Matt Weidner – Fighting For The American People

Posts Tagged ‘ice legal’

Incredibly, U.S. Bank argues that “[i]t would be inequitable for [Ms. Gee] to avoid
foreclosure based on the absence of an endorsement to [it].” But that argument flies in
the face of well-established precedent requiring the party seeking foreclosure to present
evidence that it owns and holds the note and mortgage in question in order to proceed
with a foreclosure action. See Verizzo, 28 So. 3d at 978; Philogene v. ABN Amro
Mortg. Group Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006). When Ms. Gee denied that
U.S. Bank had an interest in the Mortgage, ownership became an issue that U.S. Bank,
as the plaintiff, was required to prove. See Lizio, 36 So. 3d at 929; Carapezza v. Pate,
143 So. 2d 346, 347 (Fla. 3d DCA 1962). As U.S. Bank failed to offer any proof of
American Home’s authority to assign the Mortgage, we conclude that it failed to establish its standing to bring the foreclosure action as a matter of law.3 See Servedio
v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010) (explaining that
plaintiff may submit evidence of assignment from payee to plaintiff or affidavit of
ownership to prove its status as holder of note); see also Khan v. Bank of Am., N.A., 58
So. 3d 927, 928 (Fla. 5th DCA 2011) (holding that bank failed to establish it had
standing to foreclose mortgage as matter of law where copy of note attached to
amended complaint bore endorsement assigning note to another bank); Verizzo, 28 So.
3d at 977 (finding genuine issue of fact as to whether bank owned and held note where
record did not reflect assignment or endorsement of note to bank). Cf. Isaac v.
Deutsche Bank Nat’l Trust Co., 36 Fla. L. Weekly D727 (Fla. 4th DCA Apr. 6, 2011)
(holding that assignee of promissory note and mortgage adequately established its
ownership of note and mortgage, as necessary to confer standing to bring foreclosure
action, where assignee filed original note and mortgage, along with allonge payable to
bearer, and affidavit from representative of successor in interest to previous assignee);
Taylor v. Deutsche Bank Nat’l Trust Co., 44 So. 3d 618 (Fla. 5th DCA 2010) (holding
that written assignment of promissory note and mortgage from nominee of original
lender to bank was sufficient to confer upon bank authority to foreclose mortgage, even though nominee had no beneficial interest in note and note was not endorsed by
original lender; mortgage gave nominee explicit power to enforce note by foreclosing
note and nominee assigned that right to bank).
Ms. Gee also asserts that the trial court improperly entered summary judgment
on the reestablishment and reformation claims when these claims were not raised in
U.S. Bank’s summary judgment motion. We agree. A motion for summary judgment
must “state with particularity the grounds upon which it is based and the substantial
matters of law to be argued . . . .” Fla. R. Civ. P. 1.510(c). The burden to conclusively
establish the nonexistence of a disputed issue of material fact and entitlement to
judgment as a matter of law rests squarely with the movant. See Holl v. Talcott, 191 So.
2d 40, 43-44 (Fla. 1966); Bloch v. Berkshire Ins. Co., 585 So. 2d 1137, 1138 (Fla. 3d
DCA 1991). The purpose of this rule is “to prevent ‘ambush’ by allowing the nonmoving
party to be prepared for the issues that will be argued at the summary judgment
hearing.” City of Cooper City v. Sunshine Wireless Co., 654 So. 2d 283, 284 (Fla. 4th
DCA 1995). “It is reversible error to enter summary judgment on a ground not raised
with particularity in the motion.” Williams v. Bank of Am. Corp., 927 So. 2d 1091, 1093
(Fla. 4th DCA 2006).

FULL OPINION BELOW

gee

There is a very real and a very profound battle raging across this country.  Actually there are many wars and they are not just limited to this country.  All around the world in fact, real people are rising up against the overreaching and the abuses of the banks and the power systems that have destroyed our economy, enslaved people and laid waste to our naive notions of due process and justice.

One of the battlefronts in this country are foreclosure courtrooms where dedicated advocates stand up for consumers and fight against the banks and all the power and influence they bring to bear.  Every battle is an epic struggle not unlike David taking on several Goliaths all at once. These advocates fight the banks with their armies of lawyers (paid at $600/hour with taxpayer funded bailout money.) and they often fight an entire system predisposed to strike anyone who dares to challenge the awesome power bent on crushing any resistance that dares to stand in the way.

Without a doubt some of the true superheros in this battle are the warriors at Ice Legal in Palm Beach, Florida. The national news has repeated sung their praises, but I daresay not many have actually read the work that lies at the heart of the battle.  But today, you can have an insider’s look.

