Foreclosure Defense FloridaGeneral Information

Foreclosure in Florida, 2013- When Judges All Across The State Forgot About The Constitution…..(And More of the Dark Side to Senate Bill 1666)

Oh Dear God, here comes that Weidner again….coming into a courtroom making all these arguments about The Law and what the banks did wrong and fraud and all that…blah, blah, blah…doesn’t he know….we’re all over it?

That’s certainly what I think the internal dialog sounds like when I walk into a courtroom these days.

And so, just to mix things up a bit…and out of respect to the judges, I’m going to switch gears….back to the basics….back to law school and a little thing called, The Constitution.

You see, when I went to law school, one of the first classes I took was Constitutional Law.   I thought that it was a required class for every lawyer, going back for decades.   And while we didn’t study Florida’s Constitution specifically, the same principles articulated in the US Constitution are found in Florida’s.

One of the bedrock, black and white principles articulated in both…and hell, it’s so basic it’s taught to every American kid in elementary school…is that the three branches of government are separate….and equal.   I thought this applied in Florida’s courts, in fact I was certain that it did….but I’m apparently mistaken.

I know I’m mistaken based on what’s happening right now in Florida’s Foreclosure Courts, a subset, a subversion of the larger court systems. You see, Florida’s entire judicial branch…from one end of the state to the other are jumping up and down and falling over themselves to dance to the tune called by the legislative branch. Now, for years the Florida Legislature has been beating and whipping our elected circuit court and county court judges.   Well, not actually whipping them, not exactly….but the Legislature has indeed been wagging their big legislative finger at them and cracking the entire black robed gang of judges into shape…..and well, whipping them into moving faster…and doing more with less and less money.

The legislative and the executive branch whipping the judicial branch…who are not doing enough to fight back.

Year after year, session after session, the Legislature tightens up the budgets and the purse strings of our state’s court system and our judges…telling them they must do more and more with less and less.   Less money. Less staff. Less paperclips. Less resources. And Florida’s judges…who largely have lifetime appointments, just sit back and take the abuse.

More budget cuts? Thank you legislature may I have another?

No more law clerks? Thank you legislature, may I have another?

Remove our staff work and workers? Thank you legislature, may I have another?

Cut the pay of our remaining staff? Thank you legislature, may I have another?

And one of the craziest things about the legislature versus the entire court system dynamic is that while the legislature (thankfully) changes every few years….and they all completely cycle out every six years or so….one part of the legislative culture and the power does not change from one regime to another….the part of the collective legislative mindset that decides that it can continue to choke, abuse and hold hostage though financing the entire judicial system.

This dynamic truly is amazing and disturbing. What’s most amazing about this is it just should not happen. The balance of power in this perpetual battle is clearly in favor of our elected judges who are largely held in high regard by the voting public and who are basically protected politically by the voting population…very few are ever voted off the bench. With this dynamic in mind, I wonder why more of them do not stand up, speak out and protect the third branch that needs not just protecting and defending, but shoring up and being made more powerful in these times.

The juxtaposition of our state’s mature, deliberative and highly respected judges to our state’s elected leaders is obscenely dramatic. There is precious little newspaper ink spent on judicial scandals, but every day we read about one political scandal after another.

Our state’s judges are the elder statesmen and women. The adults in the room while the legislative and executive branches are…well….how should one put this….well. Tell you what. Just read the newspaper headlines. Just do your own catalog of corruption investigations and cases…but don’t stop there. Consider all the campaign cash and bribes and payoffs and think of all the investigations that do not occur. Democracy is broken, we don’t elect legislators and executive officers in this state….they are auctioned off. And The People don’t win those auctions, The Corporations do.

I remember being in Tallahassee during session a few years ago and watching the Representatives bounce around the halls.   So many of them were so young, it reminded me of a frat party at a university.   That’s what makes it all so disturbing.   Florida’s judges, the bulk of them, are brilliant and totally protected.   They have nothing politically or economically to worry about.   All they’ve got to do is sit up there on that bench and do the job they were elected or appointed to do…and they’re not going anywhere.   Meanwhile, Florida’s elected Representatives and Senators just rotate right on in and out of Tallahassee.   I wonder what Florida’s judges would think if they took time off and went up to Tallahassee to see all the people that have been pulling their strings and abusing them all these years?

Wouldn’t it just be a hoot to see legions of Florida’s elected judges sashaying up and down the halls of Florida’s Capitol in their fancy, long black dresses?   I just wonder how the commentary and tone of the legislative debate would change if, right in the middle of speeches about what Florida’s judges or courts are or are not doing, gangs of judges were peering back at them with those long-practiced judicial stares…..

