FLA. 4TH DCA: DON’T PUT THE CART BEFORE THE HORSE

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Florida – Plaintiff Must Prove Ownership at Time Foreclosure is Filed

by Chip Parker, Jacksonville Bankruptcy Attorney

plaintiff-must-prove-ownership-at-time-foreclosure-is-filed

In the latest foreclosure decision out of Florida,  the 4th District Court of Appeal, in the case of McLean v. JP Morgan Chase, ruled that the plaintiff in a foreclosure must prove it owns and holds the note at the time the foreclosure case is filed.

In the McLean case, the appellate court reversed the trial court’s entry of summary final judgment in favor of the bank because the bank failed to provide evidence that, at the time the case was filed, it “obtained its rights and standing to proceed in this cause” prior to the filing date.  Instead, it presented to the trial court an Assignment of Mortgage dated three days AFTER the case was filed.

The trial judge, apparently not understanding the basic concept of chronology, denied the homeowner’s motion to dismiss the case and granted the bank’s motion for summary judgment.  In reversing this decision, the 4th DCA said:

While it is true that standing to foreclose can be demonstrated by the filing of the original note with a special endorsement in favor of the plaintiff, this does not alter the rule that a party’s standing is determined at the time the lawsuit was filed. Stated another way, the plaintiff’s lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed. Thus, a party is not permitted to establish the right to maintain an action retroactively by acquiring standing to file a lawsuit after the fact. [Cites omitted]

While this ruling may seemingly state the obvious that you can’t put the cart before the horse, please understand that many Florida trial judges treat foreclosure cases differently.  They tend to allow plaintiff lawyers to “dumb down” the practice of law.

I’m not saying plaintiff’s lawyers are stupid.  To the contrary, they are smart enough to know that most foreclosures are impossible to win by applying 150 years of Florida real estate law.  So, they have waged a campaign to convince trial judges to relax Florida Statutes, Florida case law, the Rules of Evidence and Rules of Procedure.   Because of the sheer volume of uncontested foreclosure cases winding their way through Florida’s courts, it is easier for these judges to “clear out the backlog” by forgetting the stuff they learned in their first year of law school.  Sadly, many lawyers defending homeowners allow the “dumbing down” because they, too, forgot (or never learned) how to litigate.  Many are converted real estate lawyers with little or no trial practice.

Just a couple of days ago, I attended a hearing where the judge accepted as evidence an unproved allegation in the plaintiff’s motion.  This essential factual element was just “presumed” because the plaintiff’s lawyer said so, even as I vigorously demanded that the plaintiff lawyer provide some piece of evidence to back up the assertion.  Call it “par for the course.”

Fortunately, albeit reluctantly at times, the appellate courts routinely reverse these horrid trial court decisions, but if the trial judges continue to ignore Florida appellate decisions favoring homeowners (and the 150 years of jurisprudence), who cares?

Many trial judges forget that their job is simply to interpret the laws on the books.  Instead, they often ignore the laws because they fear “giving a homeowner a free house.”  This is known a “legislating from the bench.”  Our American democracy is based upon the notion of “separation of powers,” wherein government is divided into the executive, legislative and judicial branches, each with separate and independent powers and areas of responsibility so that no one branch has more power than the other branches.  When a trial judge factors his social view into his decision, he has essentially stolen power from the state legislature.

30 Responses

  1. are you in ohio?

  2. @Enraged
    I agree–I used to be general counsel at an pilco and i could reach state officials—went to alaska supreme ct twice or three times on right to depose state officials——-did low level ones but they pretty well lined up to protect the higher ups—diferent environment but common thing was you and i both represened monsters ourselves–i spent millions with a platoon of inhouse and outhouse counsel—

    iv done stuff on a shoestring too–nothing but to heat up the phones and work the case—and the shoeleather—people that are pissed off at somebody will go out of their way to sing–the corporate ranks at top are hard to penetrate thru the front door–in any case–and yes as bigco guys we could take years to get our results—-spend millions—but still as it turns out shoeleather research is what gave me the heads i was after—in this side of things we simply cant use the old fashoined routes

  3. when did dann take that action —while ag–but never did anything—-???

    more recently hes after some narrow targets i see —specific defective originators i believe

    if you have a current cite on mers affecting post sheriff sale title in a judicial state–i would much appreciate it

  4. @DCB,

    I’m all in favor of finding eveidence to help the Italians and the Greeks but, if you don’t mind, charity begins at home. Ofr what we are concerned, a constant guerilla war on a case-by-case may weaken the beast so much that the big shots having international access and jurisdiction can finish the job.

