Foreclosure Defense FloridaGeneral Information

I Lost A Trial Today, The Law In Florida- A Thief Can Steal Your Home

plaintiff-servicerI’m licking deep and painful wounds from a foreclosure trial I lost yesterday.   My pain is real not just for my homeowners but for every American and most especially for the absolute destruction and desecration of the Rule of Law.

It bothered me most to hear an attorney argue (successfully) that my arguments didn’t matter.   They argued that a thief can steal a promissory note, I could prove that the note was stolen but that wouldn’t even matter.   As long as they came to court with a promissory note, no matter how they got it or where it came from, Judgment for Plaintiff, nothing for homeowners.

Oh, and another most disturbing thing.   The plaintiff need not even know who owns the note or even disclose this to the court. A plaintiff can admit they are not the owner, that someone else owns it (they don’t know who), but they’re entitled to judgment of foreclosure, throwing yet another Floridian out into the street on behalf of an undisclosed owner.

Sickening. But this is the state of your law. Talk about a descent into madness and tyranny.



  • William A. Roper, Jr. says:


    This has been the commerical law of negotiable instruments for about five centuries. There is nothing new in what you describe.

    I sense your frustration.

    But the key issue as to standing is WHEN the plaintiff came to be the holder or the transferee.

    In order to enforce the instrument, the plaintiff also must prove compliance with conditions precedent and prove the fact of default by valid admissible evidence.

    You also somewhat distort the rule as to whether a thief is entitled to enforce the instrument. The plaintiff’s declaration is dramatic. But if it is proven that the instrument is stolen, then the thief would not have a right to enforce. But the burden is on the defendant or an intervener with a superior right to prove such a theft, not upon the thief to prove that he didn’t steal the instrument.

    While the difficulty in successfully defending a foreclosure can be frustrating, there is nothing new in this difficulty. Nor has this changed as a consequence of securitzation. It was always so.

    Negotiable instruments were negotiated in America by indorsement in blank and delivery for more than a century before the American Revolution.

    Unquestionably, foreclosure mills have engaged in widespread forgery, perjury and evidence fabrication in support of foreclosures and every foreclosure mill lawyer should probably be disbarred.

    On the other hand, you and I both KNOW that the negotiable instrument forming the basis for the plaintiff’s suit was NOT, in fact stolen, and that the plaintiff was a proper party to enforce the instrument IF the plaintiff had in fact received delivery of the instrument in advance of commencement of the suit. Otherwise, the plaintiff might be a proper party with a right of enforcement, but lacked requisite standing at inception requiring dismissal.

    Hopefully, you identified and preserved some other evidentiary issues for your client.

    The right to enforce a properly negotiated instrument timely indorsed and delivered in blank is beyond question.

    Best to you!

    William A. Roper, Jr.

  • Maria says:

    It seems that civil court judges adhere to and are held to a lower standard than criminal court judges. We’ve all read about and seen on TV about the murderers, rapists & child molesters who are released on a legal technicality – a shame but the law must be followed.

    However, in foreclosure cases, the law doesn’t apply. Civil judges are so concerned that a homeowner in loan default might get a “free house”, the law goes out the window!

    Foreclosure fraud attorneys – It would be helpful to know which judges are violating the law in their foreclosure fraud decisions since they are elected by the people.

  • William A. Roper, Jr. says:

    Perhaps you might take an interest in my post at the MS Fraud web site from December 2010:

    On the Ancient Origins of Blank Indorsement

  • Concerned citizen says:

    Condolences Matt. Thanks for the link to the Stopa law blog for an excellent summation of what happened. Maybe an appellate court can correct this injustice.

    The so-called rule of law is a parody of justice.

    People need to think about alternatives to bank financing in obtaining a home. The current system of mortgages is not working anymore for ordinary folks.

