That’s not my statement, that comes from a Plaintiff in an appeal that just came across my fax machine as I was walking out of the office today. The whole appeal is quite interesting, but the statement that really blew me completely out of my mind was the following:
Compliance with the court’s order would require the petitioner to perjure itself.
huh?
Compliance with the court’s order would require the petitioner to perjure itself.
Now let’s put the whole dispute into some context here. Remember no less an authority than the Florida Supreme Court passed a rule revision that did a very simple thing…..it required Plaintiffs filing lawsuits to investigate the central facts in their complaint before trying to throw a citizen out into the street.
The foreclosure mills went nuts and filed an appeal of this simple requirement. The appeal filed by the banksters said essentially the following:
How Dare The Florida Supreme Court Tell Us What To Do
and
You Can’t Force Us to Investigate Facts Before Filing A Lawsuit
The Florida Supreme Court rejected the bansksters’ ridiculous arguments and ultimately dismissed their appeals. But the banksters did use their filed appeal to advance an absurd argument that they were not required to follow the rules until the appeal was dismissed. Now this absurd argument was not supported by the law at all, but that didn’t stop them from making the argument over and over and over, all across the state. God only knows how many complaints they were able to avoid verifying based on their merit less argument, but they got away with it for months.
Now there’s a very interesting juxtaposition to be made here by comparing what’s going on in Nevada and what is occurring here in Florida. Nevada passed essentially the same law that exists here in Florida….Nevada asked the banksters to tell the truth. But they took it a tiny step further…they included real penalties for lying and guess what….when faced with real penalties for not complying with the rule, new foreclosure filings plunged. (Huffington Post) Oh, right Nevada…the state that’s taking the job of protecting consumers and advancing the Rule of Law seriously.
Meanwhile, back here in Florida we’re all stuck in a sticky swamp of confusion over what the truth is and how to comply with a simple concept called the Rule of Law. The appeal recycles many of the same arguments that were made and rejected long ago, and I’m certain the 2nd DCA will take this opportunity to restate the simple requirement that banksters verify complaints and tell the truth.
Have a read over the appeal below and let me know what you think!
Here’s a question: If the “servicer” “knows it all” and can verify “the information” under oath, and if simply “holding” a note endorsed in blank is enough to grant standing and capacity to foreclosure a mortgage (based on the note) – both were asserted by the “plaintiff” in the Petition for Writ – why didn’t the “servicer” simply bring the action to foreclose? The Petition actully admits that the “plaintiff” (“owner”) doesn’t even know if or how badly it has been harmed by an alleged default?!? And WHERE are all these alleged “powers of attorney” to “servicers” described in the Petition???? This is getting beyond ridiculous.
I note that they are already flaunting the Glarum decision.
it really is a crazy appeal….can’t wait to get a response out.
Triumphant, I think we are both thinking along the same line. Why the servicer is not given the rights to bring the action in the first place is what is puzzling me. Why was the servicer not given the assignment to the mortgage instead of U.S. Bank National Association? Why does the law allow the servicer to give assignment rights of the mortgage to the Bank that supposedly owns the note? Who gave the servicer rights in the first place? Where is their Assignment of Rights? Why does the servicer have POA for over 1 dozen banks, which all have the same address as the servicer, and MERS, with the same address too? One big happy family in Salt Lake City, lol…. In my opinion after reading all, the bank has just admitted that the papers and servicer actions are not worthy enough to commit perjury over. So I agree bring them in, so they can stand on their own feet for a counterclaim. 🙂
If I had more time this month I would dearly like to help draft the Answer. That deserves chopping up into little byte sized bits that the Appellate court can stuff down the necks of opposing counsel.
There are so many holes in their argument, chopping it up would be fun!! The suggestion that the court went beyond the four corners of the complaint is ridiculous, for verification is unquestionably something that has to be on and within the complaint.
The argument that compulsory verification it would deny them the right to foreclose and lack of due process because the amended complaint relates back to the orignal is a red herring. They have the option to voluntary dismiss and re-file correctly, with a complaint that does not relate back. Moreover a complaint only relates back to the date of orignal, with regard to the allegations re statue of limitations, not to the requirements of the pleading.
In the same way a ruling on a motion to dismiss informs the plaintiff of the need to tidy up and correct a pleading, the new (two year old) verification rule informs the plaintiff of an additional requirement, to tell the truth.
If an answer has been filed, then the court’s granting of leave to amend is discretionary, see 4 factors that would justify denial of leave to amend in Bermans at 190.3[3]. Also see Diminishing Liberality with passage of time 190.3[2]. A good argument could be made that Plaintiff’s should be grateful of the court granting leave to amend.
A good question is, will the amended complaint change the name of a party? I.e. Bank X is now Bank X for Trust abc of def bonds of 2001. If so, the correction of ‘misnomers’ may well prevent relation back. Bermans at 192.6[2][a].
Seems to me, that if the court has not seen the amended complaint, it is impossible to say if the new theory of recovery, parties to the amended complaint, or facts alleged are diffrent or arising from the facts previously alleged, therefore it is impossible to say if the amended complaint, when finally filed, will or will not relate back. If the amended complaint is NOT in the record / appendix, the appellate court cannot see if the amended complaint dose or does not relate back, and therefore the argument based on relating back is moot.
Similar dismissals of amended complainants, or stipulations that amended complainants must be verified, from other counties would puncture the summary argument that requiring plaintiff to verify the amended complaint creates a “higher burden” in Penellis County compared to the rest of the state.
good thoughts, i will work those into what we are drafting as we speak.
Interesting…question, are all amended complaints required to go through a certain procedure? Or can a plaintiff make an amended complaint without fling a motion to do same? Especially if the time allotted has past to amend the initial complaint before a motion is required to do so…???? Should the complainant amend his original complaint after the time as mentioned above, but did not file that motion, is that amended complaint acceptable by the court?
Clarence Darrow I sure ain’t, but the following quote from page 5 of the appeal sort of screams “Game Over” to this layman’s ear:
“U.S. Bank as principal, cannot verify all of the allegations required to properly plead a cause of action for mortgage foreclosure.”
Jumpin’ Judas on a Pogo Stick!!!
Nothin’ quite like just flat out sayin’, “I ain’t got a case.” in your appeal!!
You either have to admire the sheer arrogance of these clowns or shake your heaqd at their abject stupidity…I don’t know which.
Am i understanding this right, U.S. Bank was not the Lender, they never owned the mortgage, yet they had their servicer collecting / stealing mortgage every month from this poor victim? Where did that money go? Shouldn’t they now pay all back to the victim? U.S. Bank was committing fraud by collecting the money all those years, and is now ‘pissed’ because victim is seeking protection under the law? How much money did they all these years stole from the victim? Shouldn’t they pay it back? How many other banks out there have done this? Yes, Matthew, it need to STOP!! Thanks for the great work in the foreclosure defense world. Keep it up.
Also, is U.S. Bank attorney’s real attorneys? What a dumb appeal!!! They admitted to all. They should have had a high school student write that appeal, it would have been a lot better. Sloppy, and unprofessional, they need to go back to school and learn law at the basic level.
Regarding going thru the above post a number will agree with it as it is reality so it is nice reading from a blogger that’s stating topics such as this for all to look at