Modifications Up, Foreclosures Down, Scams Up

Thanks to all who inquired about my health. I am fine. Just busy with cases getting ready for trial.

Recent trends show a number of things. First, more actual judgments are being rendered in favor of borrowers. Sometimes, it is procedural, like the statute of limitations that limits actions to 5 years in Florida. But most times, it is simply that the Plaintiff or forecloser could not make its case. They produce professional witnesses who know nothing, were previously employed outside of the industry and are basically being thrown under the bus by the banks who already know they will lose if the homeowner’s attorney is an experienced trial attorney.

Recent laws and local rules are getting more and more judges applying laws and rules that require the forecloser to have their ducks in a row. The answer is that they have no ducks, so they can’t get them in a row or any other configuration. They are strangers to the transaction with the homeowner. And there is a growing awareness that homeowners are not seeking a free house but a true lender or creditor with whom they can engage in meaningful discussions. But the banks are still successful in insulating the real parties in interest from any contact with each other or even any knowledge of who the other party is or where they can be contacted.

As one Judge told me recently, he has come to realize that clearing his docket is easier than he thought. Just require the a party seeking foreclosure to prove that they or the predecessor actually made a loan to the homeowner. Add to that a comprehensible chain of documentation that tracks actual transactions, and you end up with nearly zero foreclosures. This is especially true where the foreclosing party has failed to allege the existence of a loan and instead has alleged only that paperwork was signed. Judges who continue to “infer” that the loan was made are skipping a basic premise of pleading. Either it happened or it didn’t. The use of inference requires the homeowner to state an affirmative defense and prove it when he should only be required to deny that allegation. Motions to dismiss based on that premise are starting to be granted.

So it is no wonder that I am getting daily calls from previously intractable parties seeking foreclosure pursuing a global settlement. They want it “Global” because they know we will pursue damages for slander and wrongful foreclosure. They also want “settlement” because they know they can’t win in court. But it remains true that where the client comes to a lawyer after judgment has been entered or after the sale, the road remains rough and unpaved. And the fact remains that if they can’t make case for foreclosure they don’t have the authority to settle or modify the loan. But that can be bridged if the Judge approves the settlement in words that prevent anyone else from making a claim, and if a Guarantee of Title is issued by the title company. (Different from the normal owner’s policy).

Modifications are being offered with increasing sincerity as lawyers start balking at filing documents that they know or believe were fabricated and forged. The recent tribulations of David Stern and Marshall Watson sounds a warning bell to all firms “processing” foreclosures that they might face disbarment or worse.

But wherever there is desperation and fear and vulnerability, the scam artists come out of the woodwork spouting phrases, laws and rules they know nothing about and promising to end the ordeal of the investor who bought homes during the mortgage meltdown or the homeowner who bought or refinanced homes during that period. Some of them use the word “asset protection” which is in reality a highly complex world in which navigation is extremely challenging. The bottom line is that if the person is not a licensed professional with some obvious credentials their advice should be neither sought nor taken with anything larger than a grain of salt. That ought to get some more hate mail coming my way. Some of the old-time tricksters are finding it difficult to get gigs as “experts” because, well, they are not experts, they have insufficient knowledge, and they don’t know how to explain anything to the court.

In the end, you must accept the premise that the transactions were fatally defective from the beginning (most of them). Signing a note might enable someone to START a lawsuit but it doesn’t allow them to win it. A judge is committing error when he or she denies a motion to dismiss based upon the fact that the “lender” failed to allege that he ever fulfilled his side of the bargain — i.e., that he made a loan to the “borrower.” That allegation alone will knock out at least half of all foreclosures. Judges who are faithfully following the rules of pleading and proof are having no difficulty in clearing their dockets because most of the foreclosures are being initiated in judicial and non-judicial states by parties who, as the San Francisco study put, are “strangers to the transaction.”

While the paperwork on loans is mysterious and opaque the facts of the deal are not. Either there was a transaction for which the paperwork is evidence, or there was no transaction, in which case the paperwork is worthless.

