Foreclosure Defense Florida

All Summary Judgments of Foreclosure May Be VOID!

3 Comments

  • jesse says:

    This is applicable to the mills attorneys and the judges who conspire and ignore all the rules that are set for them to follow.

    Even though it applies to purchasing credit debt, pay close attention to and read USC. This is what I am going after the mills attorneys for all of false documentation being filed in order to foreclose on properties….its a conspiracy between the banks, servicers, trustees, companies like Doc-X, etc. They all come together to deprive the home owner of due process and shift the burden of proof onto the homeowner and all of it backed by the courts!

    Also, take notes of third party debt collectors which in essence are most of the plaintiffs in foreclosure cases. The burden of proof is heavy to make a case yet they are not held to those standards.

    There are likely ten times as many lawyers as are necessary to handle the minority of non-frivolous lawsuits filed by so-called bar-licensed attorneys, to wit:

    In 1989 Stephen P. Magee concluded that the optimum number of lawyers in our society was 60 percent fewer than those then practicing. He presented his findings to the White House and again in his book, Black Hole, Tariffs and Endogenous Policy Theory. This economist estimated that every additional lawyer over the number reduced our gross domestic product by about $2.5 million.
    Because there are about one million too many lawyers, many lawyers must resort to a life of crime; a major bar-licensed attorney racket operating in the United States is the illicit business of debt buying, to wit: (1). Banks make consumer loans on unilateral installment contracts of adhesion such as are credit card member agreements (mortgages apply). (2). As the superior party in a unilateral contract cannot sue for breach of contract, the banks file insurance claims on non-performing accounts and collect insurance on the account (bail outs AIG, Default Swap Agreements, Fannie, Ginnie, FNMA, etc) .

    Although the bank still has an actionable damage in pursuing a theory of ” on an open account,” the matter would require:

    (a). subrogation to the insurer, and (b). proof via authenticated evidence and testimony of every single transaction to show a deficit; so, banks charge-off and sell evidence of debt to attorneys in the illicit business of debt buying for a typical six cents on the dollar. (3). Since installment contracts, such as are credit card contracts, are not negotiable instruments and cannot be sold for value under holder-in-due-course theories of law, what ever debt had inured is extinguished along with the contract itself when sold. (4). Attorneys in the illicit business of debt buying then use trickery, deceit, and harassment has tools to extort sums from persons no longer subject to lawful prosecution or liable for the extinguished debt.

    This court is noticed: the above scenario is a blatant violation of 18 U.S.C. § § 1341 & 1962 often, whether unwittingly or wittingly, requiring the complicity of state court judges (and federal judges), who, due to their duty to make inquiry, reasonable under the circumstances, gain complicity in racketeer by violating 18 U.S.C. § 371 with federal judges also violating 18 U.S.C. § § 4 & 1001.

    Source: Attorney General Press Release
    Challenges for Collecting Purchased Debt
    James M. McNeile
    Cohen McNeile Pappas & Shuttleworth P.C., Leawood, Kansas

    All of us know it is more difficult to collect purchased debt than originated debt by using the traditional legal collection approach. The difficulties from a lawyer’s perspective lie manly in problems of proof. A creditor that originates debt has access to the documentation that courts require attorneys to introduce as evidence in order to obtain a judgment. Many debt purchasers either do not have access to the source documents or can only obtain those documents at great cost. How then can debt purchasers utilize the court system to collect debts that are legally due and valid? Ken Gelhaus reports that in New York the problems of collecting on purchased debt have increased greatly in the last year. At one time in New York, court clerks entered a default judgment on claims for “sums certain” without running the papers past a judge for review and signature. In recent months, however, clerks are refusing to do so and requiring that a judge’s order granting default judgment be obtained.
    In on of his recent cases, Ken reports that he applied for a default judgment using the affidavit of an officer of the purchasing plaintiff. The affidavit, although able to reference the date of the purchase of the debt and the balance purchased, was deficient in that it did not include any actual business records of the originating creditor. The court found that the affidavit of the debt purchaser was insufficient and conclusory.

    The court suggested the debt purchaser furnish a copy of the assignment or contract assigning the claims, along with a copy of any statement or record clearly demonstrating the calculation and the amount of the claim. If monthly statements were furnished to the defendant, copies of the most recently sent statements should be annexed.

    Reliable and factual information concerning the claim is required.

    Even if we as attorneys include such items, they are business records of the originating creditor, not the purchasing plaintiff.

    At least in New York, these business records would have no probative value, because no one at the purchasing plaintiff has ” personal knowledge” of the creation, maintenance, issuance, and tracking of the statements. In the eyes of the court, such affidavits are hearsay and therefore not admissible.

    A purchasing plaintiff is unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff’s business records, as the purchasing plaintiff has no personal knowledge of how those records were created or maintained.

