florida foreclosures

The following is an article that has been published today in The DailyKos. It reflects what is a most disturbing fact of life in this dangerous new world we live in. In Florida, the foreclosure dockets are cleared….but at what cost?  As practitioners, legal professionals, attorneys who trained by a set of rules and took an oath, we know that the methods used to clear these cases were through a grotesquely contorted and systematic violation of the rules of evidence and procedure.  Here’s a bit of how that worked:

Hearsay? OVERRULED. Authenticity? OVERRULED. Outside The Scope? OVERRULED! 

And then there is the pattern of judge filing complaints with the Florida Bar when foreclosure defense attorneys appear in courtrooms doing their job.  Like the attorney who took on a pro bono case for a legal aid client and defended those clients quite admirably…only to get a bar complaint because defending interfered with the judge’s desire to move cases along. Or the good foreclosure defense attorney who finds himself the subject of a bar complaint after the exhibits entered by a plaintiff turn up missing…and the attorney makes big procedural issues over this very big problem…(one not caused at all by the defense attorney)

But more about that later. Let’s focus on what consumers have to say about where we are today. I have long been and remain concerned about what this whole dark period says and will continue to say to citizens and consumers about the integrity of their judicial system. I hear first hand the grumblings and the very explicit and angry rantings from consumers who faced a judicial system that they know has been stacked against them.  The wave of foreclosures may be over, but the long lasting effects will stay with us for a long time. Just read the following that was published today:

 

The foreclosure crisis is not over. It continues today with false foreclosures, by the same Financial Institutions and some new players. As before, defrauded homeowners cannot rely on the Courts to stop fraudulent foreclosure sales.

After the Bailout, litigation ensued over fraudulent practices by the banks. This resulted in settlements long after the foreclosure sales occurred and homeowners lost their homes. The federal government and state governments received large payments while the homeowners received pennies on the dollar of the lost value of their home. Despite the bankers’ criminal acts, no senior banker went to jail.

After the mortgage meltdown, many loans guaranteed by U.S. government agencies or purchased from banks and other institutions by U.S. government agencies were sold back to the same banks who caused the meltdown, other banks or sold to private investment groups. These banks or private investment groups either securitized the loans into Real Estate Mortgage Investment Trusts [REMITs] and sold the securities to others or carried the loans and subsequently assigned the loan to others who did the same thing.

Federal and state laws were enacted to require the “lenders” to discuss modifications, and postpone foreclosures pending such discussions. Federal programs such as HARP, HAMP and federally supported programs operated by states such as Save Your Home California were instituted to help homeowners. However the success of such programs has been questionable primarily due to the lack of cooperation of the Financial Institutions and private investment groups.

These Financial Institutions, private investment groups, REMITs or assignees then foreclosed on nonperforming loans as quickly as possible creating a new foreclosure crisis.

The result was foreclosures continued at a heightened pace. The Financial Institutions, private investment groups, REMITS and assignees continued to commit fraudulent practices. Effective government enforcement of fraudulent foreclosure acts literally ceased.

Enforcement of fraudulent foreclosure acts is presently left to the homeowner.

The homeowner is forced to bring a private lawsuit to stop the foreclosure sale in federal or state court even when the Financial Institution, REMIT or assignee admits it does not own the mortgage, Promissory Note or Deed of Trust. 

States such as California, prohibit an action to stop a foreclosure sale even when the foreclosure and foreclosure sale is a fraud.

At present, no law directly enjoins a fraudulent foreclosure sale. Laws exist to postpone a foreclosure sale due to technical errors, allowing for the correction of such errors.

The Fair Debt Collection Practices Act [FDCPA] and its state counterparts can stop a Financial Institution, private investment group, REMIT, assignee of a mortgage or Deed of Trust from foreclosing, by enjoining it from acting until it “verifies the debt”, the same as any other “debt collector.”

However, even the FDCPA has an exemption for “Financial Institutions” and their “Servicers” who acquire a mortgage or Deed of Trust, which was not in default at the time of acquisition and only later defaulted. This “exemption” places the homeowner at an immediate disadvantage related to a fraudulent Financial Institution or “servicer” because the court does not take such “fraud” into consideration.

The homeowner must show the Financial Institution or its Servicer is a “debt collector” under the FDCPA, despite the fact that the Financial Institution or “servicer” admitted it did not own the loan, mortgage, Promissory Note or Deed of Trust.

A “debt collector” under the FDCPA is “any person.. in any business of which the principal purpose of which is to collect debts” or any person “who regularly collects or attempts to collect … debts owed …. another.” [15 U.S.C. Section 1692a(6)]

The homeowner shows this by a statement on correspondence from the Financial Institution, private investment group, REMIT or assignee stating:

“The Financial Institution, private investment group, REMIT or assignee is attempting to collect a debt. Any information obtained may be used for that purpose.”; or

“The Financial Institution, private investment group, REMIT, assignee is a debt collector under the FDCPA [15 U.S.C. Section 1692a(6)].”

However, irrespective of this proof, no opposition by the defendants to the injunction, and an admission by the Financial Institution assignee it did not own the Promissory Note and the Deed of Trust, recently the U.S. District Court for the Central District of California [Judge R. Gary Klausner] dismissed the homeowners’ case “with prejudice” and refused to stop the foreclosure sale.

You can read the rest of the article here DAILY KOS

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