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Foreclosure Defense Florida

CRITICAL INFORMATION- VIDEO OF APPEALS COURT ARGUMENT !

The following video link takes you to a video of Oral Arguments that were heard in a case in the 5th District Court of Appeals in Volusia County, Florida.   The Oral Argument was handled by former judge and respected attorney Dominic Salfi who practices in Central Florida and whose website can be found here.   He’s certainly a powerful advocate with more than 40 year’s of experience that attorney and consumers should consider retaining whenever they need powerful support on their cases.

Pay attention to the substance of the arguments and the questions asked by the Appellate Court judges.   Note and understand their growing concern and rising awareness of the substantive problems with foreclosure cases in general.   The most critical lesson we all need to take from this is the need first to always have a court reporter whenever contested matters are to be heard.   Second as we are increasingly aware that the vast majority of evidence presented by these foreclosure mills lacks the proper evidentiary basis to support its admissability for Final Judgment purposes, make sure to make your objections to their evidence early and often.

Raise issues of standing and the veracity/authenticity of evidence initially at Motion to Dismiss and continue to raise and preserve these issues when you can ethically do so.   Even if you are denied at Motion to Dismiss, keep in mind that you are building an appellate record.

BAC Funding which addresses the impropriety of Summary Judgments in foreclosure was just released when this case was argued, but   BAC, along with all of the other cases cited on this blog and elsewhere, provide us with the roadmap and framework to make our proper evidentiary objections.   Remember, it’s not the trial court’s job to object to evidence submitted, it’s up to every one of us to make our objections of record and file and preserve these objections.

The video takes a minute or two to load, but it’s well worth your effort to take the time and listen to it in its entirety.   Unfortunately, this court denied the argument and affirmed the grant of summary judgment.   While that was certainly not good news in this particular case, the questions of the judges are very valuable to us all.

Video link: Futrell vs HSBC

7 Comments

  • TheProtester says:

    Trust series certificate is the owner
    No proof of note ownership
    No service of evidence prior to S/J
    No authenication of evidence
    An affidavit they did not have the evidence
    No motion to ammend when the alleged note was found
    What a sloppy bunch of crap, these elected judges letting this through shuld be very concerned
    Lets see a reversal per 1.54 motion for fraud on the court. Who was the plaintiffs lawfirm.
    Lets see anothr new rule that all summary judgment hearings must done before a court reporter that must be ordered by the moving party. Too many cases like this, this is not justice its procedural wrangeling. And a defendant should not have any burden the plaintiff must prove there case, its whats wrong with the system.
    Thanks for video Matt

  • commit11 says:

    Thanks for posting that. It was very instructive. I always have a court reporter at every hearing so everything is on the record. It also tends to keep the Judges from running roughshod over the defendant, especially one that is pro se.

    I do find it alarming that that the Appellate Court affirmed the summary judgment, based on the arguments in that hearing. I think they made the wrong decision.

  • jesse says:

    Matt,

    What I see here is a total disregard to any of the Rules of Civ. P. and the evidence rules. What is the point of having any of these rules if the court is just going to ignore or legislate their own rules at their whim?

    The reality that is going on is that none or very few at best of these foreclosure cases ever give the court subject matter jurisdiction yet the court takes it upon themselves to grant it even when challenged. You keep making the judges look like they are honest nice guys but in reality they are the core of the problem in all these cases.

    They do not hold the banks to the standards that they would any other plaintiff. Its apparent at just a motion to dismiss hearing, the rules are clear regarding attachments and the requirements that would evoke the courts jurisdiction yet they get denied all the time. Why? 99% of the complaints verified or not never show capacity or standing enough to evoke the courts jurisdiction!

    The importance of having a court reporter is to later show the judges where they litigated and legislated from the bench then you have them rescue themselves. I actually heard a judge say to a pro se, your a deadbeat just pay your mortgage. He was gone the next day but it shows the mentality of some of these judges.

    Its the terrible truth but most pro se defendants are up against the judges and the plaintiffs attorney mean while the plaintiff never makes an appearance, whats wrong with this whole picture?

