WHOA! Florida Judge Wipes Out Homeowner’s $207,000 Mortgage! Read the Transcript: 5 25 10 fla miami transcript Bailey voids mortgage
Editor’s Note: Don’t expect this result every time but we are turning the corner. Also don’t tell the Judge you are there for a free house. Tell him or her that you want the benefit of the bargain you struck with the lender and the seller. You want o pay but you don’t want to pay someone who is not your creditor, who is not authorized to collect from you, and is not turning the money over to the creditor. Deny that any payments are due — your answer to “have you made all your payments? deny they have done a proper accounting for all receipts from all sources that should have been posted toy our account.
WHOA! Florida Judge Wipes Out Homeowner’s $207,000 Mortgage!
Today, May 25, 2010, 3 hours ago | Foreclosure Fraud t Orlando Eslava wanted from his lender was a loan modification to make his payments affordable. Instead, he got his $207,000 mortgage wiped out — and a crash course in the confusing way foreclosures are unfolding in a court system chock-a-blocked with cases.
The teacher was Miami-Dade Circuit Court Judge Jennifer Bailey, who cancelled Eslava’s debt after lender HSBC Bank USA ignored her previous order to post a $414,000 bond.
Bailey said the actions of William Huffman, HSBC’s lawyer from Tampa-based Florida Default Law Group, were “contemptuous,” according to a court hearing transcript.
SEE ATTCHED TRANSCRIPT
HSBC’s run-in with Bailey began in December 2009 when she granted the lender’s motion for the foreclosure sale of Eslava’s one-bedroom unit at El Dorado Tower in Aventura. But HSBC lost the note on Eslava’s property. So the judge ordered the lender to post a $414,000 bond to indemnify Eslava in case another lender filed a claim against the unit.
According to court records, HSBC and Florida Default did not post the bond and proceeded with an April 9 foreclosure sale that gave the lender title to the condo.
Eslava and his lawyer, Sheleen Khan, sought to overturn the sale, claiming the lender violated Bailey’s court order. At a May 6 hearing, Bailey dismissed the foreclosure case with prejudice, which prevents the lender from suing Eslava again. The judge also canceled the mortgage and ordered HSBC to return title of the condo to Eslava.
“None of us is above the law,” Khan said. “This is a landmark ruling.”
In addition to canceling the mortgage, Bailey chastised Huffman, according to a transcript of the hearing obtained by The Daily Business Review.
“When the order is simply ignored … at the end of the day, you’re the lawyer, you’re responsible,” she said.
Bailey did not sanction Huffman but said he should consider her order a “wake-up call.”
“Some day, this foreclosure crisis is going to be over, and you need to decide what kind of lawyer you are going to be,” Bailey told him.
“Because at the end of the day, you are responsible for your client’s compliance with court orders.”
Huffman apologized. He said his client failed to post bond because he had misunderstood the order, according to the transcript.
“I don’t want apologies,” Bailey replied. “I want performance. I want responsible attorneys who meet the basic standards of knowing what … is going on in their files.”
Huffman did not return a telephone call or e-mail seeking comment.
Bailey’s frustration with the lender and Florida Default weren’t limited to Eslava’s case. She complained about the general “chaos and disorganization” of lenders and their lawyers.
Suzanne Hill, who represented Huffman and his firm at the hearing, said Florida Default was weighing its options, which include appealing Judge Bailey’s ruling or seeking a rehearing.
Hill, who is with the law firm of Rumberger Kirk & Caldwell in Tampa, declined further comment.
An attempt to buy time
Eslava, 53, a residential agent with Carden Realty & Investment in Sunny Isles Beach, says he fell behind on his $1,800 monthly mortgage payments when home sales plummeted in 2008 and commissions became scarce.
He retained Sheleen Kahn two months before the foreclosure auction and says he never sought to get his mortgage canceled. He just wanted more time to negotiate with the lender.
“I wanted to lower the payments because I want to keep my home … this is my home,” said Eslava. He said he spent thousands of dollars to repair the unit after it was damaged by Hurricane Wilma in 2005.
