New strategy attacks validity of affidavits

Foreclosure Crisis
New strategy attacks validity of affidavits
August 26, 2010
hen it comes to fighting foreclosures, homeowners and their lawyers may have found a new strategy to score courtroom victories.
Defense lawyers across the state are increasingly attacking the validity of affidavits that owners of notes must file with the courts as part of the foreclosure process. Attorneys like Dustin Zacks, of the firm Ice Legal in West Palm Beach, are successfully arguing that plaintiffs — usually a trust that owns the note or the servicer of the note — are violating court rules by filing affidavits with no records attached to support their foreclosure suits. The records include details of the loan, borrower fees and payment history.
The Florida Rules of Civil Procedure (Rule 1.510) states that “sworn or certified copies” of all records referred to in the affidavit must be attached as evidence in the foreclosure case.
The rule helps ensure that homeowners’s due process rights aren’t violated — namely that the lender has to prove it is entitled to press its claim.
By: Paola Iuspa-Abbott
Dustin Zacks
In a foreclosure suit, the plaintiff’s affidavit outlines how much the homeowner owes, asserts that there are no unresolved disputes between the lender and borrower and that the home is legally ready to be sold.
Judges rely on the affidavits as critical evidence when they hand down a summary judgment in favor of the lenders, which paves the way for the sale of a property at a foreclosure auction. Since most foreclosure cases are unopposed, the validity of the affidavits and compliance to the rules have rarely been questioned.
When a summary judgment is denied — because an affidavit is flawed, among other reasons — the homeowner can face the lender at trial.
A deficient affidavit can be the difference between homeowners losing their properties through a summary judgment or going to trial, Zacks said.
“These affidavits are the linchpin of cases when they are trying to win a house at summary judgment,” he said. “A summary judgment cuts short [a homeowner’s] right to a full trial.”
Several judges and lawyers say deficient affidavits are rare in most other civil cases, but are rampant in foreclosure cases.
“Our entire judicial system is under attack as a result of this foreclosure process,” said St. Petersburg lawyer Matthew Weidner, who blogs about foreclosures. “Judges, just like us, have just sort of overlooked this in the midst of this crisis.”
AG’s Investigation
Foreclosure firms are increasingly under scrutiny for questionable practices, including the alleged falsification of documents. Earlier this month, Florida Attorney General Bill McCollum launched a probe into the Law Offices of David J. Stern in Plantation; the Law Offices of Marshall C. Watson in Fort Lauderdale; and Shapiro & Fishman, with offices in Boca Raton and Tampa.
McCollum’s office is investigating whether the three law firms submitted false affidavits or fabricated court documents to obtain final judgments against homeowners.
The Law Offices of David J. Stern and Shapiro & Fishman deny wrongdoing and have filed motions to quash or modify the subpoenas issued by the AG office.
Defense lawyers, who have been filing civil lawsuits against the foreclosure law firms, welcomed the investigation. They claim some plaintiff lawyers are rushing through large volumes of foreclosures on behalf of lenders, often improperly serving notice on homeowners or filing false pleadings.
Some judges say they don’t have the resources nor it is their job to make sure every affidavit is proper, but at least two said they are interested in hearing the argument.
“It is a genuine question that should be raised,” said Miami-Dade Circuit Judge Jennifer Bailey. “The question is, where should each judge draw the line about the degree of investigation they are going to do on these affidavits? There is no clear answer.”
In June, Zacks persuaded Palm Beach Circuit Judge Howard Harrison Jr. to deny a motion for summary judgment because of a flawed affidavit.
