Foreclosure Defense Florida

Fight The Mortgage Servicers Who Bring These Foreclosure Actions

The vast majority of foreclosure cases are brought not by the real parties that have any interest in the outcome of the litigation, but by nominal, shell Plaintiffs that have been propped up by the investors or the real parties in interest to pursue the litigation.   Because the vast majority of foreclosures go undefended, this important point is missed in the vast majority of cases.   While it may be missed in cases, the consequences of this phenomena are profound and broad reaching.

modifications-loan

The failure to identify what parties are really at risk in litigation prevents courts, policy makers, investors and the general public from knowing who stands to win or lose in litigation.   Concealing the identity of the real party in interest allows those who made bad decisions to shirk their responsibility in the litigation, a fact that is more important when their conduct could very well make them complicit in creating the situation that led to the litigation.   On a very practical level, litigation pursued by servicers probably prohibits effective settlement or mediation discussions because they lack the risk of loss that forces effective resolutions.   The consequences of this are played out hundreds of thousands of times a day as homeowners try futilely to negotiate a short sale or modification with the lender.   This is especially important now that circuits across the state are rolling out mediation programs.

FORECLOSURE MEDIATION IS NOT GOING TO WORK UNLESS THE REAL PARTIES IN INTEREST ARE IN THE COURTROOM

The fact that mediations are not going to work until we have real players at the table will be borne out in the months to come.   Certainly borrowers will share some of the blame for not actively participating in the mediation and settlement discussions, but at the end of the day, another bank owned property is a loss for all parties involved….there are too many of these properties already.

The key to addressing this problem is to first attack the Plaintiff’s capacity.   The first part of the attack is the fact that most Plaintiffs are never properly identified in the lawsuit.   Courts must begin to demand knowing just exactly where this company comes from that is bringing this action.   Courts must begin to ask, “Who am I about to grant this $250,000 judgment to?”   then not let the case proceed until they have a very clear answer to that question.

Our State Division of Corporations or Department of Financial Services must begin to demand registration of all these nominal and real plaintiffs.   Specific laws are already on the books that demand registration of foreign corporations and of all trusts, but these registration requirements are being totally ignored.

OUR STATE IS IGNORING MILLIONS OF DOLLARS IN TAX REVENUE AND FAILING TO PROVIDE APPROPRIATE REGULATORY OVERSIGHT BY IGNORING THESE LAWS.

Once the nominal plaintiff is properly identified, it’s time to demand proof that they have the authority to maintain the litigation on behalf of the real party in interest.   This too is addressed by the capacity argument, but you must also be thinking about this in the context of preparing discovery, because the proof demanded will come in the form of the Plaintiffs responses to the discovery requests.

I have previously attached my capacity Motion to Dismiss and I can tell you that when the facts support this Motion, it is nearly impossible for the Plaintiffs to wiggle their way around.   Even the most bank-friendly judge will have problems denying this Motion and if the motion is denied, it sets up a very significant summary judgment or appeal issue. I’m going to work on this motion again to put some more recent circuit court cases into it, but as I’ve stated before…

CAPACITY IS A CASE KILLER!

Keep up the good fight!

3 Comments

  • karen1p says:

    Matt,
    How about suing PRIOR to default. Setting asided in an escrow account all your monthly payments. And when they don’t answer the questions above EVEN WITH A BORROWER READY TO WRITE A CHECK, no disclosure from the banks. I bet that would make the judges sit up and take notice.

  • George says:

    MORTGAGE CRISIS
    Years back the banks began to turn a mortgage into a commodity, with good paying mortgages, then they saw they were running out of this commodity, so the big banks, including Fannie & Freddie started giving out loans to almost anyone and everyone, not so much to just give that person a home to have, but they were more concerned about creating more of the commodity. More securities to sell to investors. They even knew some home owners would not last several years or several months, as long as they could say to investors, “Hey, we have more mortgage backed securites to sell”.

    Now, to sell all these securities, they would have to create a mortgage assignment which is normally recorded with the county land recorders office. Physically, that would take up too much time, so the big banks invented and created MERS,(Mortgage Electronic Registration System)This electronic service was only created to track mortgages sold and bought in the securities sector. MERS legally has no invested interest in the mortgage so they truly are not able to transfer the mortgage acting as a nominee of the loan. But they are! Wrong. The chain of title of the mortgage is broken right here at this very early stage. Now that the mortgage was bundled and sold and bought to investors, no actual assignment is recorded with the county local recorders office. By not recording these documents, Fannie & Freddie & and all your Big Mortgage Servicing banks are saving millions-billions on recording fees, taxes, etc.