Last Nov. 6, months before the foreclosure auction, HSBC had placed Eslava into the Obama administration’s Home Affordable Modification Program (HAMP). The lender reduced Eslava’s monthly payments from $1,800 to $620 and put him in a three-month trial. Under such a trial, the reduction is temporary and the bank uses the time to decide whether the borrower can afford to make the reduced payment over the long term.
Eslava said he never heard back from the lender after the trial period expired. But he says he continued to send payments to HSBC of $620 a month. Despite making those payments, the bank sold his condo.
His isn’t an isolated case, according to those who work with distressed homeowners.
“It is not infrequent,” said Arden Shank, executive director and president of Neighborhood Housing Services of South Florida in Miami.
“We worked with families who had that happen to them.”
His organization receives public funding to help owners save their home from foreclosure.
The agency recently helped another family obtain a loan modification in Miami-Dade County, but the lender did not cancel the foreclosure sale. Four months ago, the family lost the house in an auction. They got the title back after Neighborhood Housing hired a lawyer who convinced a judge to overturn the sale.
Shank said actions like that can undermine national efforts of programs like HAMP to keep homeowners in their homes.
That was the case of Eslava.
“If lenders are implementing the HAMP program and then their two different departments don’t communicate and don’t know what each other is doing, then that is kind of problem in implementing HAMP,” Shank said.
Initially, Judge Bailey sided with Florida Default’s request to proceed with the sale but ordered HSBC to post the bond by April 2.
On April 9, the bank sold the condo without posting the court-ordered bond.
Kahn. Eslava’s lawyer, filed an objection to the sale. At the May 6 hearing, Judge Bailey expressed disbelief that HSBC had opposed canceling the sale when Eslava was still in the middle of a loan modification trial.
She called the bank’s opposition “idiotic,” according to the transcript.
“You are filing pleadings in court every day and you don’t even know what’s going on with the case,” she told Huffman, the HSBC lawyer. “In no other species or kind of law would that be remotely acceptable, or frankly, anything short of malpractice. But somehow in Foreclosure World everybody thinks that is just fine, that you can know absolutely nothing about your files and walk in here and ask judges for things left and right without even knowing what’s going on.”
Eslava, who had never been to a courthouse before his foreclosure case, said he never expected he would learn so much about the court system in such a short time.
“This was a lesson for me,” said Eslava.
Fort Lauderdale attorney Jed Frankel, who witnessed the exchange while awaiting a hearing in his own case, said he was stunned by the judge’s decision to cancel the mortgage, but not by the bank’s actions.
“It is very unusual to see this type of sanction entered,” said Frankel, who frequently represents condo associations on foreclosure-related matters. “That’s a very severe sanction. But it was a very well thought out ruling.”
Frankel said he had a similar experience recently, when Deutsche Bank was sanctioned for not complying with a court order related to the foreclosure of a unit at King Cole Condominium in Miami Beach.
Frankel said Miami-Dade Circuit Court Judge William Thomas ordered the lender to pay the condo association more than $4,000 for ignoring the judge’s court order to proceed with a foreclosure sale of a condo or pay $1,221 in condo dues.
“Judges are looking at these cases a little bit differently than they would have four, five years ago,” said Frankel, who represents King Cole. “They are more aware of what is going on in the foreclosure cases.”
Paola Iuspa-Abbott can be reached at (305) 347-6657.
—
Jake Naumer Union Capital
Licensed Financial Advisor
3187 Morgan Ford
St Louis Missouri 63116
314 961 7600
Fax Voice Mail 314 754 9086
Filed under: foreclosure |
2 Msoliman!
“I am glad to say our office will launch this week a significant lawsuit against those who have used the Livinglies site and other sites such as the Rip Off report to attack a court recognized witness offering testimony in various pending matters.”
Really, let us know when the armed squad will be lining up “Liberians'” at local libraries as well!
Neil Garfield, on May 26, 2010 at 9:21 pm Said:
Richard: Please write to ngarfield@msn.com and give me all information, questions, work expected etc. Tell me the story like I don’t know anything. What were you expecting from Brad/FDG? I want to fix this — personally
WHERE WERE YOU WHEN I COULD HAVE USED THIS HELP. . .
MSOLIMAN
I do respect and value this site and continue to contribute in spite of the underlying current of counterproductive defamation.
