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Foreclosure Defense Florida

Judge’s Order Cancelling Foreclosure Sale- What if This Wasn’t Caught? What if The Sale Went Through?

I attach here a copy of an Order signed by Judge Charles Roberts in Sarasota on February 26, 2010.   Please take time to read it carefully.   In it, the judge makes specific findings of fact that the Plaintiff:

1. Failed to show it was entitled to foreclose;

2. Failed to show it was the holder of the note and mortgage;

3. Failed to establish any admissible evidence to show that it validly held the note and mortgage.

Caught one Stinking Fish….How Many Got Away?

The fact that these major issues were caught is good.   The problem is, how many tens of thousands? tens of hundreds of thousands? millions? of judgments of foreclosure have been signed across the country when the Plaintiff:1. Failed to show it was entitled to foreclose 2. Failed to show it was the holder of the note and mortgage 3. Failed to establish any admissible evidence to show that it validly held the note and mortgage.

I believe there are tens of thousands, maybe hundreds of thousands of judgments entered across the state (millions across the country?) where this is the case. I believe depositions of key employees at document preparation mills and foreclosure mills is going to reveal assembly line document fabrication which purports to give Plaintiffs a basis for forecloure, when no proper evidentiary basis exists.   At some point in time in the foreclosure files that the mills have rushed through are going to be carefully examined..if not by defense attorneys what about junior lienholders, certificate holders, bondholders, investment firms….when that happens now we’re talking major problems.

What happens when the assignments of mortgage were improper/fraudulent on their face?

What happens when the note and mortgage and allegations contained within the pleadings are all inconsistent, yet Final Judgment was entered based on “facts” that are of record that do not support that judgment?

And now my final question of the post….WHY ARE PLAINTIFF’S FIRMS/LENDERS BOTHERING TO GET ASSIGNMENTS OF MORTGAGES AT ALL? If Johns v. Gillian and the law as it exists is that lenders do not need an assignment of mortgage, why bother with word processing hundreds of thousands of assignments of mortgages in law firms and document mills all across the country?   In many cases, lenders are coming to the table with original notes. Ignore for the moment how they got them and what entity purports to hold them.   Ignore for the moment that the endorsements/allonges are sloppy/inconsistent/questionable on their face.   Even if a proper lender couldn’t come up with a note, they could still re-establish the note through a copy and there would be no need whatsoever (if the whole “mortgage is but an incident to the debt” argument remains valid) to have an assignment of mortgage.

Why are document mills and foreclosure mills working weekends and around the clock to spit out assignments that purport to transfer mortgages out of MERS and other lenders/entities and into other entities that we no nothing about?

How are we allowing tens of hundreds of millions of dollars to be transferred into things like “The IXIS 2006 Certificateholder, Asset Backed Trust”?

Do judges/courts have any idea who these entities are?   (I’ll answer that one, the answer is no.)

Why are courts across the country transferring bajillions of dollars into alphabet soup entities that no one has any idea who controls or where they are located or what rules apply?

Why Are Courts in Florida Continuing to Rely on Legal Reasoning That Existed in 1938?

Remember that the Johns v. Gillian “mortgage is but an incident to the debt” reasoning applied in tiny little town where parol documentation and other evidence existed that supported the foreclosing lender’s claim to ownership of both the note and the mortgage. Remember Johns v. Gillian is a 1938 case! The judge probably knew everyone in his courtroom (he probably knew the lawyers since they were snot nosed kids running around town kicking cans.   He probably walked past or rode a horse past the property in question each day.   And remember the Johns reasoning applied decades before MERS was even conceived of….Johns simply cannot stand true in the MERS environment…here is Greg Clark’s splitting/Kessler v. Landmark reasoning….Johns only applies when the mortgage and note were not separated right from the very beginning.…How can the Johns reasoning apply in the MERS environment?

Consider all the cases, including WM Specialty v. Saloman and Chemical Residential v. Rector….assignments were of record in those cases and other evidence existed to support claims of ownership.   There is almost no additional evidence of ownership or interest in the cases that are being shoved through courts other than a few questionable documents…..but again the burning question….