    What I have found was that the Servicer is listed with the county recorders office as if they own the mortgage, while Fannie & Freddie are selling the mortgage as securities. Kinda like a Pizza shop cooking pizza legitimately up front, and a mobster selling off investments in the back. (Racketeering). So when the Servicer now tries to foreclose on a homeowner, they are not truly the owner of the loan, and you have to own the loan to foreclose!!! Many never even question the Servicer and walk away from their home. Now to foreclose as quick as they can, thats where the robosigners come in. These people do not check anything about the loan, but only sign a name on paper on thousands of mortgages to get the foreclosure going before any homeowners begin to catch on.

    You see, its a matter of a quick process the Servicing banks want to achieve in order to get the mortgage in there possession. The crazy thing is, when the originating bank gives the loan, then sells it to the 2nd bank which mostly ends up being the servicer, they again sell it to the 2 major players (Freddie & Fannie)and they sell the mortgage back securities to investors. So the servicing bank gets paid for the mortgage and still collects payments toward the mortgage and a percentage goes to the servicer, Fannie & Freddie and the Investor. So they are all making money. Then the Servicing bank comes to foreclose and if they are allowed to foreclose they get the home without true ownership, since the loan is actually sold off into bits and pieces. I can go on further, but to conclude, if this were a murder case, I would call this act of the banks premeditated, not an accident. This was all planned out in order to reach the highest profit they could using the mortgage backed securities as a commodity, and have total disregard, deliberately, intentionally ruining the lives of millions of homeowners.

  • George says:

    MORTGAGE FRAUD;
    First of all, the Servicer (Wells Fargo, Bank of New York, Bank of America, Citi, Chase..etc) 1) wrongfully filed the foreclosure by not being the true owner of the loan/mortgage, 2) not having the original promissory note, 3) not filing assignments with the local county land recorders office each time the loan is sold and bought as a mortgage backed security it is changing hands meaning there is new ownership and an assignment is to be filed by law for change of ownership – not doing this breaks the chain of title of ownership of the mortgage, 4) using MERS (Mortgage Electronic Registration System) to assign mortgages on Wall Street electronically, which by passes the local recorders office and the banks avoid paying assignment fees, taxes, etc. MERS can not assign anything since they have absolutely no vested financial interest in the loan. Tell me when to stop! Oh, 5) the Robo-Signing which is perjury and fraud in legal documentation which is presented to the Courts by the servicing banks and their attorneys..! This now includes their attorneys office as presenting fraudulent documentation as well. / So, if a homeowner owes $200,000.oo on a defaulted home, I believe the 5 items above are enough to sue for at least the remaining amount of the loan due, and more then possibly sue for a greater amount for punitive damages.

    In a nut shell, the servicing banks remain as the existing owner of the mortgage at the land recorders office as if nothing is going on, while they actually sold the loan/mortgage to Freddie Mac & Fannie Mae which are in return selling the mortgage off into bits and pieces to investors. So the homeowner makes the mortgage payment to the servicer, which already sold the loan, then they keep a percentage of that, they send a percentage of that mortgage payment to Freddie & Fannie and they keep a percentage of that, and they give the investor a percentage for buying a mortgage backed security. So they are all making money along the chain. It’s like a Mob controlled Pizza shop, the servicing banks are up front selling the pizza while the mob is in the back selling MBS deals. Hello”¦ Racketeering! The servicing Banks, Freddie and Fannie, deliberately, intentionally, and with total disregard, are committing Fraud and Racketeering against homeowners and the courts. This all didn’t happen by accident. This started years ago when the banks needed more mortgages to sell as a security, so they began to write up and approve mortgages just to create more commodity (mortgage-MBS) to sell to investors, whether the homeowner would be able to make payments or not they didn’t care, as long as they had more product to sell.. They always just knew they would be able to foreclose and try to foreclose quickly. But they are finding out they can’t.

    ***If this were a murder case, it would be classified as premeditated.

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