Attorney Verification of Foreclosure Complaints

Posted on May 30, 2017 by Neil Garfield

This is a blatant flaunting and end run around the rule of law. Following a 15 year tradition of fabricating “facially valid” documents, lawyers are having an employee of the law firm sign documents to verify a complaint or other filing.

Get a consult! 202-838-6345
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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Practically every consult I do for attorneys in litigation involves some document that was fabricated, forged and/or robosigned. This trick at misdirection of the court is accomplished by fabricating a document that looks to be facially valid but contains nothing but blatant lies about the people who signed it, the people who offered it, and the lawyers who pursue a false narrative based upon the presumptive validity of documents they know are not just flawed but more importantly fictitious having been fabricated strictly for the purpose of litigation and foreclosure.

Such documents are inadmissible, so the false proffer in court is that they are old valid and authentic documents that were not fabricated for use in court.

The latest turn (although not new) in these events is the execution of a “verification” or other document to be filed with the court by an employee of a law firm that at least initially starts the foreclosure. You may remember that David Stern and others made millions providing this service to banks, servicers and other parties who were involved in the initiation or maintenance of an action to foreclose. While Stern lost his license to practice law, he made off with tens of millions of dollars in fees directly attributable to falsifying documents.

Like the Bernie Madoff situation, some people were thrown under the bus and some people were not. Madoff’s PONZI scheme was not a singular event involving the the largest economic crime ($60 Billion) in Wall Street history. The publication of it gave convenient cover to underwriting banks and other cooperating entities involved in the absolute greatest of all PONZI schemes — the sale of worthless securities issued by empty trusts (over $5 trillion). The PONZI aspect was the same. But Madoff’s scheme was barely 1% of the amount stolen by Wall Street banks. And the Courts have been unwitting accomplices.

The actual “promise to pay” the investors came from the empty trust and not a homeowner or group of homeowners. The debt owed by homeowners was never owed to either the creditor (the investors) nor the trust (which was empty and never operated).  And the payments came from a dynamic dark pool consisting entirely of investor money that was legally and actually supposed to be in a bank account clearly labeled for the REMIC Trust that issued the RMBS — and then managed by a “Trustee” but the Trustee turned out to have no power. All the payments received by investors came from the dark pool — not from borrower payments or recoveries in foreclosure.

All power was vested in the “Master Servicer” which of course was the underwriter who sold the bogus RMBS in the first place — another hallmark of control always present in PONZI schemes. The entire scheme was based upon invested capital being diverted from the trusts — and then covered up by (a) payments out of the dynamic dark pool (PONZI) and (b) originating rather than buying nonconforming loans (a more elaborate PONZI).  The rest of the money was concealed in “trading profits” that are gradually released from the stockpile of money sucked out of the economy by the participating banks.

All of these transactions were “off balance sheet.” Since there were no “real transactions” in “real life” (loans, sales of loans creating a chain) the obvious fraud could only be covered up by getting court orders on a mass scale that assumed the false bank narrative was true. Those court orders and judgments were the first and only presumptively legal document in the entire chain. This is why the banks seek foreclosures at all costs to seal up potential civil and criminal liability for their initial theft from investors. Modifications must be done for purpose of appearances, but they are an intrusion into the business plan of getting as many foreclosures booked as possible.

In order to obtain such orders judges had to be satisfied that the designated forecloser was indeed a “lender” or “Creditor.” In order to do that the banks had to present fraudulent documents. In order to get the fraudulent documents through the system, the bank attorneys knew that in most cases they would only need to present “facially valid documents.” The judges would not look “under the hood.” And borrowers who could see the scam did not have access to information that would lead to the discovery of admissible evidence. Hence most contested foreclosures are still resolved in favor of the co-venturers involved in the fraudulent scheme.

Foreclosure mills are among the people whom the banks will readily throw under the bus (“we’re shocked to discover that our law firm was committing such heinous crimes”). If the law firms were unwilling to provide these “extracurricular services” they never would have retained the business of foreclosures. The banks needed to win because they needed that one legal document that would create the almost conclusive presumption that everything that preceded the judgment allowing foreclosure. And the banks knew that could only be done by fraudulent misrepresentations to the courts, to borrowers, to government agencies including law enforcement that to date has jailed absolutely nobody except Lorraine Brown of DOCX.

So what do I say when represented by an obviously  false document executed by an employee of the foreclosure mill? For example I just received (hat tip to Bill Paatalo) one such “verification” in  which the signor declares that the client is out of town and so the law firm is executing the verification for the client.

