Matt Weidner – Fighting For The American People

Posts Tagged ‘foreclosure modification’

It happens all too often.  A client come to your office asserting that they have been actively and diligently working with their servicer in good faith to try and get a modification or settle the foreclosure case.  In too many cases, the foreclosure case moves right along with no regard to the efforts the homeowner is making to modify or settle.  In some cases, homes are sold right out from underneath the homeowner while this is occurring.  Florida’s Second District Court of Appeals has made it clear that this must not happen in this circuit. The DCA ruled that if a homeowner makes a colorable case that they have been trying to work with the servicer, the trial court MUST hold an evidentiary hearing if a motion is filed to Vacate a Final Judgment.

I demand that my clients keep written and detailed records of all contacts and communications with the servicer.  This Order, like the Elliott Order from the 4th DCA should be enough to prevent foreclosed homes from being sold to third party purchasers even after a sale given the possibility that the Default Judgment could be vacated.  These Orders reinforce the good job appellate courts are doing to reign in the abuses of the banks and their attorneys and provide hope to us all that the rule of law, equity and fairness will prevail in this country.

Congratulations to JEDTI Henry Hicks for this great outcome for his clients.  These cases reinforce and remind us all of the good and honorable work Florida’s Foreclosure Fighters are doing and the great service they are providing to the citizens of this great state!

READ AND ENJOY!

Palacio Appeal Order

This very public nature of this blog and the criticisms contained on it carry real liability for me.  I am aware of this and do not like the feeling.  I know the forces we’re fighting against read this blog and that at some point in time they will take steps to bring it and me down.  Those of you who are attorney and advocates likewise feel the pressure and strains of fighting against an entire industry with teams of attorneys inside the courtrooms that have now largely been turned over to them.

Whenever I feel a bit weary, I am reminded how much harder the struggle is for my clients and for all the homeowners out there who are suffering.  Many are suffering job loss, health problems, family turmoil.  They are suffering in the most profound and painful ways and often their home is the last piece of humanity they have to cling to.  When I started this fight I was just defending each of the client I served, but as I became aware of the systemic abuses that were being visited upon vast numbers of consumers by the lending industry and especially the abuses that were being permitted inside our courtrooms, I realized that this fight was much bigger than the individual client in foreclosure.  This is a fight about the very essence of what it used to mean to be an American. Our entire way of life has been corrupted and the last refuge of protection and equity, our courtrooms, has been co opted by the forces that have laid siege to the American people.

The stories of abuse that Americans are suffering in this legal process are the most disturbing to me as a lawyer.  The fundamental breakdown we see occurring in our courtrooms every single day represents the single greatest threat to our way of life since the Soviets trained nuclear weapons on our homeland.  The difference between that threat and this is the current threat comes from within and this threat is far more destabilizing in the long run.  We have all lost hope that there is any sort of fairness or equity in this country and when you witness the abuses that the lenders and their attorneys are permitted to visit upon normal citizens everyday, you cannot help but believe our judges either do not see the abuses, or worse they see them but do not care.

Please read the story below that was sent to me.  Remember her story when you’re fighting your case.  Think of her as you sit there in courtrooms and watch files and homes and lives be summarily disposed of right before your eyes.  When you see Summary Judgments being signed with no real review and no appearance at all, consider how many stories and lives like the one below are represented by those files. Let the anger you feel from reading the story below build strength and resolve.  To the reader who sent this in, thank you.  To all of you out there fighting, she is who we are fighting for.

My husband and I purchased a home in 1996.   Our lives were very good at the time.   The house was a middle class 2500 square foot home outside of Tampa and a small mortgage of $113,000.   Together we could easily make the payments.

Jump forward to 2002, my husband was beginning to slow down physically and became ill, we didn’t know why.   My job had just been cut down in hours and half of it outsourced, so we decided to cut our payments by going through “Countrywide Home Loans” and opt for a “Streamline VA Refinance”.   It cost over $21,000.00 and only dropped our payment pennies, and added a huge amount to our principal.   The ½ percent “lower” interest rate made our payments go from $784.00 a month to $1080.00 a month somehow.   We called and called and could never get an answer what had happened.   We wrote letters and complained but resigned ourselves to believe, with what was happening to my husband and the illness, we just did not have the time to fight any more.   We found this was an illegal practice and it was never remedied.   It raised our mortgage and didn’t close on time, was never documented in the court records and the mortgage was never filed.   Doc stamps were never paid and the books were never recorded.

