BAC FUNDING CONSORTIUM V. US BANK- The Liar Lender Game is Up!
Remember that case name because this case, which was released by the Florida Second District Court of Appeals on February 12, 2010, represents a stunning change in the legal landscape governing foreclosures. The full text of the opinion can be found here. This case is an absolute must read for any attorney practicing law, any homeowner in foreclosure and respectfully, any judge who presides over foreclosure cases.
As I’ve been screaming about on this blog, and as I plead in virtually all my foreclosure cases, a lender must present some kind of evidence to show they have any rights whatsoever to foreclose on a home. In the vast majority of cases, Plaintiff’s attorneys file pathetic foreclosure lawsuits with attached copies of notes and mortgages, but no documents that show the Plaintiff has any rights whatsoever to file the foreclosure case. The standard response from Plaintiffs attorneys has been, “Screw off, we say we have the right to take the home and we’re taking the home.” Unfortunately in far too many cases, and despite case law to the contrary, judges have often given in to these unsound positions, just as the trial court did in this case. This brand new opinion should help to eliminate these arguments because the appellate court reversed the trial court finding:
U.S. Bank’s complaint conflicts with its allegations concerning standing and the exhibit does not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not establish its entitlement to foreclose the mortgage as a matter of law.
But wait, there’s more oh so much more. When challenged, a bank will often come to court with the original note. Judges have been quite impressed with this and have responded….”Plaintiff has the original note, they must be entitled to foreclose”…..not so fast…
Moreover, while U.S. Bank subsequently filed the original note, the note did not identify U.S. Bank as the lender or holder. U.S. Bank also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage. 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.
And that part of the opinion really is earth shattering because even if the lender comes marching into court with the original note, the appellate court is now saying that’s not enough. (I can hear plaintiff law firms across the state fabricating the evidence they need to comply with this new ruling right now.) The real irony of this opinion is that the stunning reversal did not come because a homeowner had a talented foreclosure defense attorney defending the case….no, the parties involved in this appeal were two banks fighting over the loans they had on the home…..how’s that for ironic justice.
It doesn’t matter where it came from, the opinion represents a watershed moment in foreclosure defense and is a tremendous victory for justice and the integrity of the court systems.
On Nov.25, 2010 a 9th Circuit Judge …stated that a Assignment was not necessary to prove the ownership ,and that the Original Promissory Note was all that was needed for the Plaintiff to foreclose . Hence he denied my Motion to Vacate a Summary Judgment .
The promissory note was presented with 2 transfers
from my original ” lender” to the present foreclosing Plaintiff. The endorsements were not dated .
Two ” Vice Presidents ” signed the transfers with out recourse ..from Bank A to Bank B. . My research into both Corporate organizations , found that these two VP’s are not listed as Directors nor Corp. officers. They could have been employee’s of the Corp. since defunct ….just as much as they could have the Cleaning Lady and the Janitor cleaning the FDLG office …who signed as VP’s..
The two Lending Corporations that were involved are presently defunct since 2007 . In theory these VP’s are either gone from the mortgage business or were only fake VP’s from the foreclosure mills who fabricated these transfers to justify the foreclosure.
I stated at my last hearing that there is no proof that the Plaintiff purchased the Note ,or that they found the Note in the Services file cabinet.
Since the servicers take over the loans payment administration they usually have the Notes in file . That of course doesn’t mean the the serviver ..can start the foreclosure. on their own with the FDLG as partners with out the ” Lender’s ” or Investors knowledge. ..and split up the windfall of the sale of the houses. 50% 50% .
The credit default swaps, AMBAC ,AIG insurance and many other Wall Street gadgets sure to pay off any of their loss’s 30 times over. ..
So what if the Servicers & Foreclosure Mills buy these Notes at fire sale prices …any then foreclose the houses by using a Big Wall Street Bankers Name as a Mask …to hide behind .
If that’s a possibility …imagine the outrage this would cause to Homeowners ….and the Class Action suits against these Mills… that would cook up.??
Back to the case :
An Original Note with 2 unknown VP’s signatures ..that’s the only evidence these Plaintiff’s stated they needed .
In fact one of the young female attorney ( from FDLG ) in a sarcastic tone of voice stated at the hearing … ” that’s ( note) all we have , ..and that’s all we need to foreclose. Ha Ha…
My Advocacy attorney was asleep at the switch and didn’t respond. I am new to this , and I didn’t respond.
The Judge answer to my request for a Assignment as evidence ..was.. They don’t really need it ..I think at least in case law…?
Since I am still in the Appealing time line ..I am so happy to read about this Opinion, and I have higher hopes that in Appeals I can use this opinion for my defense .
Thank you Matt ..you made my Day !!
Luis 57 I remember your case. It was back in Thanks giving. I just could not understand how that happened.
Since your case I have read so much much and everything that I have read went against the judge’s ruling. I hope that you have completed the appeal process. BTW did you have a court reporter at that sitting? I found out today that orange county is not open court just like mine up here in lake . Lets see if we can hook up. The other concern that I have is
These fraud attorney’s are now going to position their docs. based on these rulings in order to make their case Which will be another level of fraud
Good job Matt I am watching your work. You are one of the few here in this area that gets it. Keep up the good work and your reward will be sure.
Thanks and please share any good info for publication!
Yes I was the victim of the smiling judge ..who wished us all a happy THANKSGIVEN..to all.. Nov.25th ….he gave me one hell of a turkey .I lost all my appetite for that Holiday…
Well he set up the sale for Jan 25 ,2010.
Meanwhile my advocacy attorney withdrew because he was not going to request a re-hearing .
That I had nothing further to add ..So he requested a withdrawal hearing for Jan 12,2010 I went , and during the short hearing the Smiling Judge to his shock found that no draft had been approved for the Order to sell Since Nov.25th 2009. So he approved the withdraw , and gave me extra time to find a lawyer , and re-set the sale for Feb.22 2010..next Monday.
Being broke I will file an Appeal Notice between Thursday and Friday ProSe .
If God is on my side the Appeal will be accepted.
I am not sure if that Notice will stop the Monday sale or not.
These last few days have had very good news about the Supreme Court and The BAC Appeal opinion. I pray that I’ll be able to use these opinions to save my home.
My Smiling Judge ordered the wrong decision based on the latest opinion and rules.
I’ll file ” Forma Pauperis ” [ means poor/ broke ] and I’ll put my house as Bond if necessary.
If you have any ideas ..let me know…I have today and tommorrow to file…
L.F.
The only thing that will stop a sale is bankruptcy,
I was discharged from Bankruptcy on Dec.2008. Can’t do that again.
Since we are Appealing today Thursday or Friday ..
is an Injunction to avoid irreparable damages while a Appeal has been requested.
Can a filing of a Notice of Lis Pendens ( on the
house property ) stop the sale ?
for a civil suit complaint for fraud …Thief .. Causing irreparable Financial , and Emotional damage .
Thank you for your feedback ..
Luis 57.
I still haven’t seen any case law that serves as authority for the proposition that possession of the original note alone is sufficient. Remember a foreclosure is based on two documents. 1) Promissory Note,; 2) Mortgage. If the Plaintiff has the note, they claim original note is enough for the count on the other document..the mortgage foreclosure count. If they don’t have note, they concoct an assignment and ignore the lack of note….new case law will be made to harmonize all of this!