Report of Referee: Former ‘Foreclosure King’ David Stern Could be Disbarred for Foreclosure Fraud

Financial Crime: Foreclosure Rescue Schemes Have Become More Complex, and Efforts to Combat Them Continue

Increased mortgage modifications have scaled foreclosure down

Fl S.Ct: Roman Pino vs. Bank of New York


What’s the Next Step? Consult with Neil Garfield

For assistance with presenting a case for wrongful foreclosure or to challenge whoever is taking your money every month, please call 520-405-1688, customer service, who will put you in touch with an attorney in the states of Florida, Tennessee, Georgia, California, Ohio, and Nevada. (NOTE: Chapter 11 may be easier than you think).

Editor’s Analysis: Lawyers and Homeowners like to curse out the judicial system every time they get a decision they don’t like. The Pino case is one of them. “HOMEOWNERS LOSE” is the headline across the board in all media. Homeowners did not lose. Civil procedure won, and the homeowners were, once again, on the wrong side of it, although they were inadvertently encouraged by the Florida Supreme Court who took jurisdiction even after the case was dismissed and settled.

My guess is that the justices who decided to take the case thought there was some meat in there that would prevent false claims in court. This court, composed of progressive judges, was clearly looking for a way to chastise the banks for filing forged, false, fabricated and misleading documents. After reviewing it, they realized they couldn’t do that without throwing the whole judicial system out of whack — something that didn’t bother the banks but does bother the Supreme Court of any state.

But in every opinion that seems negative to homeowners there are oft-ignored instructions on how to do it right. Here we have Tom Ice, attorney for the homeowner and a competent one at that, against David Stern’s operation that was so dirty his own investors sued him for selling them a bunch of crap. Stern’s firm was known to have a full fledged document fabrication and forgery system which was used with impunity because once they got caught they dismissed the claim.

The issue taken up by the Florida Supreme Court was whether the Court could retain jurisdiction of a case that was dismissed and settled for the sole purpose of punishing a party who lied or submitted false documents into evidence. Much as the court probably would have liked to impose kangaroo justice on the banks and Stern, it reluctantly concluded that it just didn’t have the power (jurisdiction) to do that. To say otherwise would make every voluntary dismissal non-final. Thus any settlement would never be final.

Ice is wrong when he says that the Supreme Court doesn’t care about fraud in the judicial system. They cared enough to take a shot at stopping it with an ill-advised grab at jurisdiction to end this madness. We can’t change the law, the rules of procedure or the laws of evidence to suit the result we think should be the outcome. We are required, in a nation of laws, to arrive at the destination of justice using existing law and procedure. There is little doubt that the Florida Supreme court is very concerned about fraud in the judicial system and that it will do something about it as soon as the the existing laws and rules allow it.

There is a hidden good message in this decision. If the party who committed the fraud got nothing as a result of it, then the dismissal cannot be reversed. THAT is precisely the center of gravity of the homeowner defense: the banks did get millions of homes submitting fraudulent  documents and therefore are subject to various causes of action for having done so. In addition, the fact that the original transaction, for the most part, was never supported by consideration, making both the note invalid and nullifying the illusion of a lien imposed by the mortgage, means that the homeowner who attacks directly the basic premises of the foreclosure action using established law and procedure will be greeted by a friendly audience a the Florida Supreme Court. The headline should have been “Florida Supreme Court Opens door to damage claims for fraudulent documents.”

In short, the borrowers didn’t lose and the Court, far from being unsympathetic to the light of borrowers made that abundantly clear:

Because Pino sought no other available sanctions, and the case has since been resolved between the parties, we need not reach the question of whether the trial court should be able to award monetary sanctions under the circumstances of this case. We therefore approve the result reached by the Fourth District affirming the trial court’s denial of Pino’s motion.

“While affirming the decision of the Fourth District, we also understand the concerns of those who discuss the multiple abuses that can occur from fraudulent pleadings being filed with the trial courts in this state. While rule 1.420(a)(1) has well served the litigants and courts of this state, we request the Civil Procedure Rules Committee review this concern and make a recommendation to this Court regarding whether (a) explicit sanction authority should be provided to a trial court pursuant to rule 1.110(b), even after a case is voluntarily dismissed, (b) rule 1.420(a)(1) should be amended to expressly allow the trial court to retain jurisdiction to rule on any pending sanction motions that seek monetary sanctions for abuses committed by either party during the litigation process, or to allow the trial court explicit authority to include attorney’s fees in any award to a party when the dismissed action is reinstated, or (c) to adopt a rule similar to Federal Rule 11 to provide explicit authority for the trial court to impose sanctions.”