The obvious response is that (1) being located somewhere else doesn’t prevent an authorized competent person from doing the verification (2) the absence of a competent witness does not give authority to anyone else to verify as though they were a competent witness (3) the verification does not and probably cannot assert that the signor is competent, to wit:

COMPETENCY consists of (a) OATH (b) PERCEPTION (C) MEMORY and (d) the ability to communicate what the witness saw, heard or otherwise experienced personally.

The law firm clearly has no personal knowledge and therefore is executing the verification just to satisfy the elements of a facially valid verification, when both reason and parole evidence clearly shows that the verification is a sham.

Hence, sanctions should be appropriate against the employee who signed it, the lawyer, the law firm and the “client” if the client knew that this was being done. Of course in most cases the party named as bringing the foreclosure is NOT the client, which is another fraudulent misrepresentation in court that would defeat jurisdiction. The client is always the sub-servicer who takes orders from the “Master Servicer”, i.e.  the underwriter who created bogus trusts to issue bogus mortgage bonds and walked away with trillions of dollars.

 

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Now You See Them, Now You Don’t

Posted on September 6, 2016 by Neil Garfield

ARE LAW FIRMS CROSSING THE LINE FOR BANKS WHO WILL THROW THEM UNDER THE BUS?

It is a chaotic circular round of documents emanating ultimately by, for and from the same parties. And somehow it is becoming custom and practice to allow law firm employees to sign important documents that transfer possession, delivery, ownership and servicing rights from one party to another while those parties themselves sign nothing.

THE FOLLOWING ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

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I can’t help thinking about whether there is a motion in California and other nonjudicial states that allows you to challenge the right of the attorney to be the attorney of record when the law firm is a fact witness on issues that are central to the case. Having signed the proof of claim, being the trustee (who supposedly represents the party who signs a proof of claim), etc., the question is whether they are acting on their own behalf or on behalf of a third party who might indeed have some objections against the law firm representing the interests of parties whose interests might be antithetical to their own.

In a deed of trust you have the trustor (homeowner) and the Trustee in the middle between the trustor and the beneficiary who presumably is the creditor. By now we know that original beneficiary probably did not make the loan and that the alleged new beneficiary didn’t buy it. The beneficiaries’ claims are only as good as the words on the fabricated paper on which they are written and certain legal presumptions that are routinely misapplied.

So the first sign of trouble is the “Substitution of Trustee” wherein a “New” beneficiary executes a document appointing a new Trustee on the Deed of Trust. Why? What was wrong with the old one if everything was on the up and up? They substitute because they know the original Trustee won’t accept the instructions from the new party because the original Trustee has no objective reason to believe that the new “party” is a “beneficiary”. Who signs that “substitution of Trustee”?

It is usually someone who has been given instructions to sign it on the promise and premise that they have been appointed attorney in fact for the “new beneficiary.” In fact, in many cases their only job is signing documents that they have received instructions to sign. But the actual person signing knows absolutely nothing about the deal and has no knowledge about the facts behind the business of signing such documents — assuming their signature was not forged or robo-signed.

So in this and many if not nearly all cases, the actual signature is supplied by a third party who will then fabricate a power of attorney to do it — still without any facts about why the Trustee needs to be replaced. In most cases it is an employee of the law firm who by definition (?) has no actual interest in the loan, the debt, the note or the mortgage (Deed of Trust). This makes the person who signed it a fact witness and watch how the law firm fights to prevent that person from testifying at deposition or trial. In many cases they will assert that the person is no longer employed and they don’t know where he or she is now located.

And then you have the new Trustee who often turns out to be the same law firm who signed the Substitution of Trustee, making it a double self-serving document for which no legal presumptions should apply since there is no foundation in evidence that establishes the law firm as a real party in interest — and if such evidence existed the law firm would be disqualified from representing the allegedly new beneficiary and from being the Trustee AND advocate against the Trustor. If the legislature meant to allow that sort of thing they would have been violating the due process clause of the U.S. Constitution making the entire nonjudicial statutory scheme unconstitutional.

Who signs the power of attorney once it is fabricated? It is either the law firm employee or an employee who works for a “servicer” who in most cases is not named in any document as servicer. Who signs the validation of the foreclosure? Same person. It is a chaotic circular round of documents emanating ultimately by, for and from the same parties. And somehow it is becoming custom and practice to allow law firm employees to sign important documents that transfer possession, delivery, ownership and servicing rights from one party to another while those parties themselves sign nothing.

