Matt Weidner – Fighting For The American People

Posts Tagged ‘FORECLOSURE DOCKET’

The State of Florida is in the grips of what is perhaps the greatest financial crisis in history.  Facing a projected $3 billion budget deficit deficit, we will have fewer law enforcement officers on the street.  Violent criminals will be released from prisons.  Medicine and medical care for the sick and elderly will be limited.  Vital programs that protect children and the most vulnerable among us will be cut or eliminated.  The innocents among us will suffer the most. In spite of all this suffering, the banks, the Wall Street Wizards and the foreclosure mills are making BILLIONS.

Our Courts Are Tragically Underfunded

As recently noted by the Florida Supreme Court in the January 20th, 2011 decision Crist v. Ervin (go to page 13), the Florida Court system is “Operationally Underfunded”.  The Supreme Court questioned whether this meant our courts are “Constitutionally Underfunded” and while the court couldn’t quite make that determination, I am convinced we will reach this point when all of the facts from Fraudclosuregate are revealed.  The banks, the Wall Street Wizards and their foreclosure mills dumped a crisis into our courthouses all across this country and our courts simply lack the necessary resources to deal with the full magnitude of the crisis.  At the same time, legislators and policy makers demand that our courts:

“CLEAR THIS FORECLOSURE DOCKET!”

Until we make the formal announcement that Florida’s courts are constitutionally underfunded, let’s just say that they are tragically underfunded….perhaps we’ll get around to making the formal determination that when basic rights are violated all in the aim of rewarding the banks that run this country, our courts have become constitutionally underfunded.  There are very real bright spots all across this state….shining examples of judges standing up for consumers, for the Rule of Law and for the Constitution.  Last week I received an order that is just one example of a judge doing all of that.  The order is based on the failure of the foreclosure mills to comply with the clear rules of the Florida Supreme Court.  They took a gamble that they could break the rules and get away with it, and they’ve lost that gamble.  But their gamble cost us all millions in wasted court time and effort.  More importantly the flagrant violation of the rules violated fundamental rights, and you cannot put a price tag on those.  Our courts should not have to spend time enforcing basic rules over and over again, but don’t listen to me…read the text from the order:

1.            It is confiscatory of the Court’s time to have to address this matter.  Repeat violations by the same firm, or by the same attorney, may result in imposition of personal sanctions, and issuance of an orderdirected to the attorney or firm to show cause why that attorney or firm should not be prohibited from filing further foreclosure cases in this Court.

Below is a pdf of the order, along with the word version of it.  I’ve included the Word version so the order can be disseminated to every circuit court judge in this state.  Just stop and think for a moment what would happen if our judges used this order to clear their foreclosure docket……

IndianRiverDismissal

Order Dismissing Separate Verification-1

JEDTI= Jurists Engaged in Defense of Title Integrity

The first JEDTI group was formed by Clearwater, Florida attorney and title insurance expert Greg Clark. It’s a cohesive group of att0rney members with vast and varied legal backgrounds and areas of expertise, including appellate law, trial work, corporate and business transactional and litigation experience.  The members are committed to defending judges and our courts and to sounding the alarm that today’s sloppy and improper foreclosure practices are going to have catastrophic consequences on property ownership in this country for decades to come.  JEDTI presents both a warning and a solution.

During the last quarter of 2010, the rest of the world woke up to the dark storm clouds that cover our country, dark foreboding storm clouds full of rain and lighting that are soaking through and destroying the record title ownership system that is one of the foundations of this country.  The existing mess will take years to clear up, but we can prevent the situation from getting worse by not moving forward on cases where real questions exist.

As we all dust off the dirt, the slop, the filth that was 2010, it’s time to clear the decks, flush out the toxic slop that clogs our courts and start fresh.  We cannot continue the practice of foreclosure business as usual in 2011.  We cannot continue the reckless race to summary judgment that caused so much uproar during the last half of 2010.  Instead, it’s time for our courts to find legitimate, fair and rule-based reasons to dismiss many of the cases that clog the backlogged foreclosure docket.  Failure to Prosecute, Failure to Serve Defendants, Failure to Verify, Failure to State a Cause of Action, Improper Plaintiff.  All of these offer legitimate and appropriate reasons to dismiss the cases that are filed (and many forgotten) but which continue to choke our court systems.