By 2003, our payment had increased to $1208.00, though or insurance and taxes had actually gone down and no one would send us a reason why once again.   My husband was getting sicker.   We were fighting out of court with my husband’s doctor, the VA, and with his employer over lost wages, long and short term disability, workman’s comp, retirement and pension.   I had seen enough of courts and lawyers and I was losing my mind.   (We did not prevail on any matter, although as the law goes, we should have on all- at least that is what all the attorneys we had said).

Jump forward to 2004, my husband dies after losing his job because he was ill with Prostate Cancer…   I had to give up my job to take care of him and escort him to chemotherapy…our mortgage company (Countywide had never held the note, they sold it within two business days to Wells Fargo Home Loan) had filed Foreclosure action against my husband while he lay dying in a Hospice bed in my home.   One week later he did die.   I never got my husband’s death pension.   (I never win in or out of court.   I have lost all faith in the courts, lawyers, the judges, justice and America).

The week after my husband died I am in court defending my home.   They didn’t care to even give me a minute to mourn.   I found out later the fees they charged were against the rules.   VA Loans are not charged the same fees, as the VA Guarantees certain things.   I read that Michael Echeverria is charged a found guilty of these same happenings in other cases, too bad I didn’t know at the time my husband died.   I paid them the fees and all back due money to re-establish the loan.

In 2007, Wells Fargo Home Loan loses my note.   Later in 2007, Wells Fargo Home Loan assigns my note to Wells Fargo Bank, NA.   My note is never held by Wells Fargo Bank, NA, the “Servicer”.   I became late on my mortgage after I lost my job and suffered two heart attacks.   I was diagnosed with Cushing’s disease and a tumor was found on my Pituitary and a large tumor was removed from my Uterus.   I became severely diabetic as a result of the Cushing’s with extreme high blood pressure.

Later in 2007, Wells Fargo Bank, NA sues my husband for Foreclosure, not me… The problem is that my husband is dead.    I call them to notify them that the Bank holds a Death Certificate I had provided them with.  I let them know that I had filed one with the Clerk’s Office in Hillsborough County as well.

In 2008, The Florida Default Law Group files a motion of Voluntary Dismissal to Defendant “Husband”, Tenant 1,2,3,4, spouse, heirs, and all, et al…    and  “Voluntary Dismissal of lost note”… saying they have found the note.   They attach a copy of the mortgage and not the note…

Also in 2008, I suffered a flood in my home, due to a AC unit that caused my ceilings to collapse.   The old  insurance that I had was with one whom had gone bankrupt, causing me to have gone with a “Force Placed insurance through Wells Fargo Bank, NA, owned by Wells Fargo Home Loan.   They came out and issued a check to Wells Fargo Bank, NA and Me for almost $9000.00, to have the loss repaired.   I paid to have the repairs done and asked for the check and they did not respond, and I wrote them a letter, to which I got a call from the bank saying they would not release the funds and they had been applied to the mortgage.   In my contract they cannot hold it longer than 60 days, and they had the right to ask for inspection which they did not do.   They have charged me with 25 inspections that have not been performed.   They would not release the funds that I am paying for them to insure me for.   I plan to send this through the Insurance Commissioner’s Office for Complaint, as well as the Department of Business and Professional Regulation.

1n 2009, they dismiss tenant 1,2,3,4, and Voluntary Dismissal as to re-establishment of Lost Note again.  Once again, placing a copy of the Mortgage, but not the note.   Relying on the fact that the judge will see the document marked “Mortgage” and assume that they would not lie, and the note must surely be attached…but it of course is not.

In 2010, June, they file a pleading asking for court costs.   Never acknowledging dismissal or never asking for a motion for hearing, or never asking even to re-open the case twice dismissed.   All in my husband’s name.   They also attached an affidavit…on someone who says they have seen the documents and will attest to them being there, but do not attach a copy of the note or any documents again (1.540).   None of this shows up under my name in the records, none of this has ever been recorded in my name, and none of this was ever served on me, or on my deceased husband through me.   I am totally unaware of any of this.   It all goes on in the background somewhere, and is not noted under my name.   I am totally oblivious as to any action whatsoever.

July 2010, Still no note, no attachment, more illegal fees, on a case they dismissed against a dead man and his spouse.   Never did they file against me in my name…

1. In August ..ALL OF A SUDDEN A JUDGEMENT AGAINST ME!!!!!!!!!!!!!!
2. I never had gotten a notice of filing.
3. I never had a case filed in my name.
4. I never had a service in my name since 2007, when they were dismissing the case.

