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Foreclosure Defense Florida

Florida Bankers to The Florida Supreme Court, "Scrutiny of the validity of an assignment of mortgage may be inappropriate under any circumstances."

Huh?   Come again?   All of this comes from an Amicus Brief submitted to the Florida Supreme Court in the Pino case…

“Moreover, scrutiny of the validity of an assignment of mortgage may be inappropriate under any circumstances.”

Apparently the argument is, when faced with questions of widespread fraud, forgery, document irregularities, perjury, lying to the court, a court, even the highest court in the land should not be able to inquire. Honest, here’s what they said:

“Moreover, scrutiny of the validity of an assignment of mortgage may be inappropriate under any circumstances.”

And apparently, it’s not just Florida courts that are willing to just turn their backs and run screaming away from the world’s longest running crime spree….as a matter of fact it,

“is a growing trend in other jurisdictions.”

Well hell, we cannot let any other jurisdiction get ahead of the curve with moonwalking away from the crime scenes……

These decisions reflect national, judicial recognition of the need to prevent the foreclosure process from being derailed by claims and defenses based upon technical matters, such as flaws in the execution of secondary documents.

Yeah, our nation’s legal system and in fact this entire country cannot survive allowing courts to inquire into fraud and forgery and other crimes and violations, we must let this crime spree continue.

I’m sure that’s the best way.



  • Attorney Wendy Alison Nora says:

    This is always the danger:
    ” Hard cases, it is said, make bad law” is attributed to John Campbell Argyll (early 18th century). The phrase was adopted, and slightly modified, by Justice Oliver Wendell Holmes, who said, ” Great cases, like hard cases, make bad law.”

  • phil says:

    Joseph Goebbels was a master at propaganda….had he survived the WAR he would have been in high demand as he felt that if you repeat a lie often enough people will believe it. This concept
    that the banksters are not responsible for their behavior is unbelieveable….it reminds me of the defenses that the Nazi’s used during the trials at Nuremburg….many business people were tried and convicted as well at those trials.

  • Patrick says:

    From the Brief:
    Florida courts ascribe to the ” lien theory” in foreclosure cases, uniformly holding that ” [b]ecause the lien follows the debt, there [is] no requirement of attachment of a written and recorded assignment of the mortgage in order” to maintain a foreclosure action. Chemical Residential Mortgage v. Rector, 742 So. 2d 300, 300-01 (Fla. 1st DCA 1998). Possession of the mortgage (or an 16 assignment of it) is not required inasmuch as ” a mortgage is but an incident to the debt, the payment of which it secures.” Johns v. Gillian, 184 So. 140, 143 (Fla. 1938), quoted in Taylor v. Bayview Loan Servicing, LLC, 36 Fla. L. Weekly D2448 (Fla. 2d DCA Nov. 9, 2011). When a note is properly transferred without a formal assignment of the mortgage, the mortgage passes to the transferee in equity. Johns, 184 So. at 143.
    IMO,this is akin to admitting that MERS is invalid and unlawful as the lien is bifurcated from the debt. They can’t have their cake and eat it too. If the borrower grants MERS to act as a placeholder or lien immobilizer for the benefit of the debt owner, the mortgage does not pass to the note transferee in equity. Sorry.
    From the brief:
    Even if an assignment is invalid, the holder of the promissory note has standing to sue to foreclose. Philogene v. ABN Amro Mortgage Group, 948 So. 2d 45, 46 (Fla. 4th DCA 2006); see also Johns, 184 So. at 143; MERS v. Azize, 965 So. 2d 151 (Fla. 2d DCA 2007); WM Specialty Mortgage, LLC v. Salomon, 874 So. 2d 680 (Fla. 4th DCA 2004); Zimmerman v. Nilsson, 363 So. 2d 1130 (Fla. 3d DCA 1978). An assignment is required to confer standing upon a foreclosing plaintiff only when the plaintiff is not a holder. Lippi, 2012 WL 162023 at *2, 3. As the Fourth District recently held,
    Has anybody ever read who the note defines as the “holder” entitled to enforce the note? The holder must have possession of the note by transfer and be entitled to receive payments made under the terms of the note. That is a two part test. To be entitled to receive payments, the entity must report the liability on the right side of its balance sheet ledger. Since assets and liabilities must balance, the note must be reported on the left side of the ledger as the asset. All this means is that in order to be considered the “holder” under the strict terms of the note, the entity must OWN the debt. It must have purchased the loan asset. PERIOD. The mortgage grants that it binds the lender or its successor and assigns. The mortgagee then must have funded the loan or purchased the debt from a predecessor. A mortgage assignment to a “non-holder” is a nullity according to contract language from the loan docs when taken together.
    My point is that to escape the requirement of a valid lien assignment, the foreclosing entity must be able to show with competent evidence that it purchased the asset. Does Target or Best Buy let you return merchandise without a simple purchase receipt? How many plaintiff’s can show with a receipt that it purchased the asset from a predecessor? Am I wrong here?

