State and Federal Agencies Should Brace for Demands for Administrative Hearings


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Editor’s Comment: We had an interesting exchange in a civil, almost charming meeting with the Arizona Secretary of State last night at Darrell Blomberg’s Tuesday night meeting. He has the  AZ AG coming in a couple of weeks.

One thing that came out is that the oath of the notary is missing in many cases and there were some people who thought this might be the magic bullet that would bring down the entire foreclosure process. I don’t know how this got started but the responses from the Secretary and his manager of business affairs were mostly correct — although they point to serious deficiencies in the system and training of the people.

The oath and the bond are usually on the same page. That it is not recorded anywhere is flimsy at best and even if correct would be a source of annoyance to a judge rather than convincing him that the mortgage origination was defective and the foreclosure wrongful.Proving the notary to have been incorrectly affixed might accomplish a right to have the mortgage or deed of trust removed from the title records — but it does NOT invalidate the document itself. There is no magic bullet.

I again say: there is no magic bullet, and there is no paper defect that will discharge a debt. Debts are discharged by payment or waiver of payment (and waived could be involuntary, like in bankruptcy). By concentrating upon the possibility of a defect in the process of record-keeping on the oath of office of a judge or notary, you are essentially admitting the debt, the default and the right to collect and even foreclose, although your intent is otherwise.

The attestation by the notary has nothing to do with the validity of the contents of the document. It serves only to say that a person appeared before the notary and fulfilled the statutory requirements by identifying themselves. The notary is merely attesting to the fact that this is what happened. Someone appeared, gave a drivers license etc., and signed in front of the notary. That is the fullest extent of the attestation of the notary and the power of the notary.

In Arizona, any attestation by the notary that includes corroboration that the person whose signature is being notarized is in fact that person or has a particular relationship with a particular company is void to the extent that the attestation of the notary includes assurance of the signor’s official position or representative powers.

California has a similar provision but allows notaries — if they actually know — to attest to the official capacity of the signor. But California law has an important caveat. Any attestation as to the powers, rights and obligations of the signor cannot be used and is of no effect if it is being used outside the state. So if you are in Arizona and the notary was in California and included an attestation that the signor was vice president of MERS, the part about the signor being a VP of MERS counts for nothing.

The secretary stepped in immediately when his manager tried to say that any decision by the office of the secretary of state is final and cannot be reviewed. However, as he pointed out, the finding of an administrative agency is presumptively true unless you can prove otherwise. That is why the OCC decrees etc. should be viewed as valuable to homeowners because there have already been admissions and findings that the foreclosures were wrongful, and in some studies (San Francisco). Those findings after investigations are also entitled to a presumption of validity and throws the burden of proof onto the the pretender lender IF you show that the bad practices cited by the agencies show up in your particular case.

It is disturbing that (a) a state official second only to the secretary of state himself actually believed that she had supreme authority that was never subject to review. And (b) although the secretary affirmed his believe that his office was a record keeper and not an enforcement arm of the executive branch, I think that is a contradiction in terms. The purpose of the executive branch of government is to enforce the law. If a filing is required with the Secretary of State providing information about the activities of a limited partnership along with the fees payable to the State of Arizona, it is a mistake, in my opinion, to believe that such an agency lacks the right to prosecute those who fail to register, do business in the state and don’t pay their fees.

After decades of practice in administrative law all over the country, I believe I have discovered a mistaken impression that is often found amongst state departments, both as to their powers and their obligations to enforce those powers. I think a lawsuit in mandamus against the office of Secretary of State requiring them to use the Administrative Procedures Act and participate in hearings conducted by administrative hearings judges who are objective and unbiased, may well be necessary unless the Secretary rethinks his position and does so on his own.

This might be particularly important to the State of Arizona and other states since the REMIC pools appear to be either general or limited partnerships and not Trusts as they are described in the PSA and prospectus. This ought to be at least tested.

But whether the restrictive power of the secretary of state extends only to limited partnerships and not corporations and other business entities ( division that is peculiar at best) the major point is still the same. A foreign entity or person holding money in their hands, solicited applicants for loans and then closed transactions for those loans within the state of Arizona and with respect to an interest or potential interest in real property located strictly within the state of Arizona, violated state law and must suffer the consequences.

