There is a very real and a very profound battle raging across this country. Actually there are many wars and they are not just limited to this country. All around the world in fact, real people are rising up against the overreaching and the abuses of the banks and the power systems that have destroyed our economy, enslaved people and laid waste to our naive notions of due process and justice.
One of the battlefronts in this country are foreclosure courtrooms where dedicated advocates stand up for consumers and fight against the banks and all the power and influence they bring to bear. Every battle is an epic struggle not unlike David taking on several Goliaths all at once. These advocates fight the banks with their armies of lawyers (paid at $600/hour with taxpayer funded bailout money.) and they often fight an entire system predisposed to strike anyone who dares to challenge the awesome power bent on crushing any resistance that dares to stand in the way.
Without a doubt some of the true superheros in this battle are the warriors at Ice Legal in Palm Beach, Florida. The national news has repeated sung their praises, but I daresay not many have actually read the work that lies at the heart of the battle. But today, you can have an insider’s look.
Now, the Glarum case should not have been all that extraordinary. As a good local judge reminded me recently, “That’s always been the law in this state!” But the banks have responded as if the Glarum opinion will mean THE END OF THE WORLD AS WE KNOW IT! The banks have already begun an all out, full stops campaign to attack this decision…and I’m guessing they will bring every single power they can to bear in an effort to attack this plain and clear restatement of the existing law.
I encourage you to read each brief carefully, but before you get there, have a read of a few of my favorite highlights:
In short, appellants argue that it may look like a duck, and quack like a duck, but the court would need a zoologist to testify that it is in fact a duck before it could make that finding.
To adapt the BANK”Ÿs own metaphor: the bare, unsworn statement of its attorney that something looks like a duck and quacks like
a duck is not evidence of a duck.
In Florida, all averments to fraud must be pled with particularity. Rule 1.120(b), Fla.R.Civ.P. (2009). In this case the Appellants amended their answer twice (R.VoI.Three pp.566-567) and never alleged fraud as an affirmative defense. See Supp.R.pp.553-555. They have, however, thrown it around the court room quite a bit.
Section 90.902(8), Florida Statutes (2009), provides that “[ c ]ommercial papers and signatures thereon and documents relating to them, to the extent provided in the Uniform Commercial Code” are self-authenticating. While the Assignment is not commercial paper it is related to the Note and is self authenticating pursuant to 90.902(8). HUH?
The BANK takes the sanctionably irresponsible position that the trial court”Ÿs ” factual determinations” in entering summary judgment are to be reviewed for ” an abuse of discretion.”1 It is elementary that, if the trial court made factual determinations, it erred in entering summary judgment. Coquina Ridge Properties v. E. W. Co., 255 So. 2d 279, 280 (Fla. 4th DCA 1971) (Summary judgment
reversed because ” [t]he trial court may not try or determine factual issues in [summary judgment] proceedings; “¦ substitute itself for the trier of fact and determine controverted issues of fact.”) Not surprisingly, all the cases cited by the BANK for this standard of review
having nothing to do with summary judgment.
Worse than merely misstating the standard of review, the BANK actually employed this incorrect standard throughout its brief. One glaring instance is the BANK”Ÿs contention that summary judgment should be affirmed because ” there was not enough evidence to allow Judge Sasser to rule in [” the OWNERS”Ÿ] favor at the summary judgment hearing.” Another example is its statement that ” [i]t cannot seriously be argued that what the Appellants have identified as evidence”¦was enough to allow Judge Sasser to make a finding in their favor.” While the BANK”Ÿs stunningly frivolous assertion regarding the summary judgment standard of review would never have misled this Court, it is nevertheless emphasized here because it is indicative of the BANK”Ÿs lack of concern for accuracy and candor when addressing both this Court and the court below.
Correction to the BANK’s Statement of Facts: The BANK tells this Court that the promissory note, mortgage and assignment were ” all”¦duly recorded in the public records.” There is nothing in the record to suggest that the promissory note was ever recorded.
As often occurs when a proffered assignment of mortgage encounters evidentiary snags, the BANK now claims that it ” does not need the Assignment to prevail in this case.”
Having failed to adduce evidence to support its allegations of standing, the BANK cannot now change to a different allegation of
standing during the appeal.
The BANK ridicules the OWNERS insistence that the original mortgage be authenticated as ” bizarre” because ” if it is not the document they executed, they should feel free to say so.” Quoting the trial court judge during an evidentiary hearing, the BANK suggests that the OWNERS should know if the BANK”Ÿs documents are authentic, simply by looking to see if its terms match the copy they received at closing.