  • JamesM says:

    I think it is time some lawyers reached out for help to other authorities including like the ACLU, Trawick, and Ehrhardt. To encourage them to file friend of the court briefs, in support of the principle of ‘clean hands’ in equitable actions.
    For without this core principle the courts become a playground for fraud and forgery, leaving the defendants and court with little teeth to prevent serious abuse.
    Moreover, what the Plaintiff seeks is an end run around the complete set of secularization chain, UCC negotiation, holder in due course, defenses. The, we have an alleged note, nothing else matters argument.

  • JamesM says:

    Skimmed the Brief. What a load of irreverent argument. The brief is a political manifesto that argues outside the record, outside the issue for consideration, that being only one issue, can a court prevent a Plaintiff from taking a voluntary dismissal when Plaintiff committed fraud on the court, and the court want’s to retain jurisdiction to impose sanctions.
    The argument that Plaintiff obtained no relief is not quite technically correct because Plaintiff filed a Lis Pendens which, according to recent court decisions, when considering bonds for, motions to dissolve, and fees and costs for bringing a motion, have declared is a form of, or works like an ex-party temporary injunction – therefore is a form of equitable relief, and if obtained improperly can now lead to fees and costs for Defendants. (Post 2007)
    Personally I preferred the prior law that a Lis Pendens filed within an action over real property was protected by pleading privilege. Which meant even if dissolved before conclusion of the action did not give rise to fees and costs – that made more sense – but the new cases on Lis Pendens, during the last 5 years, treat the Lis Pendens as injunctions and relief, and therefore allowing recovery of fees and costs for a successful motion to dissolve before the conclusion of the case. (see S&T Builders & other LP cases, mine for example in the 1st DCA)

  • ryan says:

    All that work and they could have just said see Johns v. Gillians.
    The case law is pretty clear guys…possession of the Note endorsed in blank is enough to enforce the Note and foreclose. Of course they still have to prove a default and so on, but whoever shows up in court with the Note is entitled to enforce it. That’s the case law from 96 years ago….
    My biggest objection to the brief is that they say the MBA members are still recovering from the effects of severe economic downturn.
    That statement is basically a sick joke, THE MBA MEMBERS CAUSED THE GOD DAMNED ECONOMIC DOWNTURN!!!!

    • that’s all too much truth for anyone to handle….we’re much better continuing to heap on the lies.

    • Cheatum, Rob & Run says:

      So there’s no need to enjoin the missing parties of interest?
      SCOTUS in Mennonite Board of Missions v. Adams backs this up.
      How about the fact that Johns v. Gillian was written in a time when there was no such thing as mortgage securitization, ie:
      Re-REMIC &
      Synthetic CDO’s
      .. or the fact that the note when separated from the mortgage becomes merely an ‘unsecured’ debt. One need to look no further than the Third Restatement of Mortgages to back this up.