  • Attorney Wendy Alison Nora says:

    This is the most malevolent use of the UCC and it demonstrates why the UCC should not be applied to unsophisticated parties (which most homeowners are.) The theory of Article III of the UCC on negotiable instruments (using the example of the common check) is that they are to be deposited with a depository institution. A depository institution is under no obligation to accept an instrument for deposit from a thief. Try to cash a check endorsed in blank at the bank upon which the check is drawn and without personal identification. It will be refused.
    Many foreclosure mills think that they are clever in using the idea that a lost or stolen instrument is still enforceable. Time does not permit me to go into their argument, but here is the homeowner’s defense to such a claim: UCC 3-305(c)
    (c) Except as stated in subsection (d), in an action to enforce the obligation of a party to pay the instrument, the obligor may not assert against the person entitled to enforce the instrument a defense, claim in recoupment, or claim to the instrument (Section 3-306) of another person, but the other person’s claim to the instrument may be asserted by the obligor if the other person is joined in the action and personally asserts the claim against the person entitled to enforce the instrument. An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course and the obligor proves that the instrument is a lost or stolen instrument.
    It might appear that need to start joining the original payee in the action. Many of the original payees are in bankruptcy or have been dissolved. Where the original payee cannot be joined in the state court action, due to the automatic stay in bankruptcy, I would rely heavily on the last sentence of UCC 3-305(c). It appears that you have an admission that the note is stolen. You appear to have an admission that the foreclosing entity is not the holder in due course. I would move for reconsideration prior to appeal if you have such an admission.

  • triumphant says:

    I comment here what I did on Mark’s blog:

    An important, yet absurd, result flowing from this ” holder can foreclosure without being the owner” argument is the double jeopardy the homeowner faces on the note, even after having been foreclosed by a thief or pretender. If courts allow a note’s thief to foreclose, then the true owner of the note can still demand full payment from the note’s maker. Under this scenario, the homeowner can have the home stolen via judicial foreclosure, but may still be obligated on the full amount of the note, plus interest, etc., because the true note owner has received nothing.

    The pending fraudclosure bill in the Florida Senate, SB 1890, even attempts to codify this absurdity in its ” Finality of Foreclosure” section (BOLD):

    ” (3)”ƒAfter foreclosure of a mortgage based upon the enforcement of a lost, destroyed, or stolen note, a person who is not a party to the underlying foreclosure action but who claims to be the actual holder of the promissory note secured by the foreclosed mortgage does not have a claim against the foreclosed property after it has been conveyed for valuable consideration to a person not affiliated with the foreclosing lender or the foreclosed owner. This section does not preclude the actual holder of the note from pursuing recovery from any adequate protection given under s. 673.3091 by the person who enforced the note or from the party who wrongfully claimed to be the owner or holder of the promissory note OR THE MAKER OF THE NOTE or from any other person against whom the actual holder of the note may have a claim relating to the note.”

    So… not only can a thief apparently steal a person’s home in foreclosure, but that (now former) homeowner can pay twice on the note when the real note owner shows up to collect. How can the Florida judiciary allow such an absurd and inequitable treatment of the note’s maker? A foreclosure is an EQUITABLE action on a MORTGAGE, and a MORTGAGE is NOT bearer paper.

    • Attorney Wendy Alison Nora says:

      You are exactly right, triumphant. Land cannot be digitized. It does not flow freely in commerce. It is located where it is on its GPS coordinates and does not travel. It has, for centuries, been described by legal descriptions which were based on surveys. Before surveyors had accurate devices for describing the location of the land, it was described by visible landmarks.

      The UCC applies to personal property and excludes real property. The Statute of Frauds (dating back to at least 1671 in England) requires a writing to transfer land. All states have a version of the Statute of Frauds and all versions require a writing to transfer title to land. A note endorsed in blank does not create the requisite writing, which must be signed by the party against whom the transaction is to be enforced. The blank endorsement evades the Statute of Frauds because the party with the rights to enforce the obligation to pay through the courts by foreclosure is not before the court. The foreclosure claimant, “holding” or purporting to hold the promissory note endorsed in blank, is taking the equitable interest in the land from “blank:” the unnamed party. The courts are gravely ignorant of the implications of the Statute of Frauds. There are two features to the foreclosure case: the promissory note and the land. Again, the UCC does not provide rights to real property. Rights to real property are governed by the Statute of Frauds and must be supported by lawful and accurate recording of property ownership in the chain of title.

