The recent announcements that BofA and GMAC are moving forward with their foreclosure files, some of which are tainted by flawed or fraudulent evidence is terrifying confirmation that our country has been taken over by the banks and institutions that are too big to fail. Our courts, and especially our circuit court judges, who are the last line of defense against the wanton abuses of the uber powerful, have proven almost universally unwilling to curb any of the abuses that are occurring hundreds of thousands of times a day all over this country.
We know the powerful elite will extend their power and abuse all those beneath and apparently any quaint notions that our court systems exist to protect from these abuses are just that…..quaint notions. Our courts have proven totally unwilling to stand up and protect consumers. As reported in the Washington Post and New York Times, some circuits and judges are more willing to ignore the laws and trample fundamental Due Process Rights (supposedly guaranteed by the United States Constitution) than others. Clearly those courts run by judges who “don’t have the time to review the documents” are governed by one Constitution, while those courts where judges actually do review documents are governed by the Constitution I believed in. When this all blows up, the different standards of review and court procedures will expose which courts are governed by which Constitution.
The same fundamental problems that first exposed Fraudclosuregate still exist. Those problems are only being compounded by judges that are allowing the cases to move forward with no penalty and with no review.
This is not the end…of Fraudclosuregate at least. The banks have not won. They’ve just driven us deeper into the abyss. They can engage judges in the charade of forward progress but the faults that exist in the files polluted by flawed and fraudulent affidavits still exposes all involved to substantive liabilities that will continue to exist. The defendants in the homeowner cases know they exist and the bank bondholders and investors know they exist….you cannot just wish that away.
And back to that fundamental question….what is the point of all these flawed foreclosures and their toxic titles? Why don’t we clear out the existing inventory of bank owned property, keep the current homeowners in place under modifications then restart the process when the fundamental problems are corrected?
On a local and very practical level, why are our judges not dismissing these foreclosure cases with flawed affidavits that have been withdrawn as a sanction for fraud on the court? Perfectly permissible given the circumstances and a reasonable response, but none of that seems to matter anymore…we’ve got more flawed fraudclosures to get through. And yet, our courts still have not learned the lesson from the first Robo Signer Scandal. The most damming aspect of the robo signer scandal is that it might not have been so grand is scale or magnitude had our judges simply required these foreclosure mills to comply with the black and white letter of the law regarding affidavits, found in the Florida Rules of Civil Procedure, Rule 1.510(e)
(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
I have NEVER seen sworn or certified copies attached to any affidavit used in support of summary judgment. This is the reason I have written repeatedly that…
there is not one single piece of admissible evidence to support the entry of summary judgment in the vast majority of foreclosure cases filed in this state.
Why do we even bother with Rules and Laws if we are just going to allow them to be ignored in such a systemic and widespread way? If an entire state’s court system will just ignore it’s own rules cannot/ should not the federal courts step in and enforce them? Are not the rules in place to ensure Due Process and if the Rules are ignored is not Due Process being ignored? (even if the case is not contested?) Aren’t Due Process protections in place to protect not just the parties to litigation, but the process as well? More screaming into the wilderness here….because the new flawed affidavits are of exactly the same character as the old flawed affidavits in this respect but our courts don’t seem to care.
Finally, read the comments posted below which are part of the Florida Supreme Court’s Task Force on Residential Mortgage Foreclosures. Read especially the comments submitted by the judges which warn of the problems we are seeing now. Read especially the detailed concerns one judge in particular had with inflated/fraudulent charges for Service of Process….we have a very hard time learning from our mistakes….