That is what they are talking about when they refer to “remote” vehicles. It is a situation where actions are taken and the people for whom the action was taken cannot be tied into the transaction in case someone needs to go to jail, or pay a fine or sanctions. But somehow the Courts have twisted this into meaning that what is good for the goose is not good for the gander. The banks can distance themselves from liability for a fabricated transaction but they also can receive the benefits of the fabrication as though they were present.

https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.

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Fla. Supreme Court Amends Rules For Foreclosure

Posted on December 22, 2014 by Neil Garfield

For further information please call 954-495-9867 or 520-405-1688

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see 2014-sc13-2384

It would seem that the Florida Supreme Court has been listening and watching very closely. The new rules corroborate many things stated in this blog. Still to come are ruling or rules dealing with discovery in support of the homeowner’s defenses. This is effective for cases filed on or after July 1, 2013.

“After considering the proposed amendments and reviewing the relevant legislation, we amend the Florida Rules of Civil Procedure and forms as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall take effect immediately upon the release of this opinion. Because the amendments were not published for comment prior to adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.2“

APPENDIXRULE 1.110. GENERAL RULES OF PLEADING

(a) [No change]

(b) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim must state a cause of action and shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds ofjurisdiction to support it, (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which the pleader deems himself or herself entitled. Relief in the alternative or of several different types may be demanded. Every complaint shall be considered to pray for general relief.

When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement:

“Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

(c) – (h) [No change]

Committee Notes        1971 Amendment. Subdivision (h) is added to cover a situation usually arising in divorce judgment modifications, supplemental declaratory relief actions, or trust supervision. When any subsequent proceeding results in a pleading in the strict technical sense under rule 1.100(a), response by opposing parties will follow in the same course as though the new pleading were the initial pleading in the action. The time for answering and authority for defenses under rule 1.140 will apply. The last sentence exempts post judgment motions under rules 1.480(c), 1.530, and 1.540, and similar proceedings from its purview.

2014 Amendment. The last two paragraphs of rule 1.110(b) regarding pleading requirements for certain mortgage foreclosure actions were deleted and incorporated in new rule 1.115.

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RULE 1.115. PLEADING MORTGAGE FORECLOSURES

(a) Claim for Relief. A claim for relief 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 one to four families which secures a promissory note, must: (1) contain affirmative allegations expressly made by the claimant at the time the proceeding is commenced that the claimant is the holder of the original note secured by the mortgage; or (2) allege with specificity the factual basis by which the claimant is a person entitled to enforce the note under section 673.3011, Florida Statutes.

(b) Delegated Claim for Relief. If a claimant has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note, the claim for relief shall describe the authority of the claimant and identify with specificity the document that grants the claimant the authority to act on behalf of the person entitled to enforce the note. The term “original note” or “original promissory note” means the signed or executed promissory note rather than a copy of it. 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 transferrable record, as defined by the Uniform Electronic Transaction Act in section 668.50(16), Florida Statutes.

(c) Possession of Original Promissory Note. If the claimant is in possession of the original promissory note, the claimant must file under penalty of perjury a certification contemporaneously with the filing of the claim for relief for foreclosure that the claimant 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.

(d) Lost, Destroyed, or Stolen Instrument. If the claimant seeks to enforce a lost, destroyed, or stolen instrument, an affidavit executed under penalty of perjury must be attached to the claim for relief. The affidavit must: (1) detail a clear chain of all endorsements, transfers, or assignments of the promissory note that is the subject of the action; (2) set forth facts showing that the claimant is entitled to enforce a lost, destroyed, or stolen instrument pursuant to section

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673.3091, Florida Statutes; and (3) 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 claimant. Adequate protection as required under section 673.3091(2), Florida Statutes, shall be provided before the entry of final judgment.

(e) Verification. When filing an action for foreclosure on a mortgage for residential real property the claim for relief shall be verified by the claimant seeking to foreclose the mortgage. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement:

“Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

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FORM 1.944(a). MORTGAGE FORECLOSURE

(When location of original note known)COMPLAINT        Plaintiff, A. B., sues defendant, C. D., and alleges:

1. This is an action to foreclose a mortgage on real property in ……………. County, Florida.

2. On …..(date)….., defendant executed and delivered a promissory note and a mortgage securing payment of the note to …..(plaintiff or plaintiff’s predecessor….. The mortgage was recorded on…..(date)….., in Official Records Book ………. at page ………. of the public records of ……………… County, Florida, and mortgaged the property described in the mortgage then owned by and in possession of the mortgagor, a copy of the mortgage containing a copy of and the note being attached.

3. Plaintiff owns and holds the note and mortgage. (Select a, b, or c)

(a) Plaintiff is the holder of the original note secured by the mortgage. (b) Plaintiff is a person entitled to enforce the note under applicable law because …..(allege specific facts)…..

