Florida Acknowledges Duty of Judges to Examine Faulty and Fraudulent Paperwork EVEN WHERE BORROWER DOESN’T SHOW UP

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

Mark D Killian, Managing Editor of the Florida Bar News, says in the 1/1/11 issue: “An affidavit signed in California and notarized in Minnesota, is hard for a Judge to ignore — even when the foreclosure is uncontested.” He was referring to testimony to the Florida State Senate Banking and Insurance Committee in December, 2010. In short, the fraudulent nature of foreclosures all over the country is becoming readily apparent to the highest lawmakers, judges and agencies.

“The Judges said faulty and fraudulent documentation is the main cause of delays (e.s.), and the courts are bracing for an anticipated deluge of commercial foreclosures.” This is the first time that the Florida Bar, or any bar has conceded that the problem is with the banks, not the borrowers.

“Court officials also discussed the limitations of the Supreme Court ordered managed mediation program.” Thus the acknowledgment that mediation leads to more chaos when one of the parties never had standing to sue in the first place.

The big takeaway item here is that Judges are being directed to apply the law first, and then look at procedure. It is true that a default could be entered by virtue of the failure of the homeowner to respond to the initiation of foreclosure proceedings. But before that issue is reached, the it is incumbent upon the Judge to review the documentation to verify that the basic requirements of a prima facie case are present.

This is the essential difference between substantive and procedural law. Procedural law and rules seek to assure that persons have access to the courts and to make sure that every justiciable issue has an opportunity to be heard. But procedure does not trump substance. If someone doesn’t have a claim, and is a pretender, then despite the clerk’s default, the Judge should be dismissing the action rather than entering a default final judgment.

15 Responses

  1. WHIP and Fighter

    Cannot backdate something that was never executed — or done in the first place.

    But, the only way will really prove this is by Remittance ledgers that the Trustee holds in it’s possession. Read the Marie McDonnell amicus curiae brief — which the court clearly heavily relies on. Those ledgers — maybe only government can get — but why the heck are they stalling???

  2. FIghter,…..

    Assignment does not mean docs never transferred to trust. FACT is the DOCS NEVER transferred, PERIOD!

  3. So are we lucky? The Plaintiff filed an Assignment of Mortgage by MERS robo signer John Kennerty, after the foreclosure was filed, and back dated it.

    SO THAT is proof the Mortgage was never transfered to the Pool? (also the date on the transfer was june 2005; However the Pooling and Service Agreement was not started until Sept 2005)

    cant have an omlet before the egg!!!

  4. FLORIDA- what about the duty of a JUDGE to not issue a defualt judgment for a missed hearing appearance when; 1) defendant filed a Motion to appear by phone 2) faxed/mailed the Judge a letter for a request for a status phone conference.

  5. TMT,

    Great article by Prof. Levitin. Appears quite clear that executing documents today- that should have been executed yesterday — will be very difficult – if not impossible. And if you cannot fix original documents to original trust — you cannot fix derivative contracts that “swap” collection rights.

    cubed2k, — servicers are not the creditor – unless they have purchased collection rights.

  6. […] This post was mentioned on Twitter by Eric Chase. Eric Chase said: Florida Acknowledges Duty of Judges to Examine Faulty and …: And these credit card companies=banks=direct mone… http://bit.ly/gzPYfx […]

  7. Check this out!

    http://stopforeclosurefraud.com/2011/01/10/2nd-dca-smackdown-florida%E2%80%99s-court-denies-bac-petition-for-writ/

    The Classic FLORIDA UCC Defense used by BANKSTERS to fool the Judge on the Black Endorsement BS.

    This used to work, but looks like that smelly defense just ran its course.

  8. Ibanez and Securitization Fail
    by Adam Levitin

    http://www.creditslips.org/creditslips/2011/01/ibanez.html#more

  9. They really need to be told this? What Law School have they been attending ? Substance over Form… duh…
    The duty of the court is to do SUBSTANSIVE justice.

  10. John & Anonymous,
    Servicer = Bank = Creditor = what media prints and promotes to me and everybody else = confusion = via = what makes it valuable and so important.

    Money = created from debt = from government = from federal reserve notes = government issued money = bonds = credit cards= loans=via=whats make it so important. Hence nobody in the public knows what is what, and that is done on purpose.

    Substitute “=” with “is”.