Take the current foreclosure debate…the same one that’s gone on for years.   The clowns up in the circus called Florida’s Legislative Session continuing to berate judges and misrepresent what’s really causing the foreclosure backlog….

MEMBERS OF THIS BODY, WE HAVE A CRISIS IN FLORIDA! IT TAKES 853 DAYS TO FORECLOSE IN FLORIDA. THESE CASES ARE DELAYED, THE JUDICIAL BRANCH IS BROKEN, THEY ARE NOT DOING THEIR JOB!

Now, what if judges marched up there and told them what was really happening in their courtrooms?

EXCUSE ME SENATOR, YOU ARE BEING MISLED AND YOU ARE MISTAKEN. THAT NUMBER THIS LEGISLATIVE BRANCH CONTINUES TO CITE IS BOTH FACTUALLY INCORRECT AND GROSSLY MISLEADING. YOU DID NOT GET THAT NUMBER FROM THE JUDICIAL BRANCH OR FROM ANY APPROPRIATE GOVERNMENT SOURCE. YOU ARE REPEATING INDUSTRY PROPAGANDA. AND IN DOING SO YOU ARE BEING DISRESPECTFUL AND INAPPROPRIATELY ATTACKING THE JUDICIAL BRANCH. PLEASE RETRACT THAT STATEMENT AND ALLOW US TO COME BEFORE YOU AND EXPLAIN WHAT IS REALLY HAPPENING IN OUR COURTS.

But no. That’s not going to happen.   In fact, quite the opposite is occurring. In fact, a formal Gag Order has been placed on our state’s elected circuit court judges. We elect judges in this state. Our Constitution demands that they live in and among us. They go to our churches and synagogues and schools. The walk in our neighborhoods, we see them in grocery stores and yet, they have all been told that they must not speak to us….the people that elected them. I find this most disturbing. But even more disturbing, I am disappointed that they are accepting this gag order. They are not ripping the duct tape off their mouths and speaking, collectively and individually, to their neighbors in the communities in which they serve.

Instead, they are dancing to the legislature’s tune. They are playing from a sheet of music that was bought and paid for not by the people of the State of Florida, but by the corporations who own the legislature.   Florida’s Legislature has spoken, and Florida’s judges are whipping themselves into a frenzy….

YES SIR/MAM TALLAHASSEE! WE’RE GOING TO GET RIGHT ON OUR NEW MISSION! WE’RE GOING TO DO AS YOU SAY AND WE’RE GOING TO

CLEAR THIS FORECLOSURE BACKLOG!

In foreclosure, we hear it everywhere we go.   It’s not just disturbing…it is fundamentally Unconstitutional….And it’s not just foreclosure defense attorneys, community activists and voters that are now rumbling about how outrageous this is.   Why, even foreclosure plaintiffs are starting to rumble that all this legislative blackmail and extortion is impacting their business models….and worse, the legislative meddling…and the concomitant judicial bending is placing these plaintiffs….many of whom are banks regulated by the federal government…into direct violation of their federal mandates….judges all across this state forcing trials while the federal settlements demand that nothing move forward……

Where does Senate Bill 1666 fit into this?   Well, in particular, the very first part of the bill that instills and reinforces the whole regime of senior judges into the foreclosure process.   We should not be talking about more funding for senior judges…every dollar spent there is a dollar taken from our elected circuit court judges and their staff.

We elect judges in this state….and voters either retain them or they slide off the bench.   That’s what the Constitution says….but no one seems to care about that anymore.   After all..there’s a crisis in this state….right?

10 Comments

  • concerned reader says:

    Thanks Matt for the good fight.

    The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law (“legality”) and provide fair procedures. https://www.law.cornell.edu/wex/due_process

    A property right can be created only by state law. Once a property right is established, the determination of what process is due before that right can be deprived is a question answered by the federal Constitution. Kingsford v. Salt Lake City Sch. Dist., 247 F.3d 1123 (10th Cir. 2001).

  • project_wolverine says:

    Maybe they lost it! the constitution that is! next we will see lost constitution affidavits in court, the new one will be in their own words.

