Garbage in = Homeowner Out
The typical foreclosure case filed by any one of the foreclosure mills across the state like David Stern, Marshall Watson and Florida Default Law is an unprofessional mish mash of conclusory and often inconsistent statements from which no court should enter summary judgment against a defendant. The pleadings within the complaint are sloppy and wrong from the outset and further confusion is thrown because the documents the Plaintiff attaches to the complaint are inconsistent with the allegations contained within the complaint. For years now, the foreclosure mills have churned out garbage lawsuits that show an utter lack of respect for the courts and astounding arrogance. Courts are starting to push back against these improper practices, but rather than correct the problems and comply with the rules, the lenders and their thugs are trying to make an end run around the courts entirely, get out from under the court’s scrutiny and make a fast-track to repossess homes with the obscenely titled, “The Florida Consumer Protection and Homeowner Credit Rehabilitation Act”, more about that later…now back to what’s happening in courts.
Pleading Problems? We Ain’t Got No Stinkin’ Pleading Problems….Not So Fast, The Florida Supreme Court Says You Do!
Primarily I’m talking about those cases where the complaint asserts, “Plaintiff owns and holds the note and mortgage, and is entitled to enforce them”, while the note and mortgage attached to the complaint provide, “MERS is the Lender and is entitled to enforce them”. A standard line of foreclosure defense is to attack these inconsistencies through a Motion to Dismiss or a Motion for More Definite Statement. The solutions from the Plaintiffs side would be simple…plead the complaint properly from the outset and attach the documents and evidence that are necessary to support the claims made and which the court should ultimately require to be part of the case file before granting summary judgment of foreclosure. The Plaintiff’s failure to plead these elements up and attach the evidence required from the outset wastes judicial resources, leads to improper reward for Plaintiffs that are not entitled and forces homeowners into fights with parties that have no legitimate claims against them. My statements regarding these issues are validated by the new rules just published by the Florida Supreme Court which provide:
Rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment are:
(1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate;
(2) to conserve judicial resources that are currently being wasted on inappropriately pleaded ” lost note” counts and inconsistent allegations;
(3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and
(4) to give trial courts greater authority to sanction plaintiffs who make false allegations.
The new mandatory rule, that is effective February 11, 2010 will really help to curb the abuses cited. This rule, when combined with the new clear directions from the Second DCA opinion in BAC Funding v. US Bank, show that the upper courts have had it with the abuses of foreclosure mills and their partners in crimes, the law firms they’ve hired to do the perpetuate their problems.
Courts Should Not “Connect the Dots” In Order To Grant Summary Judgment
Although this should be the case, in the vast majority of cases courts are simply relying on inferences and speculation, assuming facts that are not part of the record and granting summary judgment to Plaintiffs that may never have been entitled to take a homeowner’s home. The case law is clear, judgments must be based on the facts and evidence that is of record and there are clear prohibitions against supplying essential pleading elements by inference or speculation. See Alvarez v. E Camp; A Produce Corp. 708 So.2d 997, (Fla. 3rd DCA 1998)(citing Ocala Loan Co. v. Smith, 155 So.2d 711 (Fla. 1st DCA 1963); see also Edwards v. Maule Indus., Inc., 147 So.2d 5 (Fla. 3rd DCA 1962) (Thank you to David Acosta from Case Clarity for this cite.)
Although courts frequently ignore these important details and assume facts or “connect the dots” in the rush to clear foreclosure dockets without confirming that facts are of record, Plaintiffs and unscrupulous attorneys produce a whole range of documents and evidence to help connect the dots and get past the problematic details in the file. I’m talking primarily about post-filing assignments of mortgages and mysterious endorsements or allonges that appear on notes. We know from evidence collected across the country that law firms and document creation mills across the country employ “Robo Signers” who merely sign documents all day long with no regard whatsoever to the “facts” contained within those documents or their “knowledge” of those facts. As a standard practice now, I issue a subpoena duces tecum to every affiant and assignor that appears in a file. These robo signers will not sit for deposition and the case will fail because the Foreclosure Machine doesn’t want another deposition of the infamous, Erica Johnson Seck. (Read about that in this post. )
Finally, there are two other major issues in Pleadings and the evidence that will be the subject of two separate posts. First, the blending together of the Mortgage Foreclosure Count and the Action on the Note Count. The note and mortgage are two distinct documents and contracts and the counts on both should be separate, but they almost never are. This is a problem that has gone on unchecked and frankly unchallenged for too long. Next, there is a pervasive problem with the affidavits that are often the sole basis for granting summary judgment against, “The Defendants”. I only caught this problem last night, but it’s a huge problem that permeates cases across the state! So what’s the key?
Drop subpoenas for every witness, affiant, assignor and robo signer in the file. If the signatures and statements are legitimate, there should be no problem making them appear…reality is that’s just not going to happen, but it’s nice to see the highest court in the State of Florida confirming and affirming what good foreclosure defense attorneys have been saying from the beginning.