Matt Weidner – Fighting For The American People

Posts Tagged ‘foreclosure case law’

Americans are now acutely aware of the undeniable fact that the banks and institutions control us all.  Increasingly, Americans understand that our courts and law enforcement are largely powerless to protect us from the onslaught from the banks…get in their way and they’ll just roll right over you.   For a particularly disturbing example, learn how they are ignoring the rights of soldiers who find themselves in foreclosure.

But some people still are not convinced that this is happening…well, read the following letter and tell me what you think…

chase

And just in case you think they law may provide some legal basis for them to do this…read the case law….

When I started defending foreclosures years ago there was no real defense.  The homeowner did not pay, the plaintiff was suing and they were eventually going to win.   My how things have changed in a short period of time.  Today there are widespread and well substantiated allegations of fraud and improper practices on the part of banks, mortgage companies and the law firms and other agents working to throw Americans out into the streets.  In so many cases the question is not whether your client is going to lose the case, but how many questionable things can you find in the foreclosure lawsuit.

This leads us to the emerging line of legal questioning the community of Foreclosure Defense Warriors are engaged in and that is whether previously entered judgments are Void or merely Voidable.  That question looms like a 800 pound Gorrilla in courtrooms all across this state.  When the full specter of issues related to flawed Service of Process is raised, we will have a real sense of how big the most glaring issues of blatantly Void judgments are.  All judgments based on fraudulent service are VOID.  They don’t exist, they did not happen.  To the homeowner living in that new home after purchasing from the bank…..sorry, but you don’t actually own that home, your deed is worthless.  To the bank that gave that mortgage to purchase that home, your lien is not valid.  This line of inquiry is shaking the title industry to the core as they struggle to play a game of “Not my problem; it’s yours”…trying to pass the liability off on the lenders who foreclosed.  Next, the investors are trying to hold the servicers and lenders accountable as evidenced by the recent letter from Deutsche Bank to the servicers stating, “we ain’t gonna be liable for your screw ups”.  This showdown is also a focal point of investor lawsuits against the major servicers, most especially Bank of America.  They’re all saying, you guys screwed this up and we’re not going to hold the bag. (Bank of America is saying “Screw You” you’re on your own.  Obama is saying, “foreclosures are good, we don’t need no moratorium.)

These are not abstract questions that will have no consequences.  In fact, during a recent meeting of the judges and attorneys in Florida’s Sixth Judicial Circuit, it was acknowledged that these questions are going to plague our courts for years to come, as you can read in the attached article in the St. Petersburg Times.

“Even when judgments have been entered and sales have happened, they may say, ‘Whoa, that may have been sold improperly,’ ” McGrady said. “We’re going to have title issues and all those things. And every motion, everything that’s brought to the attention of the court will require a hearing of some sort. We’re working through it, but it will take that much longer.”

This issue is part of the larger and important work of a highly specialized group of foreclosure defense attorneys who have a broad range of experiences and who meet in secret locations regularly to discuss such issues and work through the much deeper and more significantly troubling aspects of this foreclosure insanity.  The JEDTIS (Jurists Engaged in Defense of Title Integrity) are a group formed by Clearwater attorney Greg Clark and include some of the brightest minds in all areas of the law.  If you’re looking to determine whether you have title claims, void (or voidable) judgments or have any number of other claims related to your foreclosure suit, especially any potential appellate cases, contact me for a referral to one of the JEDTI Masters.

For those attorneys who are just beginning your inquiry into VOID or VOIDABLE  judgments, please see some of the initial case law research and discussions on the issues.  The following is intended to assist attorneys in reviewing and intake of cases, please forward your cases to me for review and consideration by the JEDTI masters who are standing by ready to return the rightful owners to their property after proving up that the current “owners” of homes are merely posessors of the home subject to VOID deeds.

Judgments which are void at the outset, may on motion at any time be vacated. See Fla.R.Civ.P. 1.540 (b).

Diligence to serve by publication: Wiggam v. Bamford, 562 So. 2d 389 (4 DCA 1990), Gans v. Heathgate-Sunflower Homeowners, 593 So. 2d 549 (4 DCA 1992), Hobe Sound Ind. Park v. 1st Union Nat. Bank, 594 So. 2d 334 (4 DCA 1992); Batchin v. Barnett Bank, 647 So. 2d 211 (2 DCA 1994).  Forecl judgment entered where sworn statement defective on its face voids sale, even as to non-party bidder.  Gans; HOWEVER, see later 4th DCA case Demars, which says it is only voidable.  See also Fund Concept, Forecls V. Absentee Owners, Jan 93; and III Fla. Real Property Practice (CLE 1976), s. 5.26.  Sworn statement need not set out search facts, but judgment voidable if insuffic diligence, so better practice to set out.  Demars v. Village of Sandalwood LAkes, 625 So. 2d 1219 (4 DCA 1993).

