Matt Weidner – Fighting For The American People

Posts Tagged ‘The Florida Consumer Protection and Homeowner Credit Rehabilitation Act’

I attach here a copy of an Order signed by Judge Charles Roberts in Sarasota on February 26, 2010.  Please take time to read it carefully.  In it, the judge makes specific findings of fact that the Plaintiff:

1. Failed to show it was entitled to foreclose;

2. Failed to show it was the holder of the note and mortgage;

3. Failed to establish any admissible evidence to show that it validly held the note and mortgage.

Caught one Stinking Fish….How Many Got Away?

The fact that these major issues were caught is good.  The problem is, how many tens of thousands? tens of hundreds of thousands? millions? of judgments of foreclosure have been signed across the country when the Plaintiff:1. Failed to show it was entitled to foreclose 2. Failed to show it was the holder of the note and mortgage 3. Failed to establish any admissible evidence to show that it validly held the note and mortgage.

I believe there are tens of thousands, maybe hundreds of thousands of judgments entered across the state (millions across the country?) where this is the case. I believe depositions of key employees at document preparation mills and foreclosure mills is going to reveal assembly line document fabrication which purports to give Plaintiffs a basis for forecloure, when no proper evidentiary basis exists.  At some point in time in the foreclosure files that the mills have rushed through are going to be carefully examined..if not by defense attorneys what about junior lienholders, certificate holders, bondholders, investment firms….when that happens now we’re talking major problems.

What happens when the assignments of mortgage were improper/fraudulent on their face?

What happens when the note and mortgage and allegations contained within the pleadings are all inconsistent, yet Final Judgment was entered based on “facts” that are of record that do not support that judgment?

And now my final question of the post….WHY ARE PLAINTIFF’S FIRMS/LENDERS BOTHERING TO GET ASSIGNMENTS OF MORTGAGES AT ALL? If Johns v. Gillian and the law as it exists is that lenders do not need an assignment of mortgage, why bother with word processing hundreds of thousands of assignments of mortgages in law firms and document mills all across the country?  In many cases, lenders are coming to the table with original notes. Ignore for the moment how they got them and what entity purports to hold them.  Ignore for the moment that the endorsements/allonges are sloppy/inconsistent/questionable on their face.  Even if a proper lender couldn’t come up with a note, they could still re-establish the note through a copy and there would be no need whatsoever (if the whole “mortgage is but an incident to the debt” argument remains valid) to have an assignment of mortgage.

Why are document mills and foreclosure mills working weekends and around the clock to spit out assignments that purport to transfer mortgages out of MERS and other lenders/entities and into other entities that we no nothing about?

How are we allowing tens of hundreds of millions of dollars to be transferred into things like “The IXIS 2006 Certificateholder, Asset Backed Trust”?

Do judges/courts have any idea who these entities are?  (I’ll answer that one, the answer is no.)

Why are courts across the country transferring bajillions of dollars into alphabet soup entities that no one has any idea who controls or where they are located or what rules apply?

Why Are Courts in Florida Continuing to Rely on Legal Reasoning That Existed in 1938?

Remember that the Johns v. Gillian “mortgage is but an incident to the debt” reasoning applied in tiny little town where parol documentation and other evidence existed that supported the foreclosing lender’s claim to ownership of both the note and the mortgage. Remember Johns v. Gillian is a 1938 case! The judge probably knew everyone in his courtroom (he probably knew the lawyers since they were snot nosed kids running around town kicking cans.  He probably walked past or rode a horse past the property in question each day.  And remember the Johns reasoning applied decades before MERS was even conceived of….Johns simply cannot stand true in the MERS environment…here is Greg Clark’s splitting/Kessler v. Landmark reasoning….Johns only applies when the mortgage and note were not separated right from the very beginning.…How can the Johns reasoning apply in the MERS environment?

Consider all the cases, including WM Specialty v. Saloman and Chemical Residential v. Rector….assignments were of record in those cases and other evidence existed to support claims of ownership.  There is almost no additional evidence of ownership or interest in the cases that are being shoved through courts other than a few questionable documents…..but again the burning question….

