Fla. Supremes Order Bar to Prosecute UPL Against Banks

Administrative Law is one of those areas that interest only academics like me. It isn’t sexy but it carries BIG teeth. Sometimes it is easier to crack the shell of the titans by an unexpected move where you win hands down and there isn’t much work to do. It’s kind of like taking down AL Capone for income tax evasion. They didn’t get him on the other crimes but he went to jail and died there.

When I was active in the practice of law, I defended many different types of individuals who were licensed by a regulatory board, including lawyers, accountants, doctors, engineers, real estate brokers etc. My eyes were opened at the tremendous amount of power these agencies wield and the devastating effect they have on licensees. It also opened my eyes to the fact that consumers had access to government help that was really there but most consumers didn’t know it.

The latest move in Florida is a simple recognition that practicing law without a license is illegal. In many states beyond fines and an injunction, it is an actual felony punishable by imprisonment. And in most states there is a PRIVATE right of action against those who practice law without a license. It is called Unauthorized Practice of Law (UPL).

Before your eyes cloud over with yet another theory, this isn’t a theory. It is a fact. And besides giving you a right of action for damages, it calls into question whether any of the documents were legally prepared and if yet another misrepresentation caused you to execute them, believing that an attorney had been involved.

What this does is fill out your argument that the entire transaction was illusory and nothing was what it seemed to be. That is what TILA, RESPA and other consumer protection laws are all about. Yes you signed the documents but that doesn’t mean the documents were properly prepared, nor does it mean that a security interest in your property was ever or could ever be perfected. Yes an obligation was created, but that doesn’t mean you owe the pretender lender. If you shop at Target, the neighborhood supermarket cannot collect the money for your purchase at Target.

But I think most importantly, as the old readers of this blog have seen before, decisions like this and the FTC settlement with BOA for $108 million bring us to a point where government is getting hip to the deficiencies at all levels of the lending process and the documentation. That means that now is the time to file appropriate grievances against anyone who carries a license or charter on loan practices that do not conform with industry standards and in particular, the rules governing the profession for which they were licensed.

Who’s licensed? Just about everyone. Mortgage brokers, real estate brokers, title agents, closing agents, trustees, lenders, originators, etc. An originator like Quicken that specifically and repeatedly told its prospective customers that it was the lender when in fact they were only brokering the money as a mortgage broker or originator has a problem. It just engaged in false and deceptive business and loan practices, but more importantly it created a “table funded” loan, which is a fancy way of not telling you the identity of your creditor and how much money everyone is making on this loan.

The best part is that if you file the grievance early enough, you won’t have to go to court because the enforcement mechanism of the agency will do the investigation, the prosecution, and the discovery for you. And if you do prosecute for damages, in most cases you will prove a claim under TILA you will get attorneys fees paid by the pretender lender or other parties against whom you have filed your grievance.

10 Responses

  1. Julie,
    Check out this website http://www.foreclosureprose.com.
    Lot of info for Pro-Se litigants.
    Send me an e-mail at ocean1@the-beach.net. I will e-mail you some helpful info for Pro se.
    Best wishes

  2. Yeah, I know it does not show who the actual investors are but I already paid for my securitization search so that should reveal who the real creditor is. At least I hope so.

    Thank you everyone, for the support. This is my first stop every morning. It’s where the most valuable information can be found. It is why I no longer feel anxious when the bank calls me. I no longer punish myself thinking what I could have done differently. Win, lose, or draw, I’m going to be fine.

  3. where can I find this order? can someone post the link, please?

  4. Kickboxer

    we all pray for you. Just keep them in spin.

    Good Luck and DO NOT QUIT
    Don’t Quit
    When things go wrong, as they sometimes will,
    When the road you’re trudging seems all uphill,
    When the funds are low and the debts are high,
    And you want to smile, but you have to sigh,
    When care is pressing you down a bit Rest if you
    must, but don’t you quit.
    Life is queer with its twists and its turns, As
    everyone of us sometimes learns, And many a
    failure turns about When they might have won,
    had they stuck it out. Don’t give up though the
    pace seems slow, you may succeed with
    another blow.
    Often the goal is nearer than,
    It seems to a faint and faltering man,
    Often the struggler has given up
    When he might have captured the victor’s cup;
    And he learned too late when the night came down,
    How close he was to the golden crown.
    Success is failure turned inside out The
    silver tint of the clouds of doubt And
    you never can tell how close you are,
    It may be near when it seems so far;
    So stick to the fight when you’re
    hardest hit, It’s when things
    seem worst that you

  5. Neil

    Really like your recent posts. “Table funding” has been a big secret.