If they want to say that these leads to an unfair or inequitable result, they must allege and prove that they will lose money by applying the law and that means proving that they funded the loan, bought it or otherwise advanced real money where money exchanged hands. At this point everyone who knows the logistics here knows that there is not one party, group or person that can prove that case, which is why the rejection of modifications is so ridiculous and born of pure arrogance.

The real lender or creditor is now admitted to be an out of state group or entity of some kind that never registered in the state, never paid the fees, and never gave any required information about the group or entity. Perhaps the Secretary of state should be more intrigued when he realizes that hundreds of thousands of such transactions occurred in the State of Arizona over the last 12 years and they continue to be conducting business activity and legal activity in the state all without the required registration. The exemptions from registration do not apply.

Under normal rules of engagement, the party failing to properly register is subject to fees, fines and penalties for doing business without registration and may neither bring any legal claim or defend against one in the absence of the proper registration. So whether it is the office of the Secretary of State or some other department that somehow does not fall under the authority of the secretary of state (a peculiar circumstance at best) the State is (a) missing out on hundreds of millions of dollars in revenue from out-of-state carpet baggers and (b) missing its chance to stop the foreclosures and even return the wrongfully foreclosed homes to their rightful owners.

So my question to the Secretary of State is this: As the putative lieutenant governor of the State who might be seeking higher office (the governor’s mansion), which would you rather do — run with the backing of back s  tabbing bankers who have already shown their willingness and desire to lie, forge documents and otherwise cheat the state’s citizens out of the right to possession of their own homes AFTER payment has been received in full — or would you rather ride the crest of anti-bank sentiment that can be found lurking in almost every voter regardless of the status of the ir mortgage or living arrangements? My bet is that the politician who seeks higher office or to maintain incumbency, would best be served by leading a populist revolt against the major out of state banks and a movement toward local in-state banks that had nothing to do with the mortgage mess created by false claims of securitization.

My second piece of advice is that the head of any agency having anything to do with regulation of business entities , banking and lending had best brush off their old copy of the Administrative Procedure Act because in my view there is right to bring a complaint against the agency that cannot be denied. And without having procedures and facilities for administrative hearings, complainants cannot fulfill the requirement of exhaustion of administrative remedies. That allegation alone in state or federal court could bring a mountain of constitutional issues crashing upon the shoulders of agency heads who thought they were immune from some issues.

35 Responses

  1. For Albert who posted in 2012 regarding a D.Chiodo endorsement for GMAC Mortgage – we too are fighting one.
    You can reach me on 312-671-6235 in order to compare “notes”.

  2. i heard today spain is refusing any more than 2500 euro cash deposits if its more they are charging 25% yes i feel like sitting my ass on the ground and saying nope i am not going to give this government another dollar nor bead of sweat from my brow.


    post me a message…

  4. None of the fake endorsements on my Promissory Note are dated or notorized. I’m in North Carolina though, home of the banksters.

  5. @Ian:

    “find out who was paid for what, and how much they were paid, and a copy of “defaulted” mortgages which were paid, on what date, and to whom. It will come out.

    What’s your best guess – how it will come out – will it come from investors – insurance companies- pmi lenders – title companies and the host of others or will govt go after it in the end or will judges demand the discovery finally either for investor lawsuits or homeowner lawsuits?

    Every time anyone big or little gets close to anything the banks settle and slink off into confidentiality. One or two judges in Florida and perhaps elsewhere (at supreme court level) refused to drop the fcase even though settled and even though both parties dropped it saying it was too important for all homeowners to drop it.

  6. joanne- re: …. debts are discharged either by payment or by waiver- The UCC, I forget which section, states: ” any payment made on an obligation reduces the obligation by the amount of the payment, even if said payment was made by a stranger to the transaction”.
    This is where insurance, PMI, lenders’ title policies, GSE, FHA, MBIA, MGIC, AMBAC, RADIAN, ASSURED GUARANTY, and a host of others have paid for “defaulted mortgage loans”. Even if the borrower didn’t know that he/she/they were in default. This would be the magic bullet, to find out who was paid for what, and how much they were paid, and a copy of “defaulted” mortgages which were paid, on what date, and to whom. It will come out.

