Matt Weidner – Fighting With The American People

Posts Tagged ‘wells fargo’

I have been hammering away especially over the last several weeks about the fact that possession and delivery of the original “blue ink” promissory note is absolutely essential in every foreclosure case. (There is an exception to the general rule that you need the original note, but for general discussion purposes, consider the general rule that requires the original note)

In order for a Plaintiff to state a claim for foreclosure, they must:

1) Be in possession of the promissory note, (with a limited exception) and;

2) they must be legally authorized to enforce the promissory note.

This means that even if a Plaintiff shows up in court with a blank endorsed promissory note, this is only the first step in a two step analysis. The second and the critical step is the Plaintiff seeking to enforce that note they possess must present properly authenticated evidence that they are legally authorized to be in possession of the note and that they have the right to enforce it.

But far too often, all of this is ignored.  Any old Plaintiff filing a foreclosure will in most cases get a judgment because the basic laws of standing and the Uniform Commercial Code are being flat out ignored.  This is entirely inexcusable anymore. You must read this long opinion in its entirety, it is a masterful treatment of the very basic elements of foreclosure that have been blown millions of times all across this country and continue to be blown in courtrooms every single day.

Read the opinion and pay particular attention to the discussion of what it means to be a “Holder” under the UCC.  This more or less destroys the whole servicer fiction.  I hesitate to break out any highlights from this opinion, because every word of it is important, but following are some of the key take aways:

• The concept of a “holder” is set out in detail in UCC § 1-201(b)(21)(A), providing that a person is a holder if the person possesses the note and either (i) the note has been made payable to the person who has it in his possession or (ii) the note is payable to the bearer of the note. This determination requires physical examination not only of the face of the note but also of any indorsements.

• under the common law generally, the transfer of a mortgage without the transfer of the obligation it secures renders the mortgage ineffective and unenforceable in the hands of the transferee. Restatement (Third) of Property (Mortgages) § 5.4 cmt. e (1997) (“in general a mortgage is unenforceable if it is held by one who has no right to enforce the secured obligation”). As stated in a leading real property treatise: When a note is split from a deed of trust “the note becomes, as a practical matter, unsecured.” Restatement (Third) of Property (Mortgage) § 5.4 cmt. a (1997). Additionally, if the deed of trust was assigned without the note, then the assignee, “having no interest in the underlying debt or obligation, has a worthless piece of paper.”

• (“The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.”); Orman v. North Alabama Assets Co., 204 F. 289, 293 (N.D. Ala. 1913); Rockford Trust Co. v. Purtell, 183 Ark. 918 (1931).

• As a result, to show a colorable claim against the Property, Wells Fargo had to show that it had some interest in the Note, either as a holder, as some other “person entitled to enforce,” or that it was someone who held some ownership or other interest in the Note. See In re Hwang, 438 B.R. 661, 665 (C.D. Cal. 2010) (finding that holder of note has real party in interest status). None of the exhibits attached to Wells Fargo’s papers, however, establish its status as the holder, as a “person entitled to enforce,” or as an entity with any ownership or other interest in the Note.

• AHMSI apparently conceded that Wells Fargo held the economic interest in the Note, as it filed the proof of claim asserting that it was Wells Fargo’s authorized agent. Rule 3001(b) permits such assertions, and such assertions often go unchallenged. But here the Veals did not let it pass; they affirmatively questioned AHMSI’s standing. In spite of this challenge, AHMSI presented no evidence showing any agency or other relationship with Wells Fargo and no evidence showing that either AHMSI or Wells Fargo was a “person entitled to enforce” the Note. That failure should have been fatal to its position.

• If, however, the maker pays someone other than a “person entitled to enforce” – even if that person physically possesses the note the maker signed – the payment generally has no effect on the obligations under the note. The maker still owes the money to the “person entitled to enforce,” Miller & Harrell, supra, ¶ 6.03[6][b][ii], and, at best, has only an action in restitution to recover the mistaken payment. See UCC § 3-418(b).