Why The Assignments of Mortgage?


  • A comment from Greg Clark

    I posted my comment. I hope your readers read and start asking questions.

    Here it is:

    Thank you Matt for your efforts to bring this and other critical issues to light.
    I am proud to have you in JEDTI: Jurists Engaged in Defending Title Integrity. We are nearly up to forty knights (and one a former Shapiro-Fishman associate, a defector from the darkside) and our Round tables are growing in size and intellectual debate.

    Let me give you the short answer to your question of “why the MERS assignments”, if Johns Gillian and its progeny applies: IT DOESN’T and the higher ups, who didn’t want to spend $10.50 (to our clerks of court) to do just one extra assignment, know it.

    You see, the original introduction of MERS was post closing, that is, the note and mortgage were, at inception, put into the name of the original lender so you had compliance with the rule of common law, of unity of title of the note and mortgage into one holder. It was after that that the unenforceable attempt at splitting the note from the mortgage, by assignment, occurred, which assignment Florida law holds as a nullity (see Vance, Sobel, etc.).

    So the assignment being invalid simply means that you go back “revert’ to the original transaction which was clean and unified in one holder, thus John/Gillian would have applied.

    But now it doesn’t because of that extra $10.50 the lenders and mers wanted to pocket. Almost immediately after they started the post closing assignments lenders saw that $10.50 expense and decided to instead split the note and mortgage at the closing, AT INCEPTION, and, in essence, keep the money for themselves (ah, multiplied by 50 or 60 million loans that works out to 5 or 6 billion dollars if my math is right). Problem is that Florida law, which follows the common law of almost every state in the union states that bifurcation of the mortgage from the note renders the mortgage unenforceable, a nullity, was ignored.

    This basic principal against note/mortgage splitting was reiterated in the U.S. Supreme court in the Carpenter case a long time ago, even before Johns/Gillian.
    To date their exists no statutory or case law abrogating this fundamental concept of property law, which we inherited from English common law, unmodified.

    MERS and the foreclosing lender proxies simply hoped (and still hope) they can moonwalk away from the scene of this title failure with these invalid assignments hoping no one notices the fact that an assignment can rise no higher in dignity that the failure of title upon which it is based.

    Whats more, even poetic, is that the “MERS mortgage” (even if the court wants to ignore this fundamental failure of title at inception) contains no right, in the grant of the mortgage, allowing MERS to assign its duties as NOMINEE or to transfer or otherwise assign the mortgage.

    They have painted themselves into a legal corner.

    I’ve been practicing dirt law for some 30 years, writing title, crafting grant language, and chaining ownership, ect. and I understand that most if not all judges were former ligitagors who simply have no knowledge beyond their law school years in this subcategory of transactional practice and procedure, other than rubber stamping SJs presuming the plaintiffs bar will not lead them into error. (see and read the recent BAC Funding case out of our 2d DCA)

    Its the same reason most people sit down and sign closing papers without thinking or reading them: because we have (or had) a solid and fair system or real property law in place for nearly a thousand years behind it each and every one of those deals.

    It is now in great doubt whether it is fair or solid or even legal, with the disabling injection of the MERS mortgage and invisible lender lien holder now clouding our record titles.


    • Greg Clark says:

      I re-read my post and said yikes! look at all the mis-spellings and bad grammar.

      Anyhow, what mystifies me most is why they took such a big chance. You would have thought that they would have at least tried to to adopt nationwide recording/title law changes to allow the MERS mortgage splitting concept. I mean, they undertook the UCC article 9 changes which passed the 50 states to allow the securitization of debt, but they forgot to include the MERS configuration into the changes. They just assumed the real estate mortgage would simply tag along like a caboose into article nine. They rolled the bones that they could circumvent each states legislature and do a private deal with MERS. They likely feared the states would object to the degradation of their record title statutes and the evisceration of their public recording systems, not to mention the loss of recording fee revenue.