I called Bay Area Legal Services after speaking with you.   They told me to call the judge’s assistant and ask for the judgment to be set aside.   They told me how to file a motion, and to ask if I could have it done under emergency since I had not been notified of any previous action on the case.    I asked for  Judge…It was explained by the Judge’s Assistant, that a senior judge was filling in for Judge and he was a retired Judge and he was the one who had signed the Judgment against me and she explained that they had filed a judgment and all I could do was ask for the Judge to set it aside, she then told me “Good Luck”…

I read your blog, and found by reading it and other internet blogs, what exactly went into a motion to set aside, so I did my best in writing my own motion, which took a lot of time.   I deferred also to the five courses in community college I took in paralegal on how to file a motion.   I remembered to always file one, deliver one to each party, and one to the judge and to have three additional copies time-stamped.    I am sure whomever will read it, they would laugh as it was 13 some odd pages long, and most of it was copy and paste form everywhere on the internet, but I had to somehow make my point that laws were being bent to prevail upon the court half-truths and out-in-out lies, to get my home away from me.

I did all this work and delivered it by hand and guess what…they lost my paperwork.   I had three copies time stamped initially and filed yet another copy, again they lost it, I hand delivered it to Linda, the temporary, retired judges assistant, and guess what?…It was lost too.   Then I was out of time, I had one day to act before my house would be sold on the auction block…so I had to ask for a hearing.   I had to write my own motion for yet another hearing, deliver it to Florida Default Law Group, get it time stamped and initialed there, deliver it back to the Judges clerk, deliver one to the assistant and have it time stamped and filed in three hours from start to finish.   I was out of time.

I delivered the motion, and did all of the above, and guess what happened next?   They lost it.   I had to sit at the courthouse until they got the judge to approve the hearing.   Because the clerk  remembered the document, they issued the hearing…

I went to the hearing the next day at 9:00 in the morning, this past Friday.   The Judge really admonished me, saying I had to wrap my mind around the fact that I had a judgment against me.   “What about the fact that the bank never held the note and filed for “lost Note” then dismissed that and the defendant …a dead man and me “his Spouse”?” I asked.   Judge told me “SO WHAT?    Half these cases here have a lost note!”  he angrily replied…”You have a judgment against you”.   I said that the docket was even in my husband’s name and I was never notified of the hearing for summary judgment.   He again said “SO WHAT?!!!”   He reminded me again I had a Judgment against me and I must get used to the fact that I had not acted and that I had to “Wrap my head around it”.

I then apologized for maybe being rude and arguing, but that the fees the bank was charging were unlawful, and that they plaintiff’s attorney had already been censured by the bar and found guilty for the same things, and that an Insurance claim, for which I filed had been paid to the bank and I had never been reimbursed for repairs…per contract…and it was not mentioned anywhere in the fees and amounts due and owing breakdown.  Therefore the breakdown of fees had to be incorrect, and that the affidavit never mentioned them as well.   The affiant had never mentioned the payment from the insurance company, though she attested she was well aware of “all the facts of the amounts due and owing, documents, books and records…”

Retired Judge was then was very angry with me, and I could see that he had no choice, but to cancel the sale until December 3, 2010, and told the attorney to provide me with a mediation hearing for modification and to discuss the insurance check and work out the fees and payments with me.   This should be interesting since I have tried to modify the loan for over two years, only to have the numerous faxes and letters fall on deaf ears, or answered with “We ran out of time, we have to start all over again”…or when I tried to pay a lump sum I heard “Call this number to get the pay-off” when you tried to call the number you get “this is not a contact number, please call your loan servicer”   So I was surprised the judge ordered “Modification”.

Needless to say, after all the mess, the Judge admitted they had “Misplaced my file” and later still upheld the Judgment against me – the one in my dead husband’s name, but judgment in my name.   The one they cannot find the file on, but seem to be able to direct judgment upon.  The one that the Judge “Has never laid eyes on”…in his own words, and has never read the motions, however, can rule on hearsay and fraud…

If I had gone in with an attorney, I believe Judge would have acknowledged that he had accidentally signed a judgment with no note attached that attested that it had a note attached, and would have realized a VA loan had unlawful fees attached and that it was against a dead man which had been dismissed twice before and was not against the person whom had never been served a notice of hearing, whom had three times filed for this judgment to be set aside, but could be set aside since it was not in her name and the file had been lost.   I know…none of this makes sense.