Why The Assignments of Mortgage?

According to the January report from the Obama administration, the federal government has provided at least $50 billion dollars to 110 mortgage loan servicers to encourage them to modify mortgages for homeowners.  According to this report, 89% of all mortgage loans in the United States are eligible for consideration under the HAMP guidelines.

The full text of the report can be viewed here and I strongly encourage everyone to review it.  The program continues to be an abysmal failure, with an embarrassingly small number of homeowners who have benefited from the program.  (Not to worry though as reported elsewhere, the fat cat bankers continue to make massive profits.)  Some low lights from the report:

• In addition to the 116,000 permanent modifications, an additional 76,000 permanent modifications have been approved by servicers and are pending borrower acceptance. (That’s less than 200,000 nationwide people.)

• The median savings to borrowers in permanent modifications is more than $500 each month. (That’s chump change.)

• Trial modifications canceled 60,476

• 57.4% of modifications were based on loss of income

• 10.7% were based on excessive obligations

• The numbers in Florida were very low and show only 101,971 trial modifications and 14,598 permanent modifications for a grand total of 116,569

• The numbers in the Tampa/St. Petersburg area were likewise very low with only 12,752 trial modifications and 1,943 permanent modifications for a grand total of 14,695

The disappointing thing about these numbers is the banks continue to report record profits and payouts to their executives and the taxpayers are shouldering a massive burden, but it results in very little in actual benefits to consumers.  It is important that judges, legislators (such as those considering the fraudulently titled “The Florida Consumer Credit and Homeowner Protection Act”) and consumers know these numbers so they understand just how little is being done to actually assist consumers who are in need.  Spread the disappointing word…..

Garbage in = Homeowner Out

The typical foreclosure case filed by any one of the foreclosure mills across the state like David Stern, Marshall Watson and Florida Default Law is an unprofessional mish mash of conclusory and often inconsistent statements from which no court should enter summary judgment against a defendant.  The pleadings within the complaint are sloppy and wrong from the outset and further confusion is thrown because the documents the Plaintiff attaches to the complaint are inconsistent with the allegations contained within the complaint.  For years now, the foreclosure mills have churned out garbage lawsuits that show an utter lack of respect for the courts and astounding arrogance.  Courts are starting to push back against these improper practices, but rather than correct the problems and comply with the rules, the lenders and their thugs are trying to make an end run around the courts entirely, get out from under the court’s scrutiny and make a fast-track to repossess homes with the obscenely titled, “The Florida Consumer Protection and Homeowner Credit Rehabilitation Act”, more about that later…now back to what’s happening in courts.

Pleading Problems? We Ain’t Got No Stinkin’ Pleading Problems….Not So Fast, The Florida Supreme Court Says You Do!

Primarily I’m talking about those cases where the complaint asserts, “Plaintiff owns and holds the note and mortgage, and is entitled to enforce them”, while the note and mortgage attached to the complaint provide, “MERS is the Lender and is entitled to enforce them”.  A standard line of foreclosure defense is to attack these inconsistencies through a Motion to Dismiss or a Motion for More Definite Statement.  The solutions from the Plaintiffs side would be simple…plead the complaint properly from the outset and attach the documents and evidence that are necessary to support the claims made and which the court should ultimately require to be part of the case file before granting summary judgment of foreclosure.  The Plaintiff’s failure to plead these elements up and attach the evidence required from the outset wastes judicial resources, leads to improper reward for Plaintiffs that are not entitled and forces homeowners into fights with parties that have no legitimate claims against them.  My statements regarding these issues are validated by the new rules just published by the Florida Supreme Court which provide:

Rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment are:

(1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate;
(2) to conserve judicial resources that are currently being wasted on inappropriately pleaded “lost note” counts and inconsistent allegations;
(3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and
(4) to give trial courts greater authority to sanction plaintiffs who make false allegations.

The new mandatory rule, that is effective February 11, 2010 will really help to curb the abuses cited.  This rule, when combined with the new clear directions from the Second DCA opinion in BAC Funding v. US Bank, show that the upper courts have had it with the abuses of foreclosure mills and their partners in crimes, the law firms they’ve hired to do the perpetuate their problems.

