Matt Weidner – Fighting For The American People

Posts Tagged ‘foreclosure sale’

You’d have to be out of your mind to by a home after a foreclosure sale.  Courts can ignore issues like standing and capacity and fraud and abuse of homeowners, but at the end of the line if the process is so corrupted and fatally flawed that the market will not purchase the properties, what’s the point of continuing with all this slop?

Well, for any brave investor or soul that thinks they might want to jump into the toxic stew that is fraudclosure and make their killing buying REO property, read the cautionary tale that is Bevilacqua. The question before the Supreme Court was this:

Whether a person who holds title to property by
virtue of a recorded deed, but whose title is clouded
by a possihle adverse claim due to deficiencies in a
prior foreclosure in his chain of title, has standing
to bring a petition to invalidate the claims of prior owners?

In English:

If a foreclosure mill or bank committed fraud or otherwise engaged in improper conduct (like robosigning) to get a foreclosure and I purchase the home, am I safe from claims by the prior owner?

The answer is…..NO.  If you buy a home and anyone played games or cut corners along the way, you’re out of luck.  Or as the headline from Bloomberg Screams:

Buyers Can’t Sue After Bad Foreclosure Sale!

A Massachusetts man who bought property in a faulty foreclosure sale isn’t the true owner and so doesn’t have the right to sue over it, the state’s high court ruled.

The Supreme Judicial Court, which in January found that banks can’t foreclose on a house if they don’t own the mortgage, went one step further in a closely watched case and said a sale after that foreclosure doesn’t transfer the property. Therefore, the buyer couldn’t bring his court action against a previous owner, the court ruled. (Full Bloomberg Article Here)

SJC-10880_01_Appellant_Bevilacqua_Brief

Full Case Docket

I am so far beyond disturbed anymore.  I was disturbed a year ago after we went to Tallahassee and demanded a moratorium on foreclosures because of all the evidence of major problems.  I am sickened by what is happening in our courtrooms.  Courtrooms no longer symbolize for me the highest aspirational qualities of our country.  In the last several weeks I’ve been beaten up in courtrooms all across this state and I am convinced our court system has been consumed by the same evil and perversions that are wreaking havoc on the rest of our country and economy.

The sad thing is we’ve all become too weak to do anything about it….and for that, we deserve the government we’ve not got…..

Dubbed the ‘rocket docket’, the county’s foreclosure track cruises through several hundred cases daily, many ending in judgments for the lender and the subsequent scheduling of a foreclosure sale.

In the process, critics say, the docket tramples basic rules of civil procedure and due process. They point to the speed with which judges move cases along, and the emphasis on an expedited trial or summary judgment versus discovery.

Naples Daily News

Great job to Lisa at Foreclosure Hamlet for picking up on this one….

Have a look first at the curious chain of endorsements….

Six Endorsments

Now look at excerpts from the court docket:

And finally, one of the most curious pleadings in the history of court pleadings, the Motion to Ratify Judgment….

Motion to Ratify Summary Judgment-1

Is there any precedent in the entire recorded history of our court system?  What exactly does this mean and who dreamt it up?  Will appeallate courts buy this and will title insurance companies rely on these?  And here’s another thing that troubles me.  These motions assert that the affidavits were not properly verified…other versions of this motion cite the Florida Rules of Professional Conduct Rule and duty of candor towards the tribunal.  Some of us think we know what was happening with these affidavits, but has there ever been any hearing on this? Has there ever been a deposition taken to ascertain exactly what the details of the improper conduct were?  How can judges ratify a judgment when they have no idea what conduct they are ratifying?

Finally, I want to know….are the Collados out in the street?  And what happens to the third party bidder who was bidding at this foreclosure sale?  What about the taxpayer dollars that will be spent on all this sale cancelling and motions to ratify and all the other detritus that is now clogging our courtrooms?

For those of you that think the foreclosure crisis doesn’t impact you, consider the stories that will start to surface where lenders had no right to foreclose, such as the one in this article where the owner didn’t even have a mortgage on the property.

Sun Sentinel Article

While this is the most dramatic example, every day in court there are homeowners who are in formal repayment or modification programs with their lenders or the servicers, but a foreclosure sale is scheduled. I predict a wave of such reports over the next several months because the lenders have lost touch with the mills that are pushing these sales through.  And just forget about all the short sale and other people the are in the middle of modification discussions.  The system is so fatally flawed that only a moratorium will help to protect rights….just what was requested by US Congressman Alan Grayson.

