Some of the things I’m seeing and experiencing in these foreclosure wars make me feel like my head is going to explode. The motion attached to this post is one such example.
The motion is unprecedented. There is no precedent in judicial history that provides any authority or support for the actions sought in this motion.
The foreclosure mills and their clients have caused themselves and this entire country a profound mess…now they want our courts, our circuit court judges to sign off on their misdeeds. Judgments and sales that have been entered based upon fraud are Void or Voidable and you cannot avoid that by seeking judicial absolution after the fact. All parties who have been affected by these judgments are entitled to their due process, to appeals and to having those judgments vacated, not ratified.
These motions should be treated as Motions to Vacate Final Judgment and Cancel Sale…
This really is mind blowing….read the motion….
A) The correct form for a reply to a motion is a REPLY not a cross motion.
B) Defendants 1.540(b) motion should be heard first. If defendant proves the motion to set aside Plaintiffs motion becomes moot.
C) ” A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive.” See Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA1991).
This seems like a good point to start from.
Fraud in preparation of affidavits for SJ is in part addressed in FL. R. Civ. P 1.510(e) which allows for sanctions on parties and attorney – not to mention any other criminal action for perjury, and ground to amend AD’s for fraud and unclean hands.
The motion it’s self may be further grounds for sanctions in that arguing a judgement gained by fraud should be upheld is clearly frivolous.
The argument made in the memorandum of law, (which is no place to be making argument), is basically “whether the asserted grounds prejudiced or “affected” the final judgment” under Rule 1.540(b)(3).
Since the affidavit of amounts due and owing is a key document in a foreclosure case, and there is no way a competent court would have granted a summary judgement if it was missing, the argument is a complete red herring.
Of course the document was a prime bit of evidence and affected the final judgement, where else did the court find the dollar amounts for the judgement or the necessary fact of a default ?
Suggesting an invalid affidavit of amounts due and owing did not affect the summary judgement is patently absurd.
It is very inportant that this case be clearly argued in written motions and replies in the lower court before the 1.540(b) hearing, with the view to establishing a good record on appeal, and giving the appeal court good fodder for a well worded take down of similar motions.
Then the issue should be pressed home, at the Appellate level. The Appellate courts know this is coming and are probably waiting for a first impression on the matter of post-dated documents attempting to correct fraudulently obtained summary judgement cases.
We need to get a clear Appellate decision that this is completly out of bounds, otherwise the very inportant 1.540(b) process will be nurtured and all sorts of fraud will be later cured, post judgement. Which will in effect open the gates for more fraud in the court, because it can be rectified later, if discovered.
The rule must be bright. If you commit fraud on the court, you jeopardize any favorable ruling you may have gained and risk having your pleadings struck and sanctions.
There should not be a post judgement method of cure for prior fraud, otherwise it only encourages it.
Isn’t it interesting that they are pleading their own fraud as grounds for the remedy they are seeking? This law firm has lost its collective mind. I have never seen a party use its own fraud on the court to seek a remedy. It is the homeowner’s lawyer’s duty to respond with Motions to Vacate Summary Judgment and Cancel sale, emphasizing that Deutsche Bank is seeking relief from its own fraud. Clearly, your court system and none that I know of will act in the “interests of justice” and deem the pleading to be DB’s Motions to Vacate the Judgment and Cancel the sale. The courts have to be given direction from homeowner’s counsel and we need to demonstrate the absurdity of such a motion. It is not surprising that the moving party is DB. Google DB and you will find that homeowners may have the right to remove future foreclosures from DB to federal court on the basis that it is a suit by an entity from another nation. Also, check Taunus corporation, the US subsidiary of DB, which is a private, German bank.