Matt Weidner – Fighting For The American People

Posts Tagged ‘foreclosure fight club’

Sponsored by The Stopa Law Firm, come join us

Saturday, November 20th beginning at 11:00 am for a

FREE FORECLOSURE SEMINAR
Open to the public, FREE ADMISSION
Tampa Convention Center, November 20, 2010 at 11:00am

We will discuss loan modifications, short sales,
strategic default, and other “hot button” issues
regarding foreclosure in Florida.

This seminar, rally, support group, strategic planning session is for YOU THE AMERICAN PEOPLE. The CITIZENS OF THE STATE OF FLORIDA and this whole country.  We want anyone who cares about this country and in particular those who are touched by the Fraudclosure Crisis (that’s all of us) to come and attend this seminar.

This is a grass roots, come as you are, bring your friends summit where your voice and your input is even more important than those of the organizers.  This country has a history and tradition of protest and dissent, but the American people have become far too passive in this Foreclosure War.  The banks, the institutions, the politicians and the judges have taken notice of this  and the lack of passion or protest from the American people has brought us where we are today.

YOU CAN CHANGE ALL OF THAT BY COMING OUT NEXT SATURDAY

THIS IS A DIRECT CHALLENGE TO ALL OF YOU OUT THERE.  CALL YOUR FRIENDS, CALL THE TEA PARTY, CALL THE REPUBLICAN AND DEMOCRATIC PARTY. ORGANIZE YOUR FRIENDS AND DRIVE TO MEET US.

STAND UP AND MAKE YOUR VOICES HEARD!

Click the link below to watch the latest Democracy Now interview!

The gig is up. The word is out.  The national press is on the scene.  Now they need real examples of the horrors of the foreclosure courtroom.  My problem is I have few horror stories to share.  Fortunately, the judges in the Sixth Judicial Circuit are pretty fair  and most of my clients get their cases resolved without the real horrors that I hear about from elsewhere.  The foreclosure mill attorneys don’t get too many cracks in on me or my clients…..WE DO THE KICKING AND PUNCHING IN MY CASES.

Having said that, I know this is all about to change.  I know there are going to be families who first find out their home is sold in foreclosure when the investor or sheriff comes knocking at the door.  I know there are families who have no notice of their hearings. I know there are families who lost there home to Jeffrey Stephan or other faulty affidavits.

Soon I will create a forum where everyone can come and share these stories, but for now, please email me directly at weidnerlaw@yahoo.com if you want to do it privately, or post your story here along with your contact information.

Thank You.

UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

In re:

JORGE CANELLAS, Case No. 6:09-bk-12240-ABB
Chapter 7
Debtor.
_____________________________/

ORDER

This matter came before the Court on the Motion for Relief from Stay (Doc. No.22) (“Motion”) filed by U.S. Bank National Association, as Trustee of the LehmanBrothers Small Balance Commercial Mortgage Pass-Through Certificates, 2006-3(“Movant”), and the Objection thereto (Doc. No. 25) filed by the Chapter 7 Trustee Carla P. Musselman (“Trustee”). Hearings were held on November 23, 2009, December 7, 2009, December 21, 2009, and January 4, 2010 at which the Trustee, her counsel, counsel for Movant, and counsel for the Debtor Jorge Canellas (“Debtor”) appeared.

Trustee’s Objection

The Trustee opposes Movant’s Motion on the grounds Movant lacks standing to obtain stay relief and it failed to perfect its security interest prior to the Petition Date.
Her opposition is grounded on the contention the Assignment is invalid. She has
presented various legal theories in support of her position:

1.Aurora Bank FSB f/k/a Lehman Brothers Bank did not own the Mortgage and Promissory Note on the date of execution of the Assignment and had no authority to assign them to Movant.
2. By the terms of the two securitized trusts for Lehman Brothers designated 2006-3 registered with the U.S. Securities and Exchange Commission, no assignment occurred.
3. The Assignment was executed and recorded post-petition and may constitute a violation of the automatic stay pursuant to 11 U.S.C. Section 362(a)(4).
4. Movant has not established that on the Petition Date it had physical possession of the original Promissory Note properly endorsed in its favor.
5. Lehman Brothers’ ability to enforce the Promissory Note or Mortgage was extinguished in 2006 when it was paid by the Trust for the pool of mortgages which form the Trust’s corpus.
6. Title between the Promissory Note and Mortgage were bifurcated, thereby rendering the Mortgage unenforceable.

The Trustee asserts Movant is an unsecured creditor and she has authority to sell the Property free and clear of encumbrances for the benefit of the estate.

Movant asserts the Note and Mortgage are owned by the Lehman Brothers Small Balance Commercial Mortgage Pass-Through Certificates, 2006-3, a private securitized trust, and Movant, as the asserted owner and holder of the Note and Mortgage, has
authority to enforce the security interest. Movant presented with its post-hearing brief an Allonge to Promissory Note (“Allonge”) purportedly dated August 1, 2006 and executed by Jennifer Henninger as the Special Assets Administrative Assistant of Aurora Bank FSB directing: Pay to the Order of U.S. Bank National Association, as Trustee (the ‘Trustee’) under the Trust Agreement dated as of October 31, 2006, among Structured Asset Securities Corporation, as Depositor, Lehman Brothers Bank, FSB, as Servicer, and the Trustee relating to Lehman Brothers Small Balance Commercial Mortgage Pass-Through Certificates, Series 2006-3, without recourse.

