Danielle Kelley Looks at New Florida Law: Pitfalls and Possibilities

The fundamental paradigm shift that is coming is that the banks are the deadbeats, not the borrowers. The borrowers are seeking to enforce a fair deal; the banks are seeking to steal and lie their way through the PONZI scheme we called “Securitization.” —Neil F Garfield, Livinglies.me
If you are seeking legal representation or other services call our South Florida customer service number at 954-495-9867 and for the West coast the number remains 520-405-1688. In Northern Florida and the Panhandle call 850-765-1236. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.

SEE ALSO: http://WWW.LIVINGLIES-STORE.COM

The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available TO PROVIDE ACTIVE LITIGATION SUPPORT to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

Danielle Kelley, Esq. is a partner in Garfield, Gwaltney, Kelley and White located in Tallahassee. She has been a constant contributor to the dialogue on wrongful foreclosures and has been quoted recently in a number of articles in mainstream media. For further information on the firm’s services please call 850-765-1236.

Editor’s Comment: The Florida bill was clearly meant to speed up the “inevitable” foreclosure process, which is the wrong assumption right off the bat. If the foreclosures are wrongful we are not talking about some “i” that wasn’t dotted or some “t” that wasn’t crossed. We are talking about foreclosures that (a) didn’t need to happen and (b) couldn’t happen legally if the party  bringing the foreclosure had no right to do so.
The fundamental paradigm shift that is coming is that the banks are the deadbeats, not the borrowers. The borrowers are seeking to enforce a fair deal; the banks are seeking to steal and lie their way through the PONZI scheme we called “Securitization.”

Verification of the complaint has taken another bizarre turn. In reading the testimony and affidavits of those who “verified” the complaint, it turns out they signed the verification but knew nothing about the case. The only thing they verified was that the complaint contained information that was given to her or him by unknown parties through computer via a computer monitor.

Banks are using the verification aspect to bolster their false claims to the business records exception of hearsay. They are wrong and any judge who rules that is wrong if the verifier or affiant (a) is not the records custodian and (b) had no basis for personally knowing the truth. Pressed to give an accounting for how they know what they know, the verifier will answer “it’s in the complaint.” They often express confidence that it wouldn’t be in the complaint if it wasn’t true. Talk about circular logic!

The recent revelations about Bank of America are the tip of the iceberg of lying and deception that started when the first mortgage bond was sold and the first loan application was taken within the scope of the PONZI scheme that required bonds to be sold in order to make payments to the investors.

The fact that BOA told its employees to lie to customers in order to get them into foreclosure is enough to infer the truth, to wit: the goal was foreclosures and not financial recovery. How is that possible? What bank would not want the most it could get in mitigation of a “loss” it supposedly incurred as a result of a “default” by a “borrower” on a “debt” that was owed to the bank because the bank funded the origination or acquisition of the loan?

The questions answer themselves. If the Bank had a real loss they would want to mitigate the loss as quickly as possible. In the past that has always meant some sort of workout when that possible. Now we find out that BOA was paying its employees to lie and deceive the “borrowers” for the express purpose of getting the property into foreclosure even though that means getting a lot less money for the “creditor” than any modification, settlement or workout. So the answer is that they had no real loss and they must want the foreclosure for some other reason.

The “other reason” is simply that foreclosure is the cover-up for the PONZI scheme. And the government feels stuck by assurances it gave the large banks (see statements of future whistle blowers) when they forced the banks to acquire the investment banks, the aggregators and other players in this scheme, before the government knew that the scheme existed. So the government is buying up worthless mortgage bonds with no loans backing them and pretending that the bonds are really worth something. This is supposed to shore up the financial system by avoiding massive failures of the largest banks — something that is eventually going to happen anyway because the $ trillions that were siphoned off from from investors were then siphoned off from the banks and management now controls that money.

If you look at the merger and bond activity you can see the banks acquiring other institutions in order to provide a safety valve through which part of the ill-gotten gains from the PONZI scheme can be repatriated and the “earnings” of the bank can be seen as stable or increasing even while the rest of the world goes to hell in a hand basket. (see below). The rest of the money is being controlled by a handful of people (see future whistle blowers) who are actually controlling world events by controlling the purse strings of all world economies.