    Judges and attorney either do not understand or adhere to the basic rules of law, such as the Rule of Stare Decisis, the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere “” “to stand by and adhere to decisions and not disturb what is settled.” the Pro Se Rule, the Do No Harm Rule, the fact that the Constitution is the Supreme Law of the Land, the fact that Supreme Court law trumps appellate and district court law, the fact that the United States is governed by the rule of law (or at least the founders thought so), the Best Evidence rule, the rule against an attorney acting as a fact witness, the rule related to circular arguments, the rule related to conclusory arguments, and the hearsay rule. This is all thrown out the window!!!!

    The facts are easy to understand by even by ” Pro Se” or ” Pro Per” litigants. The Courts are over burdened by all of these ” Un-Verified Complaints” and that’s why the Florida Supreme Court has made the changes to insure that all foreclosure complaints are now to be verified so the banks and foreclosure mills quit wasting public resources, but did it stop the mills from dishonoring the Supreme Court….NO!

    Very few Judges understand banking, securitization and the actual rules of evidence enough to understand what is happening but the few who are, are making the right decisions and dismissing most of these frivolous complaints.(very few)

    For the most part, they are just running ” rocket dockets” making assumptions and presumptions that are not there due to the case loads they are facing. So in fact the judges are just impersonating elected or public officials they are not doing their jobs and homeowners are the ones paying the price and being thrown out on the street.

    The guidelines are simple to follow why aren’t they doing so?

    On a motion to dismiss, our gaze is constrained to the four corners of the complaint. William H. Scovell v. Delco Oil Co., Inc., 798 So.2d 844, 846 (Fla. 5th DCA 2001). Where allegations are not plainly untrue, we are forced to accept them.

    That is what the Plaintiffs are trying to do, force the Court and Defendants to accept untrue allegations where every document submitted cancels out the very allegations the Plaintiffs are making. What we cannot do is make up facts that are not there but the courts allow them too.

    The Court should follow the Rules of Stare Decisis and the Fla. Rules of Civ. P., at the initial Motions to Dismiss. The Fla.R.Civ.P. 1.130(a) requires that all documents on which an action may be brought be attached to the pleadings. Without these documents Plaintiff s fail to state a cause of action because the essence of the action is omitted…..period! Easy enough though not adhered too! When is the last time you seen any complaint with all the proper title pages, assignments, mortgage and notes attached? Never!

    Florida Rule of Civil Procedure 1.210(a) provides in pertinent part: ” Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought.”

    The Plaintiff in 99% of the actions meets none of those criteria. Because the exhibit attached to Plaintiff’s complaints are inconsistent with Plaintiff’s allegations as to ownership of the subject promissory note and mortgage, Plaintiff fail to establish themselves as the real party in interest and fail to state a cause of action, yet the court proceeds. Again….why?

    The facts are simple, the Plaintiff claims lost note, then all of a sudden it magically appears, how convenient! Without amending the complaints no less.

    Under Fla.R.Civ.P. 1.420(a)(1); there can be no partial dismissal, no dismissal of less than all causes of action. Dave Hess, Inc. v. Black Angus of Pompano, Inc., 288 So.2d 286, 287 (Fla. 4th DCA 1974); Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970); Scott v. Permacrete, Inc., 124 So.2d 887, 889 (Fla. 1st DCA 1960). See also Smith, Kline & French Laboratories v. A.H. Robins Co., 61 F.R.D. 24 (E.D.Pa.1973) Etablissements Neyrpic v. Elmer C. Gardner, Inc., 175 F. Supp. 355 (S.D.Tex. 1959); Neiman-Marcus Co. v. Lait, 14 F.R.D. 159 (S.D.N.Y. 1953); Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105 (2d Cir. 1953); Trawick, Florida Practice and Procedure § 21-2 (1975).

    The proper method of deleting less than all counts from a pleading is amendment of the pleading pursuant to Fla.R. Civ.P. 1.190. Plaintiffs attempted to do the impossible and this courts allowed it, once again…the judges!

