South Florida Foreclosures Rising Sharply

For Legal Representation in South Florida call 520-405-1688. Neil Garfield has established an office there again, where he practiced for 30 years.

Editor’s Notes: With the increase of over 37% over last year, S. Florida is becoming a hotbed of foreclosure activity just as some “old” foreclosure areas are rising and a lot of new areas are suddenly experiencing a vast increase in foreclosure activity.

The Banks are on the move again and all I see, with a few exceptions, is lawyers and pro se litigants admitting practically everything, not knowing when to object or take control of the narrative, and then asking for relief. If you do that, you are not giving the Judge any choice.

Once you have admitted all the essential elements of the foreclosure, the forecloser has “proven” its case in satisfying the doctrine of a prima facie case. Even if you only admit most of what is alleged the rest will likely be presumed. And then, your affirmative defenses and counterclaim sound like hollow protests against the bad guys or pleas for mercy.

The judicial system exists in order to bring finality to any controversy that is properly brought within its jurisdiction. Judges are not there to give you mercy or to fashion their own ideas of justice. And the system is not  corrupt just because you lost.

Even in the appellate decisions the courts are telling us over and over again that the “facts” of the case clearly show the loan, obligation, note and mortgage were all valid. The loan receivable account is presumed to exist, and the obligation of the  borrower to repay the loan is not subject to any effective defense even if you find some evidence of fabrication or even forgery. (More on forgery and fabrication later this week).

This is why I have coined the defense tactic “Deny and Discover.” The tactic is nothing more than a restatement of common litigation where the party sued denies anything that is either not known by them or is arguably deniable, which simply means that the allegations must be PROVEN not accepted as the truth.

The wording varies but you will notice in many cases that the pleading states that the borrower entered into a deal with the mortgage originator in which a mortgage was executed. Denied. You don’t know that the originator was actually the source of the loan funding so why would you admit that? In fact, you will also find that through discovery and information obtained from Title and Securitization Analysis and Commentary that the funding came from an undisclosed third party.

So if you look at yesterday’s post on interrogatories you can see what you you should be looking for. The point is that I have decided to get personally involved in cases in South Florida (especially since I am moving back to Florida soon).

If you represent a client, be careful what you admit and don’t refer to the note as evidence of the loan because in most cases it probably is not evidence at all but rather an executory contract in which the loan was NOT funded by the originator (the payee on the note and mortgage).

You should be directing the attention of the court to the obligation, not the note. You will remember, lawyers, from first year law school, that the note is not the the obligation. It is supposed to be evidence of the obligation. And the mortgage is the tail of the dragon that can only be a perfected lien capable of foreclosure if it refers to a valid note.

If the note contains the wrong payee because that payee funded nothing and if the note differs from the repayment terms presented to the lenders (i.e., the mortgage bond issued by an unfunded and therefore non-existent REMIC) then the note is invalid both because it names the wrong party and because the terms are different than the real lender was offering.

You end up with an obligation for which there is no documentation other than the closing instructions and wire transfer receipt from a third party that shows that the transaction is not FBO (for benefit of the originator) but rather creating a common law obligation of repayment, the terms of which are yet to be determined.

There is nothing under Florida law or the law in any state that allows for imposition of an equitable mortgage with terms that are determined by the Court. Thus the obligation, while owed is not subject to a mortgage and thus not capable of being foreclosed.

If the Banks were playing this straight up, they would have funded the REMIC and put the name of the REMIC on the mortgage or the actual funding source (investment bank) on the note and mortgage, but that would have subjected them to lender liability under various laws (TILA, RESPA, Deceptive Lending) and other misbehavior.

Instead they put the name of a nominee on the note and mortgage (deed of trust) so that they could control the APPARENT movement of the loan through a false chain of securitization starting with an originator who never funded or purchased the loan in a transaction in which money exchanged hands.

This is what enabled the banks to divert money from the investor lenders and money and property from the homeowner borrowers into a wheel and spoke system of multiple sales of the loan for 100 cents on the dollar even if it was known with 100% certainty that the loan would be in default. It was all possible because the actual funding source was left off the documents.