  7. “and waived could be involuntary, like in bankruptcy”

    Just wondering – when “waived” in bakruptcy” does that legitimize the “debt” twas to the foreclosing “lender” which may not have been legitimate to “that” lender? What if that debt is actually a different amount owed to another “lender” never disclosed? What if the other lender is owed less or nothing? What if fraud occurred and the homeonwer suffered harm as a consequence and is now owed for damages?????

  8. “I again say: there is no magic bullet, and there is no paper defect that will discharge a debt. Debts are discharged by payment or waiver of payment”

    Still need an answer to a few things. What about strawman on DOT – fraud at origination – document is not what it purports to be – is that a paper defect only and now you owe the strawmwn anyway? Or does fraud if proven affect the amount owedz/ What about – secured by real property debts that encumber a home – “mortgage” (and see recent rulings that mortgage and note cannot be separated) paid off in part or full by other parties as per DOT and note (reconveyance)? Is that payment or not and do you still owe “someone”? An unsecured creditor on a secured agreement? What about bankrupt “lenders” who never transferred the real property mortgage asset to anyone even though purporting to do so? Who held it on their books for their own reasons even in bankruptcy. Is the “asset” still good on their books and owed to “someone” today? What about trusts who took default insurance and a tax write off and are no longer owed by anyone? Can they sell or transfer the asset anywhere now? So has there been payment or waiver behind the scenes already undisclosed to the homeowner who is handing over his house in lieu of this “debt” owed to “someone”? Or still paying someone for a debt that has already been paid in part or full or written off? The someone who is owed needs to be identified. Who can be paid or who can waive needs to be identified.

  9. @Keepon,

    Don’t know what to make of all of it anymore. It used to be very clear: i had pretty much 10 things to remember, such as not to take myself for the center of universe, respect and honor my parents (they did bring me here after all… although lately, it hasn’t looked like such a good deal after all), not lie, steal cheat, take a day off regularly, etc., etc.

    Within those 10 things, there were human laws. Couldn’t know them all but, by following the first 10 things, I was pretty secure with the thousands of human laws.

    Now, none of it stands any longer. The fist 10 obviously are only for the peons to follows: breach them and you get mucho, mucho rewards. The human ones… well… ditto!

    Makes me so angry at times that owing a gun becomes a very reasonable alternative. And what kills me (literally) is that we are forced to ask all the questions to protect ourselvs but we get shot down when we do. Damned if we do, damned if we don’t, damned the whole way. How do you behave under those conditions? What do you believe? How do you even function? Something’s got to give!

    Pisses me off soooo much!

  10. Barry Fagan v Wells Fargo Re: Reply to Wells Fargo’s Opposition to Plaintiff’s Motion for Reconsideration of the Motion to Compel WITH EXHIBITS A, B, C, D, E, F & G

  11. @ Enraged 8:13 pm

    So, not to be intentionally ‘obfuscational (?)’ we start out with American Home Mortgage which went bankrupt in 2007 (?) which then became AHMSI Delaware, and/or AHMSI Maryland, and now is changing its name to “Homeward Residential” according to Housingwire:

    Wilbur Ross’ AHMSI changes name to Homeward Residential, adds correspondent lending February 17, 2012

    …or Delaware AHMSI is, or Maryland AHMSI is, or both of them are. Do I have that right?

    How many cards are there in 3 Card Monte?

    And if it were really, truly 3 Card Monte, can’t you get arrested for that?

    That AGs’ Settlement’s deterrant power sure has made the banksters ‘cut the shit’ hasn’t it? Thanks so very much Judge Collyer. You’ve got them shivering in their shoes now.