    Kickboxer – a hundred wishes for “Good Luck.” You have been here awhile – you know the ropes.

  6. @ Deb Wynn,

    I have already retained a BK attorney but he doesn’t litigate. I haven’t found any attorneys in my area that do litigate. I couldn’t even find any attorneys that “get it” or even want to attempt to “get it.”

    So, I am on my own really. I have a plan but not sure if it will work. It just might backfire. I’m one of those “all or nothing” kind of people so I’m wiling to gamble. Worse case scenario, I lose my house but I walk away debt free.

    Wish me luck. I’m going to need it! LOL

  7. Kickboxer the only way to stop them dead is file a bankruptcy. Then get your guns ready and file adversary proceeding you will indeed need an attorney period. They will try to steal your home it is more lucrative to them by design

  8. The banks should lose their charters for their unfair and predatory practices. Why is the OCC ignoring this?

    “A charter is an agreement that governs the manner in which the bank is regulated and operates. It authorizes the organization of the bank by either the state or federal agency. The agency that charters the bank is primarily responsible for protecting the public from unsafe banking practices. It conducts on-site examinations to make sure the bank’s financial condition is good and that the bank is complying with banking laws. State charters and federal charters typically do not differ too much in the way the bank conducts business.”

  9. Does this mean you would still receive damages in addition to perhaps winning your foreclosure case? Or would you simply keep the house. I mean, they have caused a lot of damage all the way.through this legal process. The title is now clouded no doubt about that.

    In the beginning of my case, I tried to go this route, needless to say, they were only interested in the huge cases with multiple Homeowners and damages in the millions. The NJ Attorney General staff actully said, this is not their job. ok.aaaaaay

    Additionally, when you are

    AND. funny you should bring this up now, I have been thiniking about this avenue as I grow more weiry each day, it has been going on over 3 years now. and the threat is gaining and growning in numbers. By numbers I mean both in $ numbers expense, mine. And expense = higher damages figure thus higher figure passed on to the people that are on the other side of the table. Higher numbers of Attoneys traffic, and last but not least, a plethora of services and banks, investors, “distressed properties carnivores” ready to devour the dead title. laying rotting in your yard, or tucked a way in a secret spot the LENDER can’t locate.

    Well, yeah if (you), the Entity, misrepresents itself as Lender to the homeowner and i)t is actually the Loan Servicer, which coincedentally is my situation, wow, and about a zillion others situation..
    The “Lender” makes believe to reassure you . YOU WILL be Entranced you will BELEIVE ALL IS IN YOUR CORNER, and all this makes the borrower look like a glutten , thus leaving the innocent mindless Bank lender, Poor Dear. knees knocking, teeth chattering, unable to manage or do anything sometimes the Judge falls force you from your home.

    This also leads me to a new question. Now the homeowner, fighting to keep self from homelessness,may scream UNCLE!

    If with out the aid of an attorney, (I am in NJ, against my desire must go Pro Se), I must represent myself as an attorney would, I mean after you have spent all your money on attorneys presuming you had some money at one point. Now your entire life revolves around saving your home. So you forge ahead, loosing hair , precious nutrients and sleep. But now worries, you are legally represented by yourself, You, Me ProSe.

    Only problem is you are also, at least in my case, treated like you should know all the legal facts, and as we all know, it is not so simple. You may be right but not use the ritht procedure to pursue it. AND this is all while the Judge chastises you for doing so, YOU NEED AN ATTORNEY, like the wizzard of OZ from a hidden curtain. I know I know the homeowner nervously announces, but I can’t afford one, WELL YOU NEED AN ATTORNEY, the voice says again. I love the law Neil, but it grows old fast when no one is listening to all the work I’ve prepared..

    I also wonder if you can be involved in a civil proceeding and file complaint at the same time.

    Thanks for this article. Progress is happening slowly but surely.

  10. I’m going to question EVERYTHING and EVERYONE. The bank just called to tell me that we don’t qualify for a modification and that a sale date will be set soon. I swear they are playing head games with me. Tomorrow I will probably get a call saying that we are still under review for a mod. I still have not received anything in writing saying we were declined and what their decision was based on. What a roller coaster ride this has turned into. Sheesh.

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