Matt Weidner – Fighting With The American People

Posts Tagged ‘mark stopa’

We’ve got so much to talk about…hours and hours would not be enough.

I’m hoping we’ll get into the facts in the Congressional Report and the continuing unfolding of servicer and lender abuses….now admitted before Congress and contained within the attached report.

Any of us who are speaking out and fighting against this machine are doing so at great personal risk to ourselves.  I would not continue to do so if I were not absolutely convinced that there are bad, bad days in front of us and that the kinds of problems and issues we’re seeing now were just the tip of the iceberg.

At some point in time, Americans will take to the streets.  At some point in time Americans will finally push back and fight.  Americans will make bold and dramatic statements against these unchallenged abuses.

WHERE ARE YOU AMERICANS?

Read the report and ask yourself….based on what you see what is the probable outcome of this conflict?

CongressionalForeclosureReport11-16-10

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!

Fraudclosuregate continues to spin out of control.  Absurd statements from Bank of America and the other institutions and law firms that fostered the festering crisis to the contrary, things are only going to get worse.  Title claims and will soil our public records for decades and litigation will choke our already bogged down court systems.

When the autopsies are completed, there will be dramatic distinctions and differences in the problems that will be faced by each of this state’s court circuits.  It is no secret at all that the judges in the Sixth and Twelfth Judicial Circuits are among the toughest in this state.  If you practice here, you are prepared to be put through your paces….no matter what side of the argument you are on.  That’s the real business of judging.

For a variety of technical reasons, there are not a great deal of reported court opinions that address many of the substantive issues we face in foreclosure.  The primary problem is Orders on Motions to Dismiss are not typically appeal-able orders so there are not many reported decisions that can be cited.  The opinion below however, provides much needed answers to many of the questions concerning the practices and procedures that govern foreclosures in this state.

If you’re a homeowner wondering whether there are still judges out there that apply the law fairly and correctly….READ THIS OPINION….IT WILL RESTORE YOUR FAITH.

If you’re an attorney who feels beaten down and abused by the system…..READ THIS OPINION…IT WILL INSPIRE YOU TO KEEP UP THE FIGHT!

If you’re a reporter who is struggling to understand the depth of the Fraudclosuregate crisis….READ THIS OPINION…IT WILL DETAIL BOTH THE PROBLEMS AND THE SOLUTION.

Finally, consumers, judges, attorneys and reporters owe a debt of gratitude to the homeowner’s attorney in this case, Mark Stopa. (Click for link to his website.)  Mark is among the most tenacious, committed and dedicated attorneys out there sticking his neck out and fighting the fight…FIGHTING THE FIGHT FOR ALL OF US.

Please do the world a favor…..read this opinion, savor this opinion, but most importantly make sure everyone in the world reads this opinion.

RondolinoOrder

I had my back up against a wall going into a summary judgment hearing yesterday because my client had been convinced by the lender that he should ignore me and stop working with his attorney to try and protect his case.  The lender assured him that they would work things out so he didn’t need to respond to my letters and emails.

He finally came to me just before the hearing and I was scrambling to put together my defense when local Foreclosure Fraud Fighter Mark Stopa sent me an email reminding me that these foreclosure mills cannot rely upon affidavits of attorneys fees to establish those fees, the expert testifying to those fees must be in court in person.  I attach the case law on both that issue and the other issues I was prepared to argue below:

Attorney’s Fees

Thankfully we didn’t even get that far in this hearing because in this circuit, the judges are very serious about devoting adequate time to argue summary judment when the issues are contested.  I hear these horror stories about Rocket Dockets elsewhere and it just blows my mind because I have only had one Summary Judgment hearing where I felt like I was not being given adequate time or my arguments not being seriously considered.  I reported that defeat, but I am most pleased to report that I had that reversed on rehearing.  The care taken by the judges in this circuit shows that highest level of judicial discretion that we should expect in every hearing, in every courtroom across the state.