  12. Doesn’t anyone here (including Neil) know any of these judges—personally? I mean, somebody must know what these judges have been told—as far as what seems to be their motto: “DON’T side with the homeowner—no matter what they come up with!!”…Did they all have a secret meeting and somebody threatened their jobs or pensions if they actually followed the LAWS with regards to all these illegal foreclosures??? Anybody know a judge on a personal level?

  13. @BSE,

    What is going on is much, much bigger than De Marco. Jailing De Marco might give you personal satisfaction for a few minutes but it won’t have any long term effect on our future…

  14. Jail deMarco !

  15. One country at a time, we’ll wise up. Now is the time to take stock of what, individually, we have to offer to society and how we would survive if anything happened. If? When?

    Greece’s answer to getting out of a rotten system… It’s an island and it’s primarily agricultural. So now what? Interesting video.

    The Birth Of Barter: How One Greek Town Dropped The Euro And Moved On
    Wednesday, April 18, 2012
    By Paul Martin
    by Tyler Durden

    Greece was the first country to defect from the non-default game theory regime of the European Union (a move which ultimately will be in its great benefit, as it is forced, very shortly, to default higher and higher into the 177% of GDP secured debt, until finally even the Troika’s DIP loan is impaired). It has also become the first country to demonstrate that people can, contrary to apocalyptic claims otherwise by the global banker consortium which realizes oh too well it will be its death if people stop playing by the broken rules, exist under a barter regime. The video below shows how the Greek town of Volos develops its own bartering system without the aid of the euro. Yes – it can be done, especially since one is forced to produce in order to consume, and borrowing infinitely from the future becomes impossible.


  16. Do you guys ever feel like we’re walking in a huge, desert landmine and any step we take in whatever directlon is tantamount to taking our own life into our hands… and yet, if we don’t press on, we’ll still end up dead of thirst?

    That’s how i feel, day in, day out. Damn if i do, damn if i don’t. There’s got to be a price to pay for putting us through that torture
    Every single document we uncover requires that we ask every time the same questions: who, what, where, when, why and how. It is daunting, weary, discouraging at times. We do it because it has to be done but it still doesn’t help. I really feel that this country is ready to blow up. And I want it more and more every day.

    TOP SECRET TRIAL TRANSCRIPT- What All of America Should Know About American Home Mortgage Servicing (AHMSI)
    April 18th, 2012 | Author: Matthew D. Weidner, Esq.

    I’ve been pounding away on the issue of “capacity” for a very long time….it’s true, just google, “Compendium of Capacity Cases”. The argument has several parts, but the first and most important part is,

    Who exactly is suing me? Now in some cases it’s clear, but the situation regarding AHMSI illustrates exactly why capacity matters and why we cannot allow these plaintiffs to continue getting away with violating basic pleading rules.

    There are in fact two AHMSI. A Maryland corporation and a Delaware Corporation. These is not just a technical distinction, they are as different as night and day. And this key fact should be disclosed in the tens of thousands of foreclosure cases pending all across this country in which one version or the other is a Plaintiff or was the Plantiff. The pleading requirement is simple, it’s either:

    1. AHMSI a Delaware Corporation or 2. AHMSI a Maryland Corporation

    And because one is related to a federal bankruptcy proceeding and the other did not, we need to know, and certainly judges all across this country need to know, which it is we’re dealing with. But the darnedest things are happening in my cases…


    Right, I know, it’s shocking…isn’t it. I mean, they probably are waiting to get around to letting judges know that the books and the records and the affidavits and the assignments and all that evidence filed by the old AHMSI or prepared by the old AHMSI relied upon now by the MAGIC! brand spanking new AHMSI. I’m sure all the attorneys are busy preparing the motions and making proper disclosures to the court so that courts all across this nation are aware of this little game of three card monty.

    Now some might try to convince a court that this little shift a roo doesn’t matter, but I’m here to tell you that it damn sure matters. EVERYTHING MATTERS.

    Defendants have a right to know when the company suing them is not the same company that comes into court years later, despite the same (apparent) name.

    Judges and courts have a right to know when the Plaintiff appearing before them is a completely different version from the one that first appeared and that produced evidence the court is relying upon to throw Americans out into the street.