    • Robert C says:

      96 years ago most people didn’t even have indoor plumbing. Times have changed. Your comment doesn’t address the issue of ‘manufactured foreclosures’ (where borrowers are told to stop paying, or the ill fated attempts to send mod paperwork over and over and over again.)
      96 years ago there were no such things as CBO’s, CDO’s, CDO-squared, CLO’s, CMO’s, CPDO’s, MBS, MPT, MBB, MPTB, ABS, RMBS, CMBS, REMIC, Re-REMIC & Synthetic CDO’s.
      I recommend taking a look at the SCOTUS decision in Mennonite Board of Missions v. Adams which talks about enjoining necessary parties to the lawsuit (lest we have fatal defects in foreclosure proceedings) and also the Third Restatement of Mortgages which addresses “unsecured” debt and come out of the Great Depression era of case law.

  • The 5th DCA in re: Taylor basically said that the note follows the mortgage… these people need to get their stories straight!
    Filing Fee: $1,300
    Attorney Fee: $300/hr
    Court Reporter: $300

    • Yeah, you know I argued Taylor and was just blown away when that decision came out….the position had never been argued by the bank, the 5th just went off on a wild hair….they had no idea how wrong they were…..

  • Sooner or later they’re going to start having to cough up the Trust Agreements.
    *Trust Agreements
    Each of Fannie Mae’s Structured Transactions is created as a trust and is governed by a trust agreement. Trust agreements are the documents pursuant to which the Fannie Mae certificates are issued. The assets backing the certificates are held in the trust. Trust agreements outline the rights and responsibilities of Fannie Mae and of the mortgage certificateholders in relation to the trust. These agreements define the terms of each deal and describe how the deal will be executed and the deal’s parameters or limitations.
    For certain REMICs and Structured Transactions, each trust is governed by a separate trust agreement relating solely to the particular transaction. For the remaining REMICs and Structured Transactions, each trust is governed by a master trust agreement together with a separate issue supplement relating solely to the particular transaction.
    By the way, an asset doesn’t just magically appear in a trust because a trust has been created, it must be assigned “˜into’ the trust in order for it to become trust property. Therein lies the rub!

  • Robert C says:

    Wasn’t Rick Torpy (God rest his soul) getting into foreclosure defense. I bet Vince didn’t like that too much being that he sits on the 5th DCA. Any connection there… Hmmmmm

  • Chris says:

    Matt! That
    excellent news. My friend pointed out, that these “servicers” a lot of times are not “servicers” at all. She discovered this in her own foreclosure in Palm Beach County by examining the Powers of Attorney’s that have been filed in the official records. For example, Select Portfolio claimed to be the “servicer” for Encore Credit Recievables Trust 2005-03, nope! ECC Capital is the Servicer, and SPS might be the “sub-servicer”. If you look at their alleged POA’s from Deutsche, it claims that they are the “servicer” but use attachments of sub-servcing agreements. In addition the mortgage instruments say that the servicer can collect, not the sub-servicer. Finally, in some of these Trusts like the one above, Deutsche doesn’t actually keep track of the loans, in this Trust above the Securities Administrator does the tracking.

  • Chris says:

    Please, we have been trying to expose these alleged Power’s of Attorney’s for a long time. For example Ocwen (sub-servicer) numbers their POA’s. Stuff from Aurora and SPS will often have Tuan Quach’s notary and Barbara Campbells name on it. Not only are there mutliple versions of the Same POA’s, but the signatures vary dramatically in some instances, and there is more.

  • Robert C says:

    Mario Kenny first talked about those POA’s many years back with myself and a few others in Palm Beach Co. The ‘robo-signed’ doc argument doesn’t seem to interest judges. However issues surrounding possession, UCC, real property law, priority of lien, ucc, equitable estopple, trust law and title law do seem to get them interested.

  • Robert C says:

    Chris, Select Portfolio is owned by ECC Capital.. there’s no issue there. Don’t get lost in the weeds with an argument that will leave you high and dry in court.

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