      MERS has now fallen as the “front” for concealment of the required written assignments of changes in the rights to land title. It was never more than a nominee for the lender on the mortgage. MERS created a new policy on July 22, 2011 requiring its members to have the note OWNER assign the mortgage under “penalty” of being sanctioned by MERS (which is ironic, since MERS exists only by contract as nominee for lenders and now presumes to act as a governing body–but I digress.)
      Here is the link to the page on which MERS Rule 8 can be viewed.
      The pressure we have collectively brought to bear on MERS has resulted in a written disclaimer of the right of any party, other than the note OWNER to assign the mortgage out of the MERS system. We are getting closer to the source of the foreclosure crisis: we cannot find out who OWNS the notes. Until the note OWNER comes forward to make the assignment out of MERS, the homeowner should be protected by the Statute of Frauds.

      I view the trial Attorney Weidner “lost” as a victory for the truth, which will come out now that MERS admits that it cannot afford to back the taking of lands with an endorsement in blank by whichever robo-signer fabricates an assignment of mortgage. This is not a “loss,” but rather a part of the discovery process, to get to the source of the unlawful taking of our nation’s lands and homes via the UCC and MERS.

      We are at the point where we can clearly establish that the applicable law is real property law and not negotiable instrument law. These are land title issues, not UCC issues.
      One more point I think we need to make is that without the lawful assignment of the mortgage interest in land, the debt is unsecured. ” Blank” must prove that it owns the note, is a holder in due course for value, etc. or is a nonholder in LAWFUL possession of the note. Apologies to William A. Roper, Jr. but thieves do not have enforcement rights under the UCC:
      And thieves certainly cannot lay claim to or foreclose on land titles without a specific writing. (The Statute of Frauds was specifically designed to prevent this.) “Blank” on a promissory note is not a writing which meets the requirements of the Statute of Frauds.

  • triumphant says:

    How about this logic???

    When the case files are transferred to the mills, do they contain the notes? If so, then, following the absurd logic of the argument made and accepted by the judge in your case, are not the mills then the “holders” of the notes when they receive them? Why even have bankster or “servicer” clients/plaintiffs? Why not take the next step and simply pretend that the foreclosure mills can foreclose in their own name – without a client – letting even the banksters/”servicers” stay in the shadows (like the GSE’s do), since the mill law firms may “hold” the note and apparently nobody can ask how they got it? All of this “bearer” and “holder” b.s. is to avoid TILA, RESPA and FRAUD, etc. claims that the note maker may have against “the lender” or true owner of the note and mortgage. Welcome to the Florida Star Chambers.

    • Attorney Wendy Alison Nora says:

      triumphant wrote:
      “Why even have bankster or ” servicer” clients/plaintiffs? Why not take the next step and simply pretend that the foreclosure mills can foreclose in their own name ““ without a client ““ letting even the banksters/”servicers” stay in the shadows (like the GSE’s do), since the mill law firms may ” hold” the note and apparently nobody can ask how they got it?”

      I have exactly that case pending appeal and am preparing a motion to disqualify the “foreclosure mill” as counsel. A lawyer at the “foreclosure mill” a/k/a law firm created the mortgage assignment from MERS to its “client,” one of the law firm’s partners signed the assignment for the assignee, BAC Home Loan Servicing, LP and not as an faux official of MERS (the law firm started signing as MERS officers in later cases), and a lawyer at the firm notarized the signature of the law firm partner on the assignment of mortgage created by the law firm.

      Trial counsel tried to get expose the fact that the law firm was creating the evidence of standing in the case homeowner by giving notice of deposition to the 3 lawyers involved in fabricating the assignment of mortgage. He did not it one step further to bring the motion to disqualify the law firm as being material witnesses to the facts upon which the standing was asserted.

      As to the promissory note in that case, it was finally produced at the summary judgment hearing and, of course, the endorsement was in blank. I will henceforth refer to this illusory note owner as “Blank.” At the hearing, the law firm produced a fabricated copy of the homeowner’s “original” iridescent blue ink note in endorsed to our good friend “Blank.” The law firm was then in possession of the note (and by the mistaken UCC argument, a nonholder in possession of the note) and thereby arguably entitled to enforce the note. It was then handed to the homeowner’s lawyer who was then a nonholder in possession of the note, who, by the UCC argument in error, would be entitled to enforce the note. The note produced was a forgery also created for purposes of the litigation because in that jurisdiction the use of blue ink originally was forbidden in practice by the Registers of Deeds.