    The whole of banking is based on debt from 1913 when Federal System was established. This is self evident – federal reserve has power to lower or raise interest rates to stimulate or unstimulate economy, which means to get people to borrow money or not borrow money. (which money is not loaned but created out of fractional reserve system, leverage, created from book entry and now a days computer entry, double accounting – assets and debts, 99% of population believe money is loaned from another – no it is not) . This is so, so as to keep you thinking you own the banks money ,when in fact they never lent you somebody’s else’s money, but you have to believe they did – and they want you to believe you borrowed money from depositor money, that is how the public thinks, even Judges in the Court System. They think like – Joe lends his money to Sam, which money came from Joe’s pocket or bank account, via check or whatever. Sam now owes the money, simple contract law, I give you, you give me = equal consideration. This is not how banking is done in the USA or anywhere else in planet Earth that has Central Banking. But people believe how banking is done, they believe Sam owes Joe for simple lending on money. Public think Sam =Bank.

    Back to self evident on Federal Reserve & Government. Cash for Clunkers program. Turn in your heap and get a new car with new debt, new money created. Last year program – buy a house = credit on your tax bill for buying a new house, but this creates new money via debt. Government now wants to increase debt ceiling = new money. QE2 =more debt=more money. People do not understand this because it’s all confusing = debt=money=via’s=you tell me what to do, I’ll trust you as you are the authority on such matters=I just work for a living – you know I perform some work – you give me some money = all is equal – right.

    So I have stopped paying my credit cards some 1.5 years ago, no law suit. Collection companies I do not call back nor write. We are talking 100k of debt. I will not pay their 30% interest rate when they jacked my rates in the beginning of this so called financial mess, which I did not create, and which I payed on time. And these credit card companies=banks=direct money loaned=not true=ABS trusts=Insurance=they got got payed=scram=they never tell us=the rich get richer= they never lose=but they want us to believe they lose=I’ve been took= as from another posting here, never again.

    Now, after not paying my credit card debt to these Pretender Lenders for 1.5 years, I get to this day Credit Card Offers in the mail. And they say I am pre-approved at $59 membership fee. See they want you in the game, credit card is from a bank where they collect the $59 fee as income and then throw my credit=debt=money into another ABS fund to be purchased by some investor – could be USA pension fund or some yahoo in England. .

    Remember the days when you had money in the bank and you earned some interest, like 5%. A cool 100,000k earned you $5000.00, Not bad, Why is this not true anymore. The young folk don’t even know this, like they do not know how to use a old rotary phone or a record turntable, they do not know. The why is per above..

    Consider this – if you die and have $100,000 in debt, no assets, pure $100,000 in debt to a bank. That debt disappears – right!!!!!!! So who gives a hoot.

  11. John

    Have been talking about this for quite awhile. And, according to the Fed Res Opinion (NOW RULE) the creditor is not the servicer, not security pass-through investors — and IS the entity on whose balance sheet the loan is accounted for.

    Must educate judges on this — they just do not know about it.

  12. The federal assignment law states as follows:
    SEC. 404. NOTIFICATION OF SALE OR TRANSFER OF MORTGAGE LOANS. (a) IN GENERAL.—Section 131 of the Truth in Lending Act (15 U.S.C. 1641) is amended by adding at the end the following:
    NOTICE OF NEW CREDITOR.— ‘‘(1) IN GENERAL.—In addition to other disclosures required by this title, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including—
    (A) the identity, address, telephone number of the new creditor;
    (B) the date of transfer;
    (C) how to reach an agent or party having authority to act on behalf of the new creditor;
    (D) the location of the place where transfer of ownership of the debt is recorded; and
    (E) any other relevant information regarding the new creditor.
    (2) DEFINITION.—As used in this subsection, the term ‘mortgage loan’ means any consumer credit transaction that is secured by the principal dwelling of a consumer.’’.
    (b) PRIVATE RIGHT OF ACTION.—Section 130(a) of the Truth in Lending Act (15 U.S.C. 1640(a)) is amended by inserting ‘‘subsection (f) or (g) of section 131,’’ after ‘‘section 125,’’.

  13. Thank goodness the Interstate notarizations act HR 3808 did not become law, yes this means a judge can see black and white and rule it illegal.

  14. It is unfortunate that so many people just laid down and let the banks step on their faces, and their house went to foreclosure. Very sad. Everybody needs to fight for their house. At least there is finally a glimmer of light for the homeowner. http://www.challengingforeclosure.com Sirak@challengingforeclosure.com

  15. In Non-Judicial States, We have to sue to at least have a glimmer of hope of this to actually occur, in the mean time, the bankers and their criminal element foreclosure lawyers are busy, lobbying our legislative branch rto rewrite the foreclosure laws, to give them even more freedom to cheat, steal and conceal.

    Make sure you keep calling and sending letters, email and notes to your local and state legislators.

    Make this fraud shamelessly public and in their face.

Contribute to the discussion!

%d bloggers like this: