The rules matter — CASE DISMISSED, without prejudice

For assistance with your mortgage go to or call 520-405-1688. Remember these issues not only apply to homeowners not paying their mortgages. They apply to everyone who has a mortgage or who has acquired title from someone who had a mortgage that was subject to claims of securitization.

Lenders and buyers can get a risk assessment report and recommendations to clear title from GGKW, with its home office in Tallahassee. Those in litigation can get information and their lawyers can get litigation support by calling 850-765-1236.

For information on direct representation of clients in Florida, call 954-495-9867 in Broward County, and 850-765-1236 for Northern Florida. GGKW is the acronym for Garfield, Gwaltney, Kelley and White, a law firm with offices currently in Tallahassee and Fort Lauderdale.


When the dam breaks, the speed with which the water starts moving increases dramatically at first before it subsides. This is what is happening in the courts. Judges are increasingly becoming aware as they read the newspaper, that the big broker-dealer banks at the center (Master Servicer) of this mess in mortgages, committed civil fraud, and probably committed criminal fraud in connection with the sourcing of money for originating or acquiring loans from homeowners. The presumption of trustworthiness of the banks is gone, except for a fast shrinking group of judges around the country.

  • If there was fraud at the top of the sham securitization chain then why wouldn’t there by fraud at the bottom?
  • And if there was fraud in the origination of the loan, or the sourcing of money for the loan, then why wouldn’t there be a question of whether the note or mortgage or both were invalid empty pieces of paper referring to a non-existent transaction?
  • And therefore might that not explain why the banks do not allege in judicial states that a loan was made by the payee listed on the note?
  • Why didn’t the Trust show up in the County records within 90 days of its creation and right on the the original note and mortgage?
  • Why wouldn’t there be a question about whether there was any lien to foreclose because the banks were too busy screwing investors to create a perfected encumbrance on the collateral for the investors whose money was improperly channeled and used for the sole benefit of the banks.
  • And why are the banks not alleging the existence of a loan or financial injury in their complaints? Are they avoiding a can of worms that will show they have no transaction to sue on?
  • Are the real lenders so much in the dark that they don’t even know the case has been brought by someone without authority or consent of the lender of money (not the lender on paper)?

The colloquy between judge and counsel in the link below clearly shows what is happening in a growing number of cases where the Judges have stopped ignoring the rules of civil procedure, stopped ignoring the rules of evidence, and stopped assuming that the borrower is a deadbeat looking for a free house.

They are now getting the idea that the homeowner is in search of a lender, not a free house.

The homeowner is in search of a balance on his loan whether it is secured or not and is fully willing to execute new documentation in favor of any investor with an unpaid receivable attributable to the property of the homeowner. The banks are playing fast and loose with the rules and the judges are coming down as hard on them as they were knocking around borrowers just a few months ago. I know, I am seeing it in court over and over again. The entire atmosphere has changed.

So when the bank fails to send out a notice required by the judge’s order, civil procedure or the rules of evidence, they lose. And when they lose, without prejudice, if they have been sitting on it for more than 5 years in Florida they are barred by the statute of limitations at least as to the default that occurred 5 years before and probably everything up to the time of dismissal. The payments might not be cutoff by the statute but foreclosure or collection is barred. payments due after such an order are probably subject to a collection or foreclosure action but they should be met with an argument that due to the statute of limitations they are forever time-barred.

If the bank sends a pretrial statement to you saying “corporate representative” is their witness or even worse, attaches a list of 35 potential witnesses, that is the equivalent of not giving any notice of who the witness is going to be. That is subject to a motion in limine to prevent the bank from putting on witnesses. So far the judges are either extending the trial date out further and requiring compliance with the rules or they involuntarily dismissing the case thus entitling the Defendant to recovery of attorney fees in most cases.

Teaser: Take a close look at the laws of evidence passed by the legislature of your state. You will find some things in there that might prove deadly t the bank at the time of trial if you follow the path required and make your motions and preserve your objections. Those business records don’t belong in evidence and we all know it. They are not complete because they don’t include payment OUT to the creditor thus establishing WHO the creditor is and requiring an explanation of WHY the creditor is not the foreclosing party. But the fact that they are not complete is not nearly as strong as that they are by definition hearsay and inadmissible unless they are business records that follow the requirements of the evidence statutes that carve out an exception to the hearsay prohibition. 

Practice Hint: Judges always seem inclined to think they have discretion in virtually all matters. The evidence statute is a rule of law that the Judge has sworn to uphold, defend and enforce. Unless there is some ambiguity in the statute no judicial interpretation is allowed. The ambiguity must be raised by the party seeking to state that the statute is ambiguous. Without that, the Judge has NO DISCRETION, because it is a law and not a rule of civil procedure.