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EDITOR’S COMMENT: This is the start of what we have been waiting for. Investors who purchased David Stern’s operation — a foreclosure mill that had been bank-rolled literally by the Banks. They actually have the necessary files, documentation and proof needed because they now own the company and they realize they were induced to buy a “criminal enterprise.”

This is what I have been talking about. Investors of all shapes and sizes are starting to awaken to the fact that the entire foreclosure process has been permeated by false statements as to the amounts due, the identity of the creditor, and the documents that “perfected” the lien, transferred the loan and were the basis for foreclosure. None of the foreclosures are real. That is a grandiose statement, but it will prove to be true.

This news is important not only because it corroborates the defenses of borrowers in tens of thousands of foreclosure cases filed by Stern. It is really important because what will emerge is a fact pattern that shows that ALL of the foreclosure mills were operating in the same way because all of them were essentially renting their law license to the Banks who were covering up the securitization scam, to wit: that the securitization that was documented was never followed, that the money trail does not conform to the documents, and that the liens were never perfected and were therefore not subject to foreclosure because they were unsecured.

By: Cynthia Kouril Wednesday January 4, 2012 7:22 am


In 2010, the Law Offices of David J. Stern spun off the robo signing document mill part of his business into a separate, publicly traded company.

Stern pocketed some $60 million from that deal. The investors got the company and all its documents, internal procedures and everything you would need in order to find out what really happened within the Stern document mill.

A little after 8 AM EST today, a filing went up on the SEC’s Edgar database. It’s a Complaint in lawsuit, dated yesterday.

The lawsuit is by the investors suing Stern for lying to them about the activities of the document mill and misleading them into believing they were buying a legitimate business instead of a criminal enterprise. Unlike a regular plaintiff or an Attorney General who is dependent on obtaining documents and information FROM the target of their ire via discovery of subpoena or search warrant, these plaintiffs apparently have all the info they need already in hand, because they bought the company.

Let me give a quote or two from the Complaint to show what they found in the books and records of the Stern foreclosure mill.

32. The Seller Defendants’ fraudulent and illegal foreclosure practices prior to the Transaction, and the subsequent demise of the Seller Defendants’ law practice, have now been well documented and reported upon in the local and national media.

33. Prior to the Transaction, the Seller Defendants were at all times well aware that DS Law and the Target Business were intentionally perpetuating a fraud on the courts by, inter alia, systematically filing forged documents, forging signatures on such documents, fraudulently backdating documents, improperly notarizing and witnessing documents, fabricating documents, signing affidavits without reviewing or verifying the information contained therein, prosecuting foreclosure cases without obtaining proper service of process, and filing foreclosures with inaccurate and/or incomplete documents.

34. Indeed, the Seller Defendants directed employees of DS Law and the Target Business to purposefully overlook glaring inaccuracies in foreclosure pleadings and to essentially rubber stamp computer generated documents without reviewing or verifying the accuracy of the documents. New attorneys at DS Law were not only encouraged, but were even ordered to sign legal filings and pleadings without reading them. As a result, false and inaccurate documents were routinely executed and filed with the courts in an effort to hasten foreclosure proceedings and illegally obtain final judgments of foreclosure for the Seller Defendants’ clients.

This is an explosive document, because the plaintiffs here are like insider whistleblowers; they know what’s in the files, because they have the files. This is a godsend for homeowners who have been victims of foreclosure fraud.  It should dramatically increase the pressure for criminal prosecution. More to the point, judges with robo signed documents in front of them will be even more concerned about granting foreclosure judgments; at least they will be when the news about this gets widely reported. Huge hat tip to Florida foreclosure defense guru Lynn Szymoniak who emailed me the Edgar link early this morning while the electrons where still warm.

Folks, please tweet, forward, whatever. This is a huge story that deserves to be given major coverage in MSM. Local judges need to be aware that they are being handed forged documents.

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