Rather than ignore or dismiss Defendant’s Motions to Dismiss, our courts must respond to the arguments and recognize that granting motions to dismiss is an appropriate way to mete out judicial efficiency and be responsive to taxpayer demands that our courts do equity and manage taxpayer resources.  The fact of the matter is that our courts and every single taxpayer in this state are subsidizing the improper practices of the foreclosure mills.  The foreclosure mills made business decisions to cut corners and turn profits.  They make millions while our courts struggle to keep up with their toxic deluge.

There are jurists across this state who are engaged in the battle not just the defense of title integrity but also the defense of our judges and court system in general.  There are judges and private practice attorneys and attorneys that work with law enforcement and regulatory agencies who are battling every day to set all of this right and turn this around.  We can never be certain what this new year will bring, but we all know the current state of affairs cannot continue.

We’ve all got to work together to usher in a new era of solutions to this problem that continues to grip our country.  We need to show the general public the critical function that attorneys serve in the midst of this crisis by continuing the tireless service to  our clients, our courts and our country.  Let’s hope 2011 ushers in a new era and that real resolution can be reached.

The attached article from the New York Times again shows that the judges in Pinellas County, Florida “get it” and are very much aware of the serious problems that choke our foreclosure docket.

New York Times Article

Unless you’ve been on another planet, you’d know that it’s just a pesky little federal program that prohibits lenders from continuing with foreclosure as long as the borrower is complying.  But why should anyone be concerned about that?  I mean, why in god’s name would it matter that a homeowner is under a binding, written contract while their home is being sold out from underneath them…I mean after all, WE’VE GOT A FORECLOSURE DOCKET TO PLOW THROUGH!

Just wait, till these sales start happening and the stories of homeowners who’s rights have been blatantly violated start flooding in….oh, but wait, no one cares because, WE’VE GOT A FORECLOSURE DOCKET TO PLOW THROUGH!

And now a report from that legal twilight zone we refer to as South Florida…..

From Miami-Dade

I went with a family member to court in attempts to stop a foreclosure sale scheduled for August by the 2nd mortgage holder who is a private lender who btw has like 12 of his own properties under foreclosure, so he really needs the money. Anyway, we were there sitting in court waiting for our case to be called. Meanwhile I heard this judge take on other cases. The court room was filled with attorneys representing lenders/investors. There were homwowners with and without legal representation. Regardless of their issue this judge just kept on denying every motion that he was hearing. Not even taking the time not even a minute or a second to even glance at the documents these poor homeowners were bringing to him.

People were telling him that they have been approved and/or were being considered for a modification under HAMP and that they were there to ask to have the sale of thier home stopped because apparently the plaintiffs attorneys were not aware of this information. As you may all know, most of these attorneys DO NOT maintain constant contact with thier clients, therefore servicers even though they may place in thier system for a sale to be postponed based on loss midigation approval, still, it doesn’t reach thier attorneys in time to actually stop the sale. So homeowners are being told by the servicers to actuallly try and contact the attorneys because they are not able to. Unbelievable but true. Anyway, this judge must have rocket through about 35 cases before we were called. and he denied every single one of them except one which was from an association foreclosing on a property with an approved sale and the buyer was there with the approval and the proof that she was going to pay for the associations fees. The one thing I must say is that… one of the first cases that was being heard and the homeowner stated that he was approved for a HAMP mod, and to please stop the sale, then the judge asked the plaintiffs attorney how long has he been in the property without paying and the plaintiff would respond almost 29 months then the judge said… “3 years and you expect to continue in that house? denied.… the homeowner tried to explain his situation, loss of job, adjustable rate, not being able to refinance etc… but still the judge would not hear him out and just flat out denied his request to stop the sale.

