Foreclosure Defense Florida

WashingtonPost- Fallout From Jeffrey Stephan Fiasco Could Be Enormous

By September 22, 20102 Comments

We’re all struggling to see just how deep the Jeffrey Stephan rabbit hole goes, but one thing is certain…it extends far beyond FDLG and GMAC.   I’m waiting for my Rule 4.33 notices from all the other foreclosure mills that have relied upon those affidavits.


The national press now has this issue in a very big way.   Remember that lawyers like Tom Ice and Chris Immell from Ice Legal have been screaming about this for months but judges, who are supposed to know the law, apply the law and care about the law, have been objecting to the very issue that is now splashed across the pages of national media.   Ice Legal gets a huge amount of credit for this incredible development that will send shock waves through the entire foreclosure community.   And still our judges don’t seem to care…..


Examples of the Affidavits that are in question….



  • Stupendous Man says:

    This issue has thus far centered on the “affidavit of merit” submitted on behalf of Plaintiffs in foreclosure cases. Without question many/most of these affidavits are not legitimate and fail for several reasons.

    We have been informed the affidavits do not comply with Federal Rule of Civil Procedure 56(e)(1) because the individual executing the affidavit lacks personal knowledge. They also fail for another reason: certified copies of documents referred to in the affidavit are rarely, if ever, attached. The full text of 56(e)(1) is below:

    “A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits. ”

    In addition to the above it is common for Plaintiffs to submit affidavits untimely. This does not comply with Rule 6(c)(2), which states:

    “Any affidavit supporting a motion must be served with the motion. Except as Rule 59(c) provides otherwise, any opposing affidavit must be served at least 7 days before the hearing, unless the court permits service at another time.”

    Reading Rule 56(e)(1) and rule 6(c)(2) together seems to render the following:

    Affidavits in support of a motion (including a motion for summary) must be submitted with the motion. The individual executing the affidavit must have personal knowledge of the matter. Certified or sworn copies of any documents or records referred to in the affidavit must be attached.

    Courts across the country are almost uniformly failing to apply the rules and are allowing Plaintiff to do pretty much whatever they want. As Judge Tepper has implied in a Mother Jones article of 9-22-10 Plaintiffs are submitting motions for summary judgment and when the affidavit, or other evidence, is sufficiently impeached or disputed by Defense counsel Plaintiffs are simply submitting new documents (which are as likely to be bogus). Courts are allowing them to do this, even over objections raised by Defense. Tepper may begin vacating rather than allowing time for Plaintiff to fabricate more bogus documents.

    Submitting, or having to submit, new evidence is self defeating in a summary proceeding. Summary is appropriate only when it is clear “… the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law” (Fed. Rule 56(c)(2). The standard for summary is such that the record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor. If prevailing on a motion for summary requires the movant to submit new evidence in support of its motion then clearly there is a dispute of material fact and any grant of summary IS NOT PROPER. Submission of new evidence may also violative of Rule 6(c)(2).

    While the current bruhaha is centered on the affidavits of merit I am well aware that other documents submitted to courts are not genuine. The same untrustworthy individuals, the robo-signers, are baldly fabricating ” assignments of mortgage” (AOM). An AOM is needed to prove, or trick the court into believing, that Plaintiff has a security interest in the subject property and is therefore entitled to trigger the acceleration and/or foreclosure clause in the mortgage.

    The defects in these AOM’s are numerous. Most common is an immediate and fatal defect in the chain of assignments, or chain of title. In securitized transactions there are typically 4 arms length sales. This is done to limit liability of the parties involved, most specifically the originating lender. It is also done to create the favorable tax status of a trust as a Real Estate Mortgage Investment Conduit (REMIC) trust. This required series of transactions is delineated in the Pooling and Servicing Agreement (PSA), which governs the actions of the parties involved. The series of arms length sales or conveyances typically is delineated as an A to B, a B to C, and a C to D series of true sales.

    I have reviewed numerous AOM’s of properties involved in foreclosure. In almost every instance the AOM falsely expresses a sale/conveyance that could not have happened, and did not happen. These fabricated AOM’s usually express an A to D conveyance. In accordance with the PSA A can only convey to B. In accordance with the PSA D can only acquire any intersts in the instruments, if any, from C.

    O. Max Gardener wrote a brief, accurate and eloquent piece on this in August of 2009.

    There is another problem with these baldly fabricated AOM’s and this relates to the dates of the alleged conveyances. PSA’s almost universally contain language that binds the parties to New York law. New York Trust Law states that assets of a trust must be deposited into the trust within 90 days of the closing date of the trust. For example, ABC Trust has a closing date expressed in the PSA of April 1, 2005. All assets must be deposited into ABC Trust by June 29, 2005. After that date, pursuant to New York Trust Law, the trust cannot accept additional assets (which in this case are promissory notes and mortgages).

    Of the AOM’s I have reviewed of properties involved in foreclosure that have also been securitized (which is in excess of 90% of them), the chain of title alleged in the AOM is from A to D. The date on which this impossible conveyance is alleged to have occurred is well beyond the 90 day limit. In fact most of these fabricated AOM’s aren’t even fabricated until AFTER the foreclosure suit has been initiated.

    To exemplify the ” date”problem I offer the following.

    Exorbitant Rate Mortgage (A) issues a mortgage to Johnson to purchase Green Acres on March 10, 2005.
    Exorbitant Rate Mortgage conveys its interest in the instruments, and Green Acres, (p-note and mortgage) to Facade Sponsor (B).
    Facade Sponsor conveys its interest in the instruments, and Green Acres, to Big Pile of Instruments as Depositor (C).
    Big Pile of Instruments as Depositor conveys its interests in the instruments, and Green Acres, to ABC Trust (D).
    ABC Trust has a closing date of April 1, 2005.

    On September 1, 2009, ABC Trust initiates a foreclosure against Johnson and Green Acres. There is no AOM on record with the county recorders office. This is typically required by the statute of frauds which requires all contracts for real estate to be in writing. Recording statutes typically require the aforementioned contracts to also be recorded.

    On September 19, 2009 ABC Trust causes an AOM to be ” created” that alleges to memorialize a transaction between Exorbitant Rate Mortgage (A) and ABC Trust (D). This AOM is then recoded with the county on October 2, 2009.

    The important dates here are the closing date of ABC Trust, April 1, 2005, and the execution date of the AOM of September 19, 2009. The difference between these dates is 1632 days (give or take a leap year or simple miscalculation on my part). Giving ABC Trust the benefit of the 90 window, in accordance with New York Trust Law, renders 1542 days.

    The instruments in this example could not have been deposited into ABC Trust at this late date as it is beyond the 90 window. Neither could the instruments have been conveyed from Exorbitant Rate Mortgage (A) directly to ABC Trust (D).

    I am continuously amazed that courts are disregarding information and evidence of this nature, and in contradiction the facts, rules and laws are granting foreclosures to plaintiffs. Even the simplest of inspections of evidence being submitted causes the complaints and arguments to fall flat.

    I am thankful to any and all media for continuing to make the public aware of the shenanigans involved on the part of Plaintiffs, and Plaintiffs Counsel, and the unwillingness of our courts to offer due process of law and equal protection under the law to Defendants in foreclosure, as well as the courts improper application of the Rules of Procedure and Evidence and courts apparent refusal to rule in accordance with the facts, rules and law.

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