Okay...so I've been screaming: "OUTRAGEOUS! and ABUSE! and THE BANKS ARE OUT OF CONTROL!" - for so long now that my voice is hoarse.
But today was published what is by far the most OUTRAGEOUS foreclosure opinion issued by an appellate court...it's just mind boggling.
Now...I thought the opinion released in just a few weeks ago in our case Pealer v. Wilmington was bad. So bad in fact I called it, "TERRIFYING" I characterized it as TERRIFYING because the opinion featured the appellate court recognizing that even though the trajillion dollar banking industry with their teams of lawyers and limitless resources did not raise issues at trial court...and they did not raise those issues in either the appellate court or the appellate court briefings...AND THEY DIDN'T EVEN RAISE THOSE ISSUES ON APPELLATE ORAL ARGUMENTS.
The appellate court nonetheless stepped in and issued what can only be characterized as an advisory opinion....
"Hey, Bankers...even though you are a multi -trillion dollar industry with armies of lawyers who have not raised these issues.....here's what you need to do going forward."
So not only are citizens and the attorneys that support them and their rights fighting the banks...we're now fighting the courts that are doing their work for them. But today's opinion gets worse....so much worse...it goes so much further than anything I can conceive in even my most conspiratorial dark nightmares. Just like in Pealer, we have the court stepping in to provide not just guidance to the banking industry...this opinion features the judiciary directly lobbying the Florida Legislature in the context of a published appellate decision. And once again, here we sit as consumers and as citizens fighting not just a powerfully and obscenely out of control banking and corporate industry...and not just the legislative and executive branches that are funded by those same corporate interests...now we've got the judicial branch putting their collective weight and digging hard into the fight for the banks as well...acting not just in their capacity as appellate judges, but now acting as lobbyists for the banking industry in the opinion just published in the case, Shaffer v. Deutsche Bank.
One of the more ironic things about this opinion is the overall opinion is a WIN for homeowners and their very excellent attorney Jacqulyn Mack. The bank...relying upon (once again) a parade of "dubious" proof (more on that later), could not prove standing, so the case is reversed. Here's the line from the opinion which is so damming of the banking/foreclosure industry and serves as an admission from the appellate court about so many of the things that are wrong about what the banks have been permitted to get away with:
"It appears that many foreclosure judgments are entered based on dubious proof by the banks."
Shaffer v. Deutsche Bank, 2D14-4205
Now, what I interpret the above sentence to mean is that court recognize just how "fast and loose" banks have been permitted to play with what they submit to courts in support of their judgements. "Fast and Loose" goes on a spectrum from outright fraud and forgery with fabricated numbers to coached testimony and "personal knowledge" and "knowledge" or "evidence" that isn't really any of that at all. On the abject fraud end of the spectrum are cases with absolutely forged notes, just like in my case from the 2nd DCA Sanbria. But what we're reading here now from the appellate courts is things like that don't matter because if you as a consumer and you want to raise issue...ANY ISSUES AT ALL....with how the banks are playing fast and loose....this court suggests that an appropriate way to deal with these issues is that a consumer must first make disputed mortgage payments into the registry of the court.
Well now...isn't that just an interesting response to what we all know are "dubious" practices by the banks? In this case, the judgement is reversed because the bank failed to prove they have standing to collect that money, but this case is the vehicle used to present, for the very first time, the suggestion that a consumer should be required to make payments to the court as a condition of raising any of these issues. So shared below here is the text which is taken directly from the published appellate court decision. What I find so compelling about it...so disturbing is it finds an appellate court judge very directly and specifically lobbying the legislature on an issue that so clearly benefits one side in litigation...and one very powerful one at that:
From the Shaffer opinion:
So...did you read that? Did you see how direct and specific this lobbying is? I've been a lawyer for a very long time...I've been defending consumers and citizens and, during the course of my career, I've digested untold tens of thousands of appellate decisions. I've never read an opinion, rendered in the context of an economic dispute in which a court offered such a dramatic departure from existing policy and law and which provided such a dramatically one-sided benefit to one class of litigants....irrespective of the relative economic, political and legal power of the other.
SOME CLOSING THOUGHTS AND MY CONCLUSION
We live in very dangerous times in this county. More and more the general population and citizens understand that ours is not a government of The People, but the government is rather one that serves the corporate interest...and the interests of those that pay campaign contributions and maintain their seats of power and position through money and influence. The recent national election...and the continued turmoil that we are all experiencing and will continue to experience is just more evidence of a population that is growing even more frustrated.
In this climate, more than ever, the general population, common citizens need the protection of judges and a judicial system that will serve as some counterweight to an opposition that is so unbalanced. And yet, the judicial system, both nationally and especially in this state, is under attack. In Florida, the legislature...in direct retaliation for principled decisions they have rendered on cases like voter fraud and legislative overreach...have introduced legislation that would fundamentally change the nature of our state's judges and judicial system. It's hard to tell whether decisions that are coming our of courts are a direct result of these changes....or whether they are reflect other changes and influences that our courts are facing....but the considerations are quite troubling nonetheless.