Once the homeowner left the court room the judge asked… “what is this HAMP that these people keep claiming they are approved for?” mannnnn i said to myself… “this judge myst have been pulled from retirment from another part of this world, and to get put on the stand to make these decissions… the courts must really be desperate for not even taking the time to even educate them about the huge issue at hand with these foreclosures and modifications and fraudulent documents etc…. then after denying a few more cases in less than 2 minutes he said… “WOW… and i got paid to do this everyday 5 days a week?… this is easy..… I was so close to saying something, but my cousin stopped me since his case still had not been heard.

I was appalled and had to step out for a breather and calm down. Then it was our turn, mind you, in my cousins case, this 2nd lender has been after my cousins house since the day he got the loan. The house is 278k upside down, there is a first mortgage with NOW Bank Of America as the servicer, and Bank of New York as the trustee. Since the original lender is in litigation (CW) then they were quick in providing him with a trial as soon as my cousin was able to find a new job. The intial foreclosure case was dismissed a year ago. Now the 2nd mortgage holder claims that since the 1st mortgage holder was not able to provide an original note or proper assignments then he considers himself the ONLY mortgage holder on that property (my cousin owes him 50k). We have tried to come up with sometype of payment or settlement arrangement but they claim we have not. So when were called to the stand the plaintiffs attorney was not present, so the judge actually took the time to call him, again, i had to be held back from saying anything. The judge got the plaintiffs attorney on the phone and asked the attorney (who btw is the 3rd attorney hired on this case), how long has it been since the defendant has paid you, and he replied, almost 3 years, and the judge said to my cousin… and you expect me to stop the sale? my cosing said, “but I am in a HAMP trial with the first mortgage and the 2nd refuses to come to an agreement with me”… the plaintiffs attorney stated that he was not aware of any attempts to come to an agreement… I stepped up to the judge to show him the many documents, mailed, faxed, delivered with the settlement proposals … but the judge flat out, said… without even glancing at the documents or the HAMP trial… he said… MOTION DENIED!!! you have been living way to long in this property without making payments, so, i am sure you have some money saved… Now I suggest that you come to an agreement with the plaintiff in order to stop the sale. I said that with his ruling he is only forcing my cousin to file Bankruptcy in order to wipe off the 2nd and stop the sale. That i did not agree plus i felt he was not taking the time to actually listen to the case and is on the plaintiffs side for all the cases. He said… “I have already ruled and that is that”, i replied that I am also a tax payer and part of his salary gets paid by those taxes and that at least we deserved for him to consider our written argument which was submitted to the court 2 days before, and that he was not even aware of all the documents that were wrongfullly entered and that the people on title were not even considered in those entries worse yet, properly notified of the attempts by the plaintiff and that according to state laws, the rights of all the title holdersof the property were completly dismissed! Then the bailiff came to me and asked us to leave because the judge had already ruled.

Yes, so beware, because… rocket dockets are being done by retired judges who have no knowledge of anything. and are just there to deny deny deny!!!

We are definaltely going to appeal and maybe even go public with this. I am even considering placing names and making all parties involved including the judge and the courts for the manner in which they are handling these cases.

It is literly a slaughterhouse of foreclosures, and people deserve to be properly heard and represented.

We all need to be doing our part to help our courts fulfill  the directives to get this foreclosure docket moving and get 62% of the cases concluded.  The problem we have right now is all of the attention seems to be focused on reaching that 62% goal by granting Summary Judgment.  Given the current state of affairs of document chaos that exists in most courts, I believe granting Summary Judgment is not the responsible path to achieve this goal.

First, I believe the foreclosure process, as it is currently being implemented, is so fraught with questionable practice that continued entry of these judgments in many cases is not appropriate from a procedural, evidentiary and technical basis.   Second, even if an individual case were ripe for entry of Summary Judgment in so many cases (and certainly on a cumulative basis), it would serve no useful economic purpose to grant Summary Judgment.  That home is far better off with the current resident occupying it and maintaining it than if foreclosure were concluded.  Finally, I’m convinced that there are going to be a significant number of Summary Judgments entered during this period that should not be entered (and that the Plaintiffs do not want entered) because the Defendants are in formal work out arrangements with their lender.  I am concerned that foreclosure sales will be scheduled and Certificates of Title issued before anyone realizes that the entry of Summary Judgment was not appropriate given the facts.

