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Foreclosure Defense Florida

Why The Rally in Tally? The Foreclosure Mills and MERS Represent A Fundamental Breakdown in Law And Institutions

The Fight for Homeowner’s Rights that we’re taking to the Florida State Capitol at 9:00 am tomorrow morning is not just about defending homeowner’s rights.   While that is key, it’s frankly much bigger than that. What we need judges, legislators and the public at large to understand is that the foreclosure crisis as it is now being played out in our country’s courts, presents a clear, present and grave threat to our most important branch of government….the judicial branch.

A Short Explanation of the Greatest Con in The History of Mankind And Why We’re Going to Tallahassee

This country and in fact the world economy was brought to its knees by the fraud and games played by the banksters. They conned the people when mortgages were originated, the institutions conned each other when the packaged and traded the pools of loans and they conned our retirement funds and the investment houses of our allies abroad when they packaged and sold these mulit-million dollar pools of consolidated fraud.

When the con was discovered, the federal government stepped in and payed off the investors because they were “too big to fail”….and the consters took more profits of the top of the bailouts.   When the feds provided money to rehabilitate the servicers and lenders (more than $75 billion to dates), they pocketed that money and are not using it to help the American people.   Now the lenders and servicers have moved the end product of their con into the courtrooms all across this state.   Rather than admit the problems they have and own up to the fraud and lies that have infected their entire industry-wide business practices, they are perpetuating the con artistry and creating still more fraud and deceit.

Document Mills filled with Robo Signers toil away 24 hours a day creating patently false or facially questionable documents based on instructions from the con artist lenders and the foreclosure mills they have retained.   The documents created in these mills almost never have any basis is known facts and are often patently incorrect.   When these documents are next formally or informally entered into court cases by attorneys, they become evidence.   The documents are not evidence that proves a right to foreclose….they’re the final piece of documentary evidence of an industry that went wildly out of control.   For too long, judges relied on this “evidence” as the basis to throw good homeowners out of their homes, but that is changing.   Defense attorneys have caught onto the patterns and practices of fraud and deceit and now judges are beginning to see this evidence not as evidence to support foreclosure, but Evidence of the Greatest Con In The History of Mankind.

We all need to support our judges….we all need to do our jobs better.   Preserve the evidence.   Hire court reporters for every single hearing. Examine all evidence carefully and make proper legal objections to that evidence.   Understand the rules that apply in court and the case law and statutes that govern our courts then make them apply in court cases.   Recently Judge Rondolino examined all the case law surrounding the introduction of affidavits in foreclosure cases and came to a conclusion I had months ago….the affidavits admitted in virtually every foreclosure case are completely inadmissible and cannot be used to grant foreclosure.   Read the transcript of this hearing here.   This issue first came to light when a third year law school student working with me, Michael Fuino, examined the process and questioned the basic assumptions we had all been operating under….the point is it took a third year law school student to catch an issue that we’ve all been incorrectly working under for years and which affects literally million of cases across this country.

The fast-food, Persian bazaar manner in which affidavits, assignments and other evidence are created and presented in our courts and the unfortunate way in which this “evidence” is accepted represents a fundamental breakdown in the ability of our courts to dispense justice.   Granting foreclosure is not a business process.   The Grant of Foreclosure is a judicial act and it deserves the same respect, dignity and thoughtfulness as any other judicial act.

Our courts are not assembly lines obliged to rapidly dispense Orders at the demand of Con Artists and their Lawyers.   Our courts are the last bastion of truth and hope and dignity in a crumbling world.   When a judge puts on that judicial robe he or she wields the awesome power of the Constitution of the United States and of the State he or she serves.   When the processes and evidence placed before our judges is so perverted that we lose sight of the awesome power we’ve instilled in our courts, then we’ve lost our way….and that cannot be allowed to continue.

Below is Greg Clark’s compelling video that explains how these processes are being used to perpetuate this fraud and below that are talking points that he will deliver in Tallahassee on Wednesday April 21 in the Capitol.   Together we will turn this around.   Justice demands it.

What’s wrong with MERS?