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http://www.dailybusinessreview.com/news.html?news_id=64829&stripTemplate=1    8/26/2010
Harrison told a representative of the Bank of New York, the loan’s trustee, that it needed to produce the loan records rather than having an employee of the plaintiff attorney or the loan servicer attest that documents are in order before signing the affidavits.
“It basically just says he looked at and plugged some numbers in,” Harrison said, according to a transcript of a June 29 hearing. “If they are not contested, that’s fine. But where somebody just basically says, ‘I looked at the records,’ this is it. That’s not enough for me to agree.”
Harrison’s ruling gave Elizabeth and David Mosquera a temporary break. The couple owes $1 million on a six-bedroom Wellington home they bought for $1.4 million in 2007, according to Palm Beach County property records. The couple fell behind on their mortgage payments last year.
In May, Zacks got Palm Beach Circuit Judge Jack Cook to strike an affidavit that did not include records. Now it will be up to Wells Fargo Bank, as trustee, to file a new affidavit.
Challenging Rule
In addition to requiring a copy of the records, Rule 1.510 also says that the person signing the affidavit must have personal knowledge of the facts of the case. That can be a challenge since most loans have been sold several times since they were originated and have been processed by different servicers. Many notes and mortgages are not available for review.
Since the foreclosure crisis started in 2008, it has become common for plaintiff lawyers and servicers to assign an employee to sign hundreds of affidavits, even though they usually are not familiar with the cases.
“I’d like to see in one of these cases where a defense lawyer cross examines, takes a deposition of these people [so] we can see whether they ought to be charged with perjury for all of these affidavits,” Pinellas Circuit Judge Anthony Rondolino said during an April 7 hearing.
At that hearing, he vacated a summary judgment he granted in January in favor of GMAC Mortgage.
Rondolino reconsidered his decision after defense lawyer Michael Wasylik of Dade City asked for a rehearing to challenge GMAC’s affidavit, which did not include any sworn or certified documents.
Rondolino said he hasn’t seen many defense lawyers use flawed-affidavit arguments as a defense, “but when they do raise these issues, I listen to the argument carefully.”
Wasylik said summary judgements that were granted based on insufficient affidavits can be appealed and set aside. “If courts are fooled into granting judgments … it could be disastrous for Florida’s real estate,” he said.
Attorney Mark Romance, with Richman Greer in Miami, said people who lost their homes to foreclosure can appeal a judgment that was the result of an insufficient affidavit or on a mistake.
“That doesn’t help necessarily the person whose home has been foreclosed upon and sold … but they can still get some relieve from the court,” he said.
Nonjudicial process?
The Florida Bankers Association is pushing state lawmakers to make the foreclosure process nonjudicial so lenders can repossess properties faster.
It can take more than a year for uncontested cases to move through the overworked court system and several years if a homeowner defends the case.
A bill proposed by the FBA to make foreclosures nonjudicial failed earlier this year during the legislative session in Tallahassee. The industry group is considering re-introducing the bill in the 2011 session, said Anthony DiMarco, the FBA’s executive vice president and director of government affairs.
“Everybody has the right to a defense, but if they do it just to slow down the process, they are just going to slow down the [recovery of the housing market,]” DiMarco said. “And the faster we get through all this, the faster we are going to get to the end of the crisis and we can move on.”
Paola Iuspa-Abbott can be reached at (305) 347-6657.