  • triumphant says:

    Matt,

    Check out this recent decision from Florida’s 3rd DCA: Bank of New York Mellon v. Reyes (3D12-1900). https://www.3dca.flcourts.org/Opinions/3D12-1900.pdf

    The Court – having to reach to non-judicial foreclosure states MISSOURI and TEXAS for support of its position – says no cause of action exists in Florida for wrongful attempted foreclosure! It thereby secures yet another piece for the continuing bankster onslaught, evidenced by the law firm that represented “the bank” in appeal.

    The 3rd DCA’s footnote on the final page suggests (if only to me) that if the Florida legislature truly wants to clean up this mess, perhaps Floridians should be provided with a statutory remedy for ATTEMPTED wrongful foreclosure, thereby incentivizing the banksters to NOT lie, cheat and steal people’s homes because they will be accountable:

    “4. We note that while Florida recognizes a cause of action for wrongful foreclosure, no Florida court has yet recognized a cause of action for attempted wrongful foreclosure. See Republic Nat’l Life Ins. Co. v. Creative Invs. Real Estate, Inc., 429 So. 2d 87 (Fla. 5th DCA 1983); Raines v. GMAC Mortgage Co., No. 3:09-
    CV-00477-J-25HTS, slip op. at 2 (M.D. Fla. Dec. 10, 2009) (” Based on . . . limited information [detailed in a single opinion] and the lack of relevant case law in Florida, the Court does not believe that a cause of action for attempted wrongful
    foreclosure exists in Florida. Moreover, other jurisdictions do not recognize a cause of action for attempted wrongful foreclosure. See, e.g., Reese v. First Mo. Sank[sic] & Trust Co of Creve Coeur, 736 S.W. 2d 371, 373 (Mo. 1987) (concluding that ” there is no cause of action for attempted wrongful foreclosure”); Port City State Bank v. Leyco Constr. Co., 561 S.W. 2d 546, 547 (Tex.Civ. App. 1977) (concluding that there is no cause of action for attempted wrongful foreclosure ” where a creditor mistakenly attempted to foreclose a security interest,
    but did not actually foreclose when apprised of the true acts before foreclosure took place”)”).

  • me says:

    It’s funny, because the First class most first year law students take in Contracts 101. And at it’s most basic form foreclosures are nothing more than a breach of contract suit. Yes you can drone on about paragraph 22 and it being in bold print, etc., but the Contract as a whole has ben breached by the borrowers!!!
    Also in that first year of law school most of us learned in Real property 101 that the mortgage follows the Note; this has been the law for centuries!!

    • there’s often not much dispute about breach. the question is breach to whom? I often say, “a borrower has an duty to pay, the plaintiff has an evidentiary burden to prove they are entitled to collect” proving duty to pay is not difficult, it’s that second part that always seems to flummox the Dark Side. And in all your taunts, you ignore the big issues staring us right in the face….what do you say about all the lies, the fraud, the forgery of your side? What do you say about training all the robo perjurers to come into court to commit perjury? And the tens of thousands of documents you submitted into court, knowing full well they were fraudulent? And not fradulent in an abstract sense, but fradulent as admitted in the Lorraine Brown indictment, fradulent as admitted in the 49 state AG and OCC settlements? Tell me, have you ever heard of an attorney for the Dark Side complying with the requirements, embodied in june 2012 Bar opinion, of disclosing the fraud to the court?

      • me says:

        let me just repeat what Mr. Weidner just said:
        “THERE’S OFTEN NOT MUCH DOSPUTE ABOUT BREACH.”
        WOW, Mr. Weidner has just spoken, hope the followers listen.
        Also your next line should say “the question is breach “”BY”” whom?” and the answer is by the borrower.
        please list all the case you actually have knowledge of where another party was claiming they were owed the money on the Note and Mortgage beside the Plaintiff? remember only cases you have actual knowledge of. will concede that there are likely a few cases where the same loan has been sued on by a second plaintiff, but as you should admit, as soon as the mistake is pointed out one of the cases gets dismissed!
        and remember from law school that knowing how to spell fraud and forgery and inserting those words into pleadings is not proof. Please let us all know when you actually prove up FRAUD in any foreclosure case!

    • patrick says:

      To ME

      Being a ” holder” is a conclusion of law created by certain presumptions. It is not a plain statement of ultimate facts. If a party wishes to assert holder or holder in due course status they must plead and prove the facts supporting that legal conclusion. A sale of the note does not occur without proof under simple contract doctrine. There must be an offer, acceptance and consideration. Without proof of the consideration put into a deal, there is no sale or loan funding transaction as described on paper and any presumption arising out of the allegation that a party is a holder or that the note was sold must fail on its face.

      presumptions are not to be used in lieu of evidence where the opposing party has denied the underlying facts and the conclusion expressed in the presumption. In other words, a presumption cannot be used to lead to a result that is contrary to the facts.