Anyway, much thanks to Mark Stopa for sharing his good work.  Mark is a tenacious and very good attorney who is not at all willing to back down from a big fight...I encourage you to visit his website here.

Finally, let me again encourage each of you to visit Dan Gelber’s campaign page, and particularly look here at his issues section for detailed information about mortgage fraud and fights.

We can make a difference in this race, but every single one of you needs to sign up, sign on and make your voice heard in this campaign.  When you are frustrated, overwhelmed and feel helpless, channel that energy into something that might actually be useful, like volunteering for his campaign or at least sharing your concerns on his Facebook page here.

A void judgment is a nullity, a brutum fulmen…and is subject to collateral attack and may be stricken at any time.  The passage of time cannot make valid that which has always been void.

Ramagli Realty v. Craver, 121 So. 2d. 648

Commit that quote to memory and repeat it often, it’s from a 1960 Florida Supreme Court Case.  Begin every conversation with attorneys from the foreclosure mills with that quote.  Read the quote to every realtor, title company, judge and policy maker.  Given what we know about “sewer service” and all the other improper activities of the service of process companies, title companies and foreclosure mills, we should all be very skeptical of any affidavits of constructive service and any judgments of foreclosure that are based on constructive service.

In our rush to push through foreclosure judgments and based largely on misplaced trust in the affirmations made by foreclosure mill attorneys to the court, summary judgments of foreclosure are being entered where there are real questions of fact and law.  While these cases are troubling enough, the real problems are those cases where the judgments are void because the court totally lacks jurisdiction over the parties based on faulty or improper service of process.

Most borrowers can be located with true and honest diligent search and inquiry, (just like the so-called lost notes), but like so many other facets of foreclosure work, the foreclosure mills and their minions have decided to take the path of least resistance, throw up a facially incorrect affidavit then move along to the next case.  Problem is…(repeat the quote)

A judgment entered without service of process, or faulty constructive service is void and may be attacked at any time.  See M.L. Builders, Inc. v. Ward, 769 So.2d 1079 Parties seeking relief from a judgment that is void are subject only to the “reasonable time” requirement of Fl.R.Civ.P. 1.540(b) in addition, in DeClaire v. Yohanan, 453 So.2d 375:

the Florida Supreme Court approved a chart which indicates that there is no time limitation for attacking a void judgment under Rule 1.540(b).

The Emergency Motion I’ve attached here lays out the facts that are important for courts to consider and contains most of the important case law that courts must apply when considering the issue.  You’re going to be hearing a lot more about Void Judgments and bankrupt title insurance agencies and we’ll all be suffering the consequences of all this slop for decades to come….remember that we were all amply warned of the consequences.   Soon I’m going to publish some information about another stunning phenomena- foreclosed homes that have unmarketable title due to judgment defects.

And now for the good stuff in this post…the Emergency Motion:

Emergency Motion To Cancel Sale- Void Judgment

ARE ALL CONSTRUCTIVE SERVICE JUDGMENTS VOID?

Thanks to my friend, Mark Stopa for pointing out another fatal flaw that is present in virtually all constructive/substitute service cases….the Plaintiff’s failure to allege jurisdiction.  I have never seen a complaint where substitute service is used and the complaint is amended to cite the appropriate jurisdictional basis for substitute service.  Based on this jurisdictional black hole, there are literally tens of thousands of constructive service foreclosure judgments out there that are void.  Which brings up another interesting point….why are there so many constructive service complaints out there anyway?  I don’t know the figures, but my rough estimate tells me that there is a very high percentage of foreclosure cases out there using constructive service when the Plaintiff could obtain personal service, but chooses not to.  The case law seems clear to me that failing to amend the complaint and this faulty use of substitute service renders the judgment void.  Read below:

If the complaint fails to allege the jurisdictional requirements for substituted service as prescribed by the statute, a defendant cannot be
properly served by substituted service and a motion to quash service of process should be granted. Drake v. Scharlau, 353 So.2d 961, 964 (Fla. 2d
DCA 1978).