Read the full opinion below:

VEAL

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The conduct of the banks in the midst of this foreclosure madness is nothing short of despicable, disgusting, disturbing.  They are wantonly violating all manner of laws, rules, procedures that have been in place from the time our country was founded….and they are getting away with it.

It’s bad enough when civilian’s rights are abused, but we cannot as a nation permit the rights of soldiers that serve our country to be violated.

Please click on the link below and watch the attached video….

ABC ACTION NEWS

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An example of a story reported to me…the third similar such in a week.  The previous two involved borrowers sending money their lender to reinstate their mortgages….only their lender didn’t credit them….identity theft from within the lender/servicer.  People on the inside taking information and using it for their own purposes…wouldn’t be hard to create fictitious names that sound similar enough to the real thing to cash those checks right? (Search “fictitious name” on this blog.)  Won’t anyone step up to stop all of this?

I have been contacted on several occasions by a company representing
themselves as representative for Wells Fargo Mortgage. They asked me EXACTLY
the same questions in the same sequence as WF has during my foreclosure. I
recently received a letter from Wells Fargo regarding my inquiry regarding
my account. ( I have not contacted WF regarding a “Short Sale” as the letter
indicated that I had.

I went back to a an old letter from WF and called the number listed to
insure I was indeed calling WF. I explained the situation and they escalated
it to their fraud departement.
There are criminals who are now contacting the folks in foreclosure posing
as the bank, gathering their personal information and then contacting the
bank and psoing as the consumer to negotiate a short sale. Should I contact
the Florida Attorney General about this? I find this extremely alarming. My
home is up for sale on Nov. 4 and I thought that I was negotiating with
Wells Fargo and in fact I was not. WF says they are not contracted with this
company. I have lost a lot of valuable time with this Co. and I am afraid I
be a victim of identiy theft as well. I need some advise. I think that this
may be a new scam that is being pulled on both the homeowner and the bank.
Wells Fargo was extremely interested in my information.

I have the call on my caller ID. The funny thing is that I gave WF my cell
phone and this call came to my land line. Sounded just like a wells Fargo
call.

I can provide my case number if you need it.

What has happened to me is criminal and it needs to be investigated. How
many others have been victims of this NEW approach to scam vulnerable
homeowners and the banks?

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Dear Members of The Citi Board of Directors and Citi Senior Leadership Commitee:

I’ve got about $2 million dollars sitting on my desk here in Little ‘ole St. Petersburg….and it’s yours for the taking…..but you big shots apparently don’t want it.

You see I’ve got contracts pending or potential offers on houses here where (at least apparently) Citi holds mortgages on the property.  Now the rough combined principle value of the outstanding mortgages is $2.5 million, so you would be taking (at least on the surface) a bit of a loss if you accepted the money on my desk….but you’re going to take much bigger losses if you don’t accept the money sitting on the table.

Take the home pictured above….you guys have two mortgages on the home totaling $500,000….now months ago you might have gotten offers that would have netted you $400,000, but the market has continued to decline and the offers now would net you $300,000.  You owe or have paid $21,000 in property taxes over the last two years and by the time you get it back in foreclosure, you’re probably going to spend tens of thousands of dollars so I just don’t see how you’ll net even $300,000.

Here’s the damdest thing about this particular house….YOU’RE GETTING SCREWED BY YOUR OWN ATTORNEYS ON THIS ONE. No need to go into details on this, the bottom line is the homeowner filed for bankruptcy long ago and disclaimed any interest in the property he had…….your attorneys could have concluded this long ago…your “loss mitigators” could have gotten you money long ago, but they’re all sitting on their hands….I’ve been taunting them….emailing them…asking why they don’t want to get this property back for you….but nothing from any one of them…I’ve emailed your state court attorneys, your federal bankruptcy attorneys, your senior loss mitigation staff….but not a peep out of them other than to acknowledge receipt of my email.

