Foreclosure Defense Florida

HOT OFF THE PRESSES- RESPONSE TO MOTION FOR REHEARING!

By September 15, 20103 Comments

HotOffThePress-foreclosureJust this morning, I received the opposing counsel’s response to our motion for a rehearing in the Taylor v. Deutsche Bank case out of the 5th District Court of Appeals in Florida….the decision commonly referred to as, “This Horrible Opinion”.

As clearly expressed in our Motion for Rehearing, we believe the 5th District issued a fundamentally flawed opinion and, similar to what was the case with the Riggs opinion, we timely petitioned for a rehearing.   Those of us who are standing up to fight this insane march toward foreclosure and the devastating breakdown in our court systems that has created and perpetuated a fundamentally flawed legal process are in the middle of an epic battle.   So many powerful forces are aligned against those of us who are fighting for the integrity of our courts and there are so many profound and perplexing questions that are provoked in the middle of this crisis, but the biggest one I have is why our circuit court judges and on some level appellate court judges seem predisposed against the interests of normal consumers in favor of the flawed lending and credit systems that provoked this crisis. Those questions will remain, but for now read the response brief.   The mind boggling aspect of the opposing response is the very light treatment given to many of the substantive facts and law argued in our motion.   Their basic argument seems to be that the court was just right and they spend little time addressing the significant issues we raised in our Motion for Rehearing…..dig in and enjoy….

taylorrehearing

taylorrehearingresponse

3 Comments

  • edgetraderplus says:

    Wednesday 15 September 2010

    Matt:

    You have done an incredible job of elevating the fight against any foreclosure mill or large banking interest attempting to assert “Lender” status. Simply, outstanding work!!!

    The cases you have presented in your blog, and this one, as well, are blueprints for bringing a fight of substance, and a “winable” one at that, which can be used against ANY foreclosure.

    You have my greatest admiration for all of the time, energy, and passion behind your efforts, and their ripple effect is way beyond what you might imagine. I want to personally thank you for your unselfish sharing and the devotion you bring to your exceptional and outstanding blog.

    There is a Chinese proverb that is so apt for what you do:

    Give a man a fish, and you feed him for a day. Teach a man to fish, and you feed him for a lifetime.

    Cheers to you, good sir!

  • Stupendous Man says:

    I am seeing similar response by plaintiffs counsel in my area ( a state different from florida).

    In a local case I’ve been watching counsel for plaintiff is also attempting to argue that the “note follows the mortgage.”

    Also, in my case, counsel for plaintiff has included reference to UCC 3-201(1) but has not referenced UCC 3-201(2). A read of that below reveals that clause (2) has a radical impact on the interpretation of clause (1).

    § 3-201. NEGOTIATION.

    (a) “Negotiation” means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.

    (b) Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.

    This would seem to be an intentional effort on the part of counsel for plaintiff to mislead and misinform the court. A sanctionable action in my mind, and substantiated by by Supreme Court Rules and BAR Ethics codes.

    Looking at the Florida statute relied upon and referenced by counsel for plaintiff in the Taylor v Deutsche:

    673.2031

    Transfer of instrument; rights acquired by transfer.
    “”
    (1)

    An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.
    (2)

    Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.
    (3)

    Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, the transferee has a specifically enforceable right to the unqualified indorsement of the transferor, but negotiation of the instrument does not occur until the indorsement is made.
    (4)

    If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur. The transferee obtains no rights under this chapter and has only the rights of a partial assignee.

    Omission of reference to the additional clauses (2), (3) and (4), which all seem to modify the interpretation rendered by reading only clause (1), seems very similar behavior.

Leave a Reply