Matt Weidner – Fighting With The American People

Posts Tagged ‘florida supreme court’

The national catastrophe that has been reported on this website and others for months now is now becoming BREAKING NEWS at major news sources across the country.

The calls for a moratorium because of fraud in the foreclosure processes are being ignored by judges and even the Florida Supreme Court, but the corporations that are responsible for this conduct are concerned enough about their risk that they are examining or delaying foreclosures…

WATCH BREAKING NEWS HERE

I’m going to come clean and admit to all of you that I have become increasingly fearful and anxious about the future of this country for a very long time.  My primary concerns center on the fact that unemployment continues to grow steadily while at the same time government debt and entitlements have likewise continued to grow exponentially.  The unemployment problem represents a fundamental threat to our national and economic security because none of the other insurmountable problems we face can be addressed without sufficient employment.  Such is the case with the foreclosure crisis. If people are not working, no programs will ever be enough to solve the problems.  And yet I held out naive hope that our courts might fashion some solutions which might foster an environment of compromise and resolution.

This hope has effectively died with the release of today’s letter from the Florida Supreme Court.  While the text of it alone is disturbing enough, the subtext is even more disturbing.  Please note that while a ranking member of the United States Congress took the initiative to write this letter to the Chief Justice of the Supreme Court, it was not the Chief Justice or any justice for that matter that responded, but the Clerk of the Supreme Court.  Perhaps there is some formality involved here, but for the letter to come not from a peer, but from the administrative level is very telling.  To me the message is loud and clear….

HEY CONGRESS, BUTT OUT

We really are in a very bad way here and I frankly don’t hold out much hope now of any kind of reasonable solution to the crisis that has now reached up into the highest levels of our state government.  Our only hope now is persistent press attention and federal intervention…..our Florida courts are apparently not willing to address the crisis in our courts…..

supremecourtpowerless

Not nearly enough is being done to protect consumers from the con artists that are preying upon them.  The attached is an excellent video, and I encourage everyone to watch it and share it around.  Currently, less than 5,000 people have watched this video, but I know that when you good people get the word out, we can double that in a week.

I don’t have much faith in our elected officials and I’m trying to keep my faith in judges, but the fact of the matter is we all need to do more to get the word out there….this is all of our problem…

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.

While we were busy railing away in front of the Florida Supreme Court yesterday…THE SUPREME COURT….the US SUPREME COURT issued a massive ruling that will send shock waves through all foreclosure mills.  This April 21, 2010 decision found that foreclosure mill law firms are subject to the Fair Debt Collection Practices Act.  The full decision is found here.  The mills can ignore the itty bitty ‘ole Florida Supreme Court, but what about the “Real” Supreme Court?

JERMAN v. CARLISLE, MCNELLIE, RINI, KRAMER & ULRICH LPA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 08–1200.  Argued January 13, 2010—Decided April 21, 2010

The Fair Debt Collection Practices Act (FDCPA), 15 U. S. C. §1692  et seq., imposes civil liability on “debt collector[s]” for certain prohibited debt collection practices.  A debt collector who “fails to comply with any [FDCPA] provision . . . with respect to  any person is liable  to such person” for “actual damage[s],” costs, “a reasonable attorney’s fee as determined by the court,” and statutory “additional damages.” §1692k(a).  In addition, violations of the FDCPA are deemed unfair or deceptive acts or practices under the Federal Trade Commission Act (FTC Act), §41 et seq., which is enforced by the Federal Trade Commission (FTC).  See §1692l.  A  debt collector who acts with “actual knowledge or knowledge  fairly implied on the basis of  objective circumstances that such act is [prohibited under the FDCPA]” is subject to civil penalties enforced by the FTC.  §§45(m)(1)(A), (C).  A debt collector is not liable in any action brought under the FDCPA, however, if it “shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”  §1692k(c).

Held: The bona fide error defense in §1692k(c) does not apply to a violation resulting from a debt  collector’s mistaken interpretation of the legal requirements of the FDCPA.  Pp. 6–30. a) A violation resulting from a debt collector’s misinterpretation of the legal requirements of the FDCPA cannot be “not intentional” under §1692k(c).  It is a common maxim that “ignorance of the law will not excuse any person, either civilly or criminally.”  Barlow v. United States, 7 Pet. 404, 411.  When Congress has intended to provide a mistake-of-law defense to civil liability, it has often done so more explicitly than  here.   In particular, the administrative-penalty provisions of the  FTC Act, which are  expressly incorporated into the FDCPA, apply only when a debt collector acts with “actual knowledge or knowledge  fairly implied  on the basis of objective circumstances” that the FDCPA prohibited its action.  §§45(m)(1)(A), (C).  Given the absence of similar language in §1692k(c), it is fair to infer that Con gress permitted injured consumers to recover damages for “intentional” conduct, including violations resulting from a mistaken interpretation  of  the  FDCPA,  while reserving the  more  onerous administrative penalties for debt collectors whose intentional actions

As most of you are aware, the Florida Supreme Court issued a new rule, effective February 11, 2010 that requires all homestead foreclosure complaints to be verified.  Amazingly, it appears that many of the mills are just ignoring the new rule and continuing to file, business as usual.

In the Answer attached here, I attack the complaint and I also attack another component of most foreclosure complaint….the lost note count.  As the research in the motion establishes, there is pretty good case law to support the proposition that most mortgage notes are not negotiable instruments.

If this case law gets correctly applied….more big trouble for the mills…happy hunting~