GMAC v Visicaro Case No 07013084CI: florida judge reverses himself: applies basic rules of evidence and overturns his own order granting motion for summary judgment

Having just received the transcript on this case, I find that what the Judge said could be very persuasive to other Judges. I am renewing the post because there are several quotes you should be using from the transcript. Note the intimidation tactic that Plaintiff’s Counsel tried on the Judge. A word to the wise, if you are going to use that tactic you better have the goods hands down and you better have a good reason for doing it that way.

Fla Judge rehearing of summary judgement 4 04 10

5035SCAN4838_000 vesicaro Briefs

Vesicaro transcript

Posted originally in April, 2010

RIGHT ON POINT ABOUT WHAT WE WERE JUST TALKING ABOUT

I appeared as expert witness in a case yesterday where the Judge had trouble getting off the idea that it was an accepted fact that the note was in default and that ANY of the participants in the securitization chain should be considered collectively “creditors” or a creditor. Despite the fact that the only witness was a person who admitted she had no knowledge except what was on the documents given to her, the Judge let them in as evidence.

The witness was and is incompetent because she lacked personal knowledge and could not provide any foundation for any records or document. This is the predominant error of Judges today in most cases. Thus the prima facie case is considered “assumed” and the burden to prove a negative falls unfairly on the homeowner.

The Judge, in a familiar refrain, had trouble with the idea of giving the homeowner a free house when the only issue before him was whether the motion to lift stay should be granted. Besides the fact that the effect of granting the motion to lift stay was the gift of a free house to ASC who admits in their promotional website that they have in interest nor involvement in the origination of the loans, and despite the obviously fabricated assignment a few days before the hearing which violated the terms of the securitization document cutoff date, the Judge seems to completely missed the point of the issue before him: whether there was a reason to believe that the movant lacked standing or that the foreclosure would prejudice the debtor or other creditors (since the house would become an important asset of the bankruptcy estate if it was unencumbered).

If you carry over the arguments here, the motion for lift stay is the equivalent motion for summary judgment.

This transcript, citing cases, shows that the prima facie burden of the Movant is even higher than beyond a reasonable doubt. It also shows that the way the movants are using business records violates all standards of hearsay evidence and due process. Read the transcript carefully. You might want to use it for a motion for rehearing or motion for reconsideration to get your arguments on record, clear up the issue of whether you objected on the basis of competence of the witness, and then take it up on appeal with a cleaned up record.

13 Responses

  1. I know nothing and if I think I know something, I know nothing. I do not give legal advice, because I don’t know legal things.
    Vesicaro Transcript, Page 7 lines 22-25 and page 8 line 1 states:

    And it has been argued to me that, (emphasis added)
    “the evidence not objected to can be received by a Court in trial, and so it certainly could be considered by a Court at a summary judgment hearing”
    (end of emphasis added)

    Black’s 5th Edition definition of evidence

    Any species of proof, or probative matter legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention.

    Testimony, writing,s material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.
    (The definition is ‘very, very, long, I’ve only touched the tip of what evidence means)

    Evidence not objected to can be received by a Court in trail.

    When someone takes you to court, what can you object to that prevents it from being admitted into court as evidence.

    If you go to court to fight, and you’ve never done business with an entity and they are claiming ownership of your home; what fight are you taking to the court, the fact that papers have their name or don’t have their name on it, or the evidence that you’ve never done business with that person and (they aren’t the real party of interest and are wasting your time taking you into court over something they have no standing to enforce)?

    People go to court and argue the law and lose and don’t know why.
    Maybe it’s something you signed, maybe you didn’t file a disagreement to the lawsuit, and allowed it go move forward without so much as an objection to being called into court. Maybe you are arguing their right to collect, which may mean someone has a right to collect, so that keeps the court from filing a judgment “with prejudice”, so another entity can step up and attempt to sue you for the same thing, later.
    We have to learn through the “school of hard knocks”. We will learn.
    I got a letter from a title company telling me I’m not the rightful tenant in my home and said if I don’t respond in 3 days what I plan to do, they will sue me.

    Sue me for what?
    See an assumption is made that I think they know what they are talking about. I know I have rights and I am soooo mad that my ‘Lender’ had placed me in this situation.