Doc. No. 46 (emphasis added).

The Debtor filed an Affidavit (Doc. No. 47) stating he had no prepetition communications with Movant, was not aware Movant had a security interest in the Property, and, if the Assignment is deemed invalid, desires to purchase the Property from the Trustee.

Analysis

The evidence presented establishes the Property is encumbered by the Mortgage, which secures the Debtor’s performance of the Note. The Mortgage was properly perfected pre-petition through its recordation in the Official Records Book for Orange
County, Florida. The Mortgage and Note have not been bifurcated. The Mortgage has not been satisfied. The Debtor had actual knowledge of the unsatisfied Mortgage and the Trustee, through the recordation of the original Mortgage, had constructive, if not actual,
knowledge of the unsatisfied Mortgage. Kapila v. Atlantic Mortgage and Inv. Corp. (In re Halabi), 184 F.3d 1335, 1339 (11th Cir. 1999).

The purported assignment of the Note and Mortgage to Movant does not affect perfection or constitute a transfer of property of the estate or the Debtor. Id. at 1337.
“[A] subsequent assignment of the mortgagee’s interest – whether recorded or not – does not change the nature of the interest of the mortgagor or someone claiming under him.”
Id. at 1338. Recordation of an assignment post-petition does not constitute a violation of the automatic stay. Id. at 1337; Rogan v. Bank One, N.A. (In re Cook), 457 F.3d 561, 568 (6th Cir. 2006) (affirming the analysis of In re Halabi).

It is uncontroverted the Note has been in default since approximately May 2009 and a balance of approximately $300,662.84 is due and owing. The Debtor, who is a property appraiser, values the Property at $250,000.00 and Movant values the Property at $178,000.00. The Debtor is not making adequate protection payments to Movant. There
is no equity in the Property and it is not necessary to an effective reorganization given this is a Chapter 7 proceeding and the disclosures made by the Debtor regarding the Property in his bankruptcy papers. Grounds exist for relief from the automatic stay
pursuant to 11 U.S.C. Sections 362(d)(1) and (d)(2).

Movant’s Motion, however, is due to be denied because Movant has failed to establish it has standing to seek stay relief. A motion for relief from the automatic stay must be prosecuted in the name of the real party in interest. 11 U.S.C. § 362(d); FED. R. 7
CIV. P. 17(a)(1); FED. R. BANKR. P. 7017. “The real party in interest in relief from stay is whoever is entitled to enforce the obligation sought to be enforced.” In re Jacobson, 402 B.R. 359, 366 (Bankr. W.D. Wash. 2009). Only the holder of the Note and Mortgage, or
its authorized agent, has standing to bring the Motion. Id. at 367.
Movant asserts in its Motion it is the “owner and holder” of the Note and Mortgage, but has presented no evidence substantiating that assertion. The copies of the Note presented do not contain an endorsement evidencing an assignment of the Note.
The Affidavit executed by Movant’s loan servicer makes no mention of the location of the original Note or who has possession of it. Movant proffered no business records or testimony tracing ownership of the Note and establishing Movant is the present holder of
the Note.

The veracity of the Allonge and Assignment is questionable. The dates contained in the Allonge are chronologically impossible. The Allonge is dated August 1, 2006, but references a trust that came into existence on October 31, 2006. The signature of Jennifer Henninger is undated and not notarized. The Allonge was not referenced in or filed with Movant’s Motion in October 2009, but was presented three months later as an attachment to its post-hearing brief.

The Assignment was executed and recorded post-petition approximately two weeks prior to Movant’s filing of the Motion for Relief. It was prepared by Jennifer Henninger, who executed the Allonge, and was recorded by the law firm that is representing Movant in this proceeding. Jack Jacob’s execution of the Assignment was notarized by Jennifer Henninger and witnessed by Louis Zaffino, the affiant of Movant’s Affidavit. It appears the Allonge and the Assignment were created post-petition for the purpose of the relief from stay proceeding. Movant did not establish Jennifer Henninger and Jack Jacob had authority to execute the Allonge and Assignment.

Movant’s submissions are insufficient to establish it is the owner and holder of the Note and Mortgage or is authorized to act for whoever holds these documents. In re Relka, No. 09-20806, 2009 WL 5149262, at *5 (Bankr. D. Wyo. Dec. 22, 2009) (granting stay relief where movant established possession of note through testimony of witness who personally retrieved note from movant’s vault); In re Jacobson, 402 B.R. at 370 (denying movant’s stay relief motion due to movant’s failure to establish it was holder of note); In re Hayes, 393 B.R. 259, 270 (Bankr. D. Mass. 2008) (denying movant’s stay relief motion and sustaining debtor’s claim objection due to movant’s failure to establish it was holder of note). Movant has not established it has standing to bring the Motion and the Motion is due to be denied.

Accordingly, it is

ORDERED, ADJUDGED AND DECREED that the Property located at 830 Hoffner Avenue, Orlando, Florida 32809 and more particularly described as:

Lot 7, SUNDAY BLOCK, according to the plat thereof, recorded in Plat Book O, Page 27, of the Public Records of Orange County, Florida is encumbered by the Mortgage executed by the Debtor on August 1, 2006 and recorded in the Official Records Book for Orange County, Florida on August 15, 2006 as Instrument 20060534342 at Book 08805, Page 4292, which Mortgage constitutes a valid properly perfected lien, and which secures the Promissory Note executed by the Debtor on August 1, 2006 in the principal amount of $274,500.00 and designated as Loan
Number 00207199; and it is further ORDERED, ADJUDGED AND DECREED that the amount of the Mortgage lien encumbering the Property exceeds the Property’s value and there is no equity in the Property; and it is further ORDERED, ADJUDGED AND DECREED that the Movant’s Motion for Relief from Stay (Doc. No. 22) is hereby DENIED due to Movant’s failure to establish it has standing to bring the Motion; and it is further

ORDERED, ADJUDGED AND DECREED that the Trustee, within twenty-one days of the entry of this Order, is hereby directed, pursuant to 11 U.S.C. Section 704(a) and Federal Rule of Civil Procedure 5009, to file with the Court a Report of No Distribution or to designate this case as an asset case.

Dated this 9th day of February, 2010.

/s/ Arthur B. Briskman

ARTHUR B. BRISKMAN
United States Bankruptcy Judge

The Florida Supreme Court’s Residential Task Force spent a year reviewing the practices of the foreclosure mills and determined (I’m paraphrasing here) that they were engaged in systematic fraud and misrepresentation in courts across the state. (The full report is here)

I’m concerned that the report raises serious constitutional issues…I mean, if the Supreme Court makes findings of fact that citizens are being abused by systemic fraudulent and improper practices and the practices continue largely unchecked, aren’t there due process issues that the Federal Courts are obliged to address?  This is an issue that will eventually catch the attention of law clerks, academics and  law school professors who will eventually provide some scholarly work on the subject.  I can tell you that a very real practical consequence of all this mess will be instability in the real property markets for decades to come….you see Final Judgments of Foreclosure that are based on facially incorrect information, fraud or misrepresentations are void or voidable for the next twenty years.  The good people that are buying REO homes that have been subject to the foreclosure process simply cannot be secure in their homes.  Plaintiff’s attorneys and the investors who actually own the notes that were secured by the mortgages that were improperly foreclosed will be coming….just wait.

Anyway, in an effort to curb the abuses, the Supreme Court of Florida enacted a rule that required the foreclosure mills to verify the foreclosure cases they’re filing in bulk across the state, effective February 11, 2010. (Copy of the rule  here)

“Verified” means the Florida Supreme Court is asking the Plaintiffs and their attorneys to swear or affirm that they have the right to invoke the awesome power of the courts of this land as a key component of their effort to deprive citizens of their homes and property.  Now asking a party to prove they have the right to invoke the power of the court before that party wield such a powerful force shouldn’t be such a big deal…problem is, the foreclosure mills are not comfortable or are totally unwilling to make such a basic and fundamental affirmation.

In comments submitted to the Florida Supreme Court (found here) Shaprio & Fishman told the Supreme Court (and I’m paraphrasing here), “You see court, foreclosure is like dogs playing poker….it’s hard to explain and difficult to grasp, but let us lay it out for you here.”  Read carefully the comments they’ve made…there’s a little slip of the ethical tongue  in paragraph six when they comment about the fact that notes and mortgages are sold back and forth and the end purchaser cannot verify any of the key facts in the complaint….interestingly the drafter calls them, “alleged facts”…you see the author of the comment concedes they’re not even sure about the facts.  Anyway, the balance of Shapiro’s comments are essentially the fact that none of the parties the Plaintiff’s attorneys bring before the court are in a position to verify all of the facts necessary to foreclose.  To me the admissions in the comments are staggering….they’re telling the Supreme Court we cannot possibly be required to actually prove we have the right to foreclose and what we’re owed.

The comments also point to a much larger problem the Supreme Court and all of us are going to have to come to grips with real soon….

MEDIATION IS NOT GOING TO WORK AT ALL BECAUSE THE PARTIES TO THE MEDIATION DO NOT HAVE THE AUTHORITY TO EFFECTIVELY MEDIATE.

ANOTHER THING TO KEEP IN MIND PEOPLE…

EVERY SINGLE ONE OF THE TENS OF THOUSANDS OF FORECLOSURE CASES FILED AFTER FEBRUARY 11, 2010 THAT ARE NOT VERIFIED WILL NEED TO BE REFILED TO COMPLY WITH THE RULE ANY JUDGMENT BASED ON SUCH INCORRECTLY FILED CASES IS VOID.

With that in mind, I just cannot understand why the Chief Judges in every circuit across the state are not just dismissing all these cases?