Courts Should Not “Connect the Dots” In Order To Grant Summary Judgment

Although this should be the case, in the vast majority of cases courts are simply relying on inferences and speculation, assuming facts that are not part of the record and granting summary judgment to Plaintiffs that may never have been entitled to take a homeowner’s home.  The case law is clear, judgments must be based on the facts and evidence that is of record and there are clear prohibitions against supplying essential pleading elements by inference or speculation.  See Alvarez v. E Camp; A Produce Corp.  708 So.2d 997, (Fla. 3rd DCA 1998)(citing Ocala Loan Co. v. Smith, 155 So.2d 711 (Fla. 1st DCA 1963); see also Edwards v. Maule Indus., Inc., 147 So.2d 5 (Fla. 3rd DCA 1962) (Thank you to David Acosta from Case Clarity for this cite.)

Although courts frequently ignore these important details and assume facts or “connect the dots” in the rush to clear foreclosure dockets without confirming that facts are of record, Plaintiffs and unscrupulous attorneys produce a whole range of documents and evidence to help connect the dots and get past the problematic details in the file.  I’m talking primarily about post-filing assignments of mortgages and mysterious endorsements or allonges that appear on notes.  We know from evidence collected across the country that law firms and document creation mills across the country employ “Robo Signers” who merely sign documents all day long with no regard whatsoever to the “facts” contained within those documents or their “knowledge” of those facts.  As a standard practice now, I issue a subpoena duces tecum to every affiant and assignor that appears in a file.  These robo signers will not sit for deposition and the case will fail because the Foreclosure Machine doesn’t want another deposition of the  infamous, Erica Johnson Seck. (Read about that in this post. )

Finally, there are two other major issues in Pleadings and the evidence that will be the subject of two separate posts.  First, the blending together of the Mortgage Foreclosure Count and the Action on the Note Count.  The note and mortgage are two distinct documents and contracts and the counts on both should be separate, but they almost never are.  This is a problem that has gone on unchecked and frankly unchallenged for too long.  Next, there is a pervasive problem with the affidavits that are often the sole basis for granting summary judgment against, “The Defendants”.  I only caught this problem last night, but it’s a huge problem that permeates cases across the state! So what’s the key?

Drop subpoenas for every witness, affiant, assignor and robo signer in the file.  If the signatures and statements are legitimate, there should be no problem making them appear…reality is that’s just not going to happen, but it’s nice to see the highest court in the State of Florida confirming and affirming what good foreclosure defense attorneys have been saying from the beginning.

As anyone who has read this blog knows, I’ve screaming at the top of my lungs about the obscene abuses of the banking and financial industries…the following is my letter to sent to my local legislative delegation about the most obscene example I’ve seen yet. (Actually it’s improper to say one shocking example is more obscene than the next….they’re just more obscene in different ways.)

Vote NO! on The Florida Consumer Protection and Homeowner Credit Rehabilitation Act—the Name of Bill Alone Should Cause You Great Offense!

As you prepare for the Start of the 2010 Legislative Session, I want to thank you for all the good work you are doing for the citizens of the State of Florida and for your neighbors here in Pinellas County.

I am an attorney who represents many of your neighbors in the foreclosure cases that are pending in Pinellas County courts.  The vast majority of my clients find themselves in foreclosure because they or their spouse have lost a job, are facing expensive medical issues or have suffered some other setback that was beyond their control.  By and large your neighbors who are facing foreclosure want to stay in their homes.  They want to continue to make regular monthly payments, maintain their homes and continue to pay the taxes and other expenses related to home ownership.  These good people are simply suffering through the worst economic times of this generation.  With modest payment and term modifications from their lenders, most borrowers would be able to stay in their homes and most would gladly work with their lenders to make these modified payments.