This situation is not unique….I’ve got many just like this…and Citi is not unique…I’ve got literally millions of dollars worth of money sitting on the table that could go to banks like Citi, Wells Fargo, OneWest and Bank of America….the homeowners don’t care anymore (and frankly don’t have anything to lose.)

They’re totally ready to get on with their lives…give you guys money and get the property off their hands and into the hands of someone who can use it….so I’m asking you people….all you smart men and women that are tagged on this post.  Hopefully your staff will be monitoring tags and blogs and that sort of thing….I’m just hoping that one of you will be curious enough about what I’ve got to say that you might contact me….remember, you folks do answer to shareholders don’t you?

Can you all just afford to turn money like this away?  Is the government cheese, tax breaks and subsidies you’re living on just too good?

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Courts Are Overwhelmed With Foreclosures

Across the country, circuit court judges and their staff are becoming overwhelmed and frustrated by the total avalanche of foreclosure cases that have been dumped in their courtrooms.  In Pinellas County, Circuit Court judges who used to handle like 400 foreclosure cases are now handling something like 3,000.These judges still have one judicial assistant and the same limited resources the had before the crisis.  When the judge’s loan JA sits down to start the day, they are bombarded with phone calls and mail and people in their face every single second….it’s chaos, its a burden and it is completely untenable for the long run.

Things have gotten so bad for the judges that I’m told Judges across the state are no longer hearing Motions to Dismiss filed by Defendants in foreclosure cases, and are just denying them without even having a hearing on the matter.  Now that’s one way to deal with the crisis.  It’s an unconstitutional, unfair and totally biased approach that completely ignores the law and the rights of the citizens these judges took an oath to serve, but it is one way to deal with the crisis. (Look for Appeals To Come If This Practice Really Begins to Take Hold.)

I know, Let’s Throw All The Rules Out The Window

Many of the Plaintiff’s attorneys that are working so hard to throw borrowers out of their home cannot rely on good, solid, honest legal work to accomplish their job.  As an attorney who sees the work of these firms every day, I am just astonished that the Courts continue to allow such horrendous practice to continue unchecked, but there seems to be little desire to try and force a correction of the behavior.  Just in case you think I’m overstating the problem, here is an excerpt from the Florida Supreme Court’s Task Force Report on Residential Mortgage Foreclosures

• Finally, it is critical that these firms be candid, clear, and truthful and accurate in connection with pleadings and affidavits filed with the Courts.  A leading plaintiff’s lawyer and a major plaintiff’s law firm have been the subject of a public reprimand and sanctions due to untruthful filings with the courts.  Judges continue to see affidavits of amounts due and owing signed by law firm employees, and cost affidavits charging very high service of process fees for process serving firms owned by the law firm principals.  To some extent, it is fair to be concerned whether the press of the case load is interfering with a judge’s ability to police the conduct of the firms before them in these usually uncontested, unopposed foreclosure cases.

The full report can be found here but the bottom line is this, the lenders and their law firms are lying, lying, lying.  They’re committing fraud on the courts on an unprecedented scale.  The report of the Supreme Court is a bit sanitized, but the firms are whipping out foreclosure cases so quickly that they’re not even bothering to get the proper documents that prove they have a correct basis to file a suit from the outset.  Some firms have ownership interests in the process servers who are supposed to personally hand the lawsuit to a defendant and they’re both charging exorbitant fees for this service and lying about whether proper service has been obtained or even attempted.  And finally, the biggie….they’re lying, lying, lying about the evidence they’re submitting to the court, these come primarily in the forms of Affidavits and Assignments submitted to support Summary Judgments of Foreclosure.

Affidavits and Assignments in Foreclosure, Liars Re-Telling Lies Re-created From Fiction

There are several areas where the lying is reduced to black and white and submitted to the court.