Sounds like a conspiracy theory, doesn’t it. Maybe a little less crazy now that we know that BOA was rewarding employees for lying to customers. And maybe a little less so now that we know the bonus was paid with a Target gift card. If it was a legitimate bonus, why use Target as the intermediary? Answer: the auditors of the bank probably would not like seeing bonuses paid to people who were supposedly working with borrowers on modification or settlement of the loan — especially when the record shows that the bonus was for getting the case into foreclosure rather than settlement.

As you can read for yourself below, the pace of foreclosures is picking up and is going to accelerate under the new Florida law. They are in a rush to hush up any further whistle blowers who might blow the whole thing wide open. But the carrot they held out to homeowners might be the bank’s undoing if the borrower moves promptly and fights the foreclosure on the basis of ownership of the loan. There is only one way to really own a loan and that is by paying for it. The argument has been rejected by many judges, but now it is right in the statute that the proof of ownership must be present as a condition precedent which means that the real burden of proof is switching back to the banks, where it belongs.

————————————————-

Danielle Kelley, Esq. June, 2013

The banks wanted this bill – so let’s take a look at the “consumer friendly” portions and get ready.  Keep in mind the act is remedial in nature.  All complaints filed after June 7, 2013 will be subject to a motion to dismiss if the plaintiff does not meet the requirements of the new bill:

1) they must give affirmative allegations that at the time foreclosure is filed they are the holder of the original note, allege with specificity the factual basis by which they are entitled to enforce the note under 673.3011 (no more either/or pleading),

3) a plaintiff given authority to sue (i.e. servicer or someone coming in with a POA like we’ve been seeing) – the Complaint shall describe their authority and identify with specificity the document that gives them authority to act on behalf of the Plaintiff.

Given what we know about how they verify complaints, they will have a hard road showing they can verify the plaintiff actually “has” the original note.  I won’t settle for anything less than a declaration that they have seen it in person – not on a computer screen.  The bill states, “The term “original note” or “original promissory note” means the signed or executed promissory note rather than a copy thereof.”  I don’t want to hear about a janitor who was adopted as assistant vice president through corporate resolution and is verifying they saw the “original note” on a screen.  Keep in mind that they executed the complaints filed this month months ago – they sign right after they send off for verification usually. 

If they file a lost note count they must attach an affidavit under penalty of perjury to the Complaint that
1) details a clear chain endorsements, transfers, or assignments Note;
2) set forth facts showing the Plaintiff is entitled to enforce the lost instrument (Note); and
3) attach documents to the affidavit such as copies of the Note, allonges, audit reports, or other evidence of acquisition, ownership, and possession.  
 
Relevant portions of the bill below:
(2) A complaint that seeks to foreclose a mortgage or other lien on residential real property, including individual units of condominiums and cooperatives, designed principally for  occupation by from one to four families which secures a  promissory note must:
(a) Contain affirmative allegations expressly made by the plaintiff at the time the proceeding is commenced that the plaintiff is the holder of the original note secured by the mortgage; or
(b) Allege with specificity the factual basis by which the plaintiff is a person entitled to enforce the note under s. 673.3011.
(3) If a plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note, the complaint shall describe the authority of the plaintiff and identify, with specificity, the document that grants the plaintiff the authority to act on behalf of the person entitled to enforce the note. This subsection is intended to require initial disclosure of status and pertinent facts and not to modify law regarding standing or real parties in interest. The term “original note” or “original promissory note” means the signed or executed promissory note rather than a copy thereof. The term includes any renewal, replacement, consolidation, or amended and restated note or instrument given in renewal, replacement, or substitution for a previous promissory note. The term also includes a transferable record, as defined by the Uniform Electronic Transaction Act in s. 668.50(16).
(4) If the plaintiff is in possession of the original promissory note, the plaintiff must file under penalty of perjury a certification with the court, contemporaneously with the filing of the complaint for foreclosure, that the plaintiff is in possession of the original promissory note. The certification must set forth the location of the note, the name and title of the individual giving the certification, the name of the person who personally verified such possession, and the time and date on which the possession was verified. Correct copies of the note and all allonges to the note must be attached to the certification. The original note and the allonges must be filed with the court before the entry of any judgment of foreclosure or judgment on the note.
(5) If the plaintiff seeks to enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty of perjury must be attached to the complaint. The affidavit must:
(a) Detail a clear chain of all endorsements, transfers, or assignments of the promissory note that is the subject of the action.
(b) Set forth facts showing that the plaintiff is entitled to enforce a lost, destroyed, or stolen instrument pursuant to s. 673.3091. Adequate protection as required under s. 673.3091(2) shall be provided before the entry of final judgment.
(c) Include as exhibits to the affidavit such copies of the note and the allonges to the note, audit reports showing receipt of the original note, or other evidence of the acquisition, ownership, and possession of the note as may be available to the plaintiff.
(6) The court may sanction the plaintiff for failure to comply with this section.
SEE ALSO
Unnatural Disaster How mortgage servicers are strong-arming the victims of the Moore, Oklahoma tornado (among others)
http://www.newrepublic.com/article/113496/moore-oklahoma-tornado-victims-strong-armed-mortgage-servicers
HAMP Extension 2015 Could Help Millions More Avoid Foreclosure, LoanLove.com Reports
http://www.sys-con.com/node/2700128