    How then can the purchasing plaintiff’s counsel obtain a judgment for their client in the face of a court’s refusal to grant judgment on a legitimate debt purchased by a third-party? The obvious answer is to obtain the affidavit of the originating creditor and annex the documents of the originating creditor to their affidavit.

    The originating creditor would have actual and personal knowledge of the events which led to the creation of the debt, as well as the events which lead to the sale of the debt. A second alternative would be to attempt to obtain a novation of the original credit agreement, which might be accomplished by either obtaining a signed statement from the debtor agreeing to pay the balance owed. Alternatively, if the debtor refuses to sign such a statement, the purchaser could send monthly statements which, if not objected to by the debtor, might be introduced by way of the purchasing plaintiff’s affidavit, indicating that no objection had been made to the statements of account. Therefore, the debtors are estopped from denying the existence of the balance.

    Absent a willingness by debt sellers to sign a business records affidavit as to the origination and sale of the account, or a novation by the purchasing plaintiff of the original debt, lawyers will be increasingly hard pressed to obtain judgments for legitimate debts purchased by debt buyers.

    If purchasing plaintiffs wish to continue to be able to use the court system to enforce their purchased debt, it is going to be increasingly necessary for documentation to be readily available for their counsel and the courts.

    Notice: The NARCA Newsletter is a publication of the Association of Retail Collection Attorneys with headquarters at 1620 I Street, NW Ste 615, in Washington, D.C. 20006 — Telephone 800-633-6069 or 202-861-0706. An appearance of an advertiser in this publication does not constitute an endorsement.
    ILLINOIS CREDITOR S BAR ASSOCIATION
    BOARD MEETING MINUTES
    APRIL 22, 2002

    This brings up many questions that can and should be used in foreclosure litigation against the mills and the pretender lenders. The hurdle…..the judges forcing the plaintiffs to prove up the case and if they don’t, well name them in your claim in the Federal Courts and file complaints!

    Here is supporting case law that makes all foreclosure actions “void” and subject to collateral attack. Study the cases and gain an understanding so you can formulate the suit.

    In order to establish prima facie entitlement to summary judgment in a
    foreclosure action, a plaintiff must submit the mortgage and unpaid note,
    along with evidence of default. Capstone Business Credit, LLC v. Imperial
    Family Realty, LLC, 70 AD3d 882
    , 895 NYS2d 199 (2nd Dept 2010). The Second Department has also required a showing that the mortgage was valid. Washington Mut.Bank, FA v. Peak Health Club, Inc., 48 AD3d 793
    , 853 NYS2d 112 (2nd
    Dept.2008).

    In this case, Defendant Sameeh Alderazi borrowed $408,000.00 from
    ” America’s Wholesale Lender” on January 25, 2007. The mortgage was recorded in the
    Office of the City Register, New York City Department of Finance on
    February 14, 2007. MERS was referred to in the mortgage as nominee of the
    mortgagee, America’s Wholesale Lender, for the purpose of recording the mortgage.
    MERS purported to assign the mortgage to Plaintiff BANK OF NEW YORK on
    July 23, 2008. The assignment was recorded on September 19, 2008. The
    assignment was executed by ” Keri Selman, Assistant Vice President of MERS, as
    ” authorized agent pursuant to Board of Resolutions and/or appointment”. However,
    no resolution nor other proof of authority was recorded with the assignment or submitted to the Court.

    A party cannot foreclose on a mortgage without having title, giving it standing to bring the action. (See Kluge v. Fugazy, 145 AD2d 537, 538 (2nd Dept 1988 ), holding that a ” foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity”. Katz v. East-Ville Realty Co., 249 AD2d 243 (1st Dept 1998), holding that ” [p]laintiff’s attempt to foreclose upon a
    mortgage in which he had no legal or equitable interest was without foundation in law or fact”.

    ” To have a proper assignment of a mortgage by an authorized agent, a power
    of attorney is necessary to demonstrate how the agent is vested with the
    authority to assign the mortgage.” [*2]HSBC BANK USA, NA v. Yeasmin, 19 Misc
    3d 1127(A), 866 NYS2d 92 (Table) N.Y.Sup.,2008. ” No special form or
    language is necessary to effect an assignment as long as the language shows the
    intention of the owner of a right to transfer it”. Emphasis added, Id., citing Tawil v. Finkelstein Bruckman Wohl Most & Rothman, 223 AD2d 52, 55 (1st
    Dept 1996); Suraleb, Inc. v. International Trade Club, Inc., 13 AD3d 612
    (2nd
    Dept 2004).

