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“Orsini did not know who, how, or when the data entries were made into Home Loan Services’ computer system,” the decision states. “Orsini could state that the data was accurate only insofar as it replicated the numbers derived from the company’s computer system.”
EDITOR’S COMMENT: Those of you who have downloaded or received the Attorney’s Workbook will see the same reasoning and wording as contained in this decision. A competent witness satisfies four elements: OATH-PERSONAL KNOWLEDGE-MEMORY- COMMUNICATION. It’s basic law. Signing an affidavit is less credible than live testimony, so it is subject to more stringent adherence to the rules of evidence. The banks have tried to skate past the these requirements by adhering to common practice, hoping it would get by. It did, until now.
Thousands of Summary Judgments were granted based upon affidavits of people who knew nothing about the the status of the debt or anything else about the homeowner’s transactions with the pretender lender. They are all defective judgments and all subject to being reversed. It has taken a long time to get to this point, but we have turned the corner. While this decision doesn’t touch the core of the accounting problem for homeowner liability on mortgage obligations — the amounts paid and traded by third parties that should have been credited to the amount owed tot he investor/lenders — it paves the way for attorneys to seek and get the truth.
Most of the loans were not in default because the servicers and other parties were paying vast sums of money to the investment bankers who created the loans and the bogus mortgage bonds that funded the transactions. At the end of the day, when every dollar has been counted, the investors and the borrowers will have some interesting questions and claims for the intermediaries who inserted themselves as principals in a line of transactions in which they were only conduits.
This is about the truth and being heard in court on the merits, not on presumptions and innuendo about the character of borrowers. Even if the borrowers want a free house, that does not justify giving the house away to a pretender lender who has even less invested in the house than the borrower. And if the mortgage was defective and did not attach to the land as a lien, the debt is unsecured.
You can kick and scream all the way to the ideological house of horrors that brought us this mortgage mess; we are either a nation of laws or a nation of men. Our founders chose a nation of laws. Collateral damage and collateral benefit is a natural consequence of the application of general laws to specific situations. It usually works out better for those with the most money and the best lawyers. This time, maybe, the tables are turned. Attorney Ice, aptly named for this work, has brought home the bacon — establishing that just because you don’t like the result doesn’t mean you should abandon the rule of law.
Fla 4th DCA: Faking It Won’t Make It
Tom Ice is a principal of Ice Legal, a foreclosure and bankruptcy law firm in Royal Palm Beach, who represented the homeowner in this matter.
Replay the live chat with real-estate reporter Kimberly Miller on the foreclosure crisis.
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The ruling from the 4th District Court of Appeal reversed in part a 2010 Palm Beach County Circuit Court summary judgment that said homeowners Gary and Anita Glarum owed LaSalle Bank $422,677.
That amount was based on an affidavit of indebtedness signed by loan servicer employee Ralph Orsini, who pulled the information from a company computer – a move that appeals court judges said amounts to hearsay.
“Orsini did not know who, how, or when the data entries were made into Home Loan Services’ computer system,” the decision states. “Orsini could state that the data was accurate only insofar as it replicated the numbers derived from the company’s computer system.”
The ruling means the home on Amesbury Court, which has been in foreclosure since September 2008, can’t go to a foreclosure sale until the bank either gets another summary judgment or goes to trial. The Glarums still live in the home.
Tom Ice, whose firm Ice Legal represents the homeowner, said Wednesday’s decision hits at the essence of the nation’s foreclosure robo-signing scandal in which tens of thousands of foreclosure court documents were signed by people swearing that they had personal knowledge of cases when they did not.
While some lenders called the document problem a technicality, foreclosure defense attorneys called it perjury and fraud.
Foreclosures came to a virtual standstill in the fall after the robo-signing revelations were made as banks worked to revamp their processes and redo paperwork where they could.
Between July 1, 2010, and June 30 of this year, 104,126 foreclosure cases were dismissed in Florida’s courts, often by lenders needing to refile pertinent paperwork.
“Bank officers cannot simply regurgitate what they read off computer printouts,” Ice said. “This has been a major battleground in foreclosure cases.”
A message left for the bank’s legal representative, Orlando-based Butler & Hosch, was not returned Wednesday.
The appeals court ruling was called “rock solid” by Sarasota-based attorney Henry Trawick, an expert on Florida’s judicial rules and author of Trawick’s Florida Practice and Procedure.
He said a valid affidavit of indebtedness would have to be sworn to by the person who actually entered the information into the computer system. He expects the decision to further snarl Florida’s courts.
“I think a whole lot of summary judgments on these foreclosures are not valid because of this,” said Trawick, who is also concerned about how allegedly bogus affidavits will affect getting clear title to homes. “The real problem ahead of us is years to come when all these properties are being sold.”
But not everyone is convinced of the magnitude of Wednesday’s decision.
Palm Beach County Chief Judge Peter Blanc said while it sets precedent for similar cases, it’s too early to tell what the implications will be.
Fort Lauderdale attorney Shari Olefson, who represents banks in foreclosure cases, said the ruling doesn’t change what’s been going on since the robo-signing scandal broke.
“The people I’ve been talking to have set aside affidavits and have to start all over again,” she said. “This is pretty consistent with the way things have been going.”
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