    I have previously posted a transcript of another AHMSI trial that I am appealing and I learned yesterday that AHMSI is appealing this one….(tit for tat, you take that). (Here’s the trial transcript) There are many issues in each of these trials that are being appealed, but the over arching issue is,

    Are We As a Society Going to Require Parties to Be Truthful in Courts of Law?


    Will We Require Parties to Disclose All Relevant Facts?

    MR. WEIDNER: Thank you, Your Honor.
    7 Raised in our motion to dismiss and
    8 specifically raised as an affirmative defense
    9 in our answer in affirmative defenses, we
    10 challenged the capacity of the plaintiff
    11 that’s named in the lawsuit. This case is
    12 going to illustrate for the Court very clearly
    13 why capacity is no important.
    14 We’ll note in this lawsuit that they know
    15 that American Home Mortgage Servicing, Inc.,
    16 without saying anything more. There are at
    17 least two separate and distinct American Home
    18 Mortgage Servicing Inc.’s that existed at one
    19 point in time. The witness has stated that’s
    20 she’s here to testify on behalf American Home
    21 Serving Inc. Before she goes any further, she
    22 needs to make clear which she’s testifying on
    23 behalf of.

    Do you know what computer operating
    6 system was maintained by American Home Mortgage
    7 Servicing, Inc., a Maryland Corporation?
    8 A. No, I’ve never worked for that company.
    9 Q. Do you know anything about how the
    10 records of American Home Mortgage Servicing, Inc.,
    11 a Maryland Corporation were maintained?
    12 A. I know the records were kept in the regular
    13 business industry standards.
    14 Q. How do you know that, what’s the basis
    15 for your knowledge?
    16 A. Because they’re kept the same way they are
    17 kept within our company today.

    2 Q. Do you know when American Home Mortgage
    3 Corporation, a Maryland Corporation ceased to
    4 function as a business?
    5 A. I don’t know.
    6 Q. Do you know when they ceased to function
    7 as a business prior to when you — do you know if
    8 they ceased to function as a business prior to when
    9 you started working for American Home Mortgage
    10 Servicing, Inc., a Delaware Corporation?
    11 A. I don’t know.


    calyonAdversary case 0751704 Complaint

    calyon Adversary case 0751704 Complaint REQUEST F – Part 1-1


    Amended Plan

  17. @Albert,

    I am very sorry you find yourself in that bind. It’s probably a long shot but have you contacted Lisa Epstein, Lynn Szymoniak, Matt Weidner, Jeff Barnes, any one you can find on the defense side? Rather than go alone, sometimes, it makes sense to spend a couple of bucks ahead of time to see what your best chances are with your best arguments.

    And if time is really too tight to do anything else than what you have planned, good luck anyway. From what I understand, foreclosures in FL have resumed at a faster rate than before.

    Something will have to give, this much I know.

  18. Enraged, on April 18, 2012 at 3:03 pm said:

    florida,i posted before but, my older brother house has been stolen about 3 years ago, and now this small apt. , we tried to “defend ” but “attorneys” just stole the money, one day we went to court and checked the case file and surprise! this attorneys did nothing..well the last one at least filed 3 affidavit with no stamped notary seal, but..well at least the filed something ….

    so here we are… one step facing eviction…and thanks to shelley we have opened eyes…unfortunately too late, trying to shoot this bullet and put all the info together in order to vacate judgment and sale… we have this hearing in a few days (it’s a withdrawal attorney hearing) but i think i can use it to present this motion to vacate J.

    i think standing and fraud can be raised anytime … so at hearing i will present this stuff attorneys never used and some more i found….

    this thieves violated almost every florida statute..they missed the gambling stuff only….

    – Fla. Stat. 831.06 Fictitious signature of officer of corporation

    – 817.155, F.S., a person may not, in any matter within the jurisdiction of the Department of State, knowingly and willfully falsify or conceal a material fact

    – 2011 Florida Statutes 701.02 Assignment not effectual against creditors unless recorded and indicated in title of document; applicability.—

    – 695.01 Conveyances to be recorded.—

    (1)No conveyance, transfer, or mortgage of real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law; nor shall any such instrument made or executed by virtue of any power of attorney be good or effectual in law or in equity against creditors or subsequent purchasers for a valuable consideration and without notice unless the power of attorney be recorded before the accruing of the right of such creditor or subsequent purchaser.

