Matt Weidner – Fighting For The American People

Posts Tagged ‘greg clark’

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.

I tell my clients that though I am a licensed attorney, I feel  more like an Oncologist,  for I believe they have acquired, Cancer of the Mortgage.

And like any good Title doctor I turn to the cause of their malady, confirmed in the bloodwork, and inform them: toxic koolaide.

So it becomes my job to try and keep them alive, with hope and fight, until  I can find a cure.

I do have two big leads in my hope which, in turn, fuels my fight;  the lab report: terminal title defects, and the words of wisdom once uttered to a young law student by a torts professor some 30 years ago: “Greg, behind every failed investment model there usually lurks a failed legal model; failed either in design or execution.”

Not all mortgages have title defects, just the vast majority of those that have been infected since about 2002 with either a MERS complication and/or a strain of the securitized trust complex. These pathological agents were injected into what would have been an otherwise clean , healthy and clear chain of title to the real property, the collateral which was supposed to secure the notes given the lender for the money advanced.

By failed design:

Much has been written and will be written about the dysfunctional and hopelessly conflicted MERS configured mortgage which purposely separates the legal title to the mortgage from the legal title to the note (a practice in derogation of common law, common sense, and with no law or statute passed to authorize it), then cloaks the public record from knowing who the true owner is of your loan, including yourself. It’s the very antithesis of the once free, open, transparent playing field – our public property title registration system - upon which our real estate market economy was previously based and which used to be the gold standard that investors, worldwide could rely on and take faith in. How could such a American right to free and open property information be somehow ceded to or commandeered into the exclusive possession of a privately held corporation without one vote cast by a citizen of the republic? Suffice it to say that lenders themselves who relied on it have suffered defeats in court, and now, in Congress, a bill has been introduced to try and kill off this toxic title pathogen.

This “Innovative devise of modern commerce” seems well on its way to the Island of Misfit legal toys, or perhaps directly to oblivion as no none, going forward, wants to adopt it.

In failed execution:

Much has been written and will be written about the derivatives, new furry little creatures, sold to investors who accepted at face value their purring promises, that they were “mortgage backed securities” good stuff, or so said the securitized trust brokers who peddled them. But like Tribbles with teeth – sold to Klingons – they have bitten, hard. Suffice it to say that the industry’s own star witness recently testified (Kemp v. Countrywide)  in essence, that these investment securities really aren’t mortgage backed or even “note backed” due to a fundamental failure of note transfer: An omission followed - industry wide - as a foolish practice protocol even though it was in violation of their own contract documents and the terms and provisions of the governing UCC and REMIC regulations.

Hmm, looks like the investors drank some of that kool aide too, me thinks. They got “Cancer of the Mortgage un-backed security.” Then I think, to be fair, both homeowners and investors drank the bitter sweet beverage willingly, right? though not perhaps knowingly. But what about those birds that mixed it up, served it and now get hefty fees for providing the funeral services?

Last week the prognosis for one of my patients brightened a little when Judge Tepper in Florida’s 6th Judical Circuit granted my motion in the Stenz case to dismiss and in doing so ruled that the loan servicer (a sort of faceless proxy for the faceless unknown owner of the loan) had to reveal the identity of this owner of the loan and deraign its title to the loan from the very beginning of it to the day it filed the foreclosure action, in essence, to prove an unbroken chain of title to the loan.

Something as basic and simple as that.  And once I get that particular lab report back I suspect it may have some missing, broken, or pathologically invalid links.

I can’t wait.

Greg Clark,  Esq.

Clearwater: www.gregorydclarklaw.com

Founder of JEDTI

Jurists Engaged in Defending Title Integrity

Now here’s an Order that should be quoted across the country….

StentzOrder

Along with another excellent transcript on capacity

Padgett transcript

And a letter explaining issues related to pre-emption and exemption.

PREEMPTED-LETTER-FROM-SENIOR-COUNSEL-OF-THE-OFFICE-OF-THE-COMPTROLLER-OF-THE-CURRENCY

The following letter was sent by my colleague Greg Clark, a well-respected title attorney who has this to say about the conflict between what is happening in foreclosure courtrooms and how incorrect or improper legal decisions will plague our economy for decades to come.

Erroneous court decisions, and their failure to properly apply the law litter the vast landscape of our legal history. Reversals of our U.S. Supreme Court, by itself, years or decades later, is proof.

We in the world of transactional/title law and insurance follow a different tune than the drumbeat of the latest questionable appellate decision. We know that the vast majority of the judges sitting on benches never closed a real estate transaction nor searched and put together a title chain, nor could they spot a cloud or defect. We deal in a delicate and extremely conservative area of the law developed over nearly a 1,000 years of practice, process and tradition; We carry the history and weight of that developed law and its solid logic into the most important aspect of any transaction – the fundamental bedrock assumption underpinning its successful completion: clear and marketable title. Every buyer presumes it.

So we do not accept bad or illogical decisions of courts if it conflicts with our learned perception of the law and acceptance of a risk assessment. We cannot be forced to write title.

But if we don’t write title most of the modern real estate world and our economic system will grind down to a halt.

Taking Taylor further up the chain of appeal would cause no harm but it’s presence now as bad precedent gives no shelter or safe harbor for any title underwriting decisions foolishly based on it. Instead it stands out like a sore thumb, a poster boy for a decision based on expediency not law or logic.

Greg Clark

Clearwater, Florida

Just a few short weeks ago the Fifth Circuit Court of Appeals released its opinion in the case I had the privileged of arguing along with Greg Clark, Taylor v.  Deutsche Bank.  The trial court attorney and the attorney who prepared both the appellate briefs and this Motion for Rehearing was foreclosure defender George Gingo.

As most of you are aware, the opinion that was released in that case was disturbing to say the least because, in my opinion, and that of many other practitioners, the opinion was unclear in several key areas and addressed areas of the law which were not made of at issue in either the trial court or the appellate court briefs.  I believe the restatement of the law and the confusion caused by this lengthy opinion are so great that the a rehearing on the matter or review by another court is absolutely essential.

For those of you who are already confronting this opinion in your trial court practice the attached Motion for Rehearing should provide powerful arguments you need to support the judges who do examine the promissory notes at issues in these cases and who do not agree with the Taylor opinion as it currently stands.

We must all continue this fight and remember that this is not merely a fight over rules or legal technicalities, rather it is a fight for the foundations of our justice system and the heart and soul of this country.

The homeowners and borrowers did not create this chaos that reigns in our courtrooms and which is provoking such flawed and catastrophic legal outcomes…the Wall Street Wizards did.  The problems the foreclosure mills face in achieving their ill-conceived goal of forced dispossesion of hundreds of thousands of our neighbors cannot be solved through flawed legal process.  Our courts must apply the laws and rules as they currently exist and in so doing compel the Wall Street Wizards to engage in real world, practical problem solving to get out of the crisis they have created.

taylorrehearing