Standing Before A Judge…
Be Prepared Be Prepared Be Prepared!!!

Most Pro-Se Homeowners don’t know this and EVERY attorney representing a homeowner in a foreclosure case should. When you go in front of a Florida Court Judge for any type of hearing, be prepared…be prepare…be prepared! So what exactly does that mean? I’m going to get into depth on this topic because I’ve been sitting in judges chambers as of late watching homeowners and attorneys go before some really great judges that actually listen yet lose interest and get frustrated because of the terrible presentation before them.

Here is the AMA Best Practices on Foreclosure Defense Tactics in FRONT OF THE JUDGE!!!

1. Print out a copy of all the case-law you’ve cited in your pleadings and highlight the important portions you are relying on. Judges are people, not super computers that have ever case in history memorized. When you bring up a point that is supported by case-law the judge is going to want to see it. Don’t be that person that say’s “oh uh I don’t have it.” That’s like going back to the 8th grade and telling your teacher you forgot your homework. No matter what the excuse, you just made yourself look bad.

2. Beware citing cases that have a line or two in your favor but the rest of the case completely disproves or hurts your argument. Even though you highlighted the portion you want the judge t focus on, if it’s interesting enough, he will continue to read. Don’t let the additional reading pull him away from the point you are trying to make.

3. It’s a 5 minute hearing at best so Keep It Simple Sweetheart (K.I.S.S.). Sales people are trained to close their targets in minutes and can identify if their target is sold on their spiel using K.I.S.S. You are a sales person and the judge is your target. Keep it simple and he will love you. Complicate the issue and you will frustrate him and lose him. Don’t go into the hearing shooting from the hip. Know what points you want to focus on, have those cases available and bring it home in 5 minutes or less.

4. If in your hearing you see opposing counsel has pissed off the judge and his/her honor begin digging into opposing counsel, keep your mouth shut! You’re work is pretty much done! Once the judge is done spanking opposing counsel all you need to do is remind the judge why he should rule in your favor and when he does, simply ask if he/she would like you to draft the Order then get out of there!

5. Pro-Se homeowners, you are in front of the judge whose only objective and desire is to hear the facts in dispute. The judge does not want to hear Countrywide is a predatory lender. The judge does not want to hear how you are being abused. There are ways that I have observed that have helped a homeowners argument. For example I’ve seen a homeowner before a judge who rather than call it predatory lending stated that their monthly payment went from $1,800.oo a month to $5,300.00 a month. This caused the judge to take a greater interest in homeowners argument. When you are speaking with the judge only bring up the facts that are in dispute. For example Capacity to Sue, Standing to Foreclose, Negotiable Instrument, UCC, Conditions Precedent (i.e. failure to post non-residential bond), Notice of Acceleration etc. These are all facts in dispute to be raised and have supported case-law to argue.

6. The “endorsed note” magically has appeared in the file. I’ve seen defense counsel stumped on this one as opposing counsel now has a ”legal standing” argument. SO WHAT! It takes more than a note endorsed in blank to prove standing. Remember Florida requires you to be the OWNER and HOLDER of the Note. If the complaint alleged OWNER and HOLDER and the note is endorsed in blank the OWNER element has not been met. BEWARE the MERS assignment to support the transfer of the beneficial interest in the NOTE. I’m seeing attorney after attorney walk into court and have their Motion to Dismiss denied because they fail at this juncture of the hearing. These MERS assignments should be scrutinized in their entirety but there is no need to try to cry conspiracy. Judges don’t want to hear that. Instead approach the document on its face. MERS is cited as nominee on MORTGAGE and is NOT mentioned ANYWHERE on the Note. The Mortgage follows the Note and not vice versa. Although opposing counsel can argue MERS granted its interest in the Mortgage, the Note does not mention MERS anywhere on the document. Hence a MERS Assignment that transfers beneficial interest in the Note when MERS is not mentioned anywhere on the NOTE is a fact in dispute that will cause a judge t ask opposing counsel… “How is MERS able to issue and assignment transferring a beneficial interest that the Note clearly does not give them to transfer?” This will cause a judge to dismiss.

7. Your place on the docket – whether hearings are being held in chambers on in the courtroom, once you are in there, make it a point to listen to the other foreclosure cases being heard before you. They are critical to determining the mood of the judge and if lawyers are making the same arguments as you and the judge is denying them. Be smart and ready to adapt your strategy to the color of the day. Paying attention to this is crucial to success in front of the judge. If you see the judge is playful in his commentary don’t change his mood against you. If you see he’s not favoring opposing counsel today, come out straight to the point and force opposing counsel to respond. Use insight of what you are seeing in court to your advantage.

I will begin posting more comments like these to help attorneys and pro-se homeowners alike. The point of this post is to get you all to be prepared. Most judges want to help but you have to do your part, be right on point and raise the important issues. Feel free to reach out to me if you have any questions at or

3 Responses

  1. FORECLOSURE DEFENSE 101 by Ryan Curtis Esq.
    Thanks for sharing –

  2. Thanks for sharing
    I learn a lot from your posts. They are very helpful

    How To Argue Florida Assignments To Judges

    In accordance with the Disclaimer posted on this site, nothing here shall be construed as legal advice. The information below is strickly commentary designed to help attorneys enhance there presentation skills in the performance of their jobs. The hiring of an attorney is very important. If you are in need of legal assistance, consult a licensed attorney for legal advice.

    The Assignment Not Attached To The Complaint & Is Dated After The Complaint Was Filed

    It is important to note here that judges like rulings from the appellate division that cover their circuit or other opinions from WITHIN their circuit (colleagues). Find those cases first and if you can’t and have to use other Florida cases, show the judge WHY they should rule the same. Remember you have 5 minutes to bring it home.

    I’m going to use Deutsche Bank National Trust Company as Trustee for FFMLT 2006-3 as the Plaintiff and Marshall C. Watson as their counsel for this example.

    Judge: We’re here on Defense Counsel’s Motion to Dismiss. Counsel please proceed.

    Defense Counsel: Good morning Your Honor. This Motion is based on 3 points that warrant dismissal of this action (we will only focus on one – Standing)

    1) Plaintiff lacks standing to bring this foreclosure action against my client (FACT/OPINION). The allegations in the complaint allege Plaintiff is the OWNER and HOLD of the NOTE that they seem to have apparently LOST (FACT) but have failed to identify, WHEN they became the OWNER and HOLDER of the Note (FACT) and HOW they became the OWNER and HOLDER of the Note (FACT), or the approximate date WHEN they allegedly lost the NOTE (FACT) and explaining HOW they allegedly lost it (FACT). They have attached a copy of a print out from court records AND NOT THEIR CLIENTS FILES of the Mortgage (FACT) which indicates First Franklin as the ORIGINAL Lender (FACT) and does not mention Plaintiff Deutsche Bank anywhere on THAT document (FACT). No NOTE or a CERTIFIED COPY of such nor has a LAWFUL and EQUITABLE ASSIGNMENT been ATTACHED to the Complaint (FACT) in support of their allegation that they are the OWNER and HOLDER of the NOTE (FACT).

    STOP RIGHT HERE (EDITORS NOTE): First always state facts and not opinions. If you have to state an opinion it better be extremely persuasive and you need to have sufficient evidence to back it up. Second, if there was a Notice of Filing after the complaint was filed and you filed your Motion to Dismiss of the Assignment you want to say:

    In an attempt to cloud the court’s judgment (OPINION), PLAINTIFFS COUNSEL has magically caused an Assignment to appear (FACT) which according to the date was CLEARLY drafted, executed and filed AFTER the filing of this action (FACT) where numerous case-law opinions throughout Florida PROHIBIT such Assignment filings warranting dismissal (FACT)!

    STOP RIGHT HERE (EDITORS NOTE): You don’t want to come off as condescending here. Your want to come off as confident to your position and a little fantastical about Opposing Counsel’s Actions (Not PLAINTIFF) in filing the Affidavit this way. You have to end your speaking presentation here because you don’t ever want the judge to cut you off to allow opposing counsel to speak but you want your last words to the judge the prompt the question…what case law and opinions do you have to support your position?

    Judge: Plaintiffs Counsel what do you have to say?

    Plaintiff’s Counsel: Your Honor, our Complaint clearly states a cause of action (OPINION). Plaintiff is in possession of the original Promissory Note and we are prepared to drop the Re-establishment Count Your Honor. Since we have possession of the Original Note, the Court should find that an equitable assignment occurred prior to the actual dated assignment and the date of the assignment is irrelevant (OPINION). We only need to have possession to be the holder in due course judge which allows us to bring this action. I have numerous case-law to support our position.

    Judge: Such as?

    Plaintiffs Counsel: Well Your Honor, WM Specialty Mortgage, LLC v. Salomon, 874 So.2d 680 (Fla. 4th DCA 2004) and Johns v. Gillian, 184 So. 140 (Fla. 1938) clearly state that because Plaintiff had possession of the original Promissory Note the Court should find that an equitable assignment of the mortgage occurred prior to the actual dated assignment and the date of the assignment should be deemed irrelevant.

    Judge: I see…Defense Counsel?

    Defense Counsel: Your Honor, Counsel’s argument is misplaced (FACT/OPINION). WM Specialty Mortgage requires that, whatever the form of the assignment, there MUST first be an “unconditional” transfer of interest BEFORE the assignee may maintain a foreclosure (FACT). Unlike the matter presently before the Court, in WM Specialty Mortgage the Plaintiff alleged facts of a physical transfer of the mortgage to the assignee prior to the Plaintiff filing suit (FACT). The allegation of physical delivery SUPPORTED an equitable assignment (FACT) and based on THAT fact the Court in WM Specialty Mortgage overlooked the late executed assignment and allowed the foreclosure to continue (FACT). In the matter before this Court, the Plaintiff made no allegation IN THE Complaint of physical delivery (FACT) within the holding of WM Specialty Mortgage and the allegations in the Complaint do not rise to the standard of showing an “unconditional” transfer of the assignor’s rights to Plaintiff (FACT) nor has Plaintiff alleged in the Complaint it is the HOLDER IN DUE COURSE which counsel is alleging here.

    Your Honor, before Plaintiff’s Counsel responds, I’d like the court to note that PRESENTING Affidavits that are dated AFTER the a Complaint is filed and the foreclosure has been initiated in the manner done so EXACTLY as seen here (FACT/OPINION), is a pattern and practice amongst the law firms Marshal C. Watson, Florida Default Law Group, Law Offices of David J. Stern and Shapiro & Fishman (FACT) who represent over 90% of foreclosures in the State of Florida (FACT). In fact the argument I’ve just expressed to the court comes straight from Judge Anthony Rondolino of the 6th Judicial Circuit in and for Pinellas County BANK OF AMERICA vs. COLLEEN M. MCKENNA Case No. 09-4179-CI-13 (FACT) which Marshall C. Watson was counsel of record for, where His Honor granted Defendant’s Motion to Dismiss against Marshall C. Watson for the very same reason (hand a copy of 16 Fla. L. Weekly Supp. 833c to Judge) (FACT). At a glance I have over ten (10) cases where this tactic has been used and the case was dismissed as a result (FACT) (hand Judge the cases with the points highlighted). Those cases are BRANCH BANKING AND TRUST COMPANY vs. REGINALD JENKINS, 16 Fla. L. Weekly Supp. 642a, CHASE HOME FINANCE, LLC v. JANET DOBSON, 16 Fla. L. Weekly Supp. 428a, CITIMORTGAGE, INC. vs. MICHAEL EASOM, 17 Fla. L. Weekly Supp. 100b, CREDIT BASED ASSET SERVICING AND SECURITIZATION, LLC v. TAMMY D. HARDY, 16 Fla. L. Weekly Supp. 1147a, SUNTRUST MORTGAGE, INC. vs. ELENA V. FULLERTON, 16 Fla. L. Weekly Supp. 1146b, THE BANK OF NEW YORK MELLON v. MARY L. BARNICH, 17 Fla. L. Weekly Supp. 100a, U.S. BANK NATIONAL ASSOCIATION v. BRENDA C. ROSE, 16 Fla. L. Weekly Supp. 1044a, US BANK N.A. v. JESUS TACORONTE, 17 Fla. L. Weekly Supp. 17a and WACHOVIA BANK NATIONAL ASSOCIATION vs. JUANITA NORTON, 16 Fla. L. Weekly Supp. 1043a.