    As a matter of procedures, before the Plaintiffs offer to file the alleged Note, they must amend their complaint to reflect the changes or otherwise the Court is limited to the four corners of the complaint, which is to say the alleged note is not evidence to be considered by the court.

    A Plaintiff cannot bring an action and then hope to obtain a cause of action. McGrath Community Chiropractic at 1285. A lack of standing when the action is brought is not curable….period! Try to get a circuit judge and even the appellate court to follow this, the video today shows they don’t.

    Furthermore, the Plaintiffs never or rarely show how they came into possession of the alleged Note and the exact time of when it occurred and the correct assignments or chain of title to the instrument as to determine if truly and in fact the Plaintiffs have standing at all.

    Plaintiff might be the holder but has yet to prove that they have the right to enforce or how they come to get the alleged Note therefore they might as well not have the note and now they are producing “fake notes” to fool the courts! The only ones who can allow this is the judges…period!

    Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that ” the party bringing the claim be recognized in the law as being the real party in interest” entitled to bring the claim. This entitlement to prosecute a claim in Florida Courts rests exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar Corp v. Nopal Lines Ltd., et al, 462 So.2d 1178 (Fla. 3rd. DCA 1985). Yet the courts help the plaintiffs dodge these requirements when asked to show agency status or proof of ownership the note.

    All Plaintiff’s complaint fail to state a cause of action as there is no documentary link(s) or other sufficient showing of standing within its four corners, connecting the named Plaintiff to the interest it claims under the attached note and mortgage which are in the name of and run to the benefit of other entities. See BAC Funding” Consortium, Inc. v. Jean-Jacques, 28 So. 3d 936 (Fla. 2nd DCA, Feb 2010) and Hunt Ridge at Tall Pines v. Hall, 766 So. 2d 399 (Fla. 2nd DCA, 2000).

    ” Possession of the note, following an exchange of consideration, will give that necessary standing”. WM Specialty Mortgage, LLC, v. Alan F. Salomon, 874 So.2d 680, 682 (Fla. 4th DCA 2004); J.J. Johns v. Sam Gillian, 184 So. 140, 143 ( 1938). Exchange of consideration is the root of the cause of action, hence there is the injury and try to get the plaintiffs to show the court the consideration….its impossible! And again, the judges just allow this granting protective orders, letting the plaintiffs run all over the defendants…again the judges!

    Jurisdiction

    This should give some understanding on why ” subject matter jurisdiction” should always be challenged in any foreclosure case. A quick review of the case history below will give clarity to the subject.

    Just because a Court listens to foreclosure cases everyday does not mean they have subject matter jurisdiction, the Plaintiff council and attorneys seem to be confused between ” venue” and ” subject matter jurisdiction”, but if gone unchallenged it’s assumed. The Defendant should make no assumptions! And, when the jurisdiction of the Court is challenge it falls on the plaintiff and the court to establish the jurisdiction, not the other way around.

    ” A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or a representative capacity, some real interest in the subject matter of the action.” Lebanon Correctional Institution v. Court of Common Pleas 35 Ohio St.2d 176 (1973).

    Once again, the Plaintiff fails to bring forth the injured party, and the Plaintiffs themselves have no real interest in the subject matter of the action in most cases.

    ” A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or a representative capacity, some real interest in the subject matter of an action.” Wells Fargo Bank, v.Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722 (2008). It went on to hold,” If plaintiff has offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law”

    Where are these rulings in Florida?

    When is the last time anyone got to depose the injured party or seen the owner of the note who suffered the injury in a court with you? Never!

    Indymac Bank v. Boyd, 880 N.Y.S.2d 224 (2009). To establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and the mortgage note. It is the law’s policy to allow only an aggrieved person to bring a lawsuit . . . A want of “standing to sue,” in other words, is just another way of saying that this particular plaintiff is not involved, and that the case in 99% of foreclosure cases.