I am glad to say our office will launch this week a significant lawsuit against those who have used the Livinglies site and other sites such as the Rip Off report to attack a court recognized witness offering testimony in various pending matters.
As one should expect by now these attacks against my credibility are often so very well timed. As of Friday I was contacted by representatives of GMAC who are claiming to have issued a demand for payoff and are being blocked by the borrowers counter claims and action.
Fact: My firm owned the subject of the GMAC inquiry and did in fact sell the asset as part of a larger pool of loans.
The loan is subject to claims GMAC never perfected. I will personally testify in this matter as I did in fact issue an assignment and the proper endorsements. Understand the obvious upside here is another home I can claim owning the lien and for considerable money. That’s not my style!
GMAC AND OTHERS MAY USE THE UNRECORDED ASSIGNMENT AS AN ACE IN TEH WHOLE FOR A CONSTANT WINNING HAND UNDER ANY CIRCUMSTANCES. IF A LENDER ELECTS TO NEVER PERFECT THEY GOT PROBLEMS. THIS ESPECIALLY IS TRUE WHERE THEY FAIL TO REMEMBER MY SALES WERE CONDITIONED TO I WOULD NOT USE MERS WHEN I SOLD THE ASSETS.
One negative commentary claimed I promised a modification. Anyone who has read my material known modifications cannot exist. If you fail to perfect then you run the risk of losing the beneficial interest in the asset used to collateralize the subject loan.
The recent revelation in the Lehman scandal shows they not only failed to record assignments but used the MERS nonsense to shuffle loans in and out of a trust to comply in appearance with FAS 140 accounting rules.
We never offered audits and the audit is a worthless tool that was tailored for the rip off report. The emails I have intercepted to and from are produced by one attorney and a soured foreclosure victim who broke into our offices and computers. These alleged victims who sought to destroy my character for personal gain in other related matters are subject to prosecution and likely going to the Attorney General for investigation. They are shocking and will be available soon for submission to the public.
I have paid a price to win the cases I have and the attorneys who took many of the cases over are now gone as the borrower is gone from the home. There again these nay Sayers attack me upon pursuing their own “ad Hoc” investigation seen as nothing more than defamatory and tortuous interference with our cases.
There is only one profound single point to reference in your wrongful foreclosure defense and in counter claims. DONT AGRGUE AGINST THE REALITY THE LENDERS HAVE ORCHESTRATED A FRAUD THAT CAN BE EVIDENCED. THIS IS FACT AS I HAVE WITNESSED IT FIRST HAND. How you accomplish your goals in bringing a claim will depend on many variables and approaches BUT ONLY ONE ARGUMENT FOR UNFAIR BUSINESS PRACTICES THAT FALLCLEARLY INTO A RICO AND VIOLATION OF THE SHERMAN ACT (say no more)
It’s just that these “fine tuned” approaches we often read about are lost. They fail to replace the one significant claim a borrower has for “breach” and only for removing the collateral form the lenders rights in a foreclosure.
The litigation and multimillion dollar suit brought on my behalf for willful wrongful public display of defamatory and slanderous commentary is subject to matters before the civil and federal courts and is against a very select few from this site. It in no way is intended to reflect on Neil Garfield or Livinglies subject to any determination those parties are employed by Livinglies.
Each covert intimidating or strong arm attack is being linked to matters before the court at such time. In deposition I will tell you “select” Livinglies readers who conspired to destroy witnesses credibility are now part of court records and subject each mater to a mistrial. Any help here to show intent by interference and with the courts is appreciated for prosecuting the matter.
M.Soliman
expert.witness@live.com
For info or to assist in our investigation call 213-880-6288
Hi PJ,
Thanks – but I’ve been here for almost 2 years now. I just don’t post much on this site.
Daniela and PJ
You both have good ideas.
“RECESSION. A re-grant: the act of returning the title of a country to a government which formerly held it, by one which has it at the time; as the recession of Louisiana, which took place by the treaty between France and Spain, of October 1, 1800. See 2 White’s Coll. 516.” Bouvier’s Law Dictionary, 6th Edition, at *1323 (1856)
I think England’s trying to steal back America & its United States
2 Alina… good to see you here… have watched the good and constructive work with those involved…. that is where the light comes in!