    -117.105 False or fraudulent acknowledgments; penalty
    – 117.05 Use of notary commission; unlawful use

    – 517.301 Fraudulent transactions; falsification or concealment of facts

    -831.06 Fictitious Signature of Officer of Corporation
    -817.2341 False or misleading statements or supporting documents


    673.2031Transfer of instrument; rights acquired by transfer.—  (2)Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.

    (2) Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.

    – 736.0406 Effect of fraud, duress, mistake, or undue influence
    – 695.26 Requirements for recording instruments affecting real property.

    – 15 USC § 1692e – False or misleading representations

    – 18 USC § 1017 – Government seals wrongfully used and instruments wrongfully sealed – Whoever fraudulently or wrongfully affixes or impresses the seal of any department or agency of the United States, to or upon any certificate, instrument, commission, document, or paper or with knowledge of its fraudulent character, with wrongful or fraudulent intent…..

    – 18 USC § 1021 – Title records
    – 18 USC § 1016 – Acknowledgment of appearance or oath

    and after they got the final judgment they bought the property so ,,theft commercializing stolen property…etc..ect.. is not included yet….

  19. You can inquire about what your State Notary Laws are by visiting your Secretary of State web site. All Notaries get their Comissions thru the Secretary of States Office in each State. 🙂

  20. @Albert,

    Which state are you in?

  21. Enraged,
    and i didn’t mention the stamped note ,of course after complaint was filed, just about 2 years after…with 2 brand new indorsements, this person stamped ink signature , did not have that work or position,in fact both indorsemtns have the same little problem…i guess at least im lucky they actually exist….BUT doens’t matter because it’s immaterial as well as chain of title …”in words of this douglas c. zahm fraudclouser ” and they have right to fraudclouse .thanks to the great UCC 3….because they have the “note”…, did i mention that note was destroyed or lost???….ohh well… after 2 years they found it and glued …so seems even mickey mouse can use this UCC 3 that left behind the old useless FEDERAL AND STATE LAW..and of course the RULES OF CIVIL PROCEDURE…

  22. @Albert,

    Then, Albert, you have gotten a whole education on the thousand-and-one ways notaries can commit fraud and perjury but, because of the settlement entered into by people we elected to office, everyone might very well walk scot free.

    Ain’t America a great country? Too bad you chose the wrong side of the law… You’d be a billionaire by now!

    Sorry I couldn’t resist. It’s E. Toile’s fault: he’s turning me into a cynic.

  23. White House petition tally is as of 4:30 pm today, 4/18.

  24. 7158 more needed by 4/22 17,842 signed (4/18 @ 6 am) ( 25,000 required )

    Ed DeMarco, head of the Federal Housing Finance Agency — which oversees Fannie and Freddie — has stood in the way of (principal) reductions and he’s claimed the support of Fannie and Freddie. But that’s no longer the case. Even Fannie and Freddie now support principal reductions. It’s time for Ed DeMarco to step aside by signing this Whte House petition:!/petition/push-fannie-mae-and-freddie-mac-issue-principal-reductions-underwater-homeowners/qtS3crg7

    Pros & Cons

    “Senator Demands Answers from Freddie Mac’s Regulator” ( Acting Director Edward DeMarco)

    ProPublica and NPR reported on Monday [1] that Freddie Mac, the taxpayer-owned mortgage-insurance company, placed multibillion-dollar bets that pay off if homeowners stay trapped in expensive mortgages with interest rates well above current rates.

    Ed DeMarco’s Refusal on Principal Reductions Grounds for Firing
    Peter S. Goodman Huffington Post Posted: 03/12/2012 8:10 am

    Elijah Cummings gets help in Edward DeMarco fight
    Read more:
    by Joseph Williams

  25. “”” Cheryl, on April 18, 2012 at 10:33 am said:

    What happens if the notary is not licensed or the notary had her assistant witness signatures? “”

    – and what happens if i have a mortgage with forged notary signature , at loan origination ?