Assignment of Mortgage

First, when the foreclosing Plaintiff is not the original lender, there must be a formal Assignment of Mortgage executed which says, “The Original Lender Assigns This Mortgage to the Plaintiff in This Case.”  This document is needed to give the Plaintiff the proper legal basis to be suing the Defendant. Many of the originating lenders are no longer operating so getting a real assignment from a dissolved corporation would be difficult.  In other cases, the Plaintiff introduces an Assignment of Mortgage executed by “MERS” a shadowy, shifty, shady backroom dealer of mortgages.   The Assignment of Mortgage issue is problematic even when a mortgage was only assigned from an originating lender to the foreclosing Plaintiff, but in cases where a mortgage has changed hands many times, there should be an unbroken chain of properly executed assignments from originating lender straight through to foreclosing Plaintiff.  (In fact, this requirement of an unbroken chain of assignments was originally part of the foreclosure procedures in Pinellas County, but this requirement was stripped.)  The problem is these assignments are frequently fraudulent.  The lenders know this, their attorneys know this and the courts know this, but they’re all just going ahead and pretending like it’s not an issue. IT IS AN ISSUE!

Affidavit of Amounts Due and Owing

The second area of Affidavit Fraud is the Affidavit of Amounts Due and Owing which states, “Your Undersigned Affiant is an employee of the Plaintiff and I SWEAR Based on my PERSONAL KNOWLEDGE that the Plaintiff is Owed, $150,000″.   In a case where the original lender is the foreclosing Plaintiff, an employee of that lender could sign such an affidavit based on their review of the company’s accounting records.  In most of the foreclosure cases currently pending in courts around the country, the mortgages have changed hands many times and there is simply no basis whatsoever for any person to sign an affidavit stating that they have any knowledge whatsoever of who is owed any money whatsoever.  These affidavits are legally insufficient, they’re false and fraudulent.

Affidavit of Lost Note

The third area of Affidavit Fraud is the Affidavit of Lost Note which states, “Your Undersigned Affiant is an employee of the Plaintiff who had posession of the note when it was lost and while we looked long and hard to find the note, it’s just plain disappeared and we just will never find it.”  In cases where the Plaintiff cannot locate the original note, this Affidavit is required in order to “Re-establish The Lost Note”, a technical process which must be followed in order to successfully and honestly proceed with a foreclosure case.  There are two problems here.  First, in many cases, the Affidavit does not include the correct language wherein the Plaintiff asserts that it was in possession of the note when it was lost.  The affidavit states, “the note was in possession of someone (we don’t know who) when it was lost”.  The other variation of this is when the Plaintiff is in possession of the note but they don’t bother disclosing this to the court.

Laws and Rules Just Don’t Matter Anymore, Everyone Hop On Board The Fraud Train!

So if the Plaintiffs and their attorneys are engaging in massive and systemic fraud and the courts are totally aware of this and yet it’s going totally unpunished and unanswered why doesn’t everyone just get on the fraud train? I mean why not?  Well here’s one way that consumers and anarchists could engage in fraud that would totally throw the system into chaos.  If rebels and anarchists and people who just don’t care executed and recorded Satisfactions of Mortgages across the country, it would send the entire foreclosure system into collapse.  A Satisfaction of Mortgage is a one page document that costs $8.50 to record.  It can be produced on a home computer, filled out correctly then sent in along with a money order or cashier’s check.  The Clerk of Court is required to record it and there would be no way of ever knowing where these fraudulently produced satisfactions were coming from.   While the lenders were trying to figure out how to deal with this massive problem, they would have no choice but to stop the pursuit of the foreclosure cases.

Anarchy Is a Crime- Revolution is a Crime.

Make no mistake, doing this is wrong.  It is a crime. A serious crime.  I would not do it and I’m not seriously suggesting anyone should, especially for their own mortgage.  But what if? I mean what if some modern day Robin Hood or Paul Revere set out with a few hundred bucks and a few hours on a computer and started just sending in satisfactions?  And what if, at the same time these same band of anarchist Robin Hoods also filed with the courts “Notice of Voluntary Dismissal and Release of Lis Pendens”?  I mean when the law firms that are prosecuting these cases are so out of touch that they have no idea what’s happening with their files and they have no contact whatsoever with the lenders they claim to represent, it would take them months to figure out if their law office or their client really did dismiss the case or whether this was another one of those Anarchist Dismissals.