GB
Daniela,
There are a couple of websites I would like to direct you to – ForecloaureHamlet.org and shamethebanks.org.
the members of the Hamlet organized the Rally in Tally in March. Shamethebanks has organized rallies in DC and NY.
2 Deniela…
“Moveon.org has done something and Michael Moore on
facebook. I have placed our link on those pages.
But we need to have our own page.”
Then start one!
And just another question when you say “our link”.. just whose are you refering to? If this sight, it is not yours or mine or anyone else in between!
2 Daniela…. why would you expect to find his name on their web site?
http://www.businessweek.com/news/2010-02-19/onewest-buys-failed-bank-three-others-collapse-as-toll-climbs.html
Note the link from Bloomberg… failed… collapes…
Not so sure which “manisfitation” you are referring to… but this is just what the likes of MO and their ilk count on… and trust that the average Jane or John Doe did not take part , they are working three jobs to keep a roof over their head and food on the table. Trouble for the likes of MO… it has turned out that the average American is not willing to turn on their neighbor. They can “stage” all the manisfitations they want with “paid goon’s”… that is not how this “crisis” will be resolved… There are plenty out there doing excellent work and finding the fissur’s that will crack this wide open! For some it many not be so pretty… but they already know who they are.
PJ .
First, I mentioned Moveon.,org because they just did a manifestation in front of the BOFA attorney against what they are doing as well as a march against Wall Street
I don´t see George Soros on their site
http://www.moveon.org/about.html
Substantiate your affirmation.
Second: i was not talking about “mob mentality” but using the mob word as a metaphor.
George Soros financed Obama´s campaign and I am very aware of who he is. And Paulson – I have read everything that was written about him.
bottom line: I just want to unite us around a commun goal
2 Daniela… not really of the “mob mentality”… in fact this is exactly what the Economic School of “moral compass” headed by TS Geithner had expected… but the oop’s moment has arrived.
In regards to Move ON … founder and backer George Soro’s is into this up to his eyeball’s…If not mistaken he is now in partnership with John Paulson who shorted the housing market and made billion’s… and lets not forget that he practically collapsed the entire British economy when he “shorted” the pound sterling… people are not always what they seem. Be careful!
That is why PJ , i said FACEBOOK. These powerful people are very afraid of citizens mobilizing. Until now there was no site, no place for people being foreclosed to gather.
Moveon.org has done something and Michael Moore on
facebook. I have placed our link on those pages.
But we need to have our own page.
The politicians don´t care AT ALL if ONE person acts.
They respect “mobs” . Let´s create one !
2 Neidermeyer…
Could not agree more.. F&F existing under the cloak of secrecy is the problem… with all in DC protecting them… Dodd is leaving (look for him to get a plumb job at F or F, and Frank will be re-elected by the moron’s (that vote 4 him) in Mass. In the meantime plenty (billions in loan’s) have been pushed back on sellers by F&F it is just that the information is not available to the public.
2 Anonymous… calling representitives here in NY… would be an exercise in futility… sorry if I seem snarky… and for the POTUS… it seems that all things are going as planned.
But do agree that a million homeowner march on DC could be effective! In the meantime there are enough cracks in the system that will help turn the tide…
Daniela Mars & Anonymous
Facebook is definately the way to buid a critical mass of informed borrowers… it would also be really good to organize the info on this site into one indexed file that can be downloaded.
I know what we need Anonymous
A Facebook page- Neil needs a Facebook page!!!!!
Look i have been involved with the BP disaster on facebook and in 2 weeks we got 152.000 people]on the
Boycott BP facebook.
That is the way to go.
neidermeyer
There is no real coalition standing up for people. Needs to be formed. Do not know why this has not happened.
Time to pressure your senators/congressman and the president.”
Again… surly you jest!
***************************************
This is in the political arena with FNM and FRE ,, Europe is crashing and our M3 numbers are tanking,, I would think that the political class would take some action if only to safeguard the notes the GSE’s have already bought, or to push the defective ones back on the sellers to free up money for additional purchases.