      The trial court granted judgment in favor of Bank of America, as servicer for Bank of New York Mellon, Trustee of the CWALT blah, blah, blah (REMIC) trust which was never funded by transfer of the note or assignment of mortgage.

      It also is interesting to note also that BAC Home Loan Servicing, LP was created by the mere recording of a name change for Countywide Homes Loan Servicing at the Office of the Texas Secretary of State after Countrywide’s collapse and then BAC Home Loan Servicing “merged” with Bank of America in the middle of the action brought by the mortgage assignment document creating law firm. To continue with the case, all the law firm did was file a copy of the recorded merger document from the Texas Secretary of State. They didn’t even bother to file a certified copy of the merger document. When I was attacking the signature of a Texas notary, I paid the $15.00 for the certified copy of the notary’s registration. What, Bank of America does not have to pay $15.00 but the impoverished (in that case) homeowner should?

      So, in this case, what triumphant describes did shockingly occur: the “foreclosure” mill cut out the intermediary and did the fraudulent mortgage assignment paperwork itself, signing on behalf of its client and not on behalf of MERS. An attempt to examine the chain of title was denied by the refusal of the lawyers operating as the document creators to appear for depositions on oral examination. There is no precedent for law firms to create the foundational evidence for their own cases. Self-dealing does not adequately describe this situation. There is no word for it in law because it should never happen. Lawyer cannot create the chain of title evidence to prove that the foreclosure claimant has standing and escape being material witnesses and being disqualified as such.

      I have received objections to written interrogatories in another case with that same foreclosure mill upon the basis of “attorney-client privilege.” The facts were not as egregious in that case as they are in the current case for which the lawyers must be disqualified. At least in the other case, a document mill was used instead of the law firm creating the documents itself.
      The moral of this story is that attorneys who are creating the chain of title documents in-house must be subject to a motion to disqualify because they are witnesses. It is an ethics violation for attorneys for a party to testify to material facts unless they show that a hardship would be created for the client. Clearly, Bank of America could get another law firm to represent it as servicer for Bank of New York Mellon. No hardship could arguably exist.

      I have another case in which, responding to my objection that Blank could not own the note, a new note was fabricated using a bad photo copy of the objectionable note in blank,a few rubber stamps were affixed to the note (which was blown up to a larger font and had the bar codes cut off the top because the counterfeit in commerce would be obvious if two notes were circulating with the same bar codes) and for, good measure, although there will still room on the newly created and edited, bar code removed note for more rubber stamped endorsements, an allonge was then provided (showing no evidence of having ever been affixed as would be shown by photocopy evidence of imprint resulting from a staple which had been removed) signed by a person who claimed to be an Assistant Vice President of the entity claiming the ownership of the note as attorney in fact for the last rubber stamped endorsement without attaching a power of attorney. There are never any dates on these alleged endorsements and no concurrent business records are ever produced to show dates or authority for the person whose rubber stamp is being used. I tried to get discovery of the power of attorney, dates of endorsements, even production of the rubber stamps for examination. The judge in that case stayed all discovery because he was too busy to rule on the proponent’s motion to quash the subpoena duces tecum. The case was lost at summary judgment (par for the course) because my response was not in the “proper form.” (I have only been practicing law for a decade longer than the judge, who was a new political appointee from the state AG’s office criminal division and I daresay that he wouldn’t know what the proper form for objecting to summary judgment in a civil matter even is. He evidently thought that he had the power to stay discovery pending summary judgment because he was too busy to rule on a motion to quash.) I was really confounded by the rejection of my summary judgment response because it was not in “proper form” until I compared notes with another party who had also had an adverse ruling on summary judgment because the response was not in “proper form.” Then I realized that the judges throughout that state had a conference at which they decided to disregard standing arguments properly presented as a response to summary judgment as not being in proper form. You can theoretically dispute any material fact, except the essential fact of standing. If you rest on standing, you will lost the defense to summary judgment. That is why I now move to dismiss on the standing issue and preserve the standing issue thereafter when answering and counterclaiming for abuse of legal process, fraud, etc.

