Matt Weidner – Fighting For The American People

Posts Tagged ‘summary judgment’

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

My thanks to the superstars at Ice Legal in West Palm for sharing the latest good decision out of the 4th DCA which covers Broward County, West Palm and other counties on the East Coast of Florida.

Read this opinion carefully, it is yet another repudiation of the summary judgment of foreclosure procedures widely being used in courtrooms across the state.

This opinion and others should make it absolutely clear that circuit courts cannot grant summary judgment when any objection is made whatsoever. It’s not up for the defendant to prover her case at summary judgment, only to put into question the Plaintiff’s case.  At that point, summary judgment is no longer on the table for Plaintiffs.  As a practical matter, I don’t see how they proceed with final judgments and the high evidentiary burdens a real trial would create.

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The Florida Supreme Court has made it clear that Plaintiffs must establish the basic facts they claim entitle them to foreclose prior to filing, with the implementation of the new Verified Complaint Rule.

The Second DCA has made it clear that the Plaintiff’s facts must be established prior to granting foreclosure bacfunding, verizzo. The Fourth DCA has made it clear that the Plaintiff’s facts must be established prior to granting foreclosure riggsfourth.

Most circuit court judges, recognizing the clear mandates of the Supreme Court and the District Courts of Appeals are now (finally) requiring the Plaintiffs to come before them with proper allegations in order to withstand a Motion to Dismiss.  In many courtrooms, gone are the days when sloppy allegations and contracts between parties not before the court are enforced, but this is unfortunately not the case across the state.

Attached below are a few recent circuit court Orders which confirm the growing consensus that Plaintiffs must provide a proper evidentiary and pleading basis in order to proceed with their cases.  In addition to those found here, a search of Florida Law Weekly reveals similar Orders from across the state. When you know you’re going into a hostile courtroom, make sure you copy all these decisions, cite them in your memos and motions and leave the cases with the judge.  He or she may not grant your motion, but in quiet times of reflection, they may take the time to read the Orders and then the powerful judicial intellect will shift to join the growing consensus against the Putrid Plaintiff’s Practice.  Read on and enjoy:

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When Should A Judge Enter Summary Judgment in Foreclosure?  Almost Never.

Across the State of Florida, millions of homeowners are losing their homes in foreclosure.  That’s bad enough.  What makes it worse is in the vast majority of cases the lenders do not actually meet their burden to prove the foreclosure case, but judges sign orders of Summary Judgment and the sales are set based upon their orders.  Exact figures are hard to come by, but I’ve heard it estimated that something like 70% of foreclosure cases go undefended with not so much as a single paper filed by the homeowner.  When this occurs and a default is entered, courts routinely enter summary judgment without much of an examination of the file. While this practice might be technically correct, courts should be sufficiently concerned about the poor pleading, fraudulent affidavits and other problems that have become commonplace in this foreclosure crisis such that the courts should have second thoughts about granting summary judgment in any case.

Florida Rule of Civil Procedure 1.510(c) sets the criteria for the filing of a motion for summary judgment:

(C) Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least 20 days before the time fixed for the hearing. The adverse party may serve opposing affidavits by mailing the affidavits at least 5 days prior to the day of the hearing, or by delivering the affidavits to the movant’s attorney no later than 5:00 p.m. two business days prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

A sampling of direct quotes from appellate court decisions on the summary judgment standard is as follows:

• Even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.

• The rule simply is that the burden to prove the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.

• Thus, if the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.

• We likewise must emphasize that contrary to the assertions of the trial court,each and every Florida district court of appeal has concurred with our holding that the merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment. 

For more information or the exact cites for each of these cases, please contact my office.  The bottom line is the poor behavior of the lending and banking industry, along with the questionable tactics and behavior from Plaintiffs attorneys should give any court reasonable doubt that should prevent that court from entering summary judgment in the vast majority of cases.

Every so often, the appellate courts issue opinions that dramatically change the legal landscape.  BAC Funding v. US Bank is just such an opinion, because no longer will banks and lenders get a free shot at foreclosure on concocted evidence and mere possession, even of original documents.  The full text of the opinion can be found here, but it should be brought to the attention of every judge in every foreclosure case across the state.

The opinion is full of great direction, but the bottom line is the appeals court has made it clear that it is no longer permissible for Plaintiffs attorneys to come marching into court with documents alone….even if they are original documents.  Throughout the foreclosure crisis, Plaintiffs attorneys have been permitted to ignore the basic rules of evidence and just enter in documents without any explanation of how they came into possession….this will now change and Plaintiffs will be required to have both the original documents and some evidence to support how they came into possession of the  documents–something they will have a difficult time doing in many cases.

Here is language taken directly from the opinion:

• U.S. Bank filed a written response to BAC’s motion to dismiss.  Attached as Exhibit A to this response was an “Assignment of Mortgage.”  However, the space for the name of the assignee on this “assignment” was blank, and the “assignment” was neither signed nor notarized.  Further, U.S. Bank did not attach or file any document that would authenticate this “assignment” or otherwise render it admissible into evidence. (That last sentence is key because it now requires Plaintiffs to “authenticate” their filings.)
  

• Despite the lack of any admissible evidence that U.S. Bank validly held the note and mortgage, the trial court granted summary judgment of foreclosure in favor of U.S. Bank.  (Although the bank had introduced an assignment, the court is saying that assignment should not have been the basis to grant summary judgment because it was not properly admitted into evidence.)
  

• When a plaintiff moves for summary judgment before the defendant has filed an answer, “the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.”  Settecasi v. Bd. of Pub. Instruction of Pinellas County 156 So. 2d 652, 654 (Fla. 2d DCA 1963); see also W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So. 2d 979, 980 (Fla. 2d DCA 1988) As these cases show, a plaintiff moving for summary judgment before an answer is filed must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.

• Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage.  Accordingly, the documents before the trial court at the summary judgment hearing did not establish U.S. Bank’s standing to foreclose the note and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor. (This language is key because it directs the courts to demand an evidentiary basis for documents, not just the documents themselves.)
  

• Regardless of whether BAC answered the complaint, U.S. Bank was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor.  Whether U.S. Bank did so through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer, it was nevertheless required to prove that it validly held the note and mortgage it sought to foreclose.  See Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1st DCA 1998) (The key word here is “validly”.  The Plaintiff cannot just show up in court with the documents, it must validate them and authenticate the documents for the court to consider.)
  

• The incomplete, unsigned, and unauthenticated assignment attached as an exhibit to U.S. Bank’s response to BAC’s motion to dismiss did not constitute admissible evidence establishing U.S. Bank’s standing to foreclose the note and mortgage, and U.S. Bank submitted no other evidence to establish that it was the proper holder of the note and/or mortgage. (The Plaintiff must introduce authenticated, properly introduced evidence to proceed.)
  

The Court Recognizes That Insuring Proper Title To Property Will Be a Real Challenge in Years to Come….

Given the vastly increased number of foreclosure filings in Florida’s courts over the past two years, which volume has taxed both litigants and the judicial system and increased the risk of paperwork errors, it is especially important that trial courts abide by the proper standards and apply the proper burdens of proof when considering a summary judgment motion in a foreclosure proceeding. Accordingly, because U.S. Bank failed to establish its status as legal owner and holder of the note and mortgage, the trial court acted prematurely in entering final summary judgment of foreclosure in favor of U.S. Bank.  We therefore reverse the final summary judgment of foreclosure and remand for further proceedings.

And so, in this brand new, and as yet, unpublished opinion, the legal landscape for foreclosures changes forever!