It seems logical to me that peple with a valid claim regarding a cloud on the title may very well get relief from the federal government in the way of new rulings, regulations and procedures at FRE and FNM. What we have seen recently from various judges is indeed encouraging.
Richard: Please write to ngarfield@msn.com and give me all information, questions, work expected etc. Tell me the story like I don’t know anything. What were you expecting from Brad/FDG? I want to fix this — personally
Send your request to ngarfield@msn.com along with all relevant information and let me see what I can do for you.
i wish i wold have been that lucky, damn banksters finally did it, they took my house and tomorrow i am leaving my home for good, Deutsche Banksters are totally shameless, we battle with them on our own for almost a year, hoping to find a “good” attorney, frankly i think that only a handfull really “get it” and they are too busy doing their best for a few that the majority of us are left to the mercy or our own luck and to the hungry jaws of the “pretenders”. I have so much proof that fraud it’s been committed, signatures on many documents signed by the same liar don’t even match, no need to be an expert, it’s simply obvious, and instead of exploiting that, some totally IDIOTIC attorney we found out of desperation wanted to file the dumbest suit i have ever heard or seen, so here we are, my family and i at the end of our luck, it’s over, they took our home and the damn so called REO agent is pushing to get us out by tomorrow, actually she was pushing us to get out a week ago, after the Eviction was filed, i told her that if she didn’t quit pushing we would fight the eviction and stay here another 4 to 5 months, that’s when she stopped. anyhow, i don’t see any relief in the near future here, i am happy for the person in this article that found a “good” attorney and an awesome judge that stood her ground and put the pretender’s head where it’s belongs! in their read end, but imagine how many YEARS will it take for all judges to cut the crap and teach all pretenders what a bunch of idiots/thieves they really are. We even put a call in to one of the most prominent attorneys nationwide, i was surprised to see that he actually answered, and told me to call a local attorney, whom never, ever even answer my e-mail neither did he returned my calls for help. I am hoping though that MANY MANY others will have better luck and keep their homes, i truly hope so, i guess every was has it’s casualties before a victory is reached, we gave up with a fight but are waaayyyy too tired to continue. May God allow others to find a good attorney and keep their homes, it’s not a good feeling knowing “they” the thieves are CLEARLY stealing are home and not a damn thing we can do about it.
2 Anonymous…
“PJ
I know – but I am hearing from contacts that even analysts that once opposed helping foreclosure victims now know something must be done.
Time to pressure your senators/congressman and the president.”
Again… surly you jest!
2 Willow…
“The Plaintiff FAILED to issue the bond as required by court order. The attorney may have committed malpractice and certainly the Plaintiff was in contempt of court.”
Game Over Here… defect in Title to property all over this country is rampant and will be a problem for years to come. The judge ruled prudently in requesting the posting of a bond to protect the defendant from further attempts to collect “debt” that has been paid or not been paid to a “shadow entity”.
The judge should be praised for using the law to allow “unclean hands” the opportunity to “wash” their hands of any further action against solvency / debt for both parties “via a foreclosure action” .
It really is quite simple!
Any appeal to this case will be not only quite interesting… but very telling indeed.
Brad Keiser – answer Richard ! WTF!!!!!!!
Do not ruin this site !!!!!
BTW – i sent him e mails and he never answered but i did not pay anything.
PJ
I know – but I am hearing from contacts that even analysts that once opposed helping foreclosure victims now know something must be done.
Time to pressure your senators/congressman and the president.
Still can’t get ahold of Brad Keiser and Foreclosure Defense Group!!!!
You’d think with all the posts i’ve made on this, on various threads, and i know he reads them, that he would have the decency to get back to me?
I’m afraid to think that Neil would support this kind of behavior and hoped he worked with more competent individuals.
Failure to adhere to a court order is contempt of court. In this case, the court allowed the foreclosure to move forward BUT required that the party seeking foreclosure issue a bond in case there were other creditors out there who could lay claim to the property. This was required to indemnify the homeowner. The Plaintiff FAILED to issue the bond as required by court order. The attorney may have committed malpractice and certainly the Plaintiff was in contempt of court.
The judge was free is issue sanctions against the Plaintiff for failure to follow a court order. Those sanctions were to award the home to the defendant free and clear of the mortgage. The attorney in this case screwed up and the arrogance of the bank in failing to follow a court order was apparent. Whether this case gets appealed is another matter altogether.