But if the system is so broken down that judges are engaging in systematic denial of a defendant’s rights and if the Supreme Court of Florida is acknowledging in writing

that they are aware of widespread and systemic fraud being perpetrated on courts across the country and they’re doing nothing to stop it,

isn’t a little bit of anarchy in order?

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Years ago I filed a lawsuit on behalf of an out of state corporation client.  The opposing attorney filed a motion to dismiss because the corporation I was suing on behalf of was not registered with the Florida Secretary of State.  Fast forward to now when I’m building my practice on defending homeowners in foreclosure and the failure to register motion to dismiss issue is back…in a big way.

Capacity is Almost Never Plead In Foreclosure Cases

I have consistently argued that Florida law and Florida Rules of Civil Procedure require a plaintiff to be properly identified in order to maintain their lawsuit.  Properly identified means in the body of the complaint the full corporation or entity name is described along with its state or jurisdiction of registration.  (i.e. Bank of America a North Carolina Corporation or Bank of America a National Association chartered pursuant to the National Banking Act.)  In the vast majority of foreclosure cases filed in this state, the Plaintiff fails to identify who it is, how it is chartered and how it has the authority to bring the suit.  At best, you might find a plaintiff identified as, “U.S. Bank, N.A.”  What does “NA” stand for?  On a beer bottle it means “Non Alcoholic”. (I know this because it is written out.) While I’m 100% certain what it means in a foreclosure case, I’m pretty sure it means, “National Association”.  I’m also pretty sure that in some instances when the Plaintiff is “US Bank, NA” that plaintiff may (emphasis added) be exempt from some state laws.   I say may because I’ve actually read the National Banking Act and I’m very clear about the exemption/preemption language in the Act.  Some acts of NA plaintiffs are exempt and some state laws are preempted….but many more (and potentially the important ones) are not.  Taking deposits and collecting money is clearly exempted, but I’m not at all convinced that engaging in trust related activities is.  I’m also pretty sure that breaking down doors and unilaterally repossessing a borrower’s home without court process is not preempted by state law either. Anyway, the point is, Plaintiffs must be required to plead out their capacity at the start of these cases so that a whole range of other issues related to the Plaintiff’s action are on the table from the front end.

I’ll follow up more on this case later, but after this Order was issued, the Plaintiff amended their complaint to add yet a third party into the mix…the mortgage was written by World Savings, then they assert that World Savings was assumed by Wachovia, but that after they filed Wachovia was assumed by Wells Fargo….and so now a third party who conceivably has an interest in this case is being drawn in.  Problem is, the version of “Wells Fargo” they plead in is different than the evidence they attached to their amended complaint to prove up that Wells Fargo was the proper party in interest…so I’ve filed a Second Motion to Dismiss in this case…..stay tuned.

The full text of the opinion as published in the Florida Law Weekly is found below: Online Reference: FLWSUPP 1702MATA

Mortgages — Capacity to sue — Where plaintiff has failed to plead or specify in what capacity it brings suit and failed to define or identify nature of its legal entity, plaintiff has not pled capacity to sue — Capacity to sue may be raised by motion to dismiss where defect appears on face of complaint — Case dismissed without prejudice WACHOVIA MORTGAGE, FSB F/K/A WORLD SAVINGS BANK, Plaintiff, v. ANNE MATACCHIERO, Defendant. Circuit Court, 6th Judicial Circuit in and for Pinellas County. Case No. 08-16936-CI-13. December 15, 2009. Anthony Rondolino, Judge. Counsel: Brianna Finch. Matthew Weidner.