Bank of America gave bonuses for hitting foreclosure quotas, suit alleges
http://www.bizjournals.com/orlando/morning_call/2013/06/bank-of-america-gave-bonuses-for.html

14 Responses

  1. @BobHurt

    When The US Constitution speaks in the 5th and 14 amendments on the Supreme law of the land ., shall not be deprived of life, liberty or property
    without due process – nothing less than what is in the Constitution is Due process
    it cannot be displaced by EQUITY.

  2. bobhurt- If you saw the stock prices of Ambac, Radian, Assured Guarantee, Syncora, Mbia, and other monoline bond insurors drop from 60-80 dollars per share down to 1- 6 dollars per share, wouldn’t you wonder why? Well, it was because they were paying off billions of dollars of ‘defaulted’ mortgages, or tranches within the MBS which were declared in default by the sponsor. So they got their money back yet again right there. But guess what? They never told us! And we’ve been paying ever since! The nerve of those rascals!

  3. bobhurt- anyone who was steered into an adjustable rate 2/28 subprime mortgage which was a FNMA, usually had their first payment misapplied or ‘lost’ or put in a ‘suspense account’. After 6 mos. their loan was placed in (false) default. At which time the loan was removed from the pool and purchased by the servicer for 20 cents or less on the dollar. This is when the first round of insurance payouts began. And this is when the loan (asset) was to be derecognized on the lender, creditor, bank, take your pick
    balance sheet. You can’ t collect on the same debt twice, let alone 3 or 4 or 20 times, yet this is exactly what the banks, servicers, or whome er have done. So don’t babble about irresposible debtors to us all while we try to figure this out. What are you, a renter?

  4. I found a riveting definition for “EQUITY” (as in Florida’s foreclosure proceedings) in an old dictionary, and relevant laws in the Florida Statutes:

    *Equity* (Aequitas, quasi Aequalitas) Is defined to be a Correction, or Qualification, of the Law generally made, in that Part wherein it faileth, or is too severe. And likewise signifies the Extension of the Words of the Law to Cases unexpressed, yet having the same Reason; so that where one Thing is enacted by Statute, all other Things are enacted that are of the like Degree: For Example; The Statute of Glouc. gives Action of Waite against him that holds Lands for Life or Years; and by the Equity thereof, a Man shall have Action of Waite against a Tenant that holds but for one Year , or Half-Year, which is wiothut the Words of the Act, but within the Meaning of it; and the Words that enact the one, by Equity enact the other. /Terms de Ley/ 303, 304. So that Equity is of two Kinds; the one doth abridge and take from the Letter of the Law; and the other inlarge and add thereto. /Aequitas est perfecta quaedam Ratio, quae Jus Scriptum Interpretatur & Emendat. 1 Inst. 24. /And Statutes may be construed according to/Equity; /especially where they give Remedy for Wrong, or are for Expedition of Justice, &c. /1 Inst. 24, 54, 76. 2 Inst. 106, 107, &c. //Equity/ seems to be the Interposing /Law of Reason/, exercised by the /Lord Chancellor/ in extraordinary Matters, to do /equal Justice/, and by supplying the Defects of the Law, give Remedy in all Cases.