      So get off your high horse. What makes you so sure the party which the note indicates as the lender actually funded the loan from its own account? What makes you so sure that the endorsements exhibited on the note actually describe real money transactions? Without the element of consideration there is no transaction as described on paper, there is no contractual obligation as described on paper, and there is no breach of the contract described on paper.

      Show me wire transfer receipts,loan closing and wire transfer instructions, cancelled checks ect… to back up what the paper describes and then we’ll talk about breach.

  • Elizabeth says:

    The solution to MERS & the destruction of our land records, notes and mortgages is not to remove standing from the courts as this sets up a system to let the problem continue is all. Standing is the basis that the entire court system is based on. When we make laws that eliminate standing and “original” documents we are a court system based solely on hear say and old photo copies that are irrelevant to todays standing. We are missing the national leadership that requires states to up hold the Constitution. Where is Lincoln when we need him? He would have gone to war with Florida before he would have let them remove the Constitution or allow voter suppression, education suppression by getting involved in what is taught, tourist suppression by blocking the high speed train between tourist destinations if it is still being blocked, medical suppression by blocking Obama care until recently. Does Florida still have no accountability for pain pill pusher doctors to track who is giving out too many pain pills? Another form of medical suppression, filling up the prisons now. ETC….. I have been gone from Florida for three years, has any of this gotten any better? After reading this article I would say it is getting worse. There will be no ethical recovery in Florida until the court system is returned to representing the Constitution and the parties responsible for removing the Constitution and responsible for suppression are fired! If Rubio wants to be President someday, he needs to start talking about the real issues in Florida and demand that they be fixed or he can forget it! We will not let the entire country go into this level of suppression! Rubio’s state is a train wreck and he is not even talking about any of the horrific problems, when the people in Florida are screaming out for help with articles like this. If he want to be President he had better return the Constitution to Florida. This is like Romney keeping his money off shore and complaining about the national debt. The ethical thing is a formula like child support. When the current owner cannot maintain the current payment and has no proof of a paid off loan and the bank has destroyed or lost the original documents so neither party can complete their contractual obligation the formula should kick in based on cash for keys/ cram down/ rent to own / interest reduction combo etc… based on the buyers ability to pay and the current market value of the home and how the bank has treated the home owner. I think this is the deciding moment for Rubio’s career for a Presidency, he just does not realize it yet because of his limited time in politics. He will learn what happens to you when you turn your back on the most vulnerable that have lost there job, have a medical condition or were put in a changing loan they did not understand and could not afford, by ignoring what happens to them. Did he not learn anything from the Romney taped speech?

  • Roderick oh says:

    Matt are you a De Jure Constitution Lawyer or a Attorney ? Everyone knows we’re the mistakes are and why they are being ignored for a reason can you explain why? Are you a BAR member ? Every mortgage is insured with default insurance at 80% of a 130% appraised value so banks are getting paid. You speak of the constitution then why not enter the subject of common law jurisdiction of live flesh and blood man of unalienable rights. Why run the people through hoops ? Trinsey v Pagliaro strong and excellent case law everyone should look it up this shouldn’t even go past summary judgement . With reserve under UCC1-308 without predudice good luck

  • Grace says:

    And what of those judges who allow a homeowner’s attorney to drop the case just weeks before the Summary Judgement hearing? What of a judge who as she allows the attorney off the hook (who by the way had his associate tell one whopper of a lie to justify his seeking to leave the case), and makes it very clear to the homeowner, she does not care if at the time of the trial, she has an attorney or not. How does a homeowner even begin to defend herself? My file is riddled with robo signing, fraud and outright lies to the court, and yet none of that matter. I still ask the question that in a country who supposedly prides itself on the law, the fairness and protections afforded to everyone, how do we look at that system knowing people are being thrown out on the streets when the plaintiffs (big banks) have presented fraudulent documents and perjured themselves throughout the proceedings? How does a system which clearly gives the advantage to the banks and supposes the homeowner is a deadbeat and somehow responsible for this action?

    As a country and as a state, we have so lost our way. When money and those with it decide the rules and those in power rewrite the rules for them, those of us not in that group are forever doomed. I still do not understand why people around this country are not up in arms. But I guess that unless it happens to them or someone they love, those of us facing eviction are on our own.

    We are in very big trouble and if we don’t get someone to act and soon, this damage may be irreversible.

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