    One doesn’t exclude the other…

  5. @DCB,

    Is there an association of foreclosure defense attys in Columbus-by-the-Sea or even in Ohio? Shouldn’t you all convene and discuss amongst yourselves how best to go about it and enroll of few guys from other states?

    Remember: some of the best decisions in the foreclosure mess were handed out by Ohio (Boyko, Hoffman, I believe, or some similar name), Marc Dann now going after it, I know of a few larger firms looking into class actions, some of the best literature about foreclosure defense comes out of here. This is ground breaking country. We need to seriously organize.

    The alternative is civil war and I would hate for it to come to this.

    And since we talking about who’s paying…

    I haven’t paid my mortgage in a long, long time. Yet, my taxes and homeowner insurance are still being paid by Corelogic.

    Who pays Corelogic and why do they refuse to tell me where the money they use to pay my taxes and insurance comes from? See, my note was transfered a few times (although not recorded) and I have already established that my money didn’t make it to my principal, hence my pending Tila, Respa, Fdcpa action into federal court. Assuming that I were to learn that the money paying for Corelogic came from a previous servicer other than the one I have sued, i would use that as one more proof that the current one has never had any right to my money and push for rescission and/or the house plus damages… The standing issue again, you see.

    Makes sense?

    So shot gun is good. To go after everything in sight is good. But the strategy has to be really laid out.

  6. Ok I NEVER SAY DIE. The question is: if you have a pattern of bad acts how do you nail the big CEO?

    The way the laws are designed you set him up with SARBOX. They hate SARBOX. He is then forced to either cover up the bad acts by asserting they are not material to the financial results of the bank–one reason they want to be so damn big. Or he permits it to be disclosed under regulatory issues–and then the plaintiff investor sharks move in and begin to search. That is my preference.

    In either case he is basically ceasing to be the CEO and spends larger and larger time trying to manage the mess, keep his money and stay out of an indictment.

    What you want is to target lower level peops—and search for docs.
    You ask the lower levels to rat out the next layer–etc etc——–the lower levels will roll–especially if thev been laid off–quit etc–best is a disgruntled employee on inside that will tip you as to which persons you want to do 3rd party subpoenas on–so you dont want to necessarily sue everybody in sight right away.

    If you really want to get at te exces at the end of the day—-then you need to get a resident of the state in which the execs reside so you have jurisdiction and can get service. Then as the lowers rat em out–and docs turn up——you move closer and closer.

    remember although neanderthals tried to kill big game directly–they were not all that successful—–and the mastodons survived—until cro magnon came along with the practice of wounding and rewounding from a distance and following the beast until it bleeds out–then move in and kill it–which in our case means sending them to the international court of justice. No way no how you will touch a banker in this country with stuff that leads to criminal treatment—civil payoffs are not adequate–maybe as you note just insurance money. No these US NYC bankers ABSOLUTELY Need to end up in the hands of the Europeans. Along with the London cohorts—Corzinni is best evidence that this must happen if our civilization is to survive.

    So along the way as we seek manipulation of US mortgage markets and re-insurance swaps etc–we search for evidence of the deceptions to Greek and Italians etc——-the question is how to frame the complaint to allow discovery. Fortunately on the internet and supplemented by the access to depositions that sites like these afford, we can build a pretty good case without traditional discovery–then nail it down with discovery———remember dont play by their rules–discovery falls into this in spades——-what you want is what conferences did the guy go to——planning conferences?
    who else there thats implicated in some nasty stuff–go sideways then come back.

    Got to know a guy s history–who he knows what bds hes on—who he slees with–a good source of info—-ex wife? ex GF—best iv ever found arewoman theyv abused, harassed etc and tried to settle out—-treat em like politicians—–basically set out to know how to wreck his life—we need examples. DOJ is supposed to do this but is more interested in virtually anything else–the fix is in or corzinni would be in custody–what else can i say?

  7. @DCB,

    The thing of it too is: you mention Corzine. If I understood well, the actions against Corzine is filed from the standpoint of the investors. So, it has similarities with banks for what investors are concerned.

    We are the homeowners being foreclosed on. It’s a different animal altogether.

    Way back, I used to handle litigation for the then-world-largest insurer (no name needed. You know who I mean…) They insured everything and anything. Especially anything, as we came to learn, including the Directors and Officers of the largest corporations for which they provided GL coverage too..