21 Responses

  1. Ann

    Good advise – but it may or may not help you. Justice system – is not what it used to be.

  2. Amelia Colvin

    I am interested in the law firm or names of attorneys you referred to. Can you please e-mail me with the contact info at mkdeerly@msn.com. Thank you.

  3. Ann is exactly right. Statements from attorneys orally or in written briefs are not facts.
    Facts are sworn.

    Make sure to object when the attorney states facts not in evidence.

    Facts are sworn to statements by a competent witness with first hand personal direct knowledge of the truth of an event, perceived with one or more of the senses.

    No attorney can do this.
    Affidavits sworn to “on information and belief” ARE NOT FACTS.

  4. From a lawyer:
    Critical Courtroom Objections …
    Putting the Brakes on Crooked Judges & Lawyers!

    The most important thing to learn about winning lawsuits is the easiest to learn!

    Timely objections!

    You cannot win without controlling the court.

    Many people (from watching courtroom battles on TV or at the movies) believe we make objections to control “the other lawyer”. In fact, that is the smallest part of it.

    We object to threaten the judge with appeal!

    If a judge didn’t have to worry about appeal, he could rule any way he wishes — knowing absolutely nothing you can do will reverse his decisions.

    I’ll bet many of you didn’t know that.

    If an issue is not raised during lower court proceedings, appellate courts will not consider the issue after you lose.

    That is a hard-and-fast rule of appellate courts!

    If the other side crosses the line, you must object. If the judge sustains your objection, you stop the tricks.

    If the judge overrules your objection, you object again and state your reasons … even if the judge threatens you with contempt!

    At the close of the other side’s argument, you renew your objections once again.

    At the close of all deliberation, you renew once more, to make crystal clear to the judge that you are not playing!

    If you don’t object, you cannot win on appeal.

    And, of course, you must arrange in advance of every hearing and trial for the proceedings to be recorded by an official court reporter … or you cannot win on appeal.

    If the judge knows you cannot win on appeal, you’ve given him a free hand to do as he pleases. Not good!

    The judge is not the authority!

    You must make it crystal clear on the court’s record that the judge will be reversed on appeal if he rules against you, and you do this by making timely objections and renewing them if you are overruled.

    The reason we renew our objections is to give the judge one more opportunity to do what’s right! Appellate courts want the record to show that the judge was very much aware of your objections, the grounds for your objections, and stubbornly refused to follow the law!

    Each time you object (and state the grounds for your objections, unlike TV actors) you put the judge on notice that overruling your objection threatens appeal.

    If your objections have solid legal footing and the judge overrules your objections, he is skating on thin ice!

    When you renew your objections, he knows you intend to take him up on appeal if his errors harm your cause.

    For example, one of the most common errors is letting the lawyer on the other side “testify”. The lawyer on the other side is not a witness. He doesn’t have first-hand knowledge of the facts. He lacks “competence” to testify to any fact he learned from others. Far too many good people lose their lawsuits simply because they allow the lawyer on the other side to put facts into the record that are beyond the lawyer’s own, personal knowledge.

    Failure to object is fatal.

    “Objection, your Honor. Counsel is testifying to facts beyond his personal knowledge and lacks competence to act as lawyer and witness at the same time!”

    If the judge sustains your objection, you’ve put a stop to one of the most common outlaw games crooked lawyers play … and you’ve strengthened your case.

    If the judge overrules your objection, just stand up and say, “Let the record reflect my objection that opposing counsel lacks competence to testify to these matters.”

    When the other side finishes his presentation, object again!

    At the close of all the testimony, object again!

    Don’t let corrupt judges and crooked lawyers win!

    Clever argument is not enough.

    Knowing the law is not enough.

    Controlling judges is what wins lawsuits!

    You control judges by making clear on the record that you intend to appeal if the judge rules against you!

    You do this by making timely objections and renewing your objections so the record is crystal clear!

    Know how to control the judge – or you will lose!

    Learn how to control judges by timely objecting!

    As Woody Guthrie used to sing, “This Land is our Land,” and that includes every courtroom and every courthouse from San Diego to Bangor, Maine. Why let lawyers control our lives with trickery? Why let judges destroy our lives by letting lawyers get away with their typical trickery?

  5. Sunday 29 August 2010

    Amelia:

    Done.

  6. Amelia Colvin,
    Could you email your “hands on lawyers” contact info to:
    mrsdiamond@msn.com ? Please & Thank you~

  7. Sunday 29 august 2010

    Amelia:

    Copy and paste your response to the most recent thread, “Lakeside Bank…” It goes to a comment I made about people finding attorneys that get it.

    Ann:

    You are so kind. Thank you!

  8. I know , we have a lot of smart people in this forum ,
    what about charges against AVM Systems First American CORELOGIC ?
    My Story : CHASE told me 12/2006 : Your House is
    worth $ 313,000.00 , we could give you $ 70,000.00
    HELOC . So on 5/2008 I got a note , that AVM found , your house is worth only $ 198,000.00 ,we close your account. On 11/2009 the CHASE website with
    AVM Corelogic !! link show my house : $ 126,000.00
    I did not even have a bathroom , and 208 sf new
    added Florida room was missing. So how CHASE and CORELOGIC deal together in foreclosure ?
    I believe , that this AVM system help all this mess , and should never be accepted.