Now, the Glarum case should not have been all that extraordinary.  As a good local judge reminded me recently, “That’s always been the law in this state!”  But the banks have responded as if the Glarum opinion will mean THE END OF THE WORLD AS WE KNOW IT!  The banks have already begun an all out, full stops campaign to attack this decision…and I’m guessing they will bring every single power they can to bear in an effort to attack this plain and clear restatement of the existing law.

I encourage you to read each brief carefully, but before you get there, have a read of a few of my favorite highlights:

In short, appellants argue that it may look like a duck, and quack like a duck, but the court would need a zoologist to testify that it is in fact a duck before it could make that finding.

To adapt the BANK‟s own metaphor: the bare, unsworn statement of its attorney that something looks like a duck and quacks like
a duck is not evidence of a duck.

In Florida, all averments to fraud must be pled with particularity. Rule 1.120(b), Fla.R.Civ.P. (2009). In this case the Appellants amended their answer twice (R.VoI.Three pp.566-567) and never alleged fraud as an affirmative defense. See Supp.R.pp.553-555. They have, however, thrown it around the court room quite a bit.

Section 90.902(8), Florida Statutes (2009), provides that “[ c ]ommercial papers and signatures thereon and documents relating to them, to the extent provided in the Uniform Commercial Code” are self-authenticating. While the Assignment is not commercial paper it is related to the Note and is self authenticating pursuant to 90.902(8). HUH?

The BANK takes the sanctionably irresponsible position that the trial court‟s “factual determinations” in entering summary judgment are to be reviewed for “an abuse of discretion.”1 It is elementary that, if the trial court made factual determinations, it erred in entering summary judgment. Coquina Ridge Properties v. E. W. Co., 255 So. 2d 279, 280 (Fla. 4th DCA 1971) (Summary judgment
reversed because “[t]he trial court may not try or determine factual issues in [summary judgment] proceedings; … substitute itself for the trier of fact and determine controverted issues of fact.”) Not surprisingly, all the cases cited by the BANK for this standard of review
having nothing to do with summary judgment.

Worse than merely misstating the standard of review, the BANK actually employed this incorrect standard throughout its brief. One glaring instance is the BANK‟s contention that summary judgment should be affirmed because “there was not enough evidence to allow Judge Sasser to rule in [“the OWNERS‟] favor at the summary judgment hearing.” Another example is its statement that “[i]t cannot seriously be argued that what the Appellants have identified as evidence…was enough to allow Judge Sasser to make a finding in their favor.”  While the BANK‟s stunningly frivolous assertion regarding the summary judgment standard of review would never have misled this Court, it is nevertheless emphasized here because it is indicative of the BANK‟s lack of concern for accuracy and candor when addressing both this Court and the court below.

Correction to the BANK’s Statement of Facts: The BANK tells this Court that the promissory note, mortgage and assignment were “all…duly recorded in the public records.” There is nothing in the record to suggest that the promissory note was ever recorded.

As often occurs when a proffered assignment of mortgage encounters evidentiary snags, the BANK now claims that it “does not need the Assignment to prevail in this case.”

Having failed to adduce evidence to support its allegations of standing, the BANK cannot now change to a different allegation of
standing during the appeal.

The BANK ridicules the OWNERS insistence that the original mortgage be authenticated as “bizarre” because “if it is not the document they executed, they should feel free to say so.” Quoting the trial court judge during an evidentiary hearing, the BANK suggests that the OWNERS should know if the BANK‟s documents are authentic, simply by looking to see if its terms match the copy they received at closing.

Glarum+Initial+Brief+FINAL

Glarum+Appeal_Answer+Brief

Glarum+Reply+Brief

glarumopinion

The banksters have engaged in rampant lawlessness for too long.  Too many courts all across this country have just looked the other way and in fact have become complicit in crimes and lawlessness of the banksters.

I am terribly troubled by one area in our country where courts have just stopped holding hearings on the motions of the citizens the courts (theoretically at least) have a Constitutional duty to uphold.  One judge recently exclaimed, “We’ve never granted those kind of motions here.”  It’s kinda like law enforcement just deciding, “We don’t bother with that whole Miranda warning thing.”  No it’s not kinda like that, it’s just like that.  What we’re talking about here is the total collapse of our fantasy of the Rule of Law.  Our courts have largely conceded victory to the banksters, deciding that it’s preferable to just ignore hundreds of years of law in favor of the banks, because, after all, we really should trust the banksters, shouldn’t we?

Well, there are a few bright spots now and then. A few times when that little flickering light of justice reveals itself. (The rest of the time, the light is blown out by the hurricane force winds of corruption and corporatism.)  That little ‘ole light shone a little brighter just last week, thanks to our friends over at Ice Legal…..have a little read of the story here.   Desperate, dangerous times. What were you doing when the smoke started billowing on the ship?