Banks are Not Working With Borrowers

Your neighbors in foreclosure have tried desperately to work with their lender to try and modify their mortgage or come up with some solution other than foreclosure.  I know this because I require my clients to keep a detailed journal of all their attempts to call, write or communicate with their lender.  These borrowers have made dozens, sometimes hundreds of phone calls and faxed paperwork back and forth.  If they hear anything at all, it’s “Sorry we cannot help you.”  Having said that, more often than not, they get no response at all from their lender other than, “We’ve lost your paperwork, please send it again.”  This is not just my opinion or anecdotal information, these statements are confirmed by the information published by the federal government.

Banks Are Receiving Billions in Federal Aid

While the federal government has provided at least $50 billion in federal aid to the major lenders in the US Troubled Asset Relief Program (See GAO-09-837 July 23, 2009), the Federal Housing Finance Agency reports that the HAMP and related modification efforts had initiated only 43,000 HAMP permanent modifications as of December, 2009.  Amazingly, according to the latest information published by the Federal government, only 8,405 Floridians have received permanent modifications from their lenders.  One more time so this is clear…..out of more than $50 billion in federal aid, ONLY 8,405 FLORIDIANS HAVE RECEIVED A FORMAL MORTGAGE MODIFICATION AND ONLY 1,159 OF YOUR NEIGHBORS IN THE ST. PETERSBURG/TAMPA AREA HAVE RECEIVED A HAMP MODIFICATION.

In short, the facts published by the federal government and the mortgage industry show that while the very lenders who helped caused the breakdown of the American financial system are helping themselves to billions of dollars in federal aid, your neighbors are not being helped at all.

A Pig With Lipstick On Is Still A Pig

As my elected Representative in Tallahassee, I hope you are sufficiently aware of the popular uprising against the greed and arrogance of the banks, lenders and Wall Street in general.  As your neighbors here in Pinellas County are struggling to survive these difficult economic times, they’re watching the institutions and fat cats on Wall Street take bigger profits and bonuses than ever before.   While all the obscene profits and general arrogance is bad enough, I hope that you will share my outrage at the bank’s attempts to insult you and other elected leaders and the citizens of the State of Florida when they chose to name their new anti-consumer bill “The Florida Consumer Protection and Homeowner Credit Rehabilitation Act”.  The insult here is there is not the first thing in this proposed legislation that offers any benefit to consumers or homeowners or consumers at all.  I am insulted and incensed that these fat cat, cigar chomping anti-consumer greedy bankers think they can attach a name to legislation which totally misrepresents  the nature of that legislation in the apparent hope that elected leaders and citizens won’t be smart enough to figure out the title totally misrepresents the purpose and effect of the legislation.

The Florida Consumer Protection and Homeowner Credit Rehabilitation Act-  A Dramatic and Totally Unnecessary Change in Florida’s Homestead and Property Rights

From the time Florida became a state, laws relating to a citizen’s homestead were simple.  If law enforcement wanted to get in a citizen’s home, they made their case before a judge and if the judge determined their claims were warranted, the judge granted a search warrant and law enforcement was granted access.  Likewise, if a homeowner defaulted on his mortgage and the lender wants to take the home back, that lender need only prove up that interest up before a judge, then the judge grants foreclosure and the consumer loses possession of his home.  The problem many of the lenders trying to foreclose today face is they cannot or just don’t want to go through the effort to prove even the most basic facts to support their right to foreclose.  Rather than fix the organizational and systemic problems the lenders have created  that would allow them to prove up their right to foreclose, the lenders are asking the Florida Legislature to toss out the property rights rule book and create an entirely new system that would stack the deck entirely in their favor and totally against the homeowner.  The banks and lenders created the lending, documentation and proof problems in their rush to make obscene profits.  The poor and often fraudulent legal work product they are now stuffing through the court systems in this state are only perpetuating the problem.  Rather than correct and address the problems they have created, they’re asking the Florida Legislature to sanction their past and continuing reckless and irresponsible behavior by creating a new set of rules and a new system to take your neighbors homes that is more to their liking.

My Challenge To You- Let Me Bring The Evidence Before You.

As a voter, a constituent and an attorney who is on the front lines of this issue and who sees how it affects your neighbors every day, I want to implore you to vote NO against any version of The Florida Consumer Protection and Homeowner Credit Rehabilitation Act.  If you have any inclination to vote favorably on this bill, please accept my challenge to meet with you and any committee or group of legislators when this bill is being considered.  Let me organize your neighbors and let them bring before you the evidence of their efforts to work with the mortgage lenders and banks that are asking for this relief.  Let me organize and bring before you attorneys who will present evidence of the problems the banks and lenders are creating with their own inaccurate, incorrect and often fraudulent legal work.  When you hear first hand, and see first hand the problems the banks and lenders have created—and how they are perpetuating the problems even now—I am confident you will vote NO on this bad legislation.

There is no denying that the foreclosure mess from across the country is a crisis. In Florida alone, the Supreme Court estimates that more than 500,000 homeowners will be faced with foreclosure in 2010. The scope and magnitude of the problem is staggering. According to Corelogic, an independent analyst of the mortgage and real estate market:

• Nearly 1/3 of all mortgages are currently underwater
• More than $3 Trillion Worth of Property at Risk of Default
• More than 15.2 million U.S. mortgages, or 32.2 percent of all mortgaged properties, were in negative equity position as of June 30, 2009.
• Negative equity and near negative equity mortgage combined account for nearly 38 percent of all residential properties with a mortgage nationwide.
• The aggregate property value for loans in a negative equity position was $3.4 trillion, which represents the total property value at risk of default.
• In Florida, the aggregate value of homes that are in negative equity was $432 billion and Miami alone is $152 billion.
• The top five states’ negative equity share was 47 percent, compared to 25 percent for the remaining states. In numerical terms California (2.9 million) and Florida (2.3 million) had the largest number of negative equity mortgages, accounting for 5.2 million or 35 percent of all negative equity loans.

See summary of full report here.

Banks and Lenders Are Only Making The Crisis Worse; Here’s How You Make It Better

It is undeniable that we are in a massive economic crisis.  Despite government reports of 10% unemployment, as I have reported previously, the true number is somewhere approaching 30%.  Despite some slight improvement in sales, real estate remains mired in a quagmire of high inventory and few sales.  It is particularly frustrating that against this backdrop, the banks and lenders have thus far been almost entirely unable to work with borrowers and negotiate practical solutions to the problem.  What kind of solutions?

1. Accept Reasonable Short Sale Offers….In a Reasonable Amount of Time.
2. Waive The Pursuit of Deficiency Judgments Against Borrowers. (Doing So Will Speed Through a Great Many of Foreclosures.)
3. Modify Mortgages So Homeowners That Want To Stay in Homes Can. (Foreclosing Will Only Bring More Inventory and Less Revenue.)
4. Reduce Principal for Underwater Mortgages. (This Will Result in a Quantified and Known Loss, But Those Loans Have a Better Chance of Performing.)

The Final Point, principal reductions has been the hardest pill for the lenders to swallow, but there is growing consensus that this is required in order to move towards a recovery.  An article in today’s Wall Street Journal reports that institutional investors are teaming up with community groups to encourage or force lenders to take the steps I’ve detailed above.  (Full article here)  At some point in time, something’s gotta give.  Given the magnitude of the problem, it will take a major shakeup for something good to occur, but economic and practical realities may force the issue.  The economic reality..the current foreclosure problem is costing more money in the long run.  The practical reality…the current system isn’t working.

TO: Members of the Pinellas County Florida Legislative Delegation

Dear Members: As you prepare for the Start of the 2010 Legislative Session, I want to thank you for all the good work you are doing for the citizens of the State of Florida and for your neighbors here in Pinellas County.

I am an attorney who represents many of your neighbors in the foreclosure cases that are pending in Pinellas County courts.  The vast majority of my clients find themselves in foreclosure because they or their spouse have lost a job, are facing expensive medical issues or have suffered some other setback that was beyond their control.  By and large your neighbors who are facing foreclosure want to stay in their homes.  They want to continue to make regular monthly payments, maintain their homes and continue to pay the taxes and other expenses related to home ownership.  These good people are simply suffering through the worst economic times of this generation.  With modest payment and term modifications from their lenders, most borrowers would be able to stay in their homes and most would gladly work with their lenders to make these modified payments.

Banks are Not Working With Borrowers

Your neighbors in foreclosure have tried desperately to work with their lender to try and modify their mortgage or come up with some solution other than foreclosure.  I know this because I require my clients to keep a detailed journal of all their attempts to call, write or communicate with their lender.  These borrowers have made dozens, sometimes hundreds of phone calls and faxed paperwork back and forth.  If they hear anything at all, it’s “Sorry we cannot help you.”  Having said that, more often than not, they get no response at all from their lender other than, “We’ve lost your paperwork, please send it again.”  This is not just my opinion or anecdotal information, these statements are confirmed by the information published by the federal government.  As of October 2009, the Federal Government’s Making Homes Affordable program reported that only 82,614 Floridians had obtained a trial mortgage modification.  That same report estimates that nearly 10% of mortgages in Florida are more than 60+ days delinquent.

(See report here)

Banks Are Receiving Billions in Federal Aid

While the federal government has provided at least $50 billion in federal aid to the major lenders in the US Troubled Asset Relief Program (See GAO-09-837 July 23, 2009), the Federal Housing Finance Agency reports that the HAMP and related modification efforts had initiated only 43,000 HAMP permanent modifications and 442,500 active trial modifications as of December, 2009.  Amazingly, according to the latest information published by the Federal government, only 8,405 Floridians have received permanent modifications from their lenders.  One more time so this is clear…..out of more than $50 billion in federal aid, ONLY 8,405 FLORIDIANS HAVE RECEIVED A FORMAL MORTGAGE MODIFICATION. (See report here.) In short, the facts published by the federal government and the mortgage industry show that while the very lenders who helped caused the breakdown of the American financial system are helping themselves to billions of dollars in federal aid, your neighbors are not being helped at all.

A Pig With Lipstick On Is Still A Pig

As my elected Representative in Tallahassee, I hope you are sufficiently aware of the popular uprising against the greed and arrogance of the banks, lenders and Wall Street in general.  As your neighbors here in Pinellas County are struggling to survive these difficult economic times, they’re watching the institutions and fat cats on Wall Street take bigger profits and bonuses than ever before.   While all the obscene profits and general arrogance is bad enough, I hope that you will share my outrage at the bank’s attempts to insult you and other elected leaders and the citizens of the State of Florida when they chose to name their new anti-consumer bill “The Florida Consumer Protection and Homeowner Credit Rehabilitation Act”.  The insult here is there is not the first thing in this proposed legislation that offers any benefit to consumers or homeowners or consumers at all.  I am insulted and incensed that these fat cat, cigar chomping anti-consumer greedy bankers think they can attach a name to legislation which totally misrepresents  the nature of that legislation in the apparent hope that elected leaders and citizens won’t be smart enough to figure out the title totally misrepresents the purpose and effect of the legislation.

The Florida Consumer Protection and Homeowner Credit Rehabilitation Act-  A Dramatic and Totally Unnecessary Change in Florida’s Homestead and Property Rights

From the time Florida became a state, laws relating to a citizen’s homestead were simple.  If law enforcement wanted to get in a citizen’s home, they made their case before a judge and if the judge determined their claims were warranted, the judge granted a search warrant and law enforcement was granted access.  Likewise, if a homeowner defaulted on his mortgage and the lender wants to take the home back, that lender need only prove up that interest up before a judge, then the judge grants foreclosure and the consumer loses possession of his home.  The problem many of the lenders trying to foreclose today face is they cannot or just don’t want to go through the effort to prove even the most basic facts to support their right to foreclose.  Rather than fix the organizational and systemic problems the lenders have created  that would allow them to prove up their right to foreclose, the lenders are asking the Florida Legislature to toss out the property rights rule book and create an entirely new system that would stack the deck entirely in their favor and totally against the homeowner. As a voter, a constituent and an attorney who is on the front lines of this issue and who sees how it affects your neighbors every day, I want to implore you to vote NO against any version of The Florida Consumer Protection and Homeowner Credit Rehabilitation Act.  Please save my information and please contact me directly if I may provide additional information or testify when this bad legislation comes before committee.

Respectfully, Matthew Weidner