I have just received a copy of a daring and tempestuous motion for rehearing en banc filed by the winner of the appeal. The homeowner won because of precedent, law and common sense; but the court didn’t like their own decision and certified an absurd question to the Florida Supreme Court. The question was whether the Plaintiff in a foreclosure case needs to have standing at the commencement of the action. Whether it is jurisdictional or not (I think it is clearly jurisdictional) Stopa is both right on the law and right on his challenge to the Court on the grounds of BIAS.
The concurring opinion of the court actually says that the court is ruling for the homeowner because it must — but asserts that it is leading to a result that fails to expedite cases where the outcome of the inevitable foreclosure is never in doubt. In other words, the appellate court has officially taken the position that we know before we look at a foreclosure case that the bank should win and the homeowner should lose. The entire court should be recused for bias that they have put in writing. What homeowner can bring an action or defend an action where the outcome desired by the courts in that district have already decided that homeowners are deadbeats and their defenses are quite literally a waste of time? Under the rules, the Court should not hear the the motion for rehearing en banc, should vacate that part of the decision that sets up the rube certified question, and the justices who participated must be recused from hearing further appeals on foreclosure cases.
Lest their be any mistake, and without any attempt to step on the toes of Stopa’s courageous brief on an appeal he already won, I wish to piggy back on his brief and expand certain points. The problem here might be the subject of a federal due process action against the state. Judges who have already decided foreclosure or mortgage litigation cases before they even see them are not fit to hear them. It IS that simple.
The question here was stated as the issue of standing at the commencement of the lawsuit. Does the bank need to have a claim before it files it? The question is so absurd that it is difficult to address without a joke. But this is not funny. The courts have rapidly evolved into a position that expedited decisions are better than fair decisions. There is NOTHING in the law that supports that position and thousands of cases that say the opposite is true under our system of law. Any judge who leans the other way should be recused or taken off the bench entirely.
In lay terms, the Appellate Court’s certified question would allow anyone who thinks they might have a claim in the future to file the lawsuit now. And the Court believes this will relieve the clogged court calendars. If this matter is taken seriously and the Supreme Court accepts the certified question for serious review it will merely by acceptance be making a statement that makes it possible for all kinds of claims that anticipate an injury.
It is bad enough that judges appear to be ignoring the requirement that there must be an allegation that a loan was made by the originating party and that the Plaintiff actually bought the loan. This was an obvious requirement that was consistently required in pleading until the courts were clogged with mortgage litigation, at which point the court system tilted far past due process and said that if the borrower stopped paying there were no conditions under which the borrower could win the case.
It is bad enough that Judges appear to be ignoring the requirement that the allegation that the Plaintiff will suffer financial damage unless relief is granted. This was an obvious requirement that was consistently required in pleading until the mortgage meltdown.
Why is this important? Because the facts will show that lenders consistently violated basic and advanced protections that have been federal and State law for decades. These violations more often than not produced an unenforceable loan — as pointed out in law suits by federal and state regulators, and as pointed out by the lawsuits of investors who were real lenders who are screwed each time the court enters foreclosure judgment in favor of the bank instead of the investor lenders.
It is not the fault of borrowers that this mess was created. It is the fault of Wall Street Bankers who were working a scheme to defraud investors by diverting the real transaction and making it appear that the banks were principals in the loan transaction when in fact they were never real parties in interest. Nobody would seriously argue that this eliminates the debt. But why are we enforcing that debt with completely defective mortgage instruments in a process that confirms the fraud and ratifies it to the damage of investors who put up the money in the first place? The courts have made a choice that is unavailable in our system of law.
This is also judicial laziness. If these justices want to weigh in on the mortgage mess, then they should have the facts and not the stories put forward by Wall Street that have been proven to be pure fiction, fabrication, lies and perjury. That the Court ignores what is plainly documented in hundreds of thousands of defective mortgage transactions and the behavior of banks that resulted in “strangers to the transaction” being awarded title to property — that presents sufficient grounds to challenge any court in the system on grounds of bias and due process. If ever we had a mass hysteria for prejudging cases, this is it.