    /A New Law Dictionary/ , 1750, Giles Jacob, Gentleman (printed by Henry Lintot, Law Printer to the King’s Most Excellent Majesty, London)

    */Florida Statutes /*

    */697.02 Nature of a mortgage./*—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession. */ 702.01/*/ //*Equity*//./—All mortgages shall be foreclosed in equity. In a mortgage foreclosure action, the court shall sever for separate trial all counterclaims against the foreclosing mortgagee. The foreclosure claim shall, if tried, be tried to the court without a jury.)

    According to definition, a court equitably applies reason to do equal justice and give remedy by supplying the Defects of the Law. Therefore, the absence of any remedy demands that equity supply remedy, for without providing remedy, a law cannot stand as the source of remedy, and equity must intervene. In other words, the absence of remedy provides entry to the path to remedy. As I see it, when law deprives a plaintiff of relief and remedy, the plaintiff may and must demand equitable relief in order to invoke the equitable functioning in and of a court of law. The plaintiff thereby commands the the judge to provide equitable relief, and failure of the judge to do so gives cause for objection, exception, motion to review or vacate, and notice of appeal.

    Absent any lender injury to the borrower, equity drives Florida’s foreclosure courts to provide relief and remedy to the real mortgage victims: the lenders or assignees/indorsees of the note on which the borrower defaulted. Banks must wait at least 2/3 of a year to get a foreclosure through to summary judgment, meanwhile the bank collects no payments or interest on the loan while racking up a mountain of legal fees and related expenses.

    An aggressive foreclosure defense attorney can argue lack of standing, broken chain of title, rob0-signing, etc., and delay the foreclosure for a year or so while gouging the client upwards of $20,000 for the privilege of inevitably losing the house. This compounds the injury to the banks.

    On top of that, most mortgage loans have gone under water, with the collateral house having dramatically lost value, so by the time the bank finally gets possession of the house or the proceeds from the foreclosure auction, the bank has lost a lot of money on an investment gone bad.

    Exactly how just is that? Not very, in my book. The new Florida law should speed things up. But it also should make it easier (unfortunately it doesn’t) for foreclosure victims to sue their foreclosure defense attorneys for malpractice because those attorneys only delayed the inevitable while swallowing up precious money the victim needed to relocate. And the attorneys virtually never bothered examining the mortgage, note, and circumstances of the loan for evidence of fraud, torts, breaches, or errors by the lender or lender’s agents at the inception of the deal.

    In any case, the definition of equity and the Florida Statute above conspire to explain precisely why courts give frivolous securitization arguments (they are all frivolous), and other typical foreclosure defenses, such short shrift. Florida’s foreclosure court judges have paramount in their minds the ideals of fairness. All but the stupidest, most corrupt borrowers readily admit they took out the loan, received the money, used it, and failed to make timely payments, thereby invoking the mortgage remedy. Therefore, in spite of numerous defects in the plaintiff bank’s case, equity demands that the court grant the foreclosure and order the auction of the mortgaged property or give it to the plaintiff to discharge all or part of the debt. And that explains why virtually every foreclosure effort ultimately succeeds.

    I think it high time that mortgagors who cannot repay their mortgage debt timely consider this little FORECLOSURE HOSPICE advice:

    Your equitable ownership and possession of your house will soon come to an end, whether you litigate or not. But you’ll make it a lot easier on yourself if you PULL THE PLUG RIGHT NOW rather than hiring a useless foreclosure defense attorney to keep you on LIFE SUPPORT till the very end.

    The only way you mortgagors can keep the house free and clear or obtain financial compensation is to PROVE THE LENDER OR AGENTS INURED YOU. If you cannot do that, give up the ghost, pull the plug, say “Sayonara,” and kiss the house good-bye.

    Incidentally, if you want to learn about the methodology for obtaining such proof, call me at 727 669 5511 or Email Me . It won’t cost you a penny to expand your knowledge.

  5. And I seal the deal Neal. You need to call him! I will not insult you, but I can….

    1. Get my Switch to your Britches

    2. Send you to the corner with Mandleman

    3. suggest to the crew that all keep your phone lines tied up til you do

    …. Be A Good Boy Neil! Be Patriotic!

