The entire country knows that we are right in the middle of a real crisis. It’s a crisis of confidence that is shaking the very foundation of our country as we all question the economic, political and judicial systems we all live under. Clearly there are major problems in each of these systems. I find it interesting that Florida’s Sixth Judicial Circuit on Florida’s West Coast has received a good deal of outside press and other attention about this foreclosure crisis and wanted to dig a little deeper. The good judges of this circuit have had a problem with the way foreclosures have been conducted for a long time….as it turns out now….apparently with very good reason.
The inquiry got me thinking about a case that started long before the crisis, way back in 2005. Way back then one of our good Circuit Court judges had a problem with the way he saw foreclosures being conducted in his courtroom. He specifically had a problem with the way a nominee or straw party, MERS or Mortgage Electronic Registration System, was filing thousands of foreclosure lawsuits and he questioned how MERS could act as the Plaintiff when it did not actually own the note or have a real interest in the underlying debt.
The interesting this is this judge sua sponte or on his own, called up all the cases in his docket where MERS was the Plaintiff. He exercised his judicial authority and conducted an inquiry of the facts and circumstances surrounding MERS’ participation in foreclosure litigation. It should be noted that in this particular case, no Defendant ever appeared or filed any pleading at all. But that did not stop the judge from raising his inquiry. He had questions about what was happening in his courtroom so he pulled all the cases and set up a formal inquiry. YOU MUST READ THE ENTIRE ORDER AND PAY ATTENTION TO THE DEEP INQUIRY BEING CONDUCTED BY THE JUDGE….
After the inquiry, the judge determined that MERS didn’t have the appropriate skin in the game to foreclose, so he dismissed this case AND ALL OTHER CASES in his docket where MERS was the Plaintiff. The Second District Court of Appeals subsequently reversed him on this, but there are several important points. First, the appellate court did not repudiate his entire line of inquiry or reasoning, they only suggested that it was a little too broad based on the facts before them in that particular case. Next, reading the appellate opinion carefully, you will note that in footnote number two the appellate court specifically noted that it was relevant for a Plaintiff to establish how and why it became entitled to enforce a mortgage. Finally, it is critical to note that even though the appellate court reversed the good trial judge in this case, MERS’ practice changed dramatically after this case and they almost never filed as a Plaintiff in the State of Florida again.
Azize was not a “Win” for MERS and the appellate court did not expressly repudiate the legal inquiry being conducted, the appellate court merely pointed out some technical problems with that particular case. The point is this circuit got the issues right long before foreclosures devolved into the morass they are today. Just think of how much better shape we’d all be in today if we had all stopped and paid attention to the questions asked by this judge in this case. What if the lenders and the plaintiffs in all these cases that are clogging our courts had taken the time and spent the effort to get their paperwork straight to show ownership clearly and without question way back in 2005? The mess that clogs our courts and pollutes our system of record title ownership was warned of very clearly and quite specifically long before it all spun so wildly out of control….if only we would have listened…..
Is this the next decision out of the Sixth Judicial Circuit on the Order and Magnitude of Azize?