Filed under: CORRUPTION, Eviction, foreclosure, foreclosure mill, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, politics, securities fraud, Servicer | Tagged: bias, Mark Stopa, motion for rehearing en banc, recusal, removal of judge, standing |
Would love to read Stopa’s pleading. The link no longer works. I wonder why the parties were never mentioned.
Link to 1099a
http://www.scribd.com/doc/142283817/1099a-Filed-Into-Evidence-30Apr2013
@iwantmynpv. I’m a “simple” guy so maybe you can explain as “the smartest guy on this blog” how your algorithm can explain the 1099a I got from the IRS with Box 5 “was borrower personally liable for repayment of the debt? checked NO. Here’s the link to the evidence I entered into the record on 30 April 2013.
Would love to hear the explanation per the algorithm. Hint- I already know the answer.
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Reblogged this on Manifest Injustice and commented:
Bias Within the Court System, Blatantly Obvious, But They Refuse to Recuse Themselves
Reblogged from Justice League: The Senate Subcommittee Investigation and Findings Washington Mutual Bank was the largest bank failure in history. AC ¶ 10. In April, 2010, the U.S. Senate Subcommittee on Investigations initiated an investigation into “some of the causes and consequences of the financial crisis,” focusing squarely on WaMu’s origination and securitization of mortgage […]
This report came out in 2010. There is no excuse our senators have not put a stop to this crime against American tax payers, knowing full well this economic crime is man made by the banks and enablers. Not the American tax payers, income earners and makers, not the investors of the trust and definitely not the American homeowners. I sent this report to our Washington Senator Pam Roach in a binder with the topics highlighted in yellow marker, as soon as the report was public, then Pam Roach votes in bad law to enable this crime against us. This report was in her hands. I yellow marker ed the report due to being told the report was to large for her to take time to read 652 pages. I included this report to stop the sham and scams Virginia wrote about in her articles on the Modification Scam (see below) Then read the Harry Potter document. http://deadlyclear.wordpress.com/2013/01/18/hamp-the-modification-scam-and-now-settlement-sham/ & http://deadlyclear.wordpress.com/2013/09/16/mr-potter-and-the-state-of-washington-legislate-no-need-for-original-note-just-take-the-land-bye-bye/#comment-4766
THERE IS NO EXCUSE FOR THE CRIMES THE BANKS, THE MAJORITY OF COURTS, THE BAD POLITICIANS [THANK GOD ABOVE! NOT ALL POLITICIAN, AND NOT ALL JUDGES] HAVE GOTTEN AWAY WITH SINCE THIS REPORT IN 2010. The politicians, title association and banking association all know the facts, the truth! It is absolutely unbelievable to me they do not know the truth including the judge! I agree the judges showing bias should be disbarred and sanctioned and possibly prosecuted under 18USC4 statutes, Breach of Oat of Office and possibly treason.
@ daniela mars. Zilow, Trulia and other AVM’s are just guesses. Even with the current Fed Policy in place to inflate asset classes to allow banks to avoid raising their reserves to realistic marks (old GAAP) these algorithms are meaningless.
Zillow is a marketing site for Realtor’s, Banker’s Appraisers and other industries closely related to RE. The Zestimate is merely an application designed to drive you to their site, so they can show visits / hits, and sell advertising space and other products at a premium.
Sorta like Neil Garfield does with this website. The topics are usually meaningless bullshit, which gets piled on by the same folks who post their meaningless opinions ( like mine here) and the real goods are available for a price.
You get just enough information to pique your curiosity and “anger-emotion”, which in some cases stimulates your senses enough to take the plunge and buy something. Unfortunately, much like Zillow, this site is dependent on old information to create a real value – that is why your odds of either being right are 50-50.
Every settlement made by the banks at the federal and state level puts unsuspecting homeowners one step closer to living among the other homeowners who are already experiencing life subject to the elements and inclement weather.
