Lasalle v. Glarum- Team Ice- The Insider’s Briefs Submitted to The Appellate Court!

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Lasalle v. Glarum- Team Ice- The Insider’s Briefs Submitted to The Appellate Court!
http://mattweidnerlaw.com/blog/2011/09/lasalle-v-glarum-team-ice-the-insiders-briefs-submitted-to-the-appellate-court/
September 19th, 2011 | Author: Matthew D. Weidner, Esq.
There is a very real and a very profound battle raging across this country. Actually there are many wars and they are not just limited to this country. All around the world in fact, real people are rising up against the overreaching and the abuses of the banks and the power systems that have destroyed our economy, enslaved people and laid waste to our naive notions of due process and justice.

One of the battlefronts in this country are foreclosure courtrooms where dedicated advocates stand up for consumers and fight against the banks and all the power and influence they bring to bear. Every battle is an epic struggle not unlike David taking on several Goliaths all at once. These advocates fight the banks with their armies of lawyers (paid at $600/hour with taxpayer funded bailout money.) and they often fight an entire system predisposed to strike anyone who dares to challenge the awesome power bent on crushing any resistance that dares to stand in the way.

Without a doubt some of the true superheros in this battle are the warriors at Ice Legal in Palm Beach, Florida. The national news has repeated sung their praises, but I daresay not many have actually read the work that lies at the heart of the battle. But today, you can have an insider’s look.

Now, the Glarum case should not have been all that extraordinary. As a good local judge reminded me recently, “That’s always been the law in this state!” But the banks have responded as if the Glarum opinion will mean THE END OF THE WORLD AS WE KNOW IT! The banks have already begun an all out, full stops campaign to attack this decision…and I’m guessing they will bring every single power they can to bear in an effort to attack this plain and clear restatement of the existing law.

I encourage you to read each brief carefully, but before you get there, have a read of a few of my favorite highlights:

In short, appellants argue that it may look like a duck, and quack like a duck, but the court would need a zoologist to testify that it is in fact a duck before it could make that finding.

To adapt the BANK‟s own metaphor: the bare, unsworn statement of its attorney that something looks like a duck and quacks like
a duck is not evidence of a duck.

In Florida, all averments to fraud must be pled with particularity. Rule 1.120(b), Fla.R.Civ.P. (2009). In this case the Appellants amended their answer twice (R.VoI.Three pp.566-567) and never alleged fraud as an affirmative defense. See Supp.R.pp.553-555. They have, however, thrown it around the court room quite a bit.

Section 90.902(8), Florida Statutes (2009), provides that “[ c ]ommercial papers and signatures thereon and documents relating to them, to the extent provided in the Uniform Commercial Code” are self-authenticating. While the Assignment is not commercial paper it is related to the Note and is self authenticating pursuant to 90.902(8). HUH?

The BANK takes the sanctionably irresponsible position that the trial court‟s “factual determinations” in entering summary judgment are to be reviewed for “an abuse of discretion.”1 It is elementary that, if the trial court made factual determinations, it erred in entering summary judgment. Coquina Ridge Properties v. E. W. Co., 255 So. 2d 279, 280 (Fla. 4th DCA 1971) (Summary judgment
reversed because “[t]he trial court may not try or determine factual issues in [summary judgment] proceedings; … substitute itself for the trier of fact and determine controverted issues of fact.”) Not surprisingly, all the cases cited by the BANK for this standard of review
having nothing to do with summary judgment.

Worse than merely misstating the standard of review, the BANK actually employed this incorrect standard throughout its brief. One glaring instance is the BANK‟s contention that summary judgment should be affirmed because “there was not enough evidence to allow Judge Sasser to rule in [“the OWNERS‟] favor at the summary judgment hearing.” Another example is its statement that “[i]t cannot seriously be argued that what the Appellants have identified as evidence…was enough to allow Judge Sasser to make a finding in their favor.” While the BANK‟s stunningly frivolous assertion regarding the summary judgment standard of review would never have misled this Court, it is nevertheless emphasized here because it is indicative of the BANK‟s lack of concern for accuracy and candor when addressing both this Court and the court below.

Correction to the BANK’s Statement of Facts: The BANK tells this Court that the promissory note, mortgage and assignment were “all…duly recorded in the public records.” There is nothing in the record to suggest that the promissory note was ever recorded.