If the trial judge were to find the affidavit to be defective on its face, service would be void as to the bona fide purchaser. If the trial judge finds the affidavit sufficient on its face, but were to determine that a diligent search was not performed, the foreclosure would be voidable, not void, as to the bona fide purchaser. See generally 33 Fla. Jur. 2d Judicial Sales § 13 (2009). On the face of the affidavit of diligent search before us, we find that the affidavit is sufficient for purposes of service by publication and that the trial court did not grossly abuse its discretion in so holding. In light of the necessary reliance on the public record by a bona fide purchaser, the affidavit of diligent search was sufficient on its face to establish that an adequate search had been made to locate an address for service upon Lewis prior to effecting constructive service. The resultant foreclosure sale to the bona fide purchaser cannot be set aside. First Home View Corp. v. Guggino, 10 So. 3d 164 (Fla. 3d DCA 2009) (holding that trial court errs in vacating final judgment of foreclosure in sale of property to bona fide purchaser where homeowner is constructively served by publication and affidavit of diligent search is legally sufficient to establish that an adequate search has been made prior to constructive service); Southeast & Assoc. v. Fox Run Homeowners Ass’n, 704 So. 2d 694 (Fla. 4th DCA 1997) (holding that notice by publication is adequate where affidavit of diligent search is facially sufficient and foreclosure sale to bona fide purchaser is merely voidable, and not void, and cannot be set aside)

847 So.2d 555 RINAS v.RINAS; 1D09-2170 SOUTHEAST LAND DEVELOPERS v. ALL FLORIDA SITE AND UTILITIES, INC.,; 625 So.2d 1219 18 Fla. L. Weekly D911, DEMARS v. SANDALWOOD LAKES; 168 So.2d 183 EVANS v.  HYDEMAN

The Florida Supreme Court’s Office of State Court Administrators estimates that there will be 559,945 foreclosure cases pending statewide by 2011.  That same office issued a directive that Florida’s trial courts should dispose of 62% of those cases by July 2011. (Full Article Here) Each of Florida’s twenty judicial circuits have ramped up their efforts to clear those cases, but the primary means they have chosen to accomplish this goal–through implementation of so-called Rocket Dockets, may be unconstitutional. (See memo outlining reasons Unconstitutionality and transcript here.

I will continue to argue that if our courts are to maintain any semblance of fairness and equality, the $9.6 million dollars of federal funding should also be used to explore options that would lead to dismissal of foreclosure cases, for reasons such as failure to verify, and this money should also be used to explore common sense alternatives to foreclosure such as those detailed in the article below or to fund the implementation of Florida Statute Section 69.021 Fairness and Standards Committees rather than establishing Foreclosure Gas Chambers which result in the increasing the already obscene profits for the foreclosure mills currently operating in this state.  Not only are we railroading homeowners out of their homes to benefit corrupt and unscrupulous plaintiffs that have already benefited from several rounds of federal bailouts and tax breaks on the backs of struggling consumers, we’re using the consumer’s own tax dollars to grease this progress along.  I am clearly a partisan activist in this fight, but see Alternatives to The Rocket Docket here for an alternative to the improper and broken system we have cobbled together.

As detailed in the memorandum and case law cited above, I believe the Rocket Dockets as they have been commissioned are improper.  We must not allow anyone other than elected judges who are at least theoretically answerable to the population make binding and final decisions in cases of such import. Also, the mere fact that these foreclosure cases have bogged down is evidence that the cases are complex and therefore not appropriate for perfunctory Rocket Docket proceedings. It is important to keep in mind that the vast majority of foreclosure cases are not defended or responded to by Defendants in any way.  Accordingly, they should just sail right through from filing to sale right?  So why the backlog?  The biggest reason is the foreclosure mills cannot even get sloppy paperwork prepared and filed with enough accuracy to make a prima facia  case for foreclosure…even when they resort to clearly improper means to (ahem) “create” the evidence and paperwork they need. (Article Here) None of this matters though because no one seems to care about basic elements of our state or federal law…even that outdated, tattered, ignored and forgotten scrap of paper called the united states constitution. (lower case to reinforce its diminished stature)