      What trimphant says is the height of efficiency: cut out the middle man on the proof of standing. Have the foreclosing law firm create the title evidence itself and swear to its veracity. No messy witnesses or document preparation problems here. Just claim attorney-client privilege and/or work product confidentiality to avoid discovery. The problem is that this form of misconduct is so severe as to warrant severe disciplinary sanctions and the vacation of the judgment for misconduct of the adverse party in an honest court system. Anyone want to do a Mitt Romney wager against my bet that the courts will try to hold that the homeowner’s trial lawyer waived his objections to the fraud on the court when I move to disqualify the foreclosure mills because their lawyers are material witnesses to the factual basis for claiming standing? I could use the money to fund the homeowner’s appeal.

      You have to do a number of these cases before you see that every conceivable lie, manipulation, creation of false documents (forgery), misconstruction of law and violation of existing law and procedure is necessary in every case to steal a home. This entire crisis would not have occurred if foreclosure mills and their bigger better law firms who give the marching orders and judges, state, bankruptcy and federal district, all the way up to some federal circuit courts of appeals would simply follow the existing law. Why would these people sell their souls to steal the nation’s homes? They must believe that the propaganda that the “irresponsible homeowners” caused the crash of the economy will protect them from being exposed. But the most of the subprime loans have long since resulted in uncontested foreclosures and now they are going after some of those who have the education, knowledge and experience to read the law for themselves. It is too bad that the attorneys general, such as Biden (DE) and Schneiderman (NY) are still so conflicted over the
      irresponsible homeowner blame/game deception that they are not going for criminal charges against the 5 banks who created and benefited from the forgery, perjury, wire fraud, mail fraud, money laundering, counterfeiting securities during the time frame of 2009-2011. Oh, and did anyone else catch that the proposed settlement added a year to the 2009-2010 period which the federal regulators were investigating under the consent decrees of April 13, 2011?

      To my colleagues of the bench and bar, the people are able to read the law themselves. They can see nonsense more clearly than we lawyers who tend to get lost in ivory-tower academic challenges. No, the UCC does not, never did and can never apply to real estate, unless the UCC is amended to apply to real estate by the legislatures of every one of the 50 states. And, while we are changing legislation, the Statute of Frauds would also have to be repealed. Lots of luck getting the bought and paid for legislatures to accomplish that. That would destroy the interests of the very parties who are stealing the homes. So, let’s just take away the due process rights of homeowners. The Florida legislature going for the ultimate prize: to take away homeowner’s due process rights as completely as possible. We already have such a statutory scheme in Minnesota, where homeowners have but one year to object to issues of standing. Taking away due process rights is easy. The US Senate NDAA 2012 vote of 93-7 shows that can be done quickly and without much effort.

      Was T.S. Eliot right when he wrote:
      . . .
      This is the way the world ends
      This is the way the world ends
      This is the way the world ends
      Not with a bang but a whimper.
      T.S. Eliot, “The Hollow Men” 1925

  • Maria M. Burchard says:

    I am a victim too. The same thing happened to me! GOD bless you MATT D. WEIDNER!

  • Cheryl says:

    This is why I think you should realize what you’re up against Matt, and that being a lawyer won’t solve the problem because the system you’re participating in is criminal Mafia based and has been for a very long time.

    • Attorney Wendy Alison Nora says:

      Cheryl wrote on
      February 16, 2012 at 3:10 PM
      “This is why I think you should realize what you’re up against Matt, and that being a lawyer won’t solve the problem because the system you’re participating in is criminal Mafia based and has been for a very long time.”

      Do not accept this takeover of our institutions of government, Cheryl. Stand with us and do not surrender. The judges are so terrified of the people that they try to avoid public hearings and search us as if we are criminals (or airline passengers) when we try to enter most courthouses. You are right that this has been going on for a very long time, but it need not be so.