For the record, I am the smartest person on this blog. I have a better algorithm and others here will attest to that. Or I will log in as someone else and shower praise on my moniker, just like the editor does from time to time…
Stopa’s brief can be viewed/downloaded at:
http://www.stayinmyhome.com/blog/wp-content/uploads/2013/10/Focht-Motion-for-Rehearing.pdf
agreed
they should also be barred from further practice of law since they are refusing to up hold it
from 9th Circuit Court of Appeals, delivered two weeks after orals…
“Because the parties are familiar with the facts, we do not recite them here. The bottom line is that the original lender, Accell, transferred the Note to Flagstar, which actually holds the Note.”
Skips over MERS assignments, as if they did not matter or exist (somehow Flagstar gave MERS value for Beneficiary rights) and references District Court Ruling, that was before the WA Bain ruling implying, it was okay for MERS to be an agent (Bain ruling said opposite).
No explanation of facts that are in dispute, just a “bottom line” edict.
Thing is, Accell (actually is Accel Mortgage Corporation in DOT) does not and has never exist as a WA state corp as specifically named on the deed of trust (identified lender). perfect example of pretender lender.
Waiting for Judicial Foreclosure to start.
Coming soon in a California Appellate court, on the coattails of Glaski.
FNMA implied all documents related to loan were presented, and failed to identify any of them depicting loan level accounting records, or custodianship of promissory note. Request for statement of decision regarding such documents in terms of standing by showing damages went unanswered by trial court.
This could get ugly …
Most all the federal judges need to recuse themselves and send the cases to the higher courts due to the obvious bias.
Trespass, thanks for the input. I’ll bet you’re 100% right about the consideration angle. I have sent them letters requesting validation etc., and received nothing back. They are definitely setting up for some devious attack. I have talked to the insurance company and they really don’t care who’s paying as long as they get their check in full, up front. I even asked them why the new servicer was now listed as the beneficiary when they are bill collectors at best. I was told that basically someone sent them a letter or called and said “put us on the policy” and that’s all it took. Think I’ll start making that call and get on a bunch of policies as the beneficiary. Sounds like a good gig.
Paradigm shift.
Everyone in the same boat, and we some wanting to decide who belongs in the boat and who needs to be pushed out.
Sounds like the very system we are dealing with and what this blog is addressing.
You will know them by their words and their deeds.
I’m not at war. I have no enemies.
Trespass Unwanted, Creator, Life, People, State, Free, Independent, In Jure Proprio, Jure Divino
Darel,
Funny.
Actually said someone was doing……
beauduke,
My opinon
It’s a tactic used to put some ‘consideration’ into the transaction even though they didn’t have the note assigned to them. If BOA is the mortgagor, they could have made an assignment to the new servicer, but still the note (surely lost) isn’t assigned, so to get some paperwork with their name attached to your property, they are paying bills that don’t need to be paid.
What’s the remedy? I would suggest your paperwork would be to file complaints with the federal bureaus. If they have paperwork showing they provided consideration, you could have public records that the consideration was through fraud, force, or coercion and not needed, not wanted, and make it get investigated, if nothing else, they owe an answer that would be public also.
CFPB, and FTC and your state Attorney General.
If they are going to have records of transactions in the public, you put records of complaints in the public so someone can see they may be setting you up for them to ‘steal’ your property by coercion paperwork.
Not legal advice. I do not know legal things.
Not a wikipedia fan, but for those that need some help with the term.