The Practical Application of The Foreclosure Rocket Docket

The preceding paragraphs addressed the formal implementation of these foreclosure Rocket Dockets.  Now let’s talk about how many of the Rocket Dockets function.  In a frenzy to meet ever increasing demands to file and proceed with foreclosure cases particularly in 2008-2009, the foreclosure mills were churning out and filing tens of thousands of foreclosure cases across this state every month.  These complaints do not fulfill the most basic rules of pleading and do not fulfill the black and white rules of Florida Civil Procedure and yet our courts continue to this day to accept these deficient pleadings….the failure of our courts to police these basic rules of pleading are going to perpetuate a crisis that is only now in the 4th inning by my estimation.  The most rampant and widespread pleading deficiency is the failure to plead the capacity of the Plaintiff in these actions.  (There is a search function on this blog and if you type in “capacity“, you’ll find hundreds of posts on the subject.)  This illustrates what is perhaps the biggest procedural and substantive failing that permeates the foreclosure docket….THE FACT THAT OUR COURTS HAVE NO IDEA WHO OR WHAT THEY ARE GRANTING FORECLOSURE JUDGMENTS TO.

Admittedly, most defendants in foreclosure are not paying their mortgage, but there is not a single homeowner in this state that ever borrowed a single cent from the IXIS 2003 Trust or any other variation of the tens of thousands of trusts, servicers or shadowy entities that are named as Plaintiffs in foreclosure cases all across this state. Some judges are very comfortable condemning homeowners, “What Gives You The Right Not to Pay Your Mortgage!”.  But how many judges have asked the question of the Plaintiff, “What Gives You The Right To Collect This Mortgage?”  Instead, the transcripts of Rocket Dockets and frankly even Circuit Civil proceedings reveals almost no regard whatsoever to whomever or whatever entity is before the court blithely demanding judgments totaling millions of dollars and taking title to real property all across this state. Keep in mind that foreclosure proceedings are both transfers of debt obligations and transfers of title to real property…real property that was the sovereign land of this United States of America.  THE FAILURE TO IDENTIFY WHO WE ARE GRANTING JUDGMENTS TO REPRESENTS A POTENTIAL THREAT TO THE SOVEREIGNTY OF THE UNTIED STATES OF AMERICA.

Sound a little nutty..well, consider this.  The Law Offices of David J. Stern is responsible by volume for taking back more real property in Florida than any other foreclosure mill in this state.  In the prospectus filed with the Securities and Exchange Commission, this massive foreclosure machine chomping its way across Florida was sold to China…quoting from the SEC filing:

We were incorporated in the British Virgin Islands on February 19, 2008 under the name “Chardan 2008 China Acquisition
Corp.” as a blank check company for the purpose of acquiring, engaging in a merger or share exchange with, purchasing all or
substantially all of the assets of, or engaging in a contractual control arrangement or any other similar transaction with an unidentified
operating business which has its principal business and/or material operations in China.

and regarding disposing of foreclosed properties:

Currently, DSI LLC provides such services nationwide for a single customer.

sternprospectus

I swung off course here a bit, but the point I want to make is the failure of our court’s to at the very least require these Plaintiffs to identify themselves is a very disturbing component of this crisis that has potentially profound consequences in the years to come.  But the fact of the matter is many of our courts are not at all concerned with issues such as this.  For many judges, the entire inquiry begins with the simple question….”have you paid your mortgage?”  Forget about who or what is trying to collect your mortgage.  Forget about the fact that many people have in fact been trying to pay their mortgage.  Forget about the fact that many of the entities that are trying to collect these mortgages are fabricating their purported right to collect these mortgages under outright fraudulent or at least questionable means.  Forget about the fact that oftentimes the Plaintiff that first comes to court swearing that it owns the mortgage is not the Plaintiff that ultimately takes title to the property because along the way an “Ex Parte Motion to Substitute Party Plaintiff” is filed or the Final Judgment is assigned to another party.  Forget about the fact that in at least half of the cases, the named Plaintiff is not the real party in interest at all, but rather, Fannie Mae or Freddie Mac really owns the mortgage, but we cannot risk having it disclosed that the Federal Government is seizing more than 250,000 homes across the State of Florida.