    Because of their bottomless pocket(s), plaintiffs used to go after the corporations and the officers, almost as a matter of policy. And I’m talking about some of the largest nationwide corps in the US, such as Monsanto, Exxon, the media. You named it, they insured it!

    Granted: no case I handled ever went to trial as far as I remember it. However, some prominent figures ended up being deposed (with extreme resistance, I will concede…) Of course, I don’t remember what the plaintiffs had to do to get them named in the lawsuits and what it entailed. What it tells me, though, is that it is feasible.

    Somewhere, I have that weird feeling that I am onto something and that it is time it were treid.

  8. @DCB,

    Ok. I get you. BUT…

    Let’s take Marc Dann. He filed against MERS on behalf of the counties. No specific servicer was involved since they… all were. The action is directed against MERS and merscorp, I believe (I need to review that).

    What then? The question remains: who pays?

    I think it’s really, really important to find out.

  9. @DCB,

    So, in a nutshell, can it still be done?

    Assume for the sake of argument, that one plaintiff were successful in putting a CEO on notice. Assume further that he was successful in naming that CEO as a co-defendant and that the case went to trial after months of discovery and deposition.

    1) Doesn’t that create a precedent, regardless whether the case settles at the 23th hour on the court steps?
    2) Isn’t that specific CEO then officially on notice by virtue of that one case and doesn’t that open the way for all plaintiffs filing against the bank he works for to name that specific one? For example: Smith puts Dimon on notice. He then files against Chase and Dimon, jointly and severally. Dimon (who couldn’t be bothered…) pushes for settlement after having been deposed. The settlement is subject to confidentiality but not the discovery, right?
    3) Can an argument be made that if he was, indeed, on notice for that one case, he is on notice for every subsequent one having taken place under his watch?

    There is so much info thrown at us from every angle that I’m concerned we’re looking into way too much detail and not enough litigation 101. Somehow, I’m concerned that we’re missing obvious angles in our frenzy to understand everything.

    I already anticipate that you’ll say: “Good luck with getting Dimon deposed…” No one can stop me from dreaming…

  10. I forgot to answer one question——who pays if mers’ name is invoked as plaintiff or as a defendant. I cannot swear –because i have no agreement before me but the synopses and common sense tells me that its same as all costs are borne–by the servicers. it must be constantly in your mind that the servicers are the evildoers here–the ones in your face—–the bank trustees barely know what properties are in their supposed trust——-have no economic interest now–only on the front end———the bank trustee effectively abandons the loan to the servicer asap upon it becoming non-performing. The servicer then liquidates the property asap however it can in order to pocket all the proceeds-diverted from the pensioer investors that the bank trustee is supposed to represent–hence the investor suits against the trustee banks. Personally i think the investors should be joing the servicers as well——-

    But i would say with my best guess that the servicer is paying ALL the costs of litigation etc and then also the taxes so the local county sheriff sees nothing wrong handing a check over to the servicer in the servicewrs name–if you look at county records you will see the servicers make themselves look like owners of REO properties on the tax files –so they can get the checks without forging the bank trustee name on the check——even thought the deed may be in the bank trustee name—this in my view is civil conversion akin to criminal theft if the offsets are not enough to wipe out the amt of the check–so a servicer may have a strong interest in seeing the check amount be small—paid by a buddy–then the buddy and servicer wack up the proceeds after the flip

    please lets prove this–lay it in front of the bank execs and the servicer execs and then justice can nail them

  11. ” Have you ever seen any written contract between MERS and its members? Do the members somewhere indemnify and hold MERS harmless?”

    frankly i cant remember if Iv seen one —but iv seen synopses and i have a fair idea about what mers really is. It is not a real corporation as such—more an association or joint venture of members.

    The members which are servicers simply use the recording system for a fee and then if they bothered obtained an appointment to represent themselves as or on behalf of mers—which further is insulated from the real action by its designation as a “nominee” for so and so—this is as ambiguous as it can get——-i dont think it really imparts a meaning such that in some places where it suits them the mers entity can claim completely passive status—–in others it was used as a plaintiff—-

    One point is that a passive entity that sits in another state can present real jurisdiction issues if you try to name mers which i have not ——-its a charade a phantom———it would object to anything but a federal claim as a jurisdiction issue is my assumption

    a corporation can do bad things all day long via employees and the officers are in effect immune either by the jurisdiction defense–and/or the stuff that you hear Don Corzinni of MF GLOBAL stating all last week before congress—“I did not know that this was happening” “I did not direct this action” the officer must have some specific knowledge of the events –or a policy or practice to get caught in civil action —–and must intend bad things for criminal. They love the cover that the crooked old Greenspan gave them “I numero uno in Us money matters did not comprehend the implications” This practically was a get out of jail free card for all these crooks.