I called 14 times today to make sure that the judge’s orders had been filed.   They had not.   No one could find his orders, no one could find his judgment to cancel the sale.   I called three times from the emergency room where my daughter lay with chest pains.  The new file was lost again…I am feeling like there is a problem here…

I stopped on my way home from Tampa General Hospital.   I told Linda, Judge’s Assistant I would stay until they found it.   I stayed, and they did not find it but found a clerk whom had see it. Again, Judge’s very helpful clerk…whom has a very good memory, since this is the second time he has had to remember seeing something filed, and is maybe young enough to remember what his Law Professors taught him about Justice… Finally, the sale was canceled, until December 3^rd.   The Clerk’s office and acknowledged it was canceled.   The Clerk’s office told me that the Judge’s office had called and told her to cancel the sale.   ???

I am filing an affidavit with all attachments with the State Attorney General’s Office.   They said they will overnight it to the Miami office where they are handling the current investigation.   I plan to send it to the Florida Bar as well, I will attach the previous convictions for the same charges.   I read the Bar is monitoring him and his firms.   Also, I think I will attach the names of the three attorneys that work for Florida Default…Huffman, Hardman and Riley, these are the attorneys working on my case.   I think those names seem quite notorious.  I am to sit with them and figure out a modification.   I wonder how that will go?

I will make modifications with the bank, I will maintain this home I have owned for 13 years, but whether the bank or the attorneys ever are held responsible for the troubles they are causing?   Who knows, but I think I need an attorney, unfortunately, I cannot afford your most deserved fees.   I will prevail myself to Bay Area Legal once again for advice as I did this time, and maybe they will find me someone, I am not sure, they did not this last time, but if they do, it will not be of your stature or experience, but maybe someone familiar with your work.   I can only pray.

Thank you for the legal ammunition.   I would have my house on the auction block tomorrow at 2:00 pm.  I am not an overly religious person but I will tell you what my mother says…”Blessed art those whom seek justice, but cannot find it”, She also says then I am “surely blessed”.    God Bless you and your work in justice as well!

My concerns about the foreclosure crisis extend far beyond what is happening to homeowners in foreclosure.  The larger and far more troubling issues of concern I have is how the Legislature (pushed by business interests) is in turn bullying and pushing the judicial branch to solve the problem they’ve created.  Heretofore, no one seems particularly concerned that in order to accomplish this goal, judges may be required to toss fundamental procedural and even Constitutional rights out the window.

I have been articulating these concerns very specifically, and I want everyone to consider the two documents attached below in the context of these concerns.  In the first document, read how the Legislative pressure (bullying on behalf of banks) is explicitly asserted:

“The Legislature said we’ll never get out of the housing slump if houses are sitting out there vacant.”

(Again I ask my question, what will we do if all the 559,945 foreclosures were concluded tomorrow?  Who’s going to qualify for mortgages to buy those homes?  What’s the point of foreclosure if you can’t repopulate those foreclosed homes?)

And now we get acknowledgment of a major issue that potentially infects a huge portion of the 559,945 foreclosure cases pending…

“I’ve read about some claims of fraud on the part of lenders. And, of course, it only becomes an issue if it’s pled in the case. I like to hope if there’s any fraud, that it wouldn’t be widespread. . . . I mention that because it’s a variable, and I don’t know if it will be a factor.”

(Perhaps the good judge has read about the allegations of fraud that are incorporated into the Florida Attorney General’s active investigations of the foreclosure mills?  More importantly, I am of the opinion that the judicial branch cannot bury it’s judicial head into the sand and ignore these allegations of widespread fraud with the whole, “it’s only an issue if it’s pled” rationale.  One of the many problems with this flawed rationale is judgments entered by the court based on fraud are subject to attack for a year and in some cases FOREVER.  Next, if ANY fraud exists and it is being perpetuated in our courtrooms, allowing ANY of it to continue is a major crisis for the judicial branch.)

And next a very interesting phenomena that we’re all going to be looking at for some years to come….

“Another delaying factor is that lenders are asking to postpone sales dates on foreclosed properties. What we’ve been hearing is that the banks are causing a lot of the slowdown.”

Two issues.  First, soon, the banks that may have been pushing to speed these cases up are going to start howling that they want this process to slow down…we’ve seen this for some months now.  Next, what our courts really need to  focus on is the number of cases that were filed then just abandoned by the foreclosure mill.  I’ve started with a good sample in Pinellas County and these cases offer very troubling indications that something was wrong with these cases from the outset and that much of the foreclosure docket is polluted by putrid pleadings. I urge the courts across the state to be focused on this issue.  While I am totally opposed to the Legislature forcing the judicial hand with their 62% number, I am fairly certain that a big chunk of that number could be met next month by examining the stalled files closely then dismissing those cases where threshold burdens of pleading and evidence have not been produced.