When using substituted service under section 48.171, a plaintiff must meet two requirements. First, the complaint must allege the ultimate
facts bringing the defendant within the purview of the statute. See Monaco, 810 So.2d at 1085; Wiggam v. Bamford, 562 So.2d 389 (Fla. 4th DCA
1990). This requires the plaintiff to "allege in his complaint that the defendant was a non-resident, or a resident of Florida who subsequently
became a non-resident, or a resident of Florida concealing his whereabouts." Journell v. Vitanzo, 472 So.2d 827, 828 (Fla. 4th DCA 1985). Second, the service must strictly comply with section 48.161, which sets forth the method of substituted service of process. Monaco,
810 So.2d at 1085.


When the complaint is devoid of the jurisdictional allegations required for substituted service, the defendant cannot be properly served under the
substituted service statute. Id. (citing Drake v. Scharlau, 353 So.2d 961, 964 (Fla. 2d DCA 1978)). Where, as here, the complaint only alleges that the defendants were residents of Dade
County, the defendants are only subject to personal service. See Drake v. Scharlau, 353 So.2d 961, 964 (Fla. 2d DCA 1978). Since the plaintiff did not personally serve the defendants and substituted service was defective, the trial court should have
granted the defendants' motion to quash service of process. As the trial court never acquired personal jurisdiction over the defendants, the verdict must be set aside and the matter
remanded. 

I spend a lot of time on this blog talking about what is wrong and frankly not enough time talking about what things are right.  For those of you who seek information about yesterday’s trial, Indymac v. Davis. At this point in time, I can report that the case was resolved in a manner that was agreeable to both parties.

Above and beyond that I want to acknowledge the great professionalism demonstrated by Robert Kahane, Marie Montefusco and Laura Carbo, from the firm of Kahane and Associates.  Yes, I am a vocal and frequent critic of much of what goes on in foreclosure cases. Particularly in the heat of battle it may be difficult to acknowledge when good, ethical and professional work is being done by the opponents and their lawyers, but when it is done, it deserves to be recognized and respected. This firm fought hard and tough for their client, and at the end of the day their client and the firm worked very hard to come up with a practical and real world solution.

I especially want to recognize the personal attention and hours of personal attention devoted to this file but Robert Kahane, the lead attorney for the firm.  It says quite a bit about the firm when the named attorney personally devoted as much time to a file as this attorney did.  The plaintiffs in the hundreds of thousands of foreclosure cases pending across the state would be far better served to have a firm like Kahane’s putting their full weight into the files.  The Florida Legislature and courts have devoted millions of dollars and untold resources to establish platforms for the resolution of foreclosure cases…such resolutions are going to be directly dependent upon the lawyers representing both sides to work together for the benefit of both their clients.

I’m very pleased with the outcome in this case, and have learned important life and professional lessons as a result of the experience.  I will endeavor to be even more fully engaged and involved in each of my files and devote whatever time it takes to pursue exhaust all settlement opportunities at all times.  I will always carefully examine my conduct and that of my attorneys and staff to make sure we are fulfilling every one of our important obligations to the court and to the judges who ultimately supervise these cases.  At the end of the day, an advocate has an absolute obligation to earn the respect of the judge and the court every single time he or she appears in the courtroom.

For advocates and clients alike, on a very practical basis, I encourage every one of you to keep very accurate and detailed notes of dates, times and events, especially as it relates to attempts to obtain modifications and otherwise settle.  Even if you’ve tried and tried again and again, we’ve all got an obligation to keep on trying.  Keep submitting the paperwork, keep making those phone calls, keep responding to every single request from the lender.  The requirements that the Plaintiffs in these cases are operating under change on a regular basis and many of the requirements are simply out of their control.

Finally, I want to express sincere thanks to all the attorneys and staff that provided direct and invaluable assistance in this case.  Most especially, Mark Stopa and Jon Coats who sat with me through trial.  These are two excellent attorneys who practice exceptional foreclosure defense.  I also want to thank all the JEDTIS, April Charney  and Ice Legal for their input and practical advice.

The fight goes on!