    The note and deed were securitized without my knowledge and now I’m facing a bunch of strangers over ownership of something I should not have to face them over.
    I never agreed to this in my deed, and the law would not be a solution for me because my deed did not break the law, and my deed did remain silent on some things, but if it’s not written in my deed, I don’t care what the ‘stupid’ beneficiary did with the agreement from it’s end. I know I don’t have to be subjected to what the beneficiary has done, and I don’t plan to allow anyone to convince me otherwise.
    Say what you must, but show me in my Deed these things for me to believe you.
    My deed said the Lender could substitute the trustee, so there is a provision for a ‘subtitute’ but not a substitute lender, a substitute trustee.
    So my lender should have brought me back to the table to sign a new trust document if they wanted to substitute the ‘lender’.
    There is no way, I plan to allow a court or anyone else tell me I have no rights in this situation.
    My objection is from the start, not later on.
    I have never acknowledged these people.
    I have told them I don’t know them. I will never know them. They can throw all the papers they want and I will never know them. I will not argue in a court with a business I’ve never done business with. Like a broken record, “I don’t know these people, I’ve never done business with these people, they have no right to my home.”
    “I am still the owner of the legal title to my property and I have a superior security interest in my home.” Anyone may hold that legal title, but it still belongs to me. I entrusted it to a trustee, and that trustee violated that trust and gave it away, but it’s still mine. It was non-negotiable except between me and the ‘Lender’. If the lender goes away, that title reverts back to me. No where in my Deed of Trust does it state it’s no longer mine once the lender abandons the Deed of Trust. That’s what I believe, that’s what I understand and that’s what I will stand by.

  2. I know nothing and if I think I know something, I know nothing. I do not give legal advice, because I don’t know legal things.

    Page 6, lines 6-8 of the Vesicaro Transcript, states what I’ve been stating all this time.
    These people are filing documents to set up their case; and in some cases these documents are bearing false witness.

    In page 6 lines 6-8 the judge states:

    I was beginning to recite to the lawyer what I had typically recited, that there were no affidavits in opposition.

    Sounds to me, that the judge was expecting to see something ‘before’ the actual case started, and this was not as part of the evidence, during this trail.

    A maxim of law, ‘an unrebutted affidavit stands as truth in commerce.’

    People want to cite law and cases and sometimes you have to set up your case for the court ‘before’ you go to court, like they do.
    Their world is papers, and they are used to filing them. You are not used to filing them, but the papers filed give you strength like Sampson got strength from having long hair, in the bible.

    You must have your strength in place before you attempt to exercise it.

    An affidavit is a statement of truth and unless it’s rebutted it’s taken for truth, and these ‘pretenders’ are filing affidavits and the homeowners are letting them stand and arguing other points.

    A judge is aware of that affidavit, and you don’t know the power it carries being filed in the public, over your argument or claims only filed in your particular case.

    An affidavit, we look up you name and will see it filed in real estate records. Your court case we look up your name and it’s filed in civil court records.

    Do not let them set up a solid case in real estate and you try to defeat that in a civil case. A title search will see the things they filed in real estate, it takes a background search to find the things you are filing in your case to protect your home.

    Don’t you think you should have your interest and statements filed in real estate, also?

    There is a difference in what people are doing and how they are winning or losing. Every case is unique.

  3. Out of FL, here’s another MUST READ concerning:
    Conflict of Interest, Fraud on the Court and Motion to Disqualify Counsel; including the motion, exhibits, & transcript:

    http://www.stopalawfirm.com/blog/

  4. In NJ, another insightful ruling for dismissal that is a MUST READ, illustrating the adjudicator’s perspective as well as EVIDENCE & DISCOVERY cues.

    http://www.scribd.com/doc/33752461/Bank-of-New-York-v-Michael-Raftogainis

    ~~~~~~~~

    CONCLUSION

    Defendant’s attack on plaintiffs ability to proceed with the foreclosure based on the alleged “separation” ofthe note an mortgage was rejected. Plaintiff, however, failed to establish that it was entitled to enforce the note as of the time the complaint was filed. In this case, there are no compelling reasons to permit plaintiff to proceed in this action. Accordingly, the complaint has been dismissed. That dismissal is without prejudice to plaintiff s right to institute a new action to foreclose at any time, provided that any new complaint must be accompanied by an appropriate certification, executed by one with personal knowledge of the circumstances, confirming that plaintiff is in possession of the original note as of the date any new action is filed. That certification must indicate the physical location of the note and the name of the individual or entity in possession. An appropriate order has been entered.