    – What happens if the forged notary also witnessed its own signature?

    – what happens if i have forged notary signature in assignment of mortgage?

    – what happens if i have forged notary signature in affidavit in motion and request for default?

    – what happens if i have forged notary signature in affidavit as to reasonable attorney fees?


  26. More action.

    April 18th, 2012 | Author: Matthew D. Weidner, Esq.
    HARVEY COVINGTON & THOMAS, LLC, as servicing agent for Harvey Covington & Thomas of South Florida LLC (“Harvey Covington”),










    CASE NO. 1D10-4047

    Opinion filed April 17, 2012.

    An appeal from the Circuit Court for Okaloosa County.

    Jack R. Heflin, Judge.

    Amy L. Fischer and F. Malcolm Cunningham, Jr., of The Cunningham Law Firm, P.A., West Palm Beach, for Appellant.

    No appearance for Appellee.


    We reverse the summary final judgment of foreclosure issued in favor of the Appellee/Plaintiff, WMC Mortgage Corp. (“WMC”). The Appellant, Harvey Covington & Thomas, LLC (“Harvey Covington”), raises three issues on appeal. 2

    Two of the three issues lack merit; however, we reverse on the basis of the third issue.

    Harvey Covington filed a motion to continue, seeking delay of the summary judgment hearing in order to allow time for it to conduct discovery on the affidavits submitted by WMC. It stated in its motion that WMC had never responded to its discovery requests. The trial court found that “while the plaintiff has not provided the discovery requested by Harvey Covington, in many respects, the discovery requested seeks information that borders on the irrelevant and in light of the age of this case,” the court denied the motion. The denial of this motion was error.

    Harvey Covington may have been able to successfully challenge the affidavits as the only evidence of the amount due and owing on hearsay grounds, had it been allowed time to complete discovery and had the case then proceeded. See, e.g., Mazine v. M & I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011). It is speculative at this stage whether discovery would in fact have shown the documents inadmissible or insufficient evidence, but with discovery pending and such essential questions unresolved, the trial court abused its discretion in denying the motion to continue. See generally A.P.D. Holdings, Inc. v. Reidel, 865 So. 2d 682 (Fla. 4th DCA 2004) (noting that a ruling on a motion to continue is reviewed 3

    for abuse of discretion); American Funding, Ltd. v. Hill, 402 So. 2d 1369, 1370 (Fla. 1st DCA 1981) (observing that rule 1.380(a)(2) requires that, if a party fails to respond to a request for inspection under rule 1.350, the inspection shall be permitted as requested). Summary judgment should not be granted until the material facts have been sufficiently developed for the court to be reasonably certain that no genuine issue of material fact exists. See Branauer v. Publix Supermarkets, Inc., 657 So. 2d 932, 933 (Fla. 2d DCA 1995). “Generally, it is an abuse of discretion for a trial court to grant summary judgment where the opposing party has not had an opportunity to complete discovery.” Crowell v. Kaufmann, 845 So. 2d 325, 327 (Fla. 2d DCA 2003). Factual issues inherent in determining issues of agency may preclude summary judgment before discovery into the agency issue has been completed. See Vance v. Barton-Malow Thatcher, Inc., 680 So. 2d 492, 494 (Fla. 1st DCA 1996).

    Because the trial court granted summary judgment without allowing Harvey Covington to complete discovery on the colorable issue of the affidavits, we reverse and remand for further proceedings, including allowing the Appellant to conduct discovery on WMC’s affidavits.


    ShareScridb filter

  27. Some action!!!

    April 18th, 2012 | Author: Matthew D. Weidner, Esq.
    I wish I thought that things like this mattered anymore.

    I wish I still believed that our nation’s courts had the courage to stand up to fight.

    I wish our nation’s laws had powerful advocates who would stand up and fight for THE LAW.

    But in case after case, courtroom after courtroom, all across this country THE LAW and OUR COURTS have bent, and then been trampled by the banks and institutions. The law that has developed is that there is no law for the banks.