We are sitting on the edge of a cliff where the judges are ready to tip for the borrower. The sanction for trickery in notices and discovery will be judgment for the borrower or dismissal with prejudice. The conversation below shows just how close we are to that moment.

Trick Questions From the Judge

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I had a question from a reader recently that got me to thinking about the rules of civil procedure for which I received the book award when I was in law school. I’m not boasting, I’m apologizing for not thinking of this before. If you have a hearing on a motion to quash, motion to dismiss, motion for summary judgment or any other hearing in which it has not been specifically noticed as an evidential hearing at which witnesses and exhibits will be proffered as evidence, then you should challenge the Judge if he asks you a factual question.

The appropriate answer is something like this (Check with local counsel): “Judge, this hearing was noticed as a hearing on the motion filed by XXXX, and relates to oral argument regarding the legal sufficiency of YYYY. I am reluctant to answer your question because it turns the hearing, over my strenuous objection, into an evidential hearing, for which I have had no notice, no opportunity to prepare and no opportunity to gather witnesses. Your question further presumes a fact that is not in evidence which is whether or not I ever had any financial transactions with these people or their predecessors — a fact that I have denied.”

The question in one form or another, is going to be something like”why did you buy a house you couldn’t afford?” or “isn’t that your signature on the note?” “When was your last payment” “Why did you stop paying on the note?” and on and on. Your answers should always be the same thread or message. I deny the transaction, I deny the note, I deny the mortgage (Deed of trust), I deny the obligation or debt, I deny the default, I deny these people have any actual viable claim, I deny they ever funded any loan to me (Don’t say ‘the loan’ as that has a different connotation), I deny they ever acquired any obligation due from me.

If they wish to plead and prove a case they can only do so if they have standing, which is a jurisdictional issue which must meet threshold requirements at the commencement of the foreclosure. In the absence of a statement that they entered into a transaction in which this would-be forecloser paid money and that they have a right to recover that money from me, they have failed to establish standing.

There is nothing in the statutes that says in a non-judicial foreclosure that the submissions filed by the beneficiary are presumed true. If challenged, they must prove their claim. Since the trustee is not empowered to conduct hearings, the matter is before the Court.

Since the would-be forecloser is the one seeking affirmative relief and the homeowner is seeking only defensive relief, the homeowner is entitled to know the allegations and documents that will be used to prove a case in foreclosure. The homeowner would then have the ability to admit or deny the facts alleged, assert affirmative defenses and even file a counterclaim.

Otherwise the homeowner is placed in the absurd position of guessing at the allegations and documents and witnesses, and then formulating a defense against what the homeowner supposes would be the allegations from the alleged creditor. The documents from the creditor or alleged beneficiary have in most cases never even been presented to the trustee, who is often entity owned or controlled by the party claiming to be the beneficiary. This explains our denial that the party posing as trustee is nothing of the sort. This is a strawman for the beneficiary. And that is why we deny that either the named trustee nor the alleged substitute trustee nor the beneficiary claimed in the notice of default or notice of sale are real.

If the Court wishes to allow the alleged creditor the opportunity to plead and prove its case, we of course cannot have or maintain any objection. But if the filings of the alleged creditor are presumed to be true by the Court, then the burden of persuasion is unfairly loaded on the homeowner who can defend himself only with facts that are peculiarly in the possession of the alleged creditor and alleged trustee. This again forces the homeowner to speculate on the nature of the claim against him and how it allegedly arose. Such a theory, besides violating applicable rules and statutes, might require or permit a potential defendant to rush to court to file a defense in advance of a claim filed by an injured party.

Unless it was an evidentiary hearing for which you had proper and adequate notice, the Judge has no business asking you a factual question or getting you to admit or deny a fact, regardless of whether you were sworn or not. The fact that he asked you that question is sufficient in itself to take it up on appeal. Your appeal would be based upon the fact that without notice required under CA rules of procedure, the Judge turned it into an evidentiary hearing, leaving the homeowner unprepared and unable to bring counsel etc.

If you appeal — I think you should bring it up on an interlocutory appeal which means an appeal before the case is over. Your argument is that the Judge’s bias was showing, sure, but your main argument is that he committed fatal errors in asking factual questions in a hearing that was never noticed, set or heard. If he wanted a factual hearing then you should have had the opportunity of bringing your witnesses, challenges to their witnesses, voir dire, cross examination and clarification of your answers to a surprise question from the Judge.

Check with local counsel about what that does to the Judge’s jurisdiction once the notice of appeal is filed. It MIGHT automatically stay the action. I don’t know. If you are beyond the time limit to file notice of appeal, you can file a motion for reconsideration and let him deny that too and then file the notice of appeal.

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