    What you need to get the officers is a direct mailing to the officer –usually a member of the board of directors audit committee, cc outside auditor. Then they are on provable notice that bad stuff is happening under them and their failure to act becomes culpable.

    It must be done carefully. The letter must be simple but set out sufficient detail or attachments that they cannot say it was too vague to put them on notice. The facts that you notice them on must be precise and verifiable. It is not easy–but just lets say you send a set of assignments with linda green signature in several hands ala NYT 10/10———and state you have a breakdown in your notary system that has caused many hundreds of false docs to be filed—and the recipients are now forced to act or become civilly and potentially criminally liable.

    If the company is public and ha regulatory issues –eg notary issues with some county in nevada etc——-then they must disclose the breakdown in their annual reportif it is material—they MUST investigate it under SARBANES OXLEY. If they put a disclosure in their 10K [see for example LPS’ 2009 10k “regulatory issues” then astute attorneys should be reading those disclosures and when they see something like we have a small problem with our compliance with notary rules at our DOCX operation, then those astute attys should be deposing people left and right to find out what is wrong–how big is the problem etc. That is the objective of SARBOX—people do not use this hammer enough——-too many people play by THEIR rules in the courts and its stacked against pro se in particular. Private companies are harder to nail because no SARBOX disclosures——–but principle of laying the dirt in front of the officers and directors is exactly the same.

    so if you have a series of nasty cases of repeat conduct you should find out who the officers bd members are from sec state filings and mail them undisputable notice-this is akin to the monitor lizard bite that infects the victim to cause his demise later—–the way primitive man killed mastodons–injure then wait till it bleeds out—inflict many small injuries—give the individuals notice of evildoing that they cannot really ignore

  12. @DCB,

    And of course, we could always throw in a breach of contract claim for good measure…

  13. @DCB,

    The reason for my asking about whether CEOs can be held personally liable is that those TILA, RESPA lawsuits can only bring in statutory damages, and even then, the S.O.L.s may prevent the award of anything. Peanuts at best, in the scheme of things. And not nearly as much as the actual damages. Even when raised as a defense, the most the homeowner can expect is a dismissal of the foreclosure action and, maybe, a few bucks for statutory damages.

    If it becomes possible to go after CEOs, CFOs, COOs and all the managers and directors involved, the sky is the limit. Allegations of negligence could allow for big damages. Imagine: negligent hiring, negligent supervision, negligent… pretty much anything.

    What say you?

  14. @DCB

    And by the way, it isn’t a bankruptcy case. It’s a straightforward foreclosure case.

  15. It is the 2nd case on the site. Decided on 12/8/11 (or 12/7/11)

    Cuyahoga County, Ohio case (Huntington National Bank v. Brown, Case No. CV-09-702894

  16. @DCB,

    First off, I managed a few weeks ago to insult you by doubting your legitimacy. I retracted on the site but I don’t know if you saw it. So, my most sincere apologies. Something to do with bank-induced paranoia, I suppose… And I learned something about Ohio Attys not required to register with the Bar Assoc. A new one for me.

    About all those actions filed by different states against MERS, there’s still something I don’t know and am very curious about: who pays for MERS/Merscorp defense costs? Who forks up the money? I’ve asked a few times but no one seems to know the answer.

    Have you ever seen any written contract between MERS and its members? Do the members somewhere indemnify and hold MERS harmless? Assuming that it is the case (and I hope so: the pocket becomes right away so deep as to become bottomless…) does that mean that the CEO and officers can be held personally liable? I realize that Directors and Officers insurance policies would reserve their rights at the very least and possibly even disclaim coverage on the grounds of fraud but those guys have made such a killing that they would have enough to defend themselves… They would probably hire big guns at $800/hr, in which case it becomes quickly more financially sound to settle or simply walk away.

    I’ve read quite a few S & C from homeowners alleging Tila, Respa, etc. but never seen any CEO personally named as a co-defendant. That troubles me. I’ve also seen answers/counterclaims to foreclosures lawsuits but no CEO, so far, seems to have been brought in as a codefendant either.

    Am I missing something?

  17. YES—I believe we have to fight fire with fire—they have gotten away with—and CONTINUE to get away with—recording MILLIONS of fraudulent documents in the county recorders office—we need to fight back with OUR recordings–but do it LAWFULLY…which they have NOT.
    It all comes down to the Court of Records…that’s what the judges have to abide by, RIGHT???