As often occurs when a proffered assignment of mortgage encounters evidentiary snags, the BANK now claims that it “does not need the Assignment to prevail in this case.”

Having failed to adduce evidence to support its allegations of standing, the BANK cannot now change to a different allegation of
standing during the appeal.

The BANK ridicules the OWNERS insistence that the original mortgage be authenticated as “bizarre” because “if it is not the document they executed, they should feel free to say so.” Quoting the trial court judge during an evidentiary hearing, the BANK suggests that the OWNERS should know if the BANK‟s documents are authentic, simply by looking to see if its terms match the copy they received at closing.

Glarum+Initial+Brief+FINAL
http://mattweidnerlaw.com/blog/wp-content/uploads/2011/09/Glarum+Initial+Brief+FINAL.pdf

Glarum+Appeal_Answer+Brief
http://mattweidnerlaw.com/blog/wp-content/uploads/2011/09/Glarum+Appeal_Answer+Brief.pdf

Glarum+Reply+Brief
http://mattweidnerlaw.com/blog/wp-content/uploads/2011/09/Glarum+Reply+Brief.pdf

glarumopinion
http://mattweidnerlaw.com/blog/wp-content/uploads/2011/09/glarumopinion.pdf

33 Responses

  1. You can thank the CA AG’s relationship with Bank of America for the raid. She should be removed from office and has no intention of following the NY, KY, NV , MN, etc AG’s direction.

    Some of us really know what your to Harris, that’s why your being sued.

  2. @ tnharry, you wrote:

    “i think you’d be surprised how often they can produce the original note when push comes to shove.”

    I wouldn’t be a bit surprised. I’ve read Kemp v. Countrywide.

  3. “…major scandals will soon be revealed about the unregulated, $600 trillion, credit-default swap market. “To put it in simple terms, it is like buying fire insurance policies from five different insurance companies on your neighbor’s house and then burning down the house,” he said.

    –HARRY Markopolos — the whistleblower on Bernie Madoff who proved to be much smarter than the SEC — says there are evildoers out there who will make the Ponzi scum (Madoff), “look like small-time.”

    (All related to the mortgage fraud, accounting fraud, insurance fraud and base fraud in the financial system that we are dealing with in regards to the unsecured debt that is tied to virtually all mortgages and foreclosures.)

  4. http://www.msnbc.msn.com/id/37560195/#44645552

    Important Dylan Ratigan video—explains a lot—must watch!!!

  5. amazing HKCon – you’re more frustrated with the AG for shutting down lawyer that may have bilked you out of money than you are at the lawyer who bilked you??

  6. @e.tolle – “I may be wrong or misunderstanding you, but quite often you would appear to be taking the establishment view of these things”…sometimes yes, sometimes no, but more often than not i’m playing devils advocate and trying to make people see what the other side’s response will be. some take that as traitorous simply because i’m not pledging full allegiance to commenters and Neil, but that’s okay with me…

  7. the DOT is self-authenticating by virtue of the notary and the recording in the county register. do you actually dispute that it’s the one you signed? if not, then no real objection. as to the note, i think you’d be surprised how often they can produce the original note when push comes to shove. it’s not notarized or recorded, so you can argue over it a bit more.

  8. The Banksters are going down the question is are we gonna go down with them

    NEVER AGAIN
    Be strong and Courageous

  9. @ tnharry, as to agreeing with you, I’ll do that all day long as long as you’re talking straight law, with no leanings. I may be wrong or misunderstanding you, but quite often you would appear to be taking the establishment view of these things.

  10. Palm Beach County residents expose foreclosure fraud
    September 22, 2011 10:37 PM . See video at http://www.cbs12.com/articles/foreclosure-4735490-fraud-started.html#ixzz1YmBAYgYm

    WPEC – CBS12.com
    Foreclosure Hamlet and 4ClosureFraud Fight Back Against The Florida (un)FairForeclosure Act
    PALM BEACH COUNTY, Fla. — Two locally founded websites are helping homeowners facing foreclosure. They are also exposing fraud.

    Palm Beach County resident Michael Redman founded 4closurefraud.org to keep track of Florida’s ongoing foreclosure process. He started it in September of 2009 when a relative went into foreclosure.

    Lake Worth resident Lisa Epstein is facing foreclosure herself. She started Foreclosure Hamlet a similar website.

    Both say they’ve uncovered a mountain of fraud being perpetrated by the banks.