ORDER

THIS MATTER, having come on consideration from the Defendant’s Motion to Dismiss, filed by counsel for Defendant Matthew Weidner, this Court having reviewed the pleadings filed in this matter and accepted argument of counsel who appeared before the Court, it is hereby, ORDERED AND ADJUDGED that:

1. In its Motion to Dismiss, counsel for Defendant noted that the only identification of the Plaintiff appears in the caption of the Complaint and the first paragraph where the Plaintiff is identified simply as, “Wachovia Mortgage, FSB, F.K.A., World Savings Bank”. The Plaintiff’s name is not set off or specified within the body of the Complaint or in any other pleading nor is any description provided to explain the legal nature of the entity or to define what the initials “FSB” stand for.

2. Counsel for Defendant, in its Supplemental Memoranda in Support of Motion to Dismiss, cited Florida Rules of Civil Procedure Rule 1.120(a) Pleading Specific Matters which provides that:

(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. . . .When a party desires to raise an issue asto the legal existence of any party, the capacity of any party to sue or be sued, or the authority of a party to sue or be sued in a representative capacity, that party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.

3. Counsel for Defendant also cited Florida Rules of Civil Procedure Rule 1.110(b) which requires that a Complaint include a “short and plain statement of the grounds upon which the court’s jurisdiction depends. . .” Counsel for Defendant asserted that by failing to plead or specify in what capacity the Plaintiff brings suit and by failing to define or identify in any way the nature of its legal entity, the Plaintiff has not plead that it has the capacity to maintain suit before this Court.

4. “Capacity to sue” is an absence or legal disability which would deprive a party of the right to come into court. 59 Am.Jur.2d Parties § 31 (1971). This is in contrast to “standing” which requires an entity have sufficient interest in the outcome of litigation to warrant the court’s consideration of its position. Keehn v. Joseph C. Mackey and Co., 420 So.2d 398 (Fla.App. 4 Dist. 1982)

5. Counsel for Plaintiff introduced a Response to Defendant’s Motion to Dismiss in which it claimed the Plaintiff was both a Federal Savings Bank and not required to register with the Secretary of State in order to establish capacity and that it was a foreign corporation and exempt from registration pursuant to Florida Statute 607.1501. The inconsistent allegations made in Plaintiff’s response are not facts that have been plead and such facts must be plead so that Defendant may respond to them through a responsive pleading.

6. Counsel for Defendant represented to the Court that his research revealed few Florida Court opinions which address the issue of capacity to sue, but urged this Court to consider Federal Court opinions interpreting Federal Rule of Civil Procedure 9(a) from which Florida Rule of Civil Procedure Rule 1.120(a) is derived.

7. The issue of capacity to sue may be raised by motion to dismiss where the defect appears on the face of the complaint. Hershel California Fruit Products Co. v. Hunt Foods, 111 F. Supp. 603 (1975), quoting Coburn v. Coleman, 75 F. Supp. 107 (1974); Klebano v. New York Produce Exchange, 344 F.2d (2nd Cir. 1965).

8. Failure to raise the issue of a Plaintiff’s capacity by a specific negative averment has been held to constitute a waiver of that defense. McDonough Equip. v. Sunset Amoco West, 669 So.2d 300 (Fla.App. 3 Dist. 1996); Plumbers Loc. U.N. 519, Miami Fla. v. Serv. Plbg., 401 F. Supp, 1008 (1975); and see Sun Val. American Land Lease, 927 So.2d 259 (Fla.App. 2 Dist. 2006); Shaw v. Stutchman, 105 Nev. 128 (1989).

9. The Defendant’s Motion to Dismiss is GRANTED and the case is dismissed without prejudice except that the Plaintiff shall have twenty (20) days from the date of this Order to file an Amended Complaint to address the matters raised within the Defendant’s Motion to Dismiss. 10. If the Plaintiff Amends its Complaint the Defendant shall have twenty (20) days from the date of receipt of Amended Complaint to file its responsive pleading.

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