  18. @enraged

    Where is the Ohio descision re MERS in bankrupt situation–pls advise

  19. @ENRAGED re OHIO MERS http://foreclosuredefensenationwide.com/

    Would this be subject to interpretation that ANY bankrupt originator was basically unable to use the MERS assignments to cleanse the mortgage from the record? That any REO or flipper has a faulty title?

    So what if you went to a bunch of former homeowners –or peple in foreclosure and got quit claims for 1/2 interest and then filed eviction actions against the REO servicer, the flipper or the flippers customer who got such a good deal he cant claim bona fide purchaser status?

    This might prevent being countersued for clouding title–or getting penalties for spurious claims?

    Please people think about these considerations–lets have some ideas kicking around that are new—-

  20. After foreclosure but before a sheriffs sale, maybe transfer a quit claim for a half interest to a 3rd party———if its a nullity then nobody should be able to sue for clouding title–but it would create an interesting dilemma for a title agency —things like this may be a way to deter the demand from bottom feeders that is driving the servicers to try to liquidate the assets tey have seized from both the bank trusts[investors] and the original homeowner

    this needs to be carefully thought out–mark dann former ohio ag is doing something along these lines

    bottom line people is that clearly playing by THEIR rules in the courts is not effective to stop the onslaught–its only partly useful one home at a time–but they wear you down—–we all need to think about ways to suck the economic incentives out—if they find nobody who will take the risk of buying–flipeers will stay away and the servicers cant steal the proceeds –thats how to stop it –starve the servicers

  21. Yeah i even read the whole piece out of shere curiosity……i was trying to ascertain what sort of cognitive disfunction was occuring—the scattered thinking—

    this is the kind of thing that would set up an insanity defense if he ran to a gunstore and popped one of these collection agency execs—

    This psychology is really curious-i see these rants on the internet, and saw some guy do this last week at a community meeting to plan a way to prevent foreclosures by quit claiming to a trust operated by a development agency—holding back a 5 yr lease at 1/96th of 2/3 of auditor value—-and an option to purchase——to put the community agency between the servicers and the victimized homeowners to work out block deals with real banks and escheat the fake claims.

    The meeting was headed to a good conclusion and the nut walks in about half way through and starts shouting —“this is the way to stop it”-then wandered vaguely but loudly from fake documents [already understood and covered and agreed] –to fed reserve—-to legal tender———till the people just got up and left

    he caused more damage to homeowners in stress in our community in 20 minutes than all the servicers’ attorneys did in the last year–and he thinks hes some great patriot—-he may as well be on the servicer payroll–like this clown

    I know how much stress these collection agencies put on people including servicemen—–but people shoot their wives and kids –i guess its the difference between some poor father just plain freaking out and a non-moron actually ascertaining who is the cause of your pain and inflicting more appropriate punishment

  22. @DCB,

    You’ve noticed too?

  23. LSD—maybe some meth

  24. @Trespass,

    What are you on? I want what you’re taking…

  25. “I quoted Allies of Humanity…'”

    What do you know of these????

  26. An important decision.
    Opinion, sarcasm
    If this decision had not been made, the banksters would have filed assignments and NODs on all the stolen homes [foreclosures] where they got a judgment and an eviction but didn’t have standing to sue and then would have reduced their 20 billion dollar offer to the AGs to like 2 million stating they had standing and injured no one.

    On a side note
    About that law passed where they can arrest american citizens.

    I saw the MTV video trying to act like it could be like the holocaust. Shame. Shame…only those that control the media could make such an advertisement.

    On another side note. I was listening to an audio where the moderator was saying they sat in court and to their surprise there were like 35 cases of people (not persons, not individuals, not corporations) who were held in jail for more than 6 months without the benefit of a trial and they were brought into court and offered ‘time served’ for a guilty plea. All took the ‘offer’ of ‘time served’ for the ‘benefit’ of a guilty plea, to be released from their unconscionable contract.

    They moderator of the call was so upset that the system was holding people and getting the time, and then releasing them after they got the jail sentence out of them first without the benefit of a trial.

    Then I see people get all hissy about this law that can detain US Citizens without the benefit of a trial. Now if judges and lawyers are NOT US Citizens, then ‘Houston, we have a problem’, because they are terrorists and are unlawfully detaining US Citizens in a time of war without the benefit of a right to a fair and speedy trial. But if they ARE US Citizens, then that new law passed should give them the time served consecutively for all the people who’s lives they stole six months at a time, and that sounds like indefinite detention. Also the police who troll (yes, troll, not patrol) the streets and pull people off their way to deal with conflicts they created out of thin air, are private entities for the benefits of the judges, and courts, and do not work for the people, so they are US Citizens who could serve some time in indefinite detention too.