  5. The comment about those who already lost their homes due to the lies and fraud. I think those people desreve the bailout far more than those thrives taking homes to fulfill their contractual agreement because they can’t get a proper job only to leave whole communities like ghost towns. Long term picture is ugly and maybe judges are starting to see that picture too. Why has it taken so long and so many lost their homes to the undeserving small minded spiritually void life crash test dummies. Sorry judemrnt call there but my new motto is judge and prepare to be judged .

  6. Anybody laughing as hard as I was while reading the judges comments to the plaintiff’s attorney?

  7. Note in the very end of the transcript, where the homeowner’s (Defendant’s) counsel suggests to the COurt: “Would you like me to draft an Order?” and the Judge responds: “Yes. Keep it simple.”

    Remember that, folks: Keep it Simple. When you get all carrried away in the details and the thing becomes a morass, the Judges cannot follow your train of reasoning and .. you get ruled against. Not fair, perhaps, but that is how it works.

    Keep it Simple.

  8. HOW ABOUT PEOPLE WHO ALREADY LOST THEIR HOME BY WRONGFUL SUMMARY JUDGMENTS ?
    ———————————————————————-
    OVERRULED!!! Florida Judge Reverses His own Summary Judgment Order!
    Foreclosure Fraud | April 14, 2010 at 2:54 PM | Tags: 4closurefraud, affidavit, Anthony Rondolino, appeal foreclosure, bank fraud, clouded title, conspiracy, criminal, fight the banks, foreclosure, Foreclosure Defense, Foreclosure Fraud, forgery, fraud, Gmac Mortgage, livinglies, MERS, Mike Wasylik, mortgage electronic registration system, motion to dismiss, OVERRULED, produce the note, summary judgment, Visicaro, wrongful foreclosure | Categories: Corruption, Foreclosure Fraud, MERS, Mortgage Fraud, bankruptcy, foreclosure, mortgage electronic registration system | URL: http://wp.me/pFWnq-Oi

    Another Great Contribution by Matthew Weidner.

    Search this blog and you will see that for months now I’ve been arguing that the “evidence” submitted by Plaintiffs in foreclosure cases does not even come close to meeting the legal and evidentiary requirements for courts to grant summary judgment.

    After performing extensive legal research to confirm this hunch, I have drafted and filed detailed memoranda, supported by all available case law, that stands for the proposition that the practices used by virtually every foreclosure mill in the state do not provide the evidentiary basis for a court to grant summary judgment.

    So why are courts across this state continuing to grant summary judgment? There really is NO LEGAL BASIS TO SUPPORT THE GRANTING OF SUMMARY JUDGMENT IN THE VAST MAJORITY OF FORECLOSURE CASES CURRENTLY FILED IN COURTS ACROSS THIS STATE.

    I attach here the most fantastic transcript of a hearing I’ve heard in a long time. This transcript shows a couple things:

    First, the judges in the Sixth Circuit of Florida really, really get it.

    Second, this particular judge goes far and above to do his job and deliver real, hard, honest legal work.

    Third, as I mentioned above…the current processes and procedures used by the foreclosure mills do not provide courts the evidentiary or legal basis required to grant summary judgment.

    But now the big question that comes to mind….now that this judge gets it…and now that my memos and others like my friend and fellow Foreclosure Fighter Mike Wasylik are starting to leak out there…

    What happens to all the hundreds of thousands of homes that have been foreclose on by improper evidence?

    Some excerpts from the begging of the transcript… Be sure to read it in its entirety. It is an absolute must read…

    Gmac Mortgage LLC

    v

    Debbie Visicaro, et al.

    April 7, 2010

    THE COURT: Okay, we are here today in GMAC v Visicaro. This is a motion for rehearing the previously drafted motion for summary judgement…

    MR. WASYLIK: I am here for Defendants… We have submitted a fairly detailed brief…

    THE COURT: What’s the Plaintiff’s position regarding the motion…

    MR FRAISER: I object… You’ve considered all the evidence before when you entered the summary judgment back in January 2010. The opposing party then could not support their position on any genuine material facts. Right now, Your Honor, there are no convincing exigent, you know, circumstances being offered up at the time.

