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?