Foreclosure Defense Florida

BAM!- ANOTHER BANK SMACKDOWN- Affirmative Defenses must be respected!

Increasingly our appellate courts are showing that they, “get it” forcing banks to fulfill their basic obligations and respect the rights of parties…

Finance-corp

MitchellPadot

2 Comments

  • litgant says:
    January 21, 2011 at 8:50 am

    Thanks God! In Hillsborough County a senior judge smacked down my affirmative defenses and my answer. While they may have been a little wordy, judges should if they are a “senior one” who has not gone into demitia, be able to understand the points made. My judge simply did not want to deal with mine so he smacked them down. I should have appealed, but being Pro Se I was led to believe the Appellate courts were just robo-stampers of their lower bench friends. Well, maybe my confidence is being restored in the appellate courts. I hope so. In Florida we have had shysters sitting as judges and that is why they are robonauts of their rocket dockets. They have side-stepped the rule of law so long they no longer remember how to apply it. This is why the Supreme judicary had to create simple rules that judges should have already been applying. Now, when will they get it that these assignments after a trust has been closed are worthless? And when will they get it that by MERS being the legal holder of the mortgage for the lender, splits the mortgage from the note and the note becomes uncollectable? When will they stop this stupidity of making the note collectable and the standing of foreclosure? And since these trusts are largely illegal ponzi scams to milk Wall Street investors, why have they not put some people in jail? It is time in central Florida for our chief judges to make sure his courts abide with the rule of law and give defendants honest redress. So far I have seen little honest decisions by these circuit court judges. In other circuits there have been good rulings. But in Hillsborough County there have been NONE! Something is sick down there in that great big white monster building. It needs to be disinfected of fraud. Thanks Mr. Weidner for reporting on the good the appellate courts are doing. Otherwise they would not be given any praise or respect. It is you reporting the ugly, the bad, and the good. How come the supreme court is not reporting these good rulings? Is it because they do not want defendants to have any hopes of fairness? Thank God for good appellate decisions.

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  • JamesM2 says:
    January 21, 2011 at 10:30 am

    You bill this as another BANK smackdown.

    In reading the opinion I see the Plaintiff in the action was an individual and the BANK was one of the defendants, the one who’s affirmative defenses were upheld.

    I question if a home owner filed after a default had been issued against it, if the home owners motion to over turn the default would have been viewed in the best possible light for the home owner.

    On appeal, I question if the appellate court would have sifted through the affirmative defenses to find a possibly meritorious defense, and return it to the court below.

    There was a “bench trial” in the lower court, not a SJ against the Bank. There is no mention of a trial transcript.

    If it was a pro-se or defense lawyer making this appeal I think most appellate courts would have presumed the defenses were raised and disposed of at trial.

    Yes the court is right in its ruling, but it is very telling that it only made such a ruling in favor of examining all affirmative defenses for any signs of a meritorious defense, before concluding that the BANK must get it’s default set aside.

    There are many, many, many, home owners who were in exactly the same situation, although not the exact same AD’s, and who were treated quite differently. Show me a similar one where the home owner gets the same treatment.

    Yes, this ruling is very inportant and useful going forward, but do you notice that most appellate rulings that are of use to us were from cases where the court was ruling on behalf of BANKS and companies, almost never where the court found in favor of the little man.

    This is another example, incredible deference was paid to the AD’s of the BANK, even though it looks like most were un-sustainable. Only one was found to have any possible merit at all.

    YAY – Good opinion, good and useful case law.

    BOO – The court only came to this fine and parsed examination of the sustainability of meritorious defenses, and their effect on overturning a default judgment, when a BANK was arguing them.

    This suggests the legal argument was novel, NO, or that the foreclosure defense lawyers are all incompetent and have never raised this argument correctly, Probably Not, or that the appellate court is predisposed to finding any grounds to sustain mortgages held by BANKS and prevent the total extinguishing of their claims to repayment. I think this more probable.
    The effect of this ruling in this case is to preserve the BANK’s intrest in the mortgage it holds, even though they are a second and inferior mortgage holder to the individual, who is the Plaintiff.

    The obvious question: “If the courts are prepared to do this for the bank, then why not for the many individual home owners in the same situation?”

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