    THE COURT: Did you not read the motion? It sounds liker you’re making a very generalized argument, and this is an, as I viewed it, extremely targeted motion which basically elaborates on the assertions that were raised at the time of the motion for summary judgment.

    As I recall that, counsel appeared on behalf of his clients, I think it was by phone and made arguments that the Court really gave short shrift to it, did not review the case…

    Since that time, the Court delved further into it…

    I’ve had several events which have occurred in cases which cause the Court to have great concern about the validity of fillings in our mortgage foreclosure cases, and that precipitated my reevaluation of the evidentiary considerations.

    I’ll give you an example of that. I have one case that was called up for summary judgment hearing, and I thought it was going to be the typical granted situation, and then a lawyer showed up for the defendant homeowner.

    I was beginning to recite to the lawyer what I had typically recited, that there was no affidavit in opposition. And the lawyer said, “Well, I thought you might want to see this,” and handed me some documents which were from another file in our circuit, and it turned out, it was the same note and mortgage that was in a separate and independent file.

    There was a different plaintiff pursuing a foreclosure proceeding on the same note and mortgage as the one that was being proceeded on. Both of the cases contained allegations in the original complaints that the separate plaintiffs were owners and holders of the note. Both of them had gone so far to have affidavits filed in support of a summary judgment whereby an individual represented to the court in the affidavit that the separate plaintiffs had possessed the note and had lost the note while it was in their possession.

    Interestedly, both affidavits, although they were different plaintiffs, purported the same facts and they were executed by the same individual in alleged capacity as a director of two separate corporations, one of which was ultimately found to me to be an assignee of the original note…

    So that really increased my interest in this subject matter, because

    I really honestly don’t have any confidence that any of the documents the Courts are receiving on these mass foreclosures are valid…
    So I’ve said enough…
    Honorable
    Anthony Rondolino

    Be sure to read the transcript in its entirety

  9. BofA reminds me of that song by John Lennon and George Harrison titled “Piggies” I invite you to listen to this song on youtube and see if it appropriately fits.

    http://www.youtube.com/watch?v=MIopI2isIKc&feature=related</P

    Have you seen the little piggies
    Crawling in the dirt
    And for all the little piggies
    Life is getting worse
    Always having dirt to play around in.

    Have you seen the bigger piggies
    In their starched white shirts
    You will find the bigger piggies
    Stirring up the dirt
    Always have clean shirts to play around in.

    In their ties with all their backing
    They don't care what goes on around
    In their eyes there's something lacking
    What they need's a damn good whacking.

    Everywhere there's lots of piggies
    Living piggy lives
    You can see them out for dinner
    With their piggy wives
    Clutching forks and knives to eat their bacon.

    Bank of America Lawsuit At: http://news.yahoo.com/s/prweb/20100323/bs_prweb/prweb3766544_1

  10. Could you email me this case

  11. It is time to not only time to hold Bank of America accountable, but to hold accountable any judges who dares to protect the bank’s right to cause us injury.

    Bank of America and all these other Piggy Banks reminds me of that song by John Lennon and George Harrison titled “Piggies” I invite you to listen to this song on youtube and see if it appropriately fits.

    http://www.youtube.com/watch?v=MIopI2isIKc&feature=related</P

    Have you seen the little piggies
    Crawling in the dirt
    And for all the little piggies
    Life is getting worse
    Always having dirt to play around in.

    Have you seen the bigger piggies
    In their starched white shirts
    You will find the bigger piggies
    Stirring up the dirt
    Always have clean shirts to play around in.

    In their ties with all their backing
    They don't care what goes on around
    In their eyes there's something lacking
    What they need's a damn good whacking.

    Everywhere there's lots of piggies
    Living piggy lives
    You can see them out for dinner
    With their piggy wives
    Clutching forks and knives to eat their bacon.

    Bank of America Lawsuit At: http://news.yahoo.com/s/prweb/20100323/bs_prweb/prweb3766544_1

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