The Florida Supreme Court’s Residential Task Force spent a year reviewing the practices of the foreclosure mills and determined (I’m paraphrasing here) that they were engaged in systematic fraud and misrepresentation in courts across the state. (The full report is here)
I’m concerned that the report raises serious constitutional issues…I mean, if the Supreme Court makes findings of fact that citizens are being abused by systemic fraudulent and improper practices and the practices continue largely unchecked, aren’t there due process issues that the Federal Courts are obliged to address? This is an issue that will eventually catch the attention of law clerks, academics and law school professors who will eventually provide some scholarly work on the subject. I can tell you that a very real practical consequence of all this mess will be instability in the real property markets for decades to come….you see Final Judgments of Foreclosure that are based on facially incorrect information, fraud or misrepresentations are void or voidable for the next twenty years. The good people that are buying REO homes that have been subject to the foreclosure process simply cannot be secure in their homes. Plaintiff’s attorneys and the investors who actually own the notes that were secured by the mortgages that were improperly foreclosed will be coming….just wait.
Anyway, in an effort to curb the abuses, the Supreme Court of Florida enacted a rule that required the foreclosure mills to verify the foreclosure cases they’re filing in bulk across the state, effective February 11, 2010. (Copy of the rule here)
“Verified” means the Florida Supreme Court is asking the Plaintiffs and their attorneys to swear or affirm that they have the right to invoke the awesome power of the courts of this land as a key component of their effort to deprive citizens of their homes and property. Now asking a party to prove they have the right to invoke the power of the court before that party wield such a powerful force shouldn’t be such a big deal…problem is, the foreclosure mills are not comfortable or are totally unwilling to make such a basic and fundamental affirmation.
In comments submitted to the Florida Supreme Court (found here) Shaprio & Fishman told the Supreme Court (and I’m paraphrasing here), “You see court, foreclosure is like dogs playing poker….it’s hard to explain and difficult to grasp, but let us lay it out for you here.” Read carefully the comments they’ve made…there’s a little slip of the ethical tongue in paragraph six when they comment about the fact that notes and mortgages are sold back and forth and the end purchaser cannot verify any of the key facts in the complaint….interestingly the drafter calls them, “alleged facts”…you see the author of the comment concedes they’re not even sure about the facts. Anyway, the balance of Shapiro’s comments are essentially the fact that none of the parties the Plaintiff’s attorneys bring before the court are in a position to verify all of the facts necessary to foreclose. To me the admissions in the comments are staggering….they’re telling the Supreme Court we cannot possibly be required to actually prove we have the right to foreclose and what we’re owed.
The comments also point to a much larger problem the Supreme Court and all of us are going to have to come to grips with real soon….
MEDIATION IS NOT GOING TO WORK AT ALL BECAUSE THE PARTIES TO THE MEDIATION DO NOT HAVE THE AUTHORITY TO EFFECTIVELY MEDIATE.
ANOTHER THING TO KEEP IN MIND PEOPLE…
EVERY SINGLE ONE OF THE TENS OF THOUSANDS OF FORECLOSURE CASES FILED AFTER FEBRUARY 11, 2010 THAT ARE NOT VERIFIED WILL NEED TO BE REFILED TO COMPLY WITH THE RULE ANY JUDGMENT BASED ON SUCH INCORRECTLY FILED CASES IS VOID.
With that in mind, I just cannot understand why the Chief Judges in every circuit across the state are not just dismissing all these cases?