That comes directly from the Palm Beach Post….another GREAT VICTORY from the foreclosure warriors at Ice Legal…

In a decision that could have staggering implications on foreclosure proceedings statewide, an appeals court ruled Wednesday in favor of the owners of a Wellington home whose bank filed documents sworn to by employees with no personal knowledge of the case.

The ruling from the 4th District Court of Appeal reversed in part a 2010 Palm Beach County Circuit Court summary judgment that said homeowners Gary and Anita Glarum owed LaSalle Bank $422,677.

That amount was based on an affidavit of indebtedness signed by loan servicer employee Ralph Orsini, who pulled the information from a company computer ­– a move that appeals court judges said amounts to hearsay.

PALM BEACH POST

read the full opinion here

I was looking for some old case law and came across this old post….it is one of the earliest uses of the term, “Robo Signer“…a term that is now part of our national lexicon.  Full credit is given in the original post for the excellent work of a young law student, Michael Fuino who really opened my eyes to the wrong that was being done in foreclosure cases…

RoboSigner

For more information on the birth of Robo Signer

Wall Street Journal

The Pino Appeal is Florida’s Ibanez moment.  The Florida Supreme Court will soon decide just how serious Florida courts are going to take systematic, repetitive fraud on the Courts of the State of Florida.  The bottom line is this….

Will banks and foreclosure mills  be given a free pass or will the Rule of Law be upheld in courtrooms across this state?

and

What will our courts do when confronted with evidence of widespread and systematic fraud on the court?

Here are the real issues, directly from the transcript:

MS. GIDDINGS: I’m urging you to consider this case in the grand scheme of things. If you allow courts to go back and open up all of these cases, when it’s clear on the face that there was no affirmative relief obtained, or that the affirmative relief would not have been material, then you’re going to create chaos in the court system.
JUDGE FARMER: So, are you suggesting that this fraud has been that widespread that it –
MS. GIDDINGS: Your Honor, I’m not acknowledging that any fraud occurred. I think that there is — we all know –
JUDGE FARMER: Why would we shrink — as a court system, why would we shrink, no matter how many cases it might involve, from looking out for attempts to defraud courts to publish and utter and use false
instruments? Why wouldn’t we be most vigilant?

JUDGE POLEN: These matters contained in Mr. Stern’s law firm are the subject of an investigation by the Attorney General, are they not?
MR. NIEVES: Yes, they are.

JUDGE POLEN: — to know that not just one, but perhaps dozens or hundreds of lawsuits filed in courts with fraudulent documents are being used as a basis to get foreclosures against people who don’t have the benefit of Mr. Nieves’ law firm to represent them.

JUDGE FARMER: Fraud on the Court is not material?
MS. GIDDINGS: Your Honor, fraud on the Court –
JUDGE FARMER: Publishing false documents is not material?
MS. GIDDINGS: Fraud on the Court did not occur in this case.
JUDGE FARMER: It didn’t.
MS. GIDDINGS: A document was filed, but nothing was ever heard before the Court. And if you look at the service expert’s case –
JUDGE FARMER: Let’s just confront that for a minute. I mean, to the extent that the cases that you talk about, Select, and the others talk about, and that is, achieving affirmative relief and all that stuff, I’m wondering if they’re not just talking about two different things as two separate grounds. In other words, obtaining or using voluntary dismissal after you’ve already gotten relief in some way may be one kind of piece of voluntary dismissal, but not under an entirely separate kind may be fraud or attempted fraud on the Court. I don’t know why we would adopt a rule of our inherent powers to deal with fraud in the Court, why we would engage in a reading that says only if the fraud proves to have been successful. And that is to say if the representee relied, to its detriment, on the fraud and changed their position and did stuff, only then would we allow relief of any kind. That strikes me as not –

JUDGE POLEN: I see a number of distinguishing factors, most important of which the alleged fraud that occurred in that case pertained to two affidavits which were filed by the appellee which the appellant suggested were fraudulent in furtherance of a motion for summary judgment, but only because they’re contesting the factual allegations and apparent inconsistencies that may have existed in those affidavits. Now, that may be considered some kind of fraud. But it’s not the kind of fraud on the Court that would be if the appellant here could prove their allegations, where documents filed in support of a mortgage foreclosure proceeding were fraudulently generated by employees of the attorney hired by your client.

And the bottom line:

To sum everything up, if this Court affirms the
Trial Court, it’s basically saying that it’s okay to
lie, cheat and steal, as long as, when you get
caught, you voluntarily dismiss the case. And that’s
what they’re trying to do, just allow the judges of
Florida to put a little sunshine in these issues, and
you can allow the courts to address the prevailing
fraud. By itself, that would deter a lot of these
abuses, when you empower our judges and allow them to
deal with the issues.

Pino_v._BNY_Mellon_Oral_Argument Transcript

Click below and watch the Oral Arguments

Ice Legal