Florida was well into the acute phase of the foreclosure crisis during the dark days of fall 2008 when Bush and Paulson wrote the blank checks that bailed out the banks, Wall Street institutions and the criminals that brought our country to the brink of economic Armageddon. Bush wrote the check, Obama cashed it and in August of 2009, no less an authority than the Florida Supreme Court described the evolving foreclosure crisis as follows:
Picture this: the biggest road out of town. Now imagine it is rush hour. In a thunderstorm. Add that it is also a hurricane evacuation. A lane is closed due to construction delayed by budget impacts. Imagine the traffic jam. The clearest description of the impact of the foreclosure crisis and the following recession on Florida’s courts can be summarized by that picture. Imagine every car is a case.
The General Jurisdiction Courts of our state have a certain amount of judicial infrastructure, just like there is a certain amount of room on the road. There is a certain capacity of judges, of court staff, of clerks, of filing space, of hearing time, of courtrooms, even of hours in the day. Year in, year out, that capacity flexes with the caseload traffic to afford reasonable, prompt, efficient and fair justice. The enormous increase in foreclosure filings has overwhelmed those resources in many circuits and represents a caseload traffic jam that the infrastructure cannot meet in a timely and efficient manner without support and traffic management.
The task force recommended statewide mediation programs as a potential solution to the catastrophe that was unfolding, but the banks would not wait and instead insisted on their own plan, which was to reject any rule of law or court process and turn Florida into a non judicial foreclosure state. Part of the argument against the application of fundamental rules of law and commerce came directly from the Florida Mortgage Bankers when they submitted their comments to the Florida Supreme Court and essentially argued that they could not comply with the basic rules of commercial paper that the banking industry created because they had just been ignoring the laws for so long. I love this quote, taken directly from the comments the bansters submitted to the Florida Supreme Court: (READ HERE)
It is a reality of commerce that virtually all paper documents related to a note and mortgage are converted to electronic files almost immediately after the loan is closed. Individual loans, as electronic data, are compiled into portfolios which are transferred to the secondary market, frequently as mortgage-backed securities.
Many firms file lost note counts as a standard alternative pleading in the complaint” is because the physical document was deliberately eliminated to avoid confusion immediately upon its conversion to an electronic file.
Electronic storage is almost universally acknowledged as safer, more efficient and less expensive than maintaining the originals in hard copy, which bears the concomitant costs of physical indexing, archiving and maintaining security. It is a standard in the industry and becoming the benchmark of modern efficiency across the spectrum of commerce””including the court system.” (FULL TEXT HERE)
Putting it into layman’s terms, the statement is not, “The Dog Ate My Homework”, it’s, “I personally destroyed documents worth billions of dollars” But my favorite quote from that gem of a document is:
It is a standard in the industry and becoming the benchmark of modern efficiency across the spectrum of commerce””including the court system.”
Problem is, while it might have become standard in the industry, it was not at all part of the laws which (theoretically at least) should be applied in courtrooms. Like the whole MERS Monster that the industry dumped into our courtrooms ignoring our whole long established body of real property law without any law or legislation to affirm it, the banks apparently just decided to ignore the Uniform Commercial Code and its reliance upon the original note as the essential element of a foreclosure action….(we don’t need no stinking note, just destroy the damn thing). But the banksters apparently either ignored the law and just decided, “we don’t need your stinkin’ law or this pesky old original note” and into the shredder they went.
Recognizing the trouble they were in, the banksters devised a grand and diabolical plan….circumvent the courts entirely and turn Florida into a non-judicial foreclosure state. The banksters introduced a bill in the 2010 session of the Florida Legislature which would essentially allow the bank to show up to any property that had a mortgage on it and hold an auction right then and there. I could not believe the text of the legislation…it really was quite unbelievable, but then the bankers have much money and many reasons to be bold and diabolical. It might very well have passed, but then something happened. Consumers woke up. Dedicated, honorable and committed attorneys, stood up, joined together and traveled to Florida’s Capitol with the express purpose of fighting for judges and our court system and making sure that the Rule of Law prevailed. Take a look at this video record of what happened:
The non judicial foreclosure bill was defeated but in its place came something which was potentially just as bad, the Foreclosure Rocket Docket. Now during a period of time when the State of Florida was laying off cops and firefighters, I wondered where in the world the wizards of state finance came up with $9.6 million dollars to fund the Foreclosure Rocket Docket, but that question has never, ever been answered. What I do know was that the Foreclosure Rocket Docket was unconstitutional right from the start. I knew this was so because I researched then drafted a masterful Writ of Prohibition that laid out the Florida Supreme Court case law on the subject…bottom line is Florida’s Constitution requires decisions such as foreclosure to be made by elected judges. I repeatedly made that point and making this very clear, very well-supported Constitutional argument (in addition to all this outspokenness on this website and elsewhere) brought me squarely into the cross hairs of professional assassination. It’s been almost a year now and my very life, my career, my profession remains squarely in the cross hairs. I remain squarely in the cross hairs even today….I regrettably stare directly into them…and hope that this will pass. But I’m reminded that Freedom isn’t free and that Free Speech really isn’t free.
I take some solace however in the ultimate outcome of the Rocket Docket. I suspect the funding and implementation of this Constitutionally-challenged adjunct of our court system was a bankster Trojan horse and that they expected a windfall of judgments. But the ultimate outcome was very much a mixed bag…an almost exact statistical tie with roughly 5o% of the cases being dismissed and 50% of the cases receiving the ultimate outcome…a summary judgment between July and March 2010, for a total of 150,000 cases “disposed of” Now I suspect that a good many of those 75,000 cases that were “disposed of” through summary judgment are subject to challenge and upset, (Study the Numbers Here).
Part of the basis for my opinion that many of these judgments are subject to challenge comes from an ethics opinion that was released by the Florida Bar and recently affirmed on June 24, 2011. (Opinion Here) The opinion really is a game changer for, who knows?, tens of thousands of cases all across this state based on the following statements contained within it:
Recently, Bank has instructed Lawyer to stop progress on all foreclosure actions due to potential defects with affidavits which Bank submitted to Lawyer and which Lawyer in turn filed with the court.
As the rule indicates, if an attorney knows that any material false representations have been made on the record by a client to any court or tribunal, then the attorney must follow the instructions in the Comment to Rule 4-3.3 and ask the client to correct these false statements on the record. In the pending cases, if the client will consent to the affidavits being replaced, then the attorney may do so. The disclosure needs to be made to the court that the affidavit was improperly verified and notarized. The specific language required in the disclosure and the method by which the inquirer will ” replace” the old affidavit or provide a new affidavit are beyond the scope of an ethics opinion.