    All of these cases support that where an Assignment is filed AFTER the Complaint is filed and the Complaint fails to allege and/or Plaintiff fails to submit other documentary evidence showing conclusively an EQUITABLE TRANSFER of the Note (FACT), Plaintiff lacks standing to bring a foreclosure action and the case should be dismissed (FACT). I would ask the court at this time based on the OVERWHELMING support I have provided to dismiss this case.

    STOP RIGHT HERE (EDITORS NOTE): I cannot tell you what the judge will decide or what Opposing Counsel will say after this point…you be the judge. What I will say is that Judges want to hear the FACTS. You have presented the FACTS very well here. The key to success in this example is your flow of words in a strong and confident manner without studder, interruption or indecisive pause.

    Another very important point and cross argument I want to point out is the Assignment is 99% of the time from MERS to the Plaintiff. There are two (2) important positions to take on this.

    (1) While the Mortgage may name MERS as the Nominee for Lender, it does so only in the Mortgage and the Mortgage interest only. MERS is not mentioned ANYWHERE on the Note hence it can not assign an interest greater than that which it is entitled to. The MERS assignment (outside of the number of fraudulent issues that may exist on the face of it) will casually state in the language that it is transferring ALL beneficial interest in the Mortgage AND Note. Be sure to bring to the court’s attention that MERS name is not mentioned anywhere on the NOTE as the Lenders Nominee and Plaintiff has NOT provided evidence to support MERS ability to transfer the beneficial interest of the Note.

    (2) In instances where the Plaintiff is Trustee for a securitized pool of loans, find the Pooling & Servicing Agreement at Show the court that it would be impossible for MERS to transfer interest to Deutsche when it is clear from the case caption that this loan is part of a pool of loans (FYI – just because they allege your loan is part of a pool does not mean it is but for argument sake use this allegation against them). The Pooling and Servicing Agreement will show who the Depositor is, Servicer, Master Servicer and Deutsche as Trustee. This document is evidence that a) the loan transferred from the original lender to at the very least, the Depositor (where is the evidence of this transfer?), and from the Depositor to the parties in the pool (where is the evidence of this transfer or transfers) and that the Trustee gets its alleged power from this pool and agreement which only begs the question…why is counsel here attempting to claim this Note has moved from MERS to Plaintiff directly?

    This is a great point to proving the assignment is a fraud. Watch what opposing counsel answers to this because it will probably amount to testimony at which point you need to be quick to say to opposing counsel “unless you intend to recuse yourself as counsel from the Plaintiff please refrain from testifying on their behalf.” Because at this point anything opposing counsel says will not be supported by anything alleged in the complaint or in the court record and that should always be your…”maybe so your honor but Plaintiff has not alleged such in the complaint…Plaintiff has not submitted any documented evidence to support what counsel is saying here today.”

    Well my fellow soldiers of the cause, that is my 2 cents. Master this in 5 minutes and I think the outcome will be a positive one. I’d be very interested to hear any comments and feedback on this. My next topic will be Summary Judgment. I hope this helps.

    Anthony Martinez

  3. What is the difference between HOLDING and OWNING a Note? If one HOLDS the Note, doesn’t one technically OWN it? Is there some kind of receipt we should be asking for to see if the party HOLDING the Note actually gave “valuable consideration” for it?

    Great article–glad this hold vs. own issue was brought up.

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