      MERS, by the way is a privately owned company funded and financed by the big box lenders and, guess who else?: The major title insurance companies and ALTA (American Land Title Association). This conflict of interest relationship does not allow for the independent accounting or transparency the public should have when it comes to the biggest investment of our lives. A guy like me who wants to investigate title to make sure my client gets a clean and clear deed or new mortgage can’t determine by relying on the public title records who owns the old mortgage loan that needs to be paid off. We simply run into the MERS strawman and have to hope they give us true and accurate info – if they give us any info at all – as to who to payoff to free title.

      MERS is not a government agency looking out for the interests of the public. MERS is a profit driven closely held corporation. They openly seek to privatize all of our public records as they relate to real estate mortgages. Absolute power through control of information.

      Absolute power, vested in the hands of private corporate interests.

      Hardly egalitarian in a free democracy and open economy.

      And this is why note/mortgage splitting, something that is already in derogation of our common law, should not be allowed.

      Its just bad business.




  • Mary Ann Zink says:

    Dear Matthew:
    I am in the midst of a foreclosure that has not yet been filed by the bank. I vacated the home and agreed to sign a deed in lieu of foreclosure which was rejected by the bank. A Mediation by an impartial firm was set up by the bank to be held on March 8 in Bonifay, Florida. I am to appear by phone. The mortgage was in my husband’s name-not mine. He is deceased. Both of our names are on the deed.
    The original mortgage is with Option One, but then the mortgage holder became H&R Block and Wells Fargo (the last two may be the same company?) and continually serviced by AHMSI. How do we stand on the bifurcation status? I have requested the loan documents after Option One and they are to be sent to me. I have the original document with Option One. After reading your article online, I was curious, in light of my situation.
    I would like to return and stay in the home, but that seems to be out of the question. I am concerned about the debt owed. Please read the following page.

    Here is the home’s status:
    My husband and I, with the use of subcontractors, build a home in Sarasota, Florida. It turned out well and was financed by the VA and paid off. Thinking we knew what we were doing, later on we decided to build a home on some property we had in the Florida Panhandle. Our children liked the outdoors and it was located in a rustic resort with horses, two lakes, boats, pool, tennis courts and restaurant, etc. We ordered a steel kit frame so it looked like a commercial building was going up. My husband had been in the structural steel business. The kit came with over 1000 horizontal members which were to fit together like an erector set. A steel contractor put up the vertical (I beam columns) and roof steel and my husband installed the horizontals to keep within the budget. It was soon noted that almost all of the horizontals (channels) were miss-cut and required field fabrication. Also, the frame was larger than ordered. We tried to negotiate with the supplier since this was too much for my husband. To make a long story short, after many negotiations failed, he ended up field cutting the huge amount needed, had a heart attack and then a stroke. We had a construction loan from Indy-Mac for $108K in 2006. We hired others to finish and had to add $70K to our mortgage and there was a time delay also, where they added a fine. The construction loan was to turn over to a conventional mortgage of 196K. Indy Mac refused to convert it and told us to go elsewhere and charged us a total of 255K principal, instead of 196,000 which we borrowed, and they referred us to a subprime lender. As soon as the house was finished we put it up for sale on the market. This was just as the home sale crisis hit. My husband returned to his job and had a pretty good income, so the subprime covered the mortgage but added about 50K and now we owed 309K. The mortgage payment was $2400. It was difficult but we began paying. Then my husband had additional serious health issues to include an ulcer and could no longer travel as was required by his job. He took a lower pay job. We applied for a modification. Unfortunately it took years to get. Much of this time my husband became more ill and we could not afford to move. Once we a missed a payment and were in negotiations for a modification- our payments were refused and returned. We finally received a modification in February of 2011, and the new payment was 2100. The new principal was now $422K. We paid the $2100 until my husband died in June, 2011. I offered to sign a deed in lieu of foreclosure but the bank refused to accept it. Instead they set up this Mediation. The mortgage was only in my husband’s name. The deed was in both names.
    My Current Income:
    The only income I have is social security retirement $1051, and unemployment $275 a week, which is unpredictable. I may get $1200 additional from a pension in June. Right now I am with my son in Texas. Any offer I can make is unrealistic due to the amount of w worth much less.

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