Posts Tagged ‘taylor v. deutsche bank’
Allonge, Indorsement and Veal…it’s all so simple really.
Author: Matthew D. Weidner, Esq.
The post I did on Allonges got quite a bit of attention and a whole lot of comments, most along the lines of:
“I read what you wrote about allonges and see the cases that are cited, but that law was not applied in my case, what’s going on here?”
What’s going on here is a big fat stinking mess. A mess of apocalyptic proportions. And it’s a mess that was caused because all those damn homeowners just refuse to pay their mortgages. And because they refuse to work. And because they got sick. And because they lost their health insurance. And because they got divorced. Yeah, that’s the message. This whole mess is the fault of the American people and we’re going to make them pay! (That of course is the mantra of the “leadership” in this country and not at all what I believe.)
The fact of the matter is our country is in such a mess because the entire world is being ruled by a White Collar Criminal Oligarchy and, especially here in the United States, our laws are not being followed.
Laws existed to keep things orderly, to make things predictable and in the case of the laws of commerce the laws and rules existed to help ensure a level playing field among competitors in the marketplace. I used the word “existed” past tense because there’s much evidence that we’re just not sticking to the laws and rules anymore.
Mortgages and foreclosure were simple and clean for hundreds of years. You borrowed money from a bank, if you didn’t pay, they surrendered the original note to the court, told the court how much you owed and they foreclosed on the property.
But now it’s all a big fat stinking mess. And sorry Governor Scott and all you other big shots out there…it ain’t the lowly homeowner that screwed this all up. The American people did not want entire industries shipped offshore so they would have no jobs to pay their bills. The American people did not take simple laws and rules and basic accounting and record keeping and flush them all down the toilet. The American people did not engage in high flying Wall Street shenanigans and crimes that diverted billions of dollars out of this country.
But there are still people out there that blame the American people.
A mortgage loan has two key documents…..just two. A Promissory Note and A Mortgage. The rules on the mortgage are governed by the state’s real property laws…most of which have been on the books with little change from the very early days of this country. The rules governing the note are found in state statutes, the Uniform Commercial Code.
The Uniform Commercial Code is key because the Promissory Note is the most important document when you’re trying to foreclose the mortgage. The UCC is a body of law that has been drafted, refined and worked over by smart people for hundreds of years. Every few years a whole gaggle of smart people…lawyers, judges and other thinkin’ folks get locked in a huge room and they sit around tinkering with the words, tweaking them and refining them to make the laws and the rules better, and to respond to changes out in the real world.
Well, the UCC is very simple and real clear on promissory notes. You need the original to enforce the debt. Now there is a minor and very narrow exception, but the general rule is the original document is the key. (Now this is so basic, so elemental, such a bedrock principle that it was just incomprehensible to anyone with a few days of legal training to hear the Florida Mortgage Bankers Association tell the Florida Supreme Court that they purposely destroyed the notes, but that’s a whole other story.)
The UCC has real clear rules on how you transfer these original notes and who is authorized to enforce them….but the UCC and the drafters were totally blindsided by the explosion in the use of allonges. The UCC’s scant treatment of allonges might have been okay….for a little while…until the smart people could get together and establish clear rules on their use…if the people who were out there using allonges could be trusted…but if we’ve learned nothing else through all of this it should be, it must be that we cannot trust the financial services industries.
If nothing else the Wall Street Wizards and the Serpents of Securitization are guilty of gross and systemic incompetence and/or gross and systemic malfeasance…and/or gross and systemic fraud, lies and criminal conduct. It’s one or two or a combination of all three and from where I sit, there’s a whole lot of fraud and lies and criminal conduct involved….I say this based on the amount of money coursing through the world economy and the growing body of evidence about the lies and the fraud and the crimes from the top to the bottom of many of the financial transactions were all focused on.
HELLO $700 BILLION BAILOUT!
HELLO $8.5 BILLION BANK OF AMERICA SETTLEMENT!
HELLO BILLION DOLLAR “PROFITS” ON WALL STREET!
But back to allonges…our courts should have been requiring the lenders to present and surrender original promissory notes in foreclosure. Our courts should have been requiring clear pleading on who owns the billions of dollars in promissory notes that are being foreclosed upon. Our courts should have been requiring clear, proper endorsements and evidence of ownership. But they didn’t and they are not. And so the problems will continue to pile on. Things will only get worse. We cannot just walk away from all of this.
Two decisions below reflect several interesting aspects of the battles that are raging all across America. In Re: Veal offers the most comprehensive and technical discussion of ownership, holder and the legal framework established by the Uniform Commercial Code. Taylor v. Deutsche Bank is a case study in what happens when the Uniform Commercial Code is not applied…the decision reflects a collision between the Uniform Commercial Code and our laws on real property. It’s an aberrant decision for many reasons, not the least of which because it asserts a power not provided within our existing understanding of the whole MERS system. The Taylor decision asserts that MERS can assign notes…a power not argued by the Plaintiffs in the case and not even raised as part of the appellate arguments. The proof that it is an aberrant decision, at odds with the intentions of MERS itself is found in the fact that this decision is not cited or championed by the industry….it simply opens a Pandora’s box that not even the industry wants opened….(I have a personal connection to this case, having argued the case before the Fifth Circuit Court of Appeals and it remains a real head scratcher among the legal community.)
Using Taylor v. Deutsche Bank To Win a Foreclosure Defense Case
Author: Matthew D. Weidner, Esq.