    And all the gun holders who just can’t wait to shoot their bullets at any perceived threat. Well, yeah, this law is for you, too. I can imagine a situation where someone is going down a street and they get too close to your property and you think they are going to come to your home to steal your stash when they were going somewhere else, didn’t know you were there, and wasn’t planning on going into your home, or if they saw a light they were going to ask for directions or if you know where their relative is, and you shoot them as they step on your property because you feel like you have a right to ‘protect what’s yours’.

    Well that law is, probably, for people like you too.
    Before you get mad at me, see if the shoe fits.
    If it fits, then why are you getting mad at me?
    If it doesn’t fit, and you are still mad, then why?

    As they pick up those that don’t have a clue that we are in this together now, and the end game has to play itself out now, I’ll shelter in place, with my meager edibles. I don’t have a stash, I have about two weeks of dry consumables in the home. To hoard would leave less for someone else. I did it during the H1N1 bird flu scare and by the time I donated my goods, I could provide for almost 200 meals. When I donated it was a Monday, and I was told the need was great they get their largest requests on Mondays.

    While there, I saw some recipients arrive that Monday. To my surprise, people who provide youth services, were there to get food for the meals they provide to the youths.

    It’s not all deadbeats who need us, and we can’t be turning on each other at their time of need.

    The media is controlled, whatever they tell you, you can just about guarantee, they want you to see it their way and believe their version.

    I quoted Allies of Humanity…an off world group who were observing the happenings on this planet, and who were revealing that a lot of what was happening was ‘behind the scenes’. Those we see and think are in control; are not in control. There are those we don’t see who are controlling everything.

    They had a quote.

    If you believe only what you see; then you’ll believe only what is shown to you.

    Reminds me of the “pix(s) or it didn’t happen’ people. Or the ‘show me proof, or it’s not true’, people. The Left brained people who really took to the public education/programming.

    Right brained people start off with a theory and then prove it. Yeah, right brainers are still around and the Universe will maintain a balance.

    This court decision is maintaining a great balance of Man’s Law with Natural Law. If you are going to take one’s property, you need to have the right to do so before you start taking it…otherwise it’s STEALING!

    Trespass Unwanted, corporeal, free, life, jure divino.

  27. What about re-recording your original Grant or Warranty Deed—with an acknowledgement? With the reason being to add your middle name,or something?
    That document would then be recorded AFTER the fraudulent servicer and foreclosure mill’s docs…hmmmm….

  28. Latest foreclosure court rulings nationwide. Ohio rules that MERS not being the payee on the note MAY NOT transfer nor assign it.

    http://foreclosuredefensenationwide.com/

    One by one, the states get it!!! The next question for Ohio banks trying to foreclose is: “Assuming that you do, indeed, hold an original of the note, how, when and from whom did you get it?” Nearly impossible to answer unless the servicer goes into the whole securitization process.

    State by state, we’ll get there.

  29. The standing issue is even more significant when it goes unchallenged–the wheels grind— and a servicer acquires title to a property without ever really establishing it is entitled to represent the trust—or purported trust—so we have a situation where the servicer is essentially a stranger that holds a deed. Now the servicer and or his bottom feeder buddy-flipper ends up with a home—all proceeds go to the servicer–the trust bank not even aware——and the flipper resells at a significant discount to bargain hunter. The flipper sells the house “as is” —-in every respect—–and issues a Limited Warrantee Deed. Should any attorney worth his salt endorse his bargain hunter client’s purchase of that property?

    Who will bite the bullet if the title insurer demands a pile of reps and warrantees from bargain hunter in a couple years?

    If the title insurance has exclusions for foreclosure-related “defects” –and the ownership is disputed because somebody confesses to something bad in a year——-is not the realtor the best target deep pocket to go after?—–by the happless bargain hunnter that is—–or is it atty malpractice?

    Are there any easy lines in the sand that one can state vis malpractice or realtor practice–like NO to limited warrantees–no to gaps in title insurance?

  30. What I’m waiting for now is a judge ruling that a servicer may not start collecting from a homeowner as long as the assignment/transfer has not been properly done and recorded (in the states where recording is compulsory).

    The day that happens, we’ll be talking major rescissions and return of money + house!!!

    It’s coming, guys! I can feel it!

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