Coercion /koʊˈɜrʃən/ is the practice of forcing another party to act in an involuntary manner (whether through action or inaction) by use of intimidation or threats or some other form of pressure or force, and describes a set of various different similar types of forceful actions that violate the free will of an individual to induce a desired response. These actions can include, but are not limited to, extortion, blackmail, torture, and threats to induce favors. In law, coercion is codified as a duress crime. Such actions are used as leverage, to force the victim to act in a way contrary to their own interests. Coercion may involve the actual infliction of physical pain/injury or psychological harm in order to enhance the credibility of a threat. The threat of further harm may lead to the cooperation or obedience of the person being coerced.[citation needed]
Trespass Unwanted, Creator, Life, People, State, Free, Independent, In Jure Proprio, Jure Divino
As my handle here implies, it would be wonderful to get a copy of the motion that stopa has filed for the legal bases he employs. I am headed to the U.S. Supreme Court with these very issues. Yes, this simply ignoring of the law by judges is rampant. Worse, it is a disintigration of our legal system into sociopathy. 60 Minutes – do you read these blogs? Its time for a scathing very public exposure of what has happened to the judicial system. And these atrocities are now being cited as precedent to perpetuate it. That issue is now going before the Washington Supreme Court.
Darel,
Right on.
TU… don’t you just feel so special now… having tucked your tail in between your legs and run… you then feel the need to brag about it as if your apathy and pessimism were a quality to be cherished instead of reviled.
To quote Senator Elizabeth Warren who, I believe just summed this issue up pretty well when she said;
“We are not a country of anarchists. We are not a country of pessimists and ideologues whose motto is, “I’ve got mine, the rest of you are on your own.” We are not a country that tolerates dangerous drugs, unsafe meat, dirty air, or toxic mortgages.
We are not that nation. We have never been that nation. And we never will be that nation.”
So remember TU… you just enjoy that wonderful “quality of life” while you can because I do agree with you on one thing… karma does pay out and somethimes karma’s a bitch.
[…] Attorney Mark Stopa Shows Guts Confronting Appellate Court Bias. […]
Just a quick question on servicer’s evil intentions. My “loan” was transferred from BofA to a new servicer a while back and they, without any notification to me, paid my homeowners premium in full although I have been paying through auto-withdrawal from my bank acct. since I bought the house. They did the same thing with property taxes. I know they are trying to pad some accrued past due amounts, but what is the real agenda here? To show the loan as performing for the dog and pony show for the investors, build a case for “we’ve been paying everything for this deadbeat and therefore we should be able to foreclose to re-coup our money” or what?
WELL I SEE MARK STOPA IS WALKING THE WALK AND YOU MY GOOD SIR ARE DOING………………………………………………….
Neil can you please explain how my home (in foreclosure since 2007) was appraised by Zillow in March 2013 for $ 637.000 and today they “zestimate” at $ 927,000 ??? Is this possible ? Are they inflating market prices again so the banks make more money?
Also can you talk about the statute of limitation in foreclosure again ?
Thank you .
I’ll laugh Neil.
People have posted how we went to court and with everything in the answer were denied a fair hearing before being told to get out of our property, and then others have posted here we didn’t fight long enough or spend enough money or fight hard enough.
If you can see the dead forest, there is no need to spend a lot of time and money trying to heal dead trees.
My forest was dead.
Maybe their’s still have some trees with some life in it.
“Judges who have already decided foreclosure or mortgage litigation cases before they even see them are not fit to hear them. It IS that simple.
The question here was stated as the issue of standing at the commencement of the lawsuit. Does the bank need to have a claim before it files it? The question is so absurd that it is difficult to address without a joke. But this is not funny. The courts have rapidly evolved into a position that expedited decisions are better than fair decisions. ”
This has happened to so many it’s pathetic.
I have a life to life, and called Game Over.
Not going to move from my peaceful life into a war that I didn’t create.
I still have quality of life, and let the Universe bring balance to the imbalance.
Every action is performed with some energy. Universe keeps tabs of whether it was negative or positive energy and Karma does the pay out.
Trespass Unwanted, Creator, Life, People, State, Free, Independent, In Jure Proprio, Jure Divino
As in most cases this is not a win for anyone except Sopa!
Just another “pretender defender” committing malpractice for failing to examine the mortgage transaction for breaches, errors and/or tortious conduct. http://www.veteranstoday.com/2012/03/21/mortgage-fraud-examiners-warns/