is yet another “trick” to compel me to answer that amended complaint or risk their trying to “trick” the Court into defaulting me. They also could be trying to get another opportunity to refute my affirmative defenses which they did not do when I filed my first answer. These fraudsters do not litigate or the law and the facts of the case, nor do they obey the orders of the Court and the Florida Rules of Civil Procedure. They simply depend on their “template of tricks” to trick the Court into allowing them to prevail, many times without even proving proper standing to bring suit, and often based on false claims, affidavits, assignments, and other documents.  .

I incurred the expense of a Court Reporter for that April 20, 2010 hearing. I presented my case, an affidavit, and evidence including case law, all of which the plaintiff was unable to refute and the Judge gave the plaintiff 20 days to amend their complaint evidencing that they had properly noticed me and accelerated the mortgage, giving me 30 days to cure the default. Today is May 18, 2010 and now 28 days have passed since the April 20^th hearing and the plaintiff still has not supplied evidence of their compliance with the proper notice clause of the mortgage. Remember, the Judge gave them 20 days to do so.

On the 22^nd day, after the hearing, I received a letter from the Judge’s judicial assistant telling me that my letter to the Judge had been filed with the Court, which by the way, I had already done. I asked if the Judge had signed the order granting my motion to dismiss and she had nothing to say. My fears were substantiated, even though I had prevailed in the hearing; the fraudsters were successful in “tricking” the Court and the Judge specifically into making my motion to dismiss of no effect. By allowing their “tricks” to prevail, justice was not served. The fraudsters at Albertelli Law had turned a loss into a victory and the Court allowed them to do this. Once again, the “tilted playing field” and bias of the Court towards the plaintiff became glaringly evident.

Who loses, me, the pro se defendant. The plaintiff’s case is not dismissed per the Judge’s ruling. The plaintiff never had to prove they properly noticed me and accelerated the note prior to filing suit, the cases are now consolidated, and the plaintiff has filed an improper amended complaint without petitioning the Court and being granted permission to amend their complaint in the manner they did. They amended it in a manner that was totally unrelated to the issue of the April 20^th hearing, without leave of the Court. The Judge is now out of the consolidated case and he walks away, having done “his part” in “protecting the plaintiff’s position”, violating and ignoring his own ruling in the process.

What justice!!!!!!!!!!!!!!!

What lessons can be learned from the proceeding in these three hearings? There are many! One is that the playing field is not level. Judges favor the plaintiff. The defendant, especially a pro se defendant, is at a great disadvantage. They are fighting not only the lies and fraud perpetrated by the plaintiff and their counsel, the fraudsters aka the “Officers of the Court”, but they are forced to compete on an unlevel playing field, enabled and even intentionally tilted by the Court in the plaintiff’s favor. Another is that the fraudsters are not required to follow the Florida Rules for Civil Procedure, either in their filings or in their behavior before the Court. The fraudsters are allowed to lie, file false affidavits, assignments, and other manufactured documents to perfect their claim. They are allowed to use any “means” they choose to get the “ends” they seek, stealing the defendant’s home by hook or by crook. Another lesion is that, rather than being unbiased arbitrators of justice based on the facts and the law, many Judges have become willing surrogates to the plaintiffs and the fraudsters that represent them. These Judges have allowed their courtrooms to become, not bastions of unbiased justice, but rather coliseums in which defendants, especially pro se defendants, are thrown to the lions seeking to devour them by any “means” that will accomplish the “ends” the plaintiffs desire.

All of this places the defendant in a quandary. Defendants become reluctant to schedule hearings on their valid motions because they begin to feel that they are virtually moot. The Judge will likely deny their motion, regardless of the fact that the law, DCA opinions, the Florida Rules of Civil procedure, and the facts, support the defendant’s claim. In addition, the defendant begins to fear other things that may happen in these hearings, such as the Judge issuing a blanket dismissal of all of the defendant’s unheard motions. The defendant begins to look at the Court, not as place where they can go before an impartial arbitrator of the law and the facts and receive unbiased justice, but rather as a place where the deck is stacked against them. I cannot understate how this is contrary to the foundational principles of our justice system

A foreclosure case is a case in equity and the reality is that equity is getting harder and harder for defendant to find in the foreclosure coliseums of slaughter that many courtrooms have become.

I want to respect the Courts and, as a defendant, I look to the Court to be an unbiased arbitrator of justice, insuring that I am allowed to defend my position with due process, not subject to “tricks on the Court” by the plaintiff and the fraudsters representing them. There are many valid concerns regarding foreclosure proceeding as prosecuted in many courtrooms today. Who is listening? What recourse does the defendant have? The media does not care. The Florida Bar does not care. Our elected officials do not care and the Courts are accountable to no one.

Perhaps we should skip the dog and pony shows, the illusions of justice that occurring daily in many Courts around the country. Perhaps it should all begin at the Appellate level. The Judges, the plaintiff’s, and the fraudsters that represent the Plaintiff’s are counting on getting their way though any means to the end they desire at the circuit level. They are betting that though many valid issues of appeal are being created daily in the “show trial” hearings of today, that the defendant, once vanquished and thrown out of their homes will not have the resources or the wherewithal to file an appeal. If the defendant’s only hope is at the Appellate level, then perhaps justice would be better served if we started at that level. Let us eliminate the defendant slaughterhouses that many courtrooms have become. In a time of budgetary crisis, that would save the taxpayers a great deal of money, and perhaps restore a modicum of justice to the foreclosure process and reverse the travesty and mockery of justice that many courtrooms have become.

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