When the appellate decision in Taylor v. Deutsche Bank was published out of Florida’s 5th District Court of Appeals a few months ago, it seemed like an absolute disaster, an utter failure for all of us in the defense community. Well, like some especially sweet “failures”, when this “failure” is understood and studied properly, you can turn it into a slam dunk, knock out punch in your cases.
Here’s the deal. The decision is absolutely absurd. It represents a dramatic departure from not just a long history of property and the law governing negotiable instruments. It also represents a profound and dramatic expansion of the entire purpose and function of MERS. To me it represents a court desperately struggling to fix an industry’s problems through judicial decision.
The decision grants to MERS rights and abilities that it never intended to have and never before asserted. Especially in light of the depositions that have been released and the widespread abuses of the foreclosure mills, we can all see just how absurd this decision is.
The decision stands for the proposition that MERS can assign both the Mortgage and the Promissory Note, two separate and distinct legal documents that carry with them two separate and distinct sets of laws and rules (at least until this decision which improperly blended and blurred all of these).
Anywhoo, the Plaintiffs attorneys cheered and the foreclosure mills and the document mills have gone to work, just assigning away mortgages. (I guess they just abandoned all their endorsement stamps.) Well here’s where things get good for us. What happens when the Plaintiff has endorsed the note to one party, then they concoct or fabricate a MERS assignment to another party? That folks is s fundamental and unresolvable conflict that they cannot work their way out of.
So here’s how you use it in your cases…when you’ve got a note endorsed to one party and a MERS assignment to another, their case is over and you’ve got a great case for summary judgment.
HOT OFF THE PRESSES- RESPONSE TO MOTION FOR REHEARING!
Author: MattWeidner
Just this morning, I received the opposing counsel’s response to our motion for a rehearing in the Taylor v. Deutsche Bank case out of the 5th District Court of Appeals in Florida….the decision commonly referred to as, “This Horrible Opinion”.
As clearly expressed in our Motion for Rehearing, we believe the 5th District issued a fundamentally flawed opinion and, similar to what was the case with the Riggs opinion, we timely petitioned for a rehearing. Those of us who are standing up to fight this insane march toward foreclosure and the devastating breakdown in our court systems that has created and perpetuated a fundamentally flawed legal process are in the middle of an epic battle. So many powerful forces are aligned against those of us who are fighting for the integrity of our courts and there are so many profound and perplexing questions that are provoked in the middle of this crisis, but the biggest one I have is why our circuit court judges and on some level appellate court judges seem predisposed against the interests of normal consumers in favor of the flawed lending and credit systems that provoked this crisis. Those questions will remain, but for now read the response brief. The mind boggling aspect of the opposing response is the very light treatment given to many of the substantive facts and law argued in our motion. Their basic argument seems to be that the court was just right and they spend little time addressing the significant issues we raised in our Motion for Rehearing…..dig in and enjoy….
A Survey of MERS Case Law and The Taylor ReHearing Motion
Author: Matthew D. Weidner, Esq.
We’re still anxiously awaiting word from the 5th District Court of Appeals on the Taylor v. Deutsche Bank rehearing. When this case is cited by opposing counsel, please be prepared to assert that a rehearing is pending and that the ruling is out of step with the vast majority of rulings in jurisdictions across the country. The re-hearing motion is here below, importantly I also attach an article that summarizes most of the key MERS rulings from across the country. It is a must-read for any practitioner.
Hot Off The Presses- Taylor Motion For Rehearing
Author: Matthew D. Weidner, Esq.
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.
VIDEO REPLAY OF TODAY’S 5TH CIRCUIT APPEAL- IT’S TIME TO APPEAL, APPEAL , APPEAL
Author: Matthew D. Weidner, Esq.
CLICK HERE FOR LINK TO VIDEO OF ARGUMENT
(Taylor v. Deutsche Bank)
Today’s oral argument before the 5th Circuit Court of Appeals in Daytona Beach Florida was one of the highlights of my career. The only thing I take more personal and professional pride and satisfaction from is going to war against the aggressive and well-funded firms and winning for clients who don’t have the means or resources to pay big law firm fees.
The arguments were tough and these judges knew this case inside and out. The research the judges had done and the comments that the Chief Judge, “did a nationwide search of cases”, shows just how much attention these judges are paying to the important issues raised in this case. A key thing I want everyone in this community to know is just how much work was contributed to this case by many other people. The key point of this experience is the emerging understanding that these issues are far more significant than “merely foreclosure”. The brightest and most experienced lawyers, judges and advocates now recognize just how complex and confounding the foreclosure catastrophe is. Recognition is an important first step…and what is this fight?
This fight we are engaged in is a fight to PRESERVE, PROTECT AND DEFEND our homes, our courts, our Constitution and fundamentally our country. I am convinced that this 5th District Court of Appeals really gets it and I am more convinced than ever that the solution to the foreclosure crisis –the long term solution that benefits lenders, financial markets, communities, courts and homeowners is to BRING THESE ISSUES BEFORE APPELLATE COURTS.
Our commitment must be to selflessly give to support the effort to protect our clients, develop this law area of the law and CONVINCE OUR JUDGES THAT THEY HAVE A SOLEMN AND UNAVOIDABLE DUTY to apply the law in support of homeowners, their communities and the Constitution they took an oath to uphold.
Its time for more appeals. Time to stop complaining about motions being denied and law not being applied. Time to join together, contribute the resources, time and talent to make this right. Stay tuned and be ready to pitch in.
(A special thanks to my hero and the mentor of many great lawyers across the country, April Charney who traveled with her daughter [an emerging attorney to be reckoned with in her own right] to watch the argument live. )