    “We’ve seen cases where law firms created their own evidence, default processors created own evidence and filed original notes in same case,” said Redman.

    “I’m defending against a foreclosure that has been brought agasint me by a bank that I had no financial relationship with, never made a payment to trying to get some answers,” said Epstein.

    Redman says from what he’s seen, in 90 percent of the cases there is questionable documentation.

    Read more: http://www.cbs12.com/articles/foreclosure-4735490-fraud-started.html#ixzz1Yueq3VC4

  11. Tnharry, I’d be requesting authentication of the DOT/mortgage/note, right off the bat. Copies don’t cut it, and as we’ve seen a few million times, the bank stooge affidavits aren’t worth the price of the paper. No?

  12. i wouldn’t get all stoked up about Harris in CA doing anything worthwhile, so far all she has done is confiscate my attorney’s whole business and shut down my chance at getting some sort of settlement. I have been saying (for 3 yrs. now) and I continue to say, UNTIL THE LAWYERS SMELL BLOOD IN THE WATER AND START GOING AFTER THE BANKS LIKE THE SHARKS THAT THEY ARE, THEN WE WILL HAVE LIMITED SUCCESS. The mass joinder lawsuit is about the only way to get big numbers both in terms of people….and money going so that the banks cannot do their delay and stall game hoping for people to get tired and quit. I have a great chance to prevail based on the merits and yet I can get no injunctive relief. At least before she raided my attorney’s office I had a shot at something good happening, now, thanks to her, me and a lot of other people are $4,000.00 to $5,000.00 broker than we were.

  13. i’m definitely bookmarking this one – both e.tolle and A Man have admitting to agreeing with me on the same day. one for the record books for sure

  14. @Aman – but your point about the DOT not being “legal” is arguing a conclusion. that’s not an evidentiary objection, it’s the finding by the judge. i’m not explaining myself well here, i know, but it’s arguing the end of the case to justify the middle. in order to argue about that DOT it needs to be in the case as evidence. otherwise how is it even before the court for the judge to rule upon? in response to your specific example – you want a ruling from the court that the bank wasn’t the lender on your DOT. you must have the DOT in evidence to have the court make that determination. it’s merely a document and part of the evidence, not the entirety of the evidence. what specific objection and rule of evidence would you use to exclude it?

    @etolle – you are correct about waiving objections and preserving for appeal. but i’ll ask you the same as A-Man – what objection and what rule of evidence would you use to exclude it in the first place? if it’s your quiet title case, it’s been an exhibit to your complaint from day one. if it’s their case, it’s been an exhibit since day one. it’s coming into evidence anyway, and you need it there to get the relief you’re seeking.

  15. @ tnharry, you wrote:

    “….but cautioned against objecting to everything, particularly when it’s a document signed by the borrower. absent proof the doc was altered post-execution….”

    Of course you’re right, but if not objected to, don’t you waive rights down the road on any particular issue not objected to? How else does one hold the opposition or the judge to task?

  16. TnHarry I agreed with you on that point of crying wolf. And I also said you werent like the banksters. You just get carried away defending evil. So if I didnt make myself clear I am sorry.

    Please clarify why you agree with “i do have to agree with the bank’s last assertion – the DOT either is or isn’t the one that bears the borrowers’ own signatures”

    If the DOT is not legal and is written by the other party or by myself what does my signature have to do with it?

    If a contract or part of the contract is not legal then that part of the contract is unenforceable.

    In my DOT the Banksters say they were the “Lender” when they were’nt. Just for Starters.

    NEVER AGAIN

  17. and @jose – it’s pretty easy to take a point that somebody didn’t actually make and run with it, isn’t it? i never said not to object to a fraudulently-generated document did I??? i said that an objection to the deed of trust actually signed by the borrower may not be a great objection to make. whether the party on the other side of the courtroom is entitled to enforce is the real issue, and it is still preserved even if the deed of trust is admitted into evidence.

    if you don’t concede you signed docs, then you’ll be perceived as a fool in court and the judge won’t take you seriously. if you concede you signed docs and argue that based on those docs admitted Bank A isn’t entitled to enforce or that those docs don’t properly perfect a lien, that’s an argument that may work.

    i swear, some of you guys are so eager to fight that you either don’t read what’s written or don’t take the time to think about it.

  18. @A-man – what did I do wrong now? i actually agreed with objecting to documents, but cautioned against objecting to everything, particularly when it’s a document signed by the borrower. absent proof the doc was altered post-execution, it is what it is. that doesn’t mean you have to lie down. admission into evidence of the note and deed of trust doesn’t concede the point that the bank using it may not be the proper party for a variety of other reasons. i was really just urging some restraint in objections to preserve the good objections from what becomes background noise when a litigant is perceived as “difficult” by the court

  19. It figures that would Gov. Scott would think along those lines. He and Bondi need to get out of bed with the banks.

  20. @ dee

    There was a commenter a while back who posted her email address for anyone living in the Huston area who needed a good real estate/foreclosure lawyer—this is the address she posted here: april@thrillseekerstravel.com

    good luck

  21. Floridians facing foreclosure could lose their homes faster under plan in Tallahassee
    By Kathleen Haughney

    Sun Sentinel

    Updated: 9:01 a.m. Friday, Sept. 23, 2011

    TALLAHASSEE — Floridians facing foreclosure could be stripped of their homes faster and have routine access to the courts limited under a proposal likely to come before Gov. Rick Scott and the Legislature in the coming months.

    Bankers see it as a speedy and efficient way to manage foreclosure cases and get tens of thousands of Florida properties in ownership limbo back on the market, helping pull the state out of its economic doldrums.

    In contrast, foreclosure defense lawyers and consumer activists see the plan as removing judicial oversight from a system that has proven to be riddled with fraud and abuse, and leaving ordinary homeowners defenseless before some of the state’s most powerful financial interests.

    “Obviously there’s a lot of fraud being perpetrated by the banks in these cases,” said Michael Redman, a Palm Beach County resident who founded the Website 4closurefraud.org to chronicle Florida’s ongoing foreclosure crisis. “At this point in the game, it’s almost ridiculous to take it out of the court system.”

    But the Florida Bankers Association, which has pushed the plan over the past few years, has key allies. Scott voiced support for the proposal at a Florida Bar convention this summer and told reporters Wednesday he is still interested in it. Some lawmakers have already jumped on board.

    “Well, I want to make sure that we have an efficient process, so we don’t create a reason for banks or whoever lends money not to lend money in Florida,” Scott said. “When you talk to people that are in the system now they say it’s 600 days to get through foreclosure. All that does is create another incentive for people to not lend money when we want people to lend money to our state.

    “I don’t know the answer yet, but I want to look at the process,” Scott said. “I want to get more information before I make a decision.”

    According to RealtyTrac, a foreclosure tracking firm, Florida had the third highest foreclosure rate in the nation and was second in the number of foreclosure cases filed in 2010. On average, the firm said, the foreclosure process takes 676 days.

    Usually the lender reclaims possession; other times, homeowners get to keep their property.

    Currently, Florida is one of only 20 states to handle the foreclosure process through the courts. In California and Nevada, which have also been plagued by high foreclosure rates, foreclosure proceedings are primarily conducted outside court in about four months, though a judge can get involved if one of the parties deems it necessary.

    Typically in states using a non-judicial system, the mortgage contract is based on a deed that includes a clause allowing banks to begin foreclosure proceedings without going to court. The bank gives notice to the homeowner and if the homeowner did not respond, the bank can reclaim the property.

    Lawmakers and the Florida Bankers Association have pushed in the past for Florida to become a non-judicial foreclosure state but have come up short, with concerns about rampant fraud by some lending institutions trumping other arguments.

    Legislation has not been filed yet this year on the issue, but legislative leaders in Tallahassee seem interested. Legislative economist Amy Baker gave a presentation on the issue this week to the House Civil Justice Subcommittee and Katie Betta, a spokeswoman for House Speaker Dean Cannon, said that Cannon, R-Winter Park, has said he is open to it, but cautioned that the “devil is in the details.”

    Read more at http://www.palmbeachpost.com/money/foreclosures/floridians-facing-foreclosure-could-lose-their-homes-faster-1872881.html

  22. http://www.huffingtonpost.com/2011/09/24/timothy-geithner-ecb-european-governments_n_979001.html

    The global financial catastrophe is definitely coming—and little Timmy helped get it there…

  23. Can someone recommend an experience attorney in Houston Texas?

  24. We are beginning to wake up and discover the fraud and deception that has been perpetrated against us for years. The Elite and Banksters have already already planned their escape. They will slither away like the snakes to the underground camps they have been building money created by our enslavement to their system. This is what all the money has been spent on:
    http://dancingczars.wordpress.com/2011/09/23/tunnels-to-at-least-13-underground-bases-being-sealed-off/
    http://endrtimes.blogspot.com/2007/10/underground-bases-and-tunnels.html
    Ask yourselves, why is there a “staged” drill by government prior to the real thing happening? To make the people complacent!
    Why is Obama due to go to Colorado on 9/27 just 4 days after a huge “martial law” government field trial?

  25. TnHarry you are amazing. You remind of a friend of mine who happens to be German that his mother sends him postcards of the Devastation the American bombers brought on the German cities in world war 2. or the medical breakthroughs the Nazi Doctors made at the expense of the Mentally retarded gypsies Jews and prisoners of war.
    So I am not calling TnHarry or the Banksters Nazi. The Banksters are Hybrid Nazi’s.

    I agree with E. Tolle Carie and Jose.

    The only thing I agree with TnHarry is that sometimes the comments get carried away. The crying wolf theory is also correct.

    We should pick one or two issues and stick with it. Otherwise it becomes too complicated and people start to think that you are bullsh#ting your way out.

    NEVER AGAIN

  26. From your link, A Man:

    “…In May, Harris announced the creation of a 25-person task force to look at mortgage fraud. In August she subpoenaed Citigroup Inc. and its banking subsidiary, Citibank, ordering them to answer questions regarding the selling and marketing of mortgage-backed securities.”

    This is the heart of what must be investigated—and this is what the banks are trying to hide with the “settlement”…the fact that the “mortgage-backed” securities are NOT mortgage backed…the banks are desperate to hide this fact.

  27. TnHarry,

    Signing a fraudulent generated document does not make it legal nor enforceable.

    It is like the thieves going to court as they are doing (the Bankers and their criminal lawyers) and asserting before the court, That it does not matter if they are criminals and everything they have done so far is to ruin our nation and families. You are guilty because you signed a document on the settlement table and paid a monthly mortgage payment.

    Well, That is what is missing. Non of these mortgages are enforceable, none of the leans are perfected and none of the settlements actually have concluded.

    We do have a bigger problem, there is a double speak, there is a misguided belief that if you owe and do not pay you are a dead beat, that you are fully responsible of your decisions and that may be partially right, however, if you did sign under false, misleading, and forged documents that is another story.

    These bankers changed the mortgage industry, they just forgot to change the laws, or better yet, they ran out of time. We are just the collateral damage of their greedy WAR!

  28. @ the A Man, the article you posted said:

    “The banks want to get away with everything, and she is probably one of the linchpins in saying that is going to happen or isn’t going to happen,” said Liz Ryan Murray, the chairwoman of the foreclosure task force at Americans for Financial Reform. “We would like to see her come forward and be more public on what she will and won’t give up.”

    I believe that line of reasoning is the lion share of the problem. First off, nothing here should be up to ANY ONE PERSON to determine…..that’s what we have laws for. Either do you job as AG or move aside! Simply prosecute the crimes! Don’t negotiate! There is no reason to give up anything! SCREW CONCESSIONS!

    The U.S. has had a long time policy of NEVER NEGOTIATING WITH TERRORISTS! That should be the case here.

    The banks are:

    1. The sole cause of the problem
    2. Breaking more laws than can be listed here
    3. The crimes go to the executives at the top

    Therefore, start arresting these criminals posthaste. There is simply NO END to the amount of charges that could be levied at these people and their tactics.

    The time for negotiating, if in fact there ever was one, is long since passed. Prosecute these individuals from management to executives. IT IS THE LAW! JUST DO YOUR JOB!

  29. California Attorney General taking the lead now

    http://www.latimes.com/business/la-fi-0924-harris-mortgage-probe-20110924,0,1152055.story

  30. FC court didn’t work so well in florida…

  31. Interviewing an attorney in Jeff Barnes’ network yesterday, he said something has to change. He mused: “foreclosure court” could be set up like “trafic court” to handle the masses. Neil…what’s next? How can we beat the $600/hr army of attorneys? What needs to happen NOW?

  32. i do have to agree with the bank’s last assertion – the DOT either is or isn’t the one that bears the borrowers’ own signatures. this is exactly the situation that I’ve discussed before. objecting to every single document runs the risk of the “boy who cried wolf” problem.

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