  9. Thank you Ann for the links on affidavits.

    In my court, the judge allows a bank official to submit a declaration on possession of the note, but not a bank employee.

    I am looking for all I can get to object to this form of evidence for the note.

    Zinger, I would like any information you can supply on transfer of assignments. My assignment was made from MERS to the Bank by the omnipresent Yvonne Wheeler who also signed substitute of trustee to Cal Western Reconveyance where she allegedly sits on the board of trustees.

    Lynn’s email did not work for me. Anyone else have a problem?

    davidwood100@yahoo.com

  10. The banksters maliciously and intentionally designed these loans to fail which forced foreclosures and deflated the value of my home. My neighborhood is nothing but a foreclosed ghetto. There is no recovery ever in sight. I figure this is destruction of property and I should be able to file criminal charges against these S.O.B’s.

  11. Saturday 28 August 2010

    Ann:

    If you do not mind sharing, I am interested in your samples of motions and pleadings. Illinois is very pro-lender and not at all up to speed, at least in Cook County, and I am always looking for stronger arguments to introduce into the “system” againt the FCmills.

    Initials mn in front of the @edgetraderplus dot com.

    Thank you, either way…

  12. I think Judge Schack says it best about these deficient affidavits .

    “The alleged proof presented of physical delivery of the subject MULLIGAN mortgage is a computer printout [exhibit G of motion], dated April 30, 2009, from Countrywide Financial, which plaintiff’s counsel calls a “Closing Loan Schedule,” and claims, in of his affirmation in support, that this “closing loan schedule is the mortgage loan schedule displaying every loan held by such trust at the close date for said trust at the end of January 2006. The closing loan schedule is of public record and demonstrates that the Plaintiff was in possession of the note and mortgage about nineteen (19) months prior to the commencement of this action.” There is an entry on line 2591 of the second to last page of the printout showing account number 1232268089, which plaintiff’s counsel, in of his affirmation in support, alleges is the subject mortgage. Plaintiff’s counsel asserts, in of his affirmation in support, that “[t]he annexed closing loan schedule suffices to proceed in granting Plaintiff’s Order of Reference in this matter proving possession prior to any default.” This claim is ludicrous. “

  13. Zinger,
    I have collected many samples of Motion to Strike Affidavitts and other pleadings from top gun attorneys. Drop me an e-mail and I will send them to you. If you have samples of any Motion to Strike or Objection to Fraud Assignments, please send them to me .

    I think Pro Se litigants should read the Court Hearing transcripts to be ready to defend at the Hearings. The Plaintiff attorney usually try to run us over if we don’t know what to say to the Judge or cite our Objections. I see from the transcript the Judge did not even have the case files. So we have to come to Court with our case files, copies of cases laws which we are going to use to counter attacks. I try to memorize all these hearing transcript key points so they are in my memories ready to be used. Always go to the Hearing with a Court Reporter (cost is about $100-$150) to keep the option to Appeal. No court reporter transcript, no appeal possible. If you have a lawyer, insist to be present at Hearings with your entire family and dress conservatively . It helps to put a human face on a case , a lawyer told me.

  14. In our self help group we are going beyond that to attacking the validity of the notory documents used to transfer assignment etc. Many of the signatures on all three (trustee sale) documents used to initiate the trustee sale are by the SAME individual and notarized in states where there is no corporate presence.

  15. Saturday 28 August 2010

    If you reads the full transcript, you will see how opposing attornies use procedure to win their casem usually against one who is defending him/herself. In this situation, the other side was represented by another attorney, and he was able to argue back and defeat the procedural objection.

    As to the comment by Judge DiMarco:

    >”Everybody has the right to a defense, but if they do it just to slow down the process, they are just going to slow down the [recovery of the housing market,]” DiMarco said. “And the faster we get through all this, the faster we are going to get to the end of the crisis and we can move on.”

    Excuse me!? Slow the process down?! Judge, I object on the grounds that I am entitled to be heard, and to be heard in a meaningful manner. I will slow this process down to a crawl in order to be heard if it means I am going to save my house from a defective process employed by the plaintiff!

    Unspoken, but implied, is the sentiment, “Screw you, judge, for trying to screw me just so you can get on to some next case.”

