The national media is now picking up on a major issue in foreclosure cases that we’ve been raising in this office for months now….the fact that most foreclosure judgments entered in this state are entered with no admissible evidence whatsoever. Think about that. The Florida Supreme Court estimates that there are over 500,000 foreclosure cases pending in Florida and I’m suggesting that most judgments should not be entered because they Plaintiff has not met its threshold burden of introducing the evidence it needs to prevail in its case.
Legal Analysis- Something is Very Wrong In Foreclosure Court
The issue first came to my attention when a law student came to work for me and started questioning the basics of foreclosure law. This young lawyer, Michael Fuino drafted a memo then questioned how judges accepted the affidavits stuck in all my foreclosure files. Now most times, when you get memos or pleadings from a law student, they’re all over the place…citing the Constitution and the Magna Carta and all sorts of law and rules that have no place in a fast-paced law office. But this memo was different. It was concise and dead on point. I attach it right here for all the world to read:
We continued fleshing this issue out and from that small beginning, the memo was crafted into the motion that appears below:
That memo and then that Motion helped develop the legal analysis that made it’s way into a courtroom transcript which appears below:
And then finally, the national legal news media picks up the story, found here:
Law.com – New Strategy in Foreclosure
I sat in a courtroom yesterday and I watched foreclosure file after foreclosure file get churned through and judgment entered. It pained me to watch this process. I remain and will remain very much bothered by the physical sight of seeing those files, one right after another signed, foreclosure judgment granted. There wasn’t even an attorney for the Plaintiff present. No attorney to confirm the facts in the file or whether the Plaintiff still wanted judgment. Granted there was no attorney or defendant there to oppose the garbage in the files, but what about the fact that there wasn’t even a Plaintiff’s attorney to support the file going forward. The collective value of these judgments was millions of dollars and the law firms that filed these cases cannot even send a flunkie lawyer to push the file through? Were the homeowners in a workout plan? Were they in modification? Were the assignments fraudulent? Were there really original notes in the file? Did the defendants receive service of process? Who was the lender getting all these properties? Who was really owed the money?
NONE OF THOSE QUESTIONS MATTERED IN THE SLIGHTEST BIT…..JUST KEEP CHURNING THOSE FORECLOSURES THROUGH.
I hope that all this will can be righted someday. I hope that we will all take a deep breath and think about what we’re doing here.
In your link to the motion you have instead linked to the Subpoena Duces Tecum. It would be instructive if you could link to the motion that you are refering too, instead, or as well.
I think the original memo of law is good. I think it would be instructive to do a check list of things that should not be in Affidavits of proof in foreclosure cases and also what is commonly missing that should be there, when for example someone is testifying about examining computer records but is not actually the custodian or had control of the input process.
I see many affidavits that to me scream for a motion to strike from the record or motion in limine to exclude from a hearing or trial.
Frequently the person testifies about records that are not attached, or that are not orignal records but computer summary from the computer of a later party, or that make conclusions of law or that attest to the veracity of the pleadings.
A guide to what to look for, and the case law for that would help a lot. Frequently attorneys don’t have time to read and re-read the affidavit to pick up all the flaws. This is something their clients or pro se people do have time for.
Figuring out who the person really is, and what records they are attesting to is a bit of detective work, but finding that out may make a motion to strike valid and may even be foundation for a motion for sanctions.
A lot of attention has been put on the Assignment of Mortgage and issue of standing, which is obviously justified, but not always dispositive when Plaintiff ‘finds’ the note which is now magically endorsed in blank.
There are other parts of the elements of the action which are also subject to direct attack, and at least in the SJ stage, should provide another level of materiel facts in despite.
The Affidavits are not often addressed in the Affirmative Defenses becuase they are not often attached to the complaint, but if the case goes to appeal it is useful to have in the record a well founded written attack with supporting case law. How that becomes part of the record is a case of litigation strategy, but a motion to strike them seems one obvious way. (Although if done early in the action they could be later refiled with the deficiencies corrected.)
Either way, thank you for the orignal memorandum. Please post the actual motion, and please consider expanding on the issue of what is and is not allowed in supporting affidavits, and why. I think it would be instructive to all.
Oh, and as far as mortgage “custodians” of the record go, most of the records are not on a computer under their control, the only thing under their control is the computer terminal or PC on which they pull up records from a distant server, often stored in a diffrent part of the country, sometimes in the computer servers of a third party data processing service. (FIS)
If you have screen shots from a “3270 Explorer” across the top –
OR
printouts titled “Customer Account Activity Statement” and on the top left say “REQ BY XXX” where XXX is the persons login ID code, contact me. I believe these are from a system owned and maintained by FIS.
The first two of these files is in docx format. My equipment isn’t able to deal with those.
Could I lean on your to offer a pdf version of same?
Why is it the Florida Bar has closed its eyes on all these fraudulent documents being used? Why has it remained silent? How come it has not filed “friend of the court” briefs opposing these perjured documents? How come they have said nothing about these perjured notary attestations? Why are they sitting by the wayside while member lawyers bring all this fraud into courts? The Florida Bar owed the people of Florida justice by all its members adhering to the code of conduct. The Bar should be right there investigating the same lawyers that the Attorney General is investigating. The sanctity of the court has been whored.
Lit Gant