In our rush to foreclosure, courts across this state are ignoring both long-established rules of civil procedure that (theoretically) apply to all civil cases filed in our courts and brand new rules of civil procedure that were adopted by our courts to deal with the widespread abuses particular to foreclosure cases.  There are many rules that are being ignored, but the biggest and most significant rule that has been utterly and systematically ignored in 98% of all foreclosure cases is the very rule judges should be applying in foreclosure cases.  Florida Rule of Civil Procedure Rule 1.510 and particularly and especially subsection (e):

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.

I quite literally have never, ever, ever seen this rule enforced in a Florida foreclosure courtroom.  In the thousands of foreclosure cases I’ve seen, I have never seen a sworn or certified copy of the books and records referred to in the hearsay affidavits, not based on personal knowledge submitted by plaintiffs.  And here’s the ironic thing.  If our courts had been enforcing the application of this rule, it is less likely that we ever would have had the brief Robo Signer controversy. (wow, thank God that’s over….”Move along folks nothing to see here”)

Next, keep in mind that the severe and pervasive problems that have choked our foreclosure courtrooms and called into question the whole legitimacy of our court system have been known about for years.  The Florida Supreme Court made up a nifty TASK FORCE. That TASK FORCE met and chatted and specifically identified most of the problems that have now caught the attention of the national press….MORE THAN TWO YEARS AGO.  The findings of the Florida Supreme Court are published right here in the SupremeCourtTaskForceFinalReport based on all this fact finding and righteous indignation (THESE FORECLOSURE MILLS ARE OUT OF CONTROL!), the Supreme Court issued a Final Rule that was ‘supposed to clean up the bad practices. supremecourtfinalrule

Problem is the foreclosure mills don’t care about the Rules and many of our courts just don’t seem to care too much about enforcing them.  But there are a few courts out there that have read the rules and are listening to the clear mandates and directives of the Florida Supreme Court….

RondolinoOrder

It’s all just so exhausting, and the irony is if the foreclosure mills had simply started following the rules way back when, some of the problems we see now could have been avoided.  But who really cares anyway?  The Rules of Civil Procedure are Due Process and when the Rules are not enforced, there is no due process….but apparently there is no process due to defendants in foreclosure cases and there is no process due to the process itself either.

Why Do We Even Need Foreclosure Courts At All?

If our courts are not willing to ask any of these questions.  If judges across this state are admitting that they are not reading these files and accordingly do not care about any of the answers to these questions, why do we bother having foreclosure courts at all?  Why don’t we just permit the banks or entities or shadowy trusts to just go and start knocking down doors, changing locks and throwing people into the streets?  The answer to the question is…WE ALREADY ARE.  I’ve published several posts and there are examples from all across the country of banks and their agents just kicking down doors anytime and anywhere they damn well please.  No one is doing anything at all to stop them.  Law enforcement routinely fails to even take reports, much less stop them.  In fact, law enforcement provides cover and protection for them to do this when they affirm the conduct and practices and in fact turn hostile and aggressive toward the homeowner (a term that apparently has no meaning in this country) as they recently did to an elderly couple here in Pinellas County. (For examples search “911″ or “break in” or “jack booted thugs”.  But seriously, if any old Plaintiff will do and if judges are not looking at files or pleadings and if cops are not stopping break ins and seizures, why don’t we just save all the time and money and just turn homes over to the jack booted thugs, the shadowy trusts, the government sponsored entities?  My faint notions of a little thing called the Fourth Amendment to the Constitution of the United States of America suggest this should not be occurring, but the real experience on the ground every single day tells me those rights and that nonsense “right” means nothing in this country anymore.

Who’s On First?

Even as I write this, our nation’s top policy makers, legislators, attorneys general, title insurance, banking executives and Wall Street executives are meeting in closed door meetings and working feverishly to hammer out deals and steals and trade offs and conspiracies that they hope will quell the crisis that is still reverberating across this country.  I keep checking my email and snail mail, but my invitation to those meetings has not arrived.  I’m just guessing that no other representatives for homeowners or real people have received any invitation either.

Let’s remember that the last time such a deal was concocted, no real consumers really benefited from the deal….I’m talking specifically about the Countrywide multi-state AG settlement….has any reporter ever done an accounting of how many consumers actually benefited from that “landmark” settlement?  Ironically again, the evils sown in that deal with the devil are now coming back to haunt the BofA balance sheet.