  28. Whew! I was growing concerned about Mandelman not writing anything lately but… he fact, in fact, very busy, writing it like it is (see below link. The column is soooo long, can’t post it here.)

    And folks, no matter how we slice it, it ain’t pretty. And it can’t end well. It just can’t. And because it can’t, it won’t. As simple as that.

  29. WHY FiRE DeMARCO ? Rather “The S.O.B. needs to be JAILED” !

    Freddie Mac Forcing Foreclosures, Do Not Be Fooled

    Here’s a recent article, Why Freddie Mac Has Misled Others About Short Sale Payoff Fraud, on Freddie Mac [thanks Jessica!] and its draconian policies regarding short sales, and other loss mitigation, as well as its discouragement of private investing in real property.

    The recent revelation that Freddie Mac’s business unit has bet billions that home loan modifications would fail is shocking even to the most devout critics of the failed, taxpayer-funded entity. The transactions, known as “inverse floaters,” are not illegal. But rigging the housing market to ensure the investments deliver a profit might be.

    In addition to being a bet against homeowners and the Obama administration’s litany of struggling programs designed to save homeowners and Freddie, the inverse floaters are a bet against the private housing market. The bets fail not only if loan modifications work, but also if private buyers purchase Freddie’s inventory of distressed property. And here’s where Freddie has a problem.

    For more than a year, Freddie Mac has adopted numerous policies designed to prevent the private purchase of toxic assets and forced servicers to enforce these policies. Demands for unreasonable offers on short sales, delays in processing short sales, affidavits preventing resale of their properties after being rehabbed and deed restrictions on real-estate-owned properties restricting resale price are among the myriad obstacles private buyers face in trying to buy Freddie’s inventory.

    Besides delaying the unwinding of the troubled entity, several of these policies may in fact be illegal. Restricting the ability of private buyers to resell their properties and attempting to dictate resale value constitute unreasonable restraint on alienation. In plain English, once Freddie sells one of its toxic assets, it has no standing in future transactions related to the property.

    Freddie has attempted to justify these policies through a taxpayer-funded media campaign arguing that the act of buying, rehabbing and reselling a property constitutes a crime and is inherently an act of fraud. Both Freddie and Fannie Mae have worked with enforcement officials to convince them of this lie. To the embarrassment of these enforcement officials, Freddie left out one important detail: Every time it stopped a short sale, Freddie made money.

  30. The government removed regulations and participated in the act of stealing. This is “why” the banks run wild. It is part of their instructions to participate within the world wide currency war. Oil backs the US Dollar. Another reason for 110 Brent Crude oil . Further it is how we repay the Saudi’s for the cash stolen underneath the MBS scam. Further explains “ why” home owners are not winning cases. It is part of the World Order.


  31. What happens if the notary is not licensed or the notary had her assistant witness signatures?

  32. Notary is in Florida complicated, because the debtors signature and
    the notary is not required on the same page. In my case ,the notary page was later added to the mortgage paper.I never see a notary.
    So I will fight the notary page , and so
    far I know ,the mortgage foreclosure should be handled as a credit card ? may be somebody has a better answer ?

  33. i have not understood why cases against the debt collectors have not had the complaints of non compliance with being registered to be doing business in the state. This was something I discovered from the first and added to my complaint, then to my surprize Rob McKenna filed the Washington State V RECONTRUST case due in part to this non compliance. Seems like almost every case I see is missing it. A few have brought it up. I am disappointed in Rob McKenna not filing against all the debt collectors. I dont trust him at all. He knew RECONTRUST was on its way out of this state and BAC and N.W. Trustees were taking over. I am waiting to see if Rob McKenna throws it under the table or knows it will be dismissed, yet still make him look good for doing something V. nothing. Not empressed with any of the AG’s allowing the settlement. The banks are shooting themselves in the foot by not compling to the settlement. From what I am reading, which is no surprize to me. Why should they, they have been encourages to run wild and steal, defruad at every layer of the onion peel. Because so far THEY ARE RIGHT THEY CAN!

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