    I’ll take justice over expediency, everytime. I also knnow I have to fight real hard to get it.

  16. Full Hearing Transcript attached . Courtesy of T. Ice Esq. Palm Beach Florida

    Florida – June 2010 – MSJ denied. Affidavits Hearsay Insufficient

    What we are starting to see here is a pattern of Judges not excepting these affidavits from these robo-signers.

    I can tell you that, if properly challenged, they will pull the affidavits across the board.

    Don,t let that stop you from deposing these people, because once you do it will clearly show that they DO NOT have the authority to produce them. It will also show you they know absolutely nothing about the documents that they are signing even though they state it is of their personal knowledge.

    Below is a transcript of how one Judge, in Palm Beach County, DENIED a motion for summary judgment on pending issues, including the insufficient affidavit.

    Another key issue was an affidavit presented by the defense from Expert Witness Lynn Szymoniak regarding the fraudulent assignment presented in the case.

    Lynn’s expert testimony has stopped many foreclosures in its tracks.

    If you are interested in talking to Lynn about her services she can be reached at szymoniak@mac.com and just tell her 4closureFraud sent ya…

    Some excerpts from the transcript…

    THE BANK OF NEW YORK TRUST
    COMPANY, N.A., AS TRUSTEE FOR
    CHASEFLEX TRUST SERIES 2007-3,
    Plaintiff,
    -vs-
    DAVID J. MOSQUERA; ELIZABETH

    ~

    THE COURT: Okay. Without going into
    anything else, I’m not about to enter a motion –
    granting a motion for summary judgement based onan affidavit of Mr. Reardon.
    ~
    MR. CHANE: Your Honor, there is simply no — there’s no basis to –
    ~
    THE COURT: I’m sorry. It’s just — it
    basically just says he looked at some records. I
    don’t know what he looked at and he plugged some
    numbers in.
    ~
    MR. CHANE: Your Honor, it’s based on his
    personal knowledge. That’s all he needs to do
    according to the Rule.
    ~
    THE COURT: Well, motion denied.
    ~
    MR CHANE: On what basis, Judge?
    ~
    THE COURT: On the basis that the Court
    fears that there are many issues of fact to be
    determined. This is not a matter in which
    everything is undisputed.
    ~
    MR. CHANE: What issues of fact?
    ~
    THE DEPUTY: Sir, the Judge ruled. The
    hearing is over.

    http://www.scribd.com/doc/36551048/Full-Transcript-M-S-J-denied-Hearsay-Affidavit-not-Valid

    4closureFraud.org

    THE BANK OF NEW YORK TRUST COMPANY, N.A., AS TRUSTEE FOR CHASEFLEX TRUST SERIES 2007-13 PLAINTIF VS. DAVID MOSQUERA

    CASE NUMBER 50 2008 CA 04969 XXXX MB PALM BEACH COUNTY FLORIDA

  17. http://www.mattweidnerlaw.com/blog
    Challenge Plaintiff’s standing, fake assignments, bogus affidavits and won. Read these winning motions and hearing transcript to see Matt Weidner Esq, a top gun Florida Foreclosure Defense lawyer in action:
    Rondolino Transcript

    transcripthsbcvjohnson Calvin Johnson Affidavit, Obj to Hearing, Req for Contin, D’s Obj to P’s Mot for SJ-1

    And finally, the touchstone case on admissibility of affidavits:

    IN RE FORFEITURE OF 1998 FO..

  18. It is becoming increasingly clear that foreclosure mills are using every strategy possible to derail ALL homeowner defenses – and they know that they have government support.

    The article above states – “Everybody has the right to a defense, but if they do it just to slow down the process, they are just going to slow down the [recovery of the housing market,]” DiMarco said. “And the faster we get through all this, the faster we are going to get to the end of the crisis and we can move on.” – which means the government, who is aware of the fraud but has done nothing to block fraudulent foreclosures, supports the fraud to promote so called “recovery of the housing market.”

    It is crucial that we find some avenue, as a group, to halt the massive fraud that is being perpetrated against us.

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