Actually it probably happens hundreds, perhaps thousands of times a week across the state.  A hapless but hopeful homeowner is working with his lender (or someone he thinks is his lender), thinking that he is on the verge of a mortgage modification, when behind the scenes, the lender has convinced a judge to grant foreclosure and his home is sold.

There are remedies when this happens, but you’ve got to act quickly.  Hopefully you can catch this within ten days after the foreclosure sale.  Even if you don’t remember judgments are void or voidable if there is fraud or mistake in the files…and there is quite a bit of fraud and mistake in most foreclosure files.

Remember to challenge the sale and attack the judgment.  Read the case below, Elliott v. Aurora for an example of the facts that the court will consider….you might consider contacting the Plaintiff’s attorney but good luck getting through to someone and in my experience, you will not get their attention until you have pled out a very good case with compelling facts and good case law.

elliott v. aurora

As more counties adopt their foreclosure mediation programs, I’m concerned there will be more default judgments and sales as the homeowner is distracted by the mediation and does not respond to the lawsuit.  After meeting with those who will be running the mediation program here in Pinellas County, Mediation Managers, Inc., I’m hopeful that this will not be a major problem here in our county.  I’m convinced those running our program will be working hard to prevent errors and mistakes that will lead to false judgments.

We’ve all seen it and it happens too often…Borrower is in a formal modification with the lender or servicer or has fallen victim to a foreclosure rescue scam and doesn’t respond to the lawsuit.  Unbeknownst to the homeowner, the lender is moving right ahead with the foreclosure sale and their home is lost.  This happened to a family in Port Charlotte, but rather than losing everything, Elizabeth Boyle and the Super Foreclosure Heroes from GulfCoast Legal got the good judge to cancel the sale, vacate the final Order and allowed the Defendants to Answer.  A copy of the Order is below:

akeysersettingaside

A key point made in the order is that foreclosure courts are Courts of Equity.  Keep in mind that this bedrock principle is embodied in the law used by these reckless mills to engage in this widespread fraud.  We should all begin quoting the following statute in every pleading submitted before the court.  We need to constantly remind our judges that courts of equity are fundamentally different than courts of law…here is the cite:

FLORIDA STATUTES 702.01  Equity.–All mortgages shall be foreclosed in equity.

Courts of Equity- A chancery court, equity court or court of equity is a court that is authorized to apply principles of equity, as opposed to law, to cases brought before it.

Next thing that Boyle (and anyone else facing Indymac in litigation) needs to do is challenge the right of Indymac to proceed with the litigation. I’m pretty confident that if we pull back hard enough on the Indymac curtain we’re going to find

INDYMAC HAS NO RIGHT TO PROCEED AS A PARTY PLAINTIFF- THOSE RIGHTS WERE SURRENDERED FIRST TO THE FDIC THEN TO ONEWEST

While we’re on the subject of courts vacating sales, I publish again the fantastic Order Vacating the Order Substituting Party Plaintiff recently entered in St. Johns County.

7th+Cir+Judge+Trayno+USBankvMcCleod-vacatewprejudice

We’re all aware that Plaintiffs are morphing in and out of cases through ex-party Orders, Assignments of Bid and other improper means.  We all know that standing is being falsely created through questionable endorsements and improper Assignments of Mortgage. I particularly like the section of that Order that quotes the Rules Regulating the Florida Bar 4.3-3(a)(1)-

“A lawyer shall not knowingly make false representations or fail to correct a false statement of fact made to the court.”

It disturbs me that this rule is being widely ignored and on the much larger level, I am deeply troubled that billions of dollars in foreclosure judgments are being issued to entities that are not properly identified, that change right in front of the courts eyes and which we have no way of tracking or identifying.

JUDGE- EXACTLY WHO ARE YOU GRANTING FORECLOSURE TO?

WHO DOES THE AFFIANT WORK FOR?

WHO SIGNED THE ASSIGNMENT OF MORTGAGE?

WHOSE INCOMPLETE, ILLEGIBLE MARK IS ON THAT NOTE?

WHO PROFITS FROM YOUR JUDGMENT OF FORECLOSURE?