So enough of my editorializing, here is the article:

FloridaBarArticle

And finally, please read an important case that calls into question the whole senior judge system as it is currently being implemented.

seniorjudges

While this blog focuses primarily on foreclosures and legal issues, the fact of the matter is that the foreclosure crisis is a symptom of two pervasive wrongs that continue to lurk across this country.  The first is widespread and institutionalized fraud.  The Fat Cats and financial wizards, with the consent of our elected and appointed leaders, engineered a system that sucked billions of dollars in equity and wealth from the middle and lower class and concentrated that wealth in those at the top of the pyramid…and those in foreign countries.  Now that the wealth and equity has been sucked out of private hands, our courts and our local elected judges are being used to wrestle away the private property rights that were secured by the former privately-held wealth.

Unemployment- The Rot That Threatens To Destroy This Country

The second major wrong that has this country in the death grip is pervasive unemployment and underemployment.  The Wall Street Journal today reports that there are 14.6 million Americans looking for work, or 9.5% of the workforce. (See the full article here)  Now I think that number dramatically understates the scope of the problem because the figure does not account for all those people who are actually out of work or working and earning far less than they need to survive.  If those real numbers were factored in, the unemployment number would surge dramatically.  For the underemployed, I’m talking about any family where both are working, but are not making enough to cover the reasonable expenses of daily life.  Factor in the costs of the very basics…housing, food and medical care and the percentage of Americans who are not surviving is daunting.

Consider too the number of people employed by the US Military and the percentage of GDP attributable to that portion of our larger economy.  As of December 31, 2009 1,421,668 people are on active duty in the military with an additional 848,000 people in the seven reserve components.  The 2009 U.S. military budget is almost as much as the rest of the world’s defense spending combined and is over nine times larger than the military budge of China.  For FY 2010, Department of Defense spending amounts to 4.7% of GDP.  Now I’m a huge supporter of our military, but the point I’m making is that we cannot afford to stop any of our existing wars because we cannot have even a small percentage of unemployed combat trained veterans languishing stateside unemployed with nothing to do.

Foreclosures- What is the point?

Against this bleak background, the foreclosure crisis plays out.  Americans are unemployed and underemployed.  They’re being thrown out of their homes forcefully on the orders of circuit court judges.  The beneficiaries of these forced dispossessions are large financial institutions, foreign investment interests and federal governments agencies that are the ultimate owners of the debt.  We all acknowledge that most of these parties engaged in widespread and massive fraud in the creation and transfer of the debt obligations.  Through depositions and discovery we’re increasingly aware that the foreclosure mills and institutions are engaging in fraud in the litigation of these cases.  Even in those cases where there is not abject fraud, in some cases the legal standards applied to obtain foreclosure has been so diminished that it’s become a meaningless farce. (see foreclosure rocket dockets)  Rewarding those who committed fraud and the law firms that continue to diminish the rules of law and evidence that should apply in our courtrooms deeply offends my sense of fair play and right and wrong.  And against this background I ask, “Why are we permitting these foreclosures to continue?”  What will these bad actors (the lenders and their attorneys) do with these properties when the take them back?  Why are we not forcing these bad actors to permit homeowners to stay in their homes under terms that are reasonable under the circumstances?  The current modification schemes are not working and the lenders and their attorneys are not engaging in good faith  negotiations with homeowners. The point of foreclosure should be to return a non-performing and wasting asset into some better performing use….but in this economy and in this practical reality, the best performing use of residential property is to keep homeowners in their homes under terms that are fair and just.

Our Judges- The Only Hope We Have of Preserving What Liberties And Dignity Remain

People don’t want to be in foreclosure.  It’s embarrassing.  It’s painful. It’s gut wrenching.  Homeowners who are in foreclosure are largely not in foreclosure because they were reckless or irresponsible.  Naive, gullible, misinformed….perhaps, reckless and irresponsible….perhaps in some instances….but how does their unintended conduct compare with the intended conduct of the far more sophisticated party….the lenders that made the loans and the bag men that are now suing to foreclose?  Our local judges are the last line of defense against the inequitable conduct that brought us all to this place.  This is not just about foreclosure.  It’s not just about borrowing money and paying it back.  It’s very much about all the sophisticated shenanigans that was playing behind the scenes and continues to play out in courtrooms across this country.  The judges sitting on circuit court benches are by and large some of the brightest, most dedicated and intelligent people you’ll ever meet.  Some may have been a bit shell shocked as this crisis invaded their courtrooms, but I’m fairly certain that most now understand most of the issues that play out in this sordid foreclosure arena.  For those that still do not, we all need to do our job of telling the story in their courtroom until they get it.