  6. I second the call.

    Garfield, you have a moral obligation to help Stanley. Especially if he is financially supporting your endeavor. Put your money where your mouth is or lose credibility.

  7. FOR GOD’S SAKE, NEIL—CALL STANLEY!!!!

  8. Neil
    I am a disabled combat veteran that needs help with a Florida foreclosure with a robosignor, Mark Bishop and BOA trying to get a judgement. I contribute monthly to Living Lies and have left6 you some 20 messages WITH NO RESPONSE!

    Stanley Putra
    262 672 2543

  9. The rule of law, our Constitutional Republic needs to be restored to its original form. We are a land of laws governed by the people. Not a land of fraud governed by crooks and imposters.

    We are paying these imposters, these illegal investor immigrants, money for nothing and they are getting all of our liberties for free.

    It is complete communist bullshit.

  10. The NYSE and the CME they show us on the financial channels are just a smoke screen for all of the criminal and terrorist activity going on behind the scenes.

    Most are not aware it is all a farce to keep our eyes off of their robbery of us. That is the reason for Tv programming and entertainment in general. It is to keep the public as blissfully uninformed as possible.

    God help these crooks if people actually ever decided to shut off these liars and inform themselves.

  11. These financial and political terrorists never lost any notes, 3-309, they destroyed them and it was intentional.

    It is called INTENTIONAL DESTRUCTION OF OUR SECURITIES.

    It was a coup de tat of our National Security and our Treasury Department. These financial & political terrorists committed massive SECURITIES FRAUD with our autographs and racketeered with our Securities.

    They are robbing us of everything under the false pretenses that investment is ownership in the U.S.A.

    That is a big and dangerous lie and it is the only terrorist threat that America is living under because it is hidden from most Americans.

    Most Americans don’t have a stinking clue about how they pulled this off and are still believing the lies that these imposters want to protect them and give them healthcare they can afford.

    That is simply not the case. These communist imposters are here to annihilate us and cause Anarchy make no mistake.

    While we are watching the ball on the NSA “scandal” they are stealing everything from us.

  12. Words no longer mean what they originally did. It is called a “play on words.” Game theory is a big part of their Khazar Communist plot to screw everybody out of everything. It is their comity show. They try to make everything they do appear legal but none of it ever is.

    Watching the NSA hearing and it is the same old story, the same old song and dance. They say just trust us. We have prevented terrorist attacks by spying on the American people.

    To that I say….Our Security has already been destroyed by these investor crooks and they are the only terrorists we need to worry about.

    As a result of law enforcement allowing these communists, terrorists and foreign nationalists to invest in and racketeer with our Securities without our knowledge or consent, Nihilist Communist Imposters and other terrorists have hijacked our great nation. The result of this has been a clear and present danger from them since 9/11.

  13. Judge David B Saxe of NY Appellate Court and Judge Alice Schlesinger trial judge at NY Supreme court have all the traits a judge shouldn’t have of being liars and bullies.

    If Florida has any judges of their like, the Florida Foreclosure Bill will be
    Disastrous for the victims of fraudclosure because there is no way back to undo the fraud perpetrated against the true title owners

  14. “If they file a lost note count they must attach an affidavit under penalty of perjury to the Complaint that
    1) details a clear chain endorsements, transfers, or assignments Note;
    2) set forth facts showing the Plaintiff is entitled to enforce the lost instrument (Note); and
    3) attach documents to the affidavit such as copies of the Note, allonges, audit reports, or other evidence of acquisition, ownership, and possession. ”

    Here is the the problem though: signing under penalty of perjury has come to mean just about… jack by now. What penalties are we talking about? Huge bonuses and Target gift cards? That would be enough for anyone to sign absolutely anything. Penalty doesn’t mean reward. And yet, that’s what it has come to imply today through refusal by government agencies to do their job and by elected officials to obscenely profit from it.

    The English language has taken a hell of a beating: words no longer mean what they originally did (and still do for the great majority of people who just happen to be those given no voice at all! How convenient…) What good is it to be among those who understand what language and can express it means but won’t be heard because no one wants to listen?

    Surreal… Kafka was a visionary. Are we at the end of the new Tower of Babel? Back to being split by language? If ever an institution failed, religion did! And everything derived from it!

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