      I stand with Attorney Weidner in defiance of those who would make lawyers who take their oath to defend the constitution against all enemies foreign and domestic cower in the face of their blatant corruption. Let the people be heard on whether a lawyer who takes his or her oath seriously should be sanctioned for speaking the truth. Public hearings are necessary before a lawyer can be disciplined, unless the lawyer agrees to the sanction. We have seen this in criminal law for a long time. Enter your plea to something and we will go easy (or not as hard) on you. Proclaim your innocence and you will face the loss of your very liberty.

      Do the citizens of this nation know that they, too, have a compact called the Constitution of the United States, which, by birth or naturalization, they are required to support and defend against all enemies foreign and domestic? This duty is not just that of our military, our police, our lawyers and our judges, it is the duty of every citizen.

      If one of us is facing discipline for some imagined trespass on the unwritten rules of the “club,” let each us of demand to be charged with whatever ethics violation they are investigating and are trying to prove. Let each of us insist on a public hearing, call in the citizen press and pack the hearing room with witnesses to the truth of our positions. United we stand, divided we fall.

      If the citizens who know the truth do not care enough to support us in such a public trial for the sorcery of speaking the truth to power, there is no reason for the handful of serious lawyers who care about our professional responsibilities to carry on. Who then are we fighting for, a demoralized citizenry which has given up on vindicating their rights? Who does not care that the system gets worse every time “the least of these” are denied their rights? It never had to get to this point, but this is where we are now.

      An old KGB operative revealed this well-known system for taking over a nation.
      1. Demoralize the population.
      2. Destabilize the institutions.
      3. Create a crisis.
      4. Takeover and restore “normalcy.”

      How often are we now hearing that homelessness and wages below the middle class standard are the “new normal.” The foreclosure “crisis” will never hit the bottom until every bit of wealth is wrung out of this nation, through theft of homes, crashing home equity, crashing retirement accounts, removing social safety nets and even reducing social security benefits. Mark my words, if we do not stand up to the banking cartels’ move to take over the wealth of this nation, there will be no social security benefits either.

      I have worked since I was 15 years old and just turned 61 years of age. When I started paying social security on my earnings, the retirement age was 65. Then, for my cohort, the retirement age was raised to 67. One of my good friends just turned 65 and is in the cohort to receive her social security benefits. Her birthday gift from the bank-run government was a $100.00 reduction in the benefits she was entitled to receive for the privilege of receiving Medicare benefits. Already living below a normal standard of living because she left the mortgage banking industry in protest against the fraud, she was eligible for state low-income health care coverage for $50.00(not that she ever uses it.) But now she is ineligible for state benefits, which included prescription coverage, and cannot afford Medicare Part B.

      We have to stand up and resist the oppression, not accept it as part of the new “normal.”

  • Dave Beeler says:

    Why is it that we do not hear about counter-suing the ” Plaintiffs ” who have a duty to ensure that they ” own and hold ” the NOTE per the filings ? ( when they do not )
    If the foreclosure mill attorneys do not have binding with the ” plaintiff ” how is it that they too are not being sued for their actions in the promotion of wrong doing and ill=will ?

  • Attorney Wendy Alison Nora says:

    Addendum to Cheryl:
    When my friend “retired” for lower social security benefits at age 63, she received the lower level of social security benefits, which set her standard of living. She could survive on the lower social security benefits without paying for the Medicare and losing her state health care benefits. Now she is $50.00 short on food and gas.

    Are we going to accept the “new normal” when we are made progressively more impoverished? Greece appears to have waited too long, progressively impoverished by austerity, and are now fighting in the streets to survive. We must take a stand sooner than the Greeks have been.

  • David says:

    Though this may sound crazy – I think folks need to realize that its time they use they same tactics – print a perfect copy of the Note – SIGN IT – then take it with you to court.

    What is the judge going to do with TWO copies and ORIGINAL signatures?

    So the judge asks the borrowers, where did you get that..? Borrowers respond, we’ve had it – it was in our docs – where did they get their copy…?

    Is that more illegal than what the foreclosure mills are doing? Is it less immoral?

    Sooner or later we must do something to force them to comply..

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