A Very Disturbing Oral Argument

I’ve spent countless hours watching every district court oral argument that’s available in this state. I feel most concerned about a disturbing pattern I see in oral arguments where important legal issues, no matter what those issues are and no matter how significant those issues are, are completely disregarded when consumer advocates dare to step into appellate courts and dare to challenge the conduct of banks in courts.

The opinion released in this particular case Castillo v. Deutsche Bank has been most damaging to the interests of consumers because it’s waved around in courts all across this state standing for the proposition that a consumer has no right to challenge any of the terms or make any inquiry at all about that trust.  Now that principal may be true, a non party to a trust may not have the ability to challenge those terms, but

The far more important issue is the key issue of whether a trust even exists at all.

This issue is an important trial strategy, that presents a key evidentiary issue, and while I have often come into possession of proper proof that a trust in fact exists,

I have never seen a plaintiff come into court with any admissible proof that a trust exists.

One more time so the point is clear….

I have never seen a plaintiff come into court with any admissible proof that a trust exists.

Regrettably, this issue is uniformly ignored by courts.  And what you see happening here is an appellate panel completely disregarding any other defenses that a consumer might present to foreclosure. The panel asserts over and over again that because a homeowner hasn’t paid…nothing else matters.   But we know there are many, many other additional issues that exist.  Consumers…even those that have not made a mortgage payment, are still entitled to a whole broad range of protections and consumers…even those that have not made a mortgage payment, are entitled to enforce contractual, statutory and evidentiary rights.

They are entitled to the notice of default as contained within a mortgage, they are entitled to notice of assignment of debt found in Florida Statutes 559.715, They are entitled to demand a proper trial, with a court enforcing the Rules of Evidence…such as competent substantial evidence of the amount claimed due…

But regrettably, none of those important issues…none of those key rights are considered.  Instead, watch as the panel distills this all down to one issue….the note has been surrendered.

This argument gives me great concern….it’s frankly illustrative of a much larger problem.

And as we watch financial, social and political events devolve around the globe, lawyers in particular must pay attention to our obligations as advocates for individuals in the context of the larger global environment….