    Defendants should recognize the district court, in our unified court system, is a court of general jurisdiction and is constitutionally endowed with “unlimited original jurisdiction of all justiciable matters, except as otherwise provided in the Articles of the Florida Constitution. However, this “unlimited original jurisdiction of all justiciable matters” can only be exercised by the district court through the filing of pleadings which are sufficient to invoke the power of the court to act.

    The requirement for verified information to confer subject matter jurisdiction on the court and empower the court to act has been applied to both courts of record and not of record. So the question is, when was the last time anyone has seen verified information in the thousands of unverified complaints?

    Apparently the Florida Supreme Court determine that the mandatory language of form 1.944 was nothing more than merely a “guaranty of good faith” of the prosecution. It, in fact, is required to vest the district court with subject matter jurisdiction, which in turn empowers the court to act. Only by the filing of an information which complies with this mandatory statutory requirement can the district court obtain subject matter jurisdiction in the first instance which then empowers the court to adjudicate the matters presented to it.

    Once again, almost every foreclosure case is lacking in all areas yet not one attorney argues subject matter till the end.

    Summary judgment should never be granted and are void on their face in almost every foreclosure case and are subject to collateral attack.

    In Nard, Inc. v. De Vito Contracting & Supply, Inc., 769 So. 2d 1138 (Fla. 2d DCA 2000), the court clearly sets out the basis in the Second District for the criteria of granting summary judgment. ” We have consistently followed Hall v. Talcott in applying Rule 1.510(c). Thus, if the record reflects the existence of any genuine issues of material fact or the possibility of any issue, or the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.”

    The Nard court continued: ” We likewise must emphasize that contrary to assertions of the trial, each and every Florida court of appeals has concurred with out holding that the merest possibility of the existence of a genuine issue of material fact preludes the entry of final summary judgment.”

    The Courts without any showing by Defendant – has statutory authority pursuant to set aside a decree of foreclosure and to dismiss the foreclosure proceedings. Fla. St. § 702.07 provides:

    The circuit courts of this state, and the judges thereof at chambers, shall have jurisdiction, power, and authority to rescind, vacate, and set aside a decree of foreclosure of a
    mortgage of property at any time before the sale thereof has been actually made pursuant to the terms of such decree, and to dismiss the foreclosure proceeding upon the payment
    of all court costs.

    This statute was enacted in1927and has remained unchanged since that time. Laws of Fla. ch. 11881, § 1 (1927).

    The facts must be ” crystallized” so as to eliminate any residual doubt. Gardner at 1112; Henderson at 773. Even in the video of the appellate court the facts were not crystallized yet they affirmed…why? The judges once again!

    It is the burden of the moving party to show conclusively (not the other way around) that a genuine issue of a material fact does not exist before a summary judgment should be entered, and it should be further shown that the moving party is entitled to judgment as a matter of law. A. B. G. Invest, Inc. v. Selden, 336 So. 2d 444, 446 (1976); Holl v. Talcott, 191 So.2d 40 (1966)

    The law, what law? The judges don’t honor the law anymore. They are mere rubber stamps for the banks.

    Most of all the answers are on the face of the mortgages and notes themselves and establish evidence that present no argument before the court. On the face of the mortgage it was given to MERS in most cases, the note remained with the lender, we have to assume. Its bifurcated from the start and there is no proof to the contrary…period!

    Then, the alleged Plaintiffs are in violation of the the mortgage and note. Read sect 20 of the mortgage, they must give you eventual notice of the sale of the note and mortgage, but they never do and they cant its bifurcated. Notice of the change in loan servicer does not constitute notice of the note, don’t be fooled.

    The notice clause of the note says you must give notice to the note holder, you cant you don’t know who that is because they failed to notice you and are in breach of contract.

    The servicer plays intermediary creating an interference with your ability to notice the note holder. How are you going to hold up your end of the deal when the servicer wont tell you who the note holder is and when asked to prove if they are the note holder with authority from the note holder to collect or compel payments they refuse to give it up or say your not entitled to it? This just opens the door for the defendant to become the plaintiff and hammer the servicer if done correctly under the FDCPA, FCRA, TILA, and Title 18.

    Failure to disclose ” ALL” terms and conditions is a violation of the Truth In Lending Act. Fina Supply Inc. v. Abilene National Bank, 726 S.W.2d 537 (1987). It says, ” Party having superior knowledge who takes advantage of another’s ignorance of the law to deceive him by studied concealment or misrepresentation can be held responsible for that conduct.”

    ” If any part of the consideration for a promise be illegal, or if there are several considerations for an unseverable promise one of which is illegal, the promise, whether written or oral, is wholly void, as it is impossible to say what part or which one of the considerations induced the promise.” Menominee River Co. v. Augustus Spies L & C Co., 147 Wis. 559 at p. 572; 132 NW 1118 (1912).

    And a more recent ruling, Deutsche Bank v. Peabody, 866 N.Y.S.2d 91 (2008). EquiFirst, when making the loan, violated Regulation Z of the Federal Truth in Lending Act 15 USC §1601 and the Fair Debt Collections Practices Act 15 USC §1692; “intentionally created fraud in the factum” and withheld from plaintiff”¦ “vital information concerning said debt and all of the matrix involved in making the loan”. (which is the case in 100% of all mortgages, emphasis added)

    ” It is not necessary for rescission of a contract that the party making the misrepresentation should have known that it was false, but recovery is allowed even though misrepresentation is innocently made, because it would be unjust to allow one who made false representations, even innocently, to retain the fruits of a bargain induced by such representations.” Whipp v. Iverson, 43 Wis. 2d 166, 168 N.W.2d 201 (1969).

    The mortgage, as evidenced by the mortgage instrument, is only a mere incident to the debt. Therefore, the mortgage instrument is of lesser significance. Because the assignment of the note is an imperative act as to the transferring of the mortgagee’s right, the assignment of the mortgage instrument without the note is an ineffective assignment. Vance v. Fields, 172 So. 2d 613 (Fla. 1 DCA 1965); Sobel v. Mutual Dev. Inc., 313 So. 2d 77 (Fla. 1 DCA 1975); Amacher v. Keel, 358 So. 2d 889 (Fla. 2 DCA 1975)

    Who has seen a valid assignment of the note? Apparently no one! An assignment of the mortgage assigns nothing of value the only value is the note.

    I am going after quit title based on many fact but these are a few. I am suing for FDCPA with success and now FCRA and Title 18, we shall see what happens.

    The real fact is the core of the problem are the judges not the plaintiffs. If the judges were to do their jobs then the plaintiffs would have to prove up their cases. Not until these rouge judges are sued and made to actually do their jobs are things going to change. There someone said it!

    Just like any other employee, you screw up and you first get reprimanded and eventually fired.

    The defendants need to file complaints against these judges and the mills attorneys on a regular basis with the regulatory agencies and their insurance carriers and let the Supreme Court know Floridians mean business. Once enough complaints are filed, it will put the pressure on them because them become harder to insure if not impossible. Then and only then are things going to change.

    Have a great weekend and sorry for the long post.

  • indio007 says:

    Thx for sharing this.
    No standing = no subject matter jurisdiction = void ab intio = judge’s vicarious liability. this won’t stop till people start attacking judge’s for acting without jurisdiction.

  • indio007 says:

    Oh ya… what was the ultimate disposition of this case?

  • ccarrazana says:

    I’m not surprised by that the Fifth DCA affirmed the summary judgment. Based on my review of what took place during oral argument, it appears that the Defendant/Appellant did not preserve an adequate record of objecting to the procedural irregularities complained of an appeal — e.g., the untimely filing of the original note before the summary judgment hearing. Procedural defects are wavied for purposes of appeal unless there is a timely objection.

    The outcome would have been different assuming there was a record of an object by way of a transcript of the hearing; or a written objection filed with the trial court before the hearing.

  • Hi I’m a Pro se Litigant Helping People with foreclosure Problems as
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