Sanctions of this nature are ripe for appeal. We’ll have to see what happens next.
2 Anonymous…
Nor do I… jest ever!
“Eventually something will be done – people have to hang on and keep litigation alive.”
That’s a tall order to the beleaguered.
PJ
Eventually something will be done – people have to hang on and keep litigation alive.
I never jest.
2 Anonymous….
Hummm…
“More and more economic analysts are speaking out against the fact that the banks were bailed out – and that the people got nothing. Not only did they get nothing, the government has done nothing to stop the foreclosure fraud.”
Surly you jest!
Please subscribe me to this site. I understand by subscribing I’ll get the updates to my email. Thank you.
Judges are catching on to what is going on. How the fraud progressed as long as it has is the question. Sooner or later the foreclosure mills slip up.
More and more economic analysts are speaking out against the fact that the banks were bailed out – and that the people got nothing. Not only did they get nothing, the government has done nothing to stop the foreclosure fraud.
All should email Barney Frank who now wants to “water-down” derivatives legislation. Object.
As I consider this further I’m not sure the decision will hold up on appeal, if it is appealed. If I were HSBC I certainly would appeal.
A mortgage is an equitable instrument. As a matter of equity the judge has authority to cancel the mortgage.
A note is different. I’m thinking it is a matter of law. I don’t know that she has authority to declare the note null and void as a matter of law. (this appears in the transcript on page 17)
An appellate ruling could be along the lines of affirming on the mortgage, but reversing on the note. This would give HSBC an unsecured note. In that case a BK could perhaps wipe away the unsecured obligation under the note.
I’ve been fighting foreclosure for 2.5 years. I’ve heard a lot in that time about “bad law” being written by pro se litigants submitting inarticulate, muddy, imprecise pleadings. This may be a case of the trial court writing bad law through an order that over steps its authority.
If I’m in error here I’d sure like to hear from others that can point out the error in my interpretation.
PLEASE DONT CALL IT A FREE HOUSE ANY MORE.
THE TROUBLE WE HAVE GONE THROUGH BECAUSE OF THE BANKS THEY OWE US 3 MORE HOUSES.
DEAR JUDGE IN TODAYS ENVIRONMENT YOU HAVE TO CHECK MONEY THAT WAS GIVEN BY THE GOVERNMENT OR BANKS READ THIS ARTICLE
http://www.latimes.com/business/la-fi-lazarus-20100525,0,1425491.column
G-D BLESS AMERICA.
THE JUDGES MUST UNDERSTAND THAT CRIME DOES NOT PAY.
My note was sold to BOAHL from Wilshire or transferred or whatever. I had completed the loan mod under Wilshire and was waiting for permanent loan mod when sold etc. I got the run around from BOAHL first telling me to pay, not to pay, etcl ad nauseum. Got fed up and was referred to this blog by a friend. So as a former trial attorney who is fed up at jerks, I sued for quiet title, mandaory injunction to get my loan mod as an alternative and also a breach of good faith dealing. I had the payments so I have just petitioned the court to set up a court account into which I am going to make my payments. I think that takes care of several issues. If I owe the money, its there, if I don’t, I get it back, but atleast they cannot argue that I am doing it for a freebie. I think if the borrower can make the payments that a court account is the way to go. Good luck. I have done some lengthy discovery requests especially in requests for admission and request for production and aske for an accounting as well as asked for a dep of someone who can track the money. I am not a fan of contention interrogatories eary on until you have info. good luck everyone
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If I could I would quote Joe Biden’s remark after the President signed the health care bill.
I am past the mediation process at this point and have refused to sign the loan modification agreement. It was an invitation to foreclose whenever you would like. Landmark. So clear and simple after these years of wrestling with securitization practices trying to unravel what is going on.
The importance of this site cannot be overstated.
All Judges need to be educated in a way the Neil is telling in this blog. Tell the judge every thing and it may fit in the place as it happened in this case. Only need is fight back, though it is tough as you are fighting the power.It should be argued aggressively that the opposing party needs to prove its case and not have the benefit of the Court assuming that a prima facie case exists.