I hope that the answer to the “Who’s On First?” question is that our invaluable press corps are on the First Amendment like we all so desperately need them to be.  The Wall Street Journal is reporting the wide ranging consequences of Fraudclosuregate, as are almost all major news organizations.  There is a growing awareness that Fraudclosuregate is much bigger than those desperate few who are directly involved in those cases. This is an epic battle that pits all of THOSE THAT HAVE…that have taken and plundered and lied and stolen and abused against THOSE THAT HAVE NOT, have not recovered from severe economic depression, have not returned to full employment, have not recovered any faith in the American dream.

These are not abstract issues isolated to the haggard, hobbling few caught in foreclosure hell.  How we as a nation deal with these issues will define whatever is left of the America ethic and determine whether there is any place for the united states constitution in this scary new economic and political reality.  At the end of the day and in the middle of this mad rush to grant foreclosures, every single American.  Every policy maker, every reporter, every legislator, every banker, every attorney needs to ask the question….

WHAT IS THE POINT OF FORECLOSURE?

Why are we so hell bent on moving so quickly to throw our neighbors out onto the street.  I know, I know, they’re not paying their mortgage.  But have you big thinkers and policy makers tried to get a job?  Are those of you who are so quick to crucify aware of the economic realities out there for everyday Americans?  For all you judges out there, especially here in Florida…what would we do if all 559,945 foreclosures were granted tomorrow?  What would happen to those vacant homes?  Those displaced families….and on a practical level….those overgrown yards?  Are not our communities better served when we are working at least as hard at figuring out how to keep people in their homes as we are working to throw them out into the streets?

Get ready for the next wave of foreclosure litigation….this time featuring the Federal Government suing citizens in order to foreclose.  We’re already starting to see it as various servicers or banking entities pursue foreclosure, cryptically announcing their status as “authorized to bring this action on behalf of Fannie Mae“.

It is an interesting phenomena that now you will see taxpayer dollars being used to fund litigation against taxpayers.  Will our judges start enforcing rules and law when it is the mighty federal government breathing down the homeowner’s neck or will the case law have become so developed by that time that there will be no more need for judges….the Feds just come and kick down your door and throw you onto the street…..think about it, it’s already happening now.

Read the article here.

The vast majority of properly-defended foreclosure cases get bogged down somewhere right around the Motion to Dismiss stage.  The quality of records and information maintained by the servicers or nominal plaintiffs is frequently so poor that they cannot move beyond this preliminary stage.  In cases where the servicer or fake plaintiff moves past this stage, it will be important to challenge all the evidence tendered….and in the vast majority of cases, the lenders cannot meet these basic evidentiary challenges.

Posted here is an excellent paper on evidentiary objections by Consumer Super Lawyer and powerful consumer advocate, Max Gardner.  Take a look at Gardner’s website and consider signing up for one of his bankruptcy bootcamps if you’re interested in being properly armed to battle in your foreclosure case.

Having said that, there are still far too many people out there that do not defend their foreclosure case at all or who do not hire a competent attorney to defend the case for them.  No matter what your financial situation, you must defend your case and you must help your neighbor to defend his.  You should especially consider hiring a competent foreclosure defense attorney if you want the best chance at real success.

Cases are going to move much more quickly now that circuits are using senior judges and while some have been critical of the senior judges, those senior judges that I’ve seen have been very thoughtful and considerate of all the issues and of consumers in particular.  That being said, we must all always remember that judges are neutral arbiters of fact and law.  It is each party’s job to know the facts and argue the law…properly researched and briefed and supported by case law.  With this in mind, it’s not fair to be critical of any judge for making what you believe to be an incorrect decision if your position was not properly researched, briefed and supported by motions and orders.

Courts now across the country are starting to recognize that the affidavits and other documents submitted to them do not meet even the most basic evidentiary requirements.  I am of the opinion that affidavits which are hearsay on their face and which do not contain any copies of the “books and records” to which they refer, should be rejected by the court and summary judgment should not be granted in such cases even if the case is unrepresented.

Please read transcript from Pinellas County Judge Anthony Rondolino here where the judge cites the body of case law dealing with hearsay affidavits.  Next, read an excellent opinion here from the Honorable Samuel Bufford where he explains the requirements that must be met to overcome an objection that affidavits of amounts due and owing are hearsay.  Pay particular attention to ELEVEN step process that a proponent of a computer record must take in order to have computer records admitted into evidence over a proper hearsay objection.

NOW ASK YOURSELF, IF PLAINTIFFS WERE REQUIRED TO FIGHT HEARSAY OBJECTIONS, JUST HOW MANY FORECLOSURE

CASES WOULD THEY SUCCESSFULLY COMPLETE?