The issue I argue is that a  “Nominee” does not have the power or authority to assign. It is a very limited, really the lowest, form of agency.  They only have what is expressly granted them in the mortgage. The MERS mortgage does not grant MERS the authority to sell or transfer the mortgage loan nor the power to assign its duties as nominee. In fact the MERS mortgage itself fails as a conveyance for being indeterminate with its language being hopelessly vague and ambiguous and because splitting a mortgage away from its note, bifurcation, is not allowed at common law without rendering the mortgage a nullity. Furthermore, although it might be swallowed that MERS was  agent enough to represent the original lender how can it possibly act as agent for subsequent note holders?  an agency is not assignable. Further, how can there even be an agency created in the first instance between MERS and the original lender by virtue of the mortgage?: it was not signed
by either the principal or the agent, only the borrower.

In short, the MERS mortgage is legally problematic and to me fails as an effective, valid conveyance in the first instance. Please take the time to read the Kansas Supreme Court decision in the Landmark v. Kesler case. Google: Kansas Kesler MERS. Also read the appellate opinion which was affirmed on appeal to the Kansas Supreme Ct.     We (JEDTI) have this issue  before the 5th DCA in the Taylor Appeal (George Gingo’s case). it is fully briefed and ready for oral argument which we hope is scheduled for  early summer.   MERS was and remains instrumental in cloaking and making invisible the real note holder, the owner and real party in interest, the guy we really owe the debt to. In essence using the MERS as a strawman lien holder prevents any meaningful, reliable title search to determine who is the right party to payoff; MERS does not take payoff checks, yet it holds the mortgage.

I believe its use has rendered our public title registration system useless as a means of verifying and assuring clear title. If the note owner/holder is the true lienholder then the creation and use of MERS has created the invisible lienholder which is the antithesis to why we have a public record in the first place. It’s use has also deprived our local county governments of recording revenue as the note holders/owners simply transfer/assign “electronically” to each other within this privately controlled matrix.

Imagine, if the law wants to  abide the concept of MERS and give it a legal pass then  why can’t I formed my own company and called it “DERS” Deed Electronic Registration System”, what’s good for title to mortgages should be good for title to the  real estate itself: DERS would hold legal title to a deed to real estate as “nominee” and all subsequent transfers could be done electronically  from sellers to buyers with out the need to record, all done privately, all out of site and control of the people, the government. Imagine the revenue the county and state would miss out on. Of course you would have to be a fee paying member to join my private, closely held company. Like starting my own little country with its own private tax collecting system, controlling economic information.

America’s economic vibrancy has always been based on its  freedom of title  information, neutrally kept in an egalitarian public record, and the rule of law, which cedes no monopolistic  power, cloaked and hidden,  over our property rights. Trusting our public record, giving it over to  select, privately motivated, and unelected entities, does not promote a fair and level playing field for all investors nor a safe place to write title insurance to protect those investors. It seems pretty undemocratic at best.

And at worst seems to fit glove in hand with an unregulated  Wall street  as one of the  reasons for, or  indeed the very catalyst  itself that enabled  our economic meltdown.

3 Comments

  • Jennifer says:

    Great post and so informative! We are going again before the Judge this Monday. Would like to use some of this information concerning MERS and the assignment of mortgage to bring to Judge’s attention.
    As always, I enjoy reading all of your posts.

  • Patti says:

    Great post! Safe travels to Tally and THANK YOU – so glad to have you on my side!

  • Alina says:

    Mr. Weidenr,

    Thank you for finally standing up for Florida homeowners. I have been trying for the past 2 years to bring the very issues you highlight here in your blog to the forefront. I really commend you and all the other attorneys in Florida who have finally seen the light.

    There is another issue that needs to be brought to the forefront – lost note affidavits. It’s an issue I have personally addressed with Representative Soto. As you are well aware, the Florida Banker’s Association stated in their comments to the Florida Supreme Court that the original documents were converted to electronic documents shortly after the closing and then deliberately eliminated.

    There are 2 problems for the Florida Banker’s Association with this:
    1. the deliberate “elimination” of a note cancels the debt under the UCC; and
    2. under Section 16 of the Uniform Electronic Transfer Act, it is impermissible to convert a paper note to an electronic note without the express authorization of the maker of the note.

    Therefore, the lenders/creditors/bankers, in their attempt to transfer notes at lightning speed have impermissibly negotiated millions of notes (the transfers are invalid) and HAVE CANCELLED THE DEBTS.

    I have yet to see any attorney address this issue.

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