    The claim in this case is that the mortgage was assigned by MERS, as the
    nominee, to the Plaintiff. However Plaintiff submits no evidence that
    America’s Wholesale Lender authorized MERS to make the assignment. MERS submits
    only its own statement that it is the nominee for America’s Wholesale
    Lender, and that it has authority to effect an assignment on America’s Wholesale L
    ender’s behalf.
    The mortgage states that MERS is solely a nominee. The Plaintiff, in its
    Memorandum of Law, admits that MERS is solely a nominee, acting in an
    administrative capacity.
    In its Memoranda, Plaintiff quotes the Court in Schuh Trading Co., v.
    Commisioner of Internal Revenue, 95 F.2d 404, 411 (7th Cir. 1938), which
    defined a nominee as follows:
    The word nominee ordinarily indicates one designated to act for another as
    his representative in a rather limited sense. It is used sometimes to
    signify an agent or trustee. It has no connotation, however, other than that of
    acting for another, or as the grantee of another.. Id. Emphasis added.
    Black’s Law Dictionary defines a nominee as ” [a] person designated to act
    in place of another, usually in a very limited way”. Agency is a fiduciary
    relationship which results from the manifestation of consent by one person
    to another that the other shall act on his behalf and subject to his
    control, and consent by the other so to act. Hatton v. Quad Realty Corp., 100
    AD2d 609, 473 NYS2d 827, (2nd Dept 1984). ” [A]n agent constituted for a
    particular purpose, and under a limited and circumscribed power, cannot bind his
    principal by an act beyond his authority.” Andrews v. Kneeland, 6 Cow. 354
    N.Y.Sup. 1826.
    MERS, as nominee, is an agent of the principal, for limited purposes, and
    has only those powers which are conferred to it and authorized by its
    principal.
    In the mortgage in this case, MERS claims, as nominee, that it was granted
    the right ” (A) to exercise any or all of those rights, including, but not
    limited to the right to foreclose and sell the Property, and (B) to take
    any action required of the Lender including, but not limited to, releasing
    and canceling this Security Instrument.” However, this language quoted by
    MERS is found in the mortgage under the section ” BORROWER’S TRANSFER TO LENDER
    OF RIGHTS IN THE PROPERTY” and therefore is facially an acknowledgment by
    the borrower. The fact that the borrower acknowledged and consented to MERS
    acting as nominee of the lender has no bearing on what specific powers and
    authority the lender granted MERS. The problem is not whether the borrower
    can object to the assignees’ standing, but whether the original lender,
    who is not before the Court, actually transferred its rights to the
    Plaintiff. To allow a purported assignee to foreclosure in the absence of some proof
    that the original lender authorized the assignment would throw into doubt
    the validity of title of subsequent purchasers, should the original lender
    challenge the assignment at some future date.
    Furthermore, even accepting MERS’ position that the lender acknowledges
    MERS’ authority exercise any or all of the lenders’ rights under the
    mortgage, the mortgage does not convey the specific right to assign the mortgage.
    The only specific rights enumerated in the [*3]mortgage is the right to
    foreclose and sell the Property. The general language ” to take any action
    required of the Lender including, but not limited to, releasing and canceling
    this Security Instrument” is not sufficient to give the nominee authority to
    alienate or assign a mortgage without getting the mortgagee’s explicit
    authority for the particular assignment. Alienating a mortgage absent specific
    authorization is not an administrative act.
    Plaintiff submitted no other documents which purport to authorize MERS to
    assign or otherwise convey the right of the mortgagor to assign the
    mortgage to another party.
    A party who claims to be the agent of another bears the burden of proving
    the agency relationship by a preponderance of the evidence, Lippincot v.
    East River Mill & Lumber Co., 79 Misc. 559, 141 NYS 220 (1913), and ” [t]he
    declarations of an alleged agent may not be shown for the purpose of proving
    the fact of agency”. Lexow & Jenkins, P.C. v. Hertz Commercial Leasing
    Corp., 122 AD2d 25, 504 NYS2d 192 (2nd Dept 1986). See also Siegel v. Kentucky
    Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 NYS2d 744 (2nd Dept
    1985), Moore v. Leaseway Transp. Corp., 65 AD2d 697, 409 NYS2d 746 (1st Dept
    1978). ” The acts of a person assuming to be the representative of another
    are not competent to prove the agency in the absence of evidence tending to
    show the principal’s knowledge of such acts or assent to them”. (2 NY Jur
    2d, Agency and Independent Contractors, 26).
    Plaintiff has submitted no evidence to demonstrate that the original
    lender, the mortgagee America’s Wholesale Lender, authorized MERS to assign the
    secured debt to Plaintiff.

    Thus, Plaintiff has not made out a prima facie case that it is entitled to foreclose on the mortgage in question.

    WHEREFORE, it is ORDERED that the
    Plaintiff’s application for an Order appointing referee to compute amounts due to the Plaintiff is denied with leave to renew upon proof of authority.

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