The Real Cause of the Foreclosure Backlog

The far more compelling issues of foreclosure backlog are those files have stalled or been abandoned by the Plaintiffs, either from neglect or because they cannot tie the evidentiary pieces together that are necessary to make a prima facia case for foreclosure.  I am convinced that if our clerks culled the docket and researched the files, they could far more quickly (and more fairly) achieve the 62% reduction goal by dismissing cases.  In addition to the equitable principles involved, there are important legal and appellate principles involved which argue much more strongly in favor of dismissing the cases and allowing the Plaintiffs to proceed after they have gotten their documentary house in order and confirmed that the file really is ready for foreclosure or summary judgment.

I’ve just finished going through every file in my office and am drafting motions that will help to effectuate these goals….I share with you and encourage you all to examine your files for similar facts and legal issues:

HAMERSMA – Mt to Effecuate Master Order

HAMERSMA – Cases for Master Order

The motions posted below could be an important tool to help our judges fulfill the ill-advised mandate of the Supreme Court to CLEAR THAT FORECLOSURE DOCKET!

The problem with many of our judges is they think the only way to fulfill that objective is to grant summary judgment.  The problem with this singular focus on Summary Judgment is it has created the environment where fraud, mistakes and unchallenged abuses are occurring in courtrooms across the state.  Now that these abuses are being investigated, the key perpetrators of the abuses are looking to shift the blame and guess who they are blaming for the abuses they’ve heaped upon our courts….THE JUDGES ARE RESPONSIBLE FOR THE ABUSES!

That’s right, a key part of the defense presented by Roy Diaz in Monday’s contempt hearing in Manatee was, “Your honor I’ve got a volume practice and my fee structure won’t allow me to be sure fundamental rights aren’t violated.”  As part of his defense of his practice, please review the following quote from David J. Stern’s attorney:

“Everything done is done by the judge who is there to protect the rights of the borrower and lender,” he (Jeffrey Tew) said. “David Stern didn’t create that problem; he is representing banks who are entitled to foreclose. Since he is the visible person, he will get a lot of bad publicity. There’s been a huge train wreck and David is like the surgeon in the ER: He is part of the process.”

CHARNESKI – Doc-1

CHARNESKI – MTD for Unverified Supplement

very important

That was a trick, but please visit that page.  The next motion and memo is very significant because it potentially impacts thousands, perhaps tens of thousands of foreclosure cases that are clogging our dockets and which courts may be moving forward on their own initiative or when one of the foreclosure mills tries to push it forward.  A key point to take from this appeal that has not yet been filed is that when a court enters a Final Order dismissing a case, the court loses jurisdiction to take any further action on that case and any judgment entered thereafter is VOID. Have a look at the case law contained in this Memo and see how it can be applied to other Orders of Dismissal that have been entered in your case.  Be prepared in your cases to make sure a judge understands that when he enters a judgment on a stale or dismissed case, he risks entering a VOID judgment and causing title problems for decades to come….

CHISHOLM – Appeal

And yet another motion that should be filed and considered.  The problem with this one, and other time-mandated dismissals is the courts seem far too reluctant to grant them.  The fact is there are thousands of these notices pending out there across the state and rather than probing the firm about why they have not moved the case, the court seems obliged to keep the cases open.  I want our courts to understand that the net affect of tens of thousands of stalled, no activity cases is the major source of backlog on their dockets.  The filing fee paid in 2008 should not be permitted to keep a case open in perpetuity because the costs associated with those cases are used by the courts in that first year.  The message should be clear…when you file a case, be prepared to proceed with it or it will be dismissed.  Here’s the motion:

Motion to Dismiss For Lack of Prosecution(2)

And here one of my personal favorites

dismissalfinal

And now the most important thing:

Most Important