The borrower didn’t mess this up and no incentive to do so. The borrower was required to have disclosure and choices under TILA and state laws, but didn’t get it because of the sneaky game in which they “borrowed” the loan to trade on it, get insurance, credit default swaps and bailouts for loans that the banks never funded not purchased with money.

Thus the loan closings were intentionally “botched” and designed to mislead both the borrower and the lender which was done quite successfully. Recognition of this simple fact, would stop foreclosures and restore the wealth of the middle class partially because the investor lenders would easily be able to recover their full investment from the banks that sold them.

Those investors, lest we forget are not fat cats. They are managed pension and retirement funds, for the most part, that will be begging for federal bailouts next year because of losses caused solely by the misbehavior of the banks and had nothing to do with the borrower. Those retirement accounts and pension funds are the lifeblood of the middle class.

MIAMI—South Florida recorded more than 13,200 foreclosure actions in the third quarter, a 36% year-over-year rise. Lenders also filed 35,700 notices of default so far this year in Miami-Dade, Broward, and Palm Beach counties, according to new report from

Still, that’s a far cry from previous years. In 2009, there were 75,500 foreclosure actions in the same period and in 2010 there were 49,000 through the first three quarters, according to the report based on filings with the Clerks of the Court for each county.

Peter Zalewski, a principal with Condo Vultures, points to administrative irregularities that he calls “robo-singers” in the repossession process that caused a hiccup in the process. He tells robo-singers first surfaced late September 2010, creating a foreclosure freeze.

That slowdown continued through 2011. The nation’s five largest mortgage servicers reached the National Mortgage Settlement Agreement with the federal government and the attorneys general from 49 states to provide at least $25 billion in relief to borrowers in February 2012.

“We are tracking roughly 330,000 foreclosure filings and we’ve seen about 182,000 bank repossessions or forced sales of the properties,” Zalewski says. “Those numbers may be inflated by condo foreclosures, which usually result in multiple filings. So it appears that the worst part of the foreclosure mess is over.”

Zalewski says investment groups set up to buy the bank-owned property are waiting in the wings. As soon as the banks process the repossessions, he says, chances are the product is going move relatively quickly.

“If I were going to guestimate I’d say we are in the seventh inning of a nine inning ballgame,” Zalewski says. “We anticipate there will continue to be foreclosure filings in the upcoming quarters, then you will start to see a slow down. All indications are pointing toward 2014 getting into a growth phase.”


11 Responses

  1. That’s right carie…….its all about the theft…..The politicians & the investors are all gambling on the massacre…..they are sick mortgage fraud freaks..fraudclosure is porn for gamblers….the politicians and their minions are getting fatter & the foreigners are gnashing their teeth….damned 666 IMPOSTERS is all they are…..


  3. OMG! The imbecile is finally quoting her sources! TV at its most mediocre!


  5. Great Link Enraged … do you hear my ribs cracking? Laughter is Healthy for the Heart! heeheehee

  6. Nuttin … upstairs Enraged. All Air … ROFLMBO

  7. Of topic but worth it. And it will make your day.

    This, guys, is unbelievably hilarious! I thought we had caught the price with that Ivent specimen. I found that… she is only one among many certifiable imbeciles!!!

    We are in a deep, deep doodoo!!!

  8. “…Zalewski says investment groups set up to buy the bank-owned property…”

    Really? BANK-OWNED? How about DEBT COLLECTOR OWNED/STOLEN…speak the truth, assholes.

    Illegally obtained property is being re-sold to these “investment groups.”

    What are the homeless and jobless numbers now, Obama and Romney?

    Oh, sorry—I forgot—you couldn’t care less.

  9. “…Lenders also filed 35,700 notices of default so far this year..”

    “LENDERS”? Not lenders. Lent nothing. Not lenders. Lenders are not filing…DEBT COLLECTORS ARE FILING FORECLOSURES…not lenders.
    As long as these idiots keep saying ‘lenders’—we’ll get nowhere.

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