(c) Plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note. The document(s) that grant(s) plaintiff the authority to act on behalf of the person entitled to enforce the note is/are as follows ……………….

4. The property is now owned by defendant who holds possession.

5. Defendant has defaulted under the note and mortgage by failing to pay the payment due …..(date)….., and all subsequent payments …..(allege other defaults as applicable)…….

6. Plaintiff declares the full amount payable under the note and mortgage to be due.

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7. Defendant owes plaintiff $………. that is due on principal on the note and mortgage, interest from …..(date)….., and title search expense for ascertaining necessary parties to this action.

8. Plaintiff is obligated to pay plaintiff’s attorneys a reasonable fee for their services. Plaintiff is entitled to recover its attorneys’ fees under …..(allege statutory and/or contractual bases, as applicable)……

WHEREFORE, plaintiff demands judgment foreclosing the mortgage, for costs (and, when applicable, for attorneys’ fees), and, if the proceeds of the sale are insufficient to pay plaintiff’s claim, a deficiency judgment.

NOTE: An action for foreclosure of a mortgage on residential real property must contain an oath, affirmation, or the following statement as required by rule 1.115(e).

VERIFICATION        Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.

Executed on this …..(date)…..

/s/_________
[Person Signing Verification]

CERTIFICATION OF POSSESSION OF ORIGINAL NOTEThe undersigned hereby certifies:

1. That plaintiff is in possession of the original promissory note upon which this action is brought.

2. The location of the original promissory note is: …..(location)…..

3. The name and title of the person giving the certification is: …..(name and title)

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4. The name of the person who personally verified such possession is: …..(name)…..

5. The time and date on which possession was verified were: …..(time and date)

6. Correct copies of the note (and, if applicable, all endorsements, transfers, allonges, or assignments of the note) are attached to this certification.

7. I give this statement based on my personal knowledge.

Under penalties of perjury, I declare that I have read the foregoing Certification of Possession of Original Note and that the facts stated in it are true.

Executed on …..(date)…..

/s/_________
[Person Signing Certification]

NOTE: This form is for installment payments with acceleration. It omits allegations about junior encumbrances, unpaid taxes, unpaid insurance premiums, other nonmonetary defaults, and for a receiver. They must be added when proper appropriate. Copies A copy of the note and mortgage must be attached. This form may require modification. This form is designed to incorporate the pleading requirements of section 702.015, Florida Statutes (2013) and rule 1.115. It is also designed to conform to section 673.3011, Florida Statutes (2013), except that part of section 673.3011, Florida Statutes, which defines a person entitled to enforce an instrument under section 673.3091, Florida Statutes. See form 1.944(b). Pursuant to section 702.015, Florida Statutes (2013), a certification of possession of the original promissory note must be filed contemporaneously with the Complaint (form 1.944(a)) or, in the event that the plaintiff seeks to enforce a lost, destroyed, or stolen instrument, an affidavit setting forth the facts required by law must be attached to the complaint (form 1.944(b)).

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FORM 1.944(b). MORTGAGE FORECLOSURE

(When location of original note unknown)COMPLAINT        Plaintiff, ABC, sues defendant, XYZ, and states:

1. This is an action to foreclose a mortgage on real property in ………. County, Florida.

2. On …..(date)…… defendant executed and delivered a promissory note and a mortgage securing the payment of said note to …..(plaintiff or plaintiff’s predecessor)….. The mortgage was recorded on ……(date)….. in Official Records Book …… at page ….. of the public records of ………. County, Florida, and mortgaged the property described therein which was then owned by and in possession of the mortgagor. A copy of the mortgage and note are attached to the affidavit which is attached hereto as Composite Exhibit “1”; the contents of the affidavit are specifically incorporated by reference.

3. Plaintiff is not in possession of the note but is entitled to enforce it.

4. (select a, b, c, or d) Plaintiff cannot reasonably obtain possession of the note because

(a) the note was destroyed.

(b) the note is lost.

(c) the note is in the wrongful possession of an unknown person.

(d) the note is in the wrongful possession of a person that cannot be found or is not amenable to service of process.

5. (select a, b, c, or d)

(a) At the time the original note was lost, plaintiff was the holder of the original note secured by the mortgage.

(b) At the time the original note was lost, plaintiff was a person entitled to enforce the note under applicable law because …..(allege specific facts)…..

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(c) Plaintiff has directly or indirectly acquired ownership of the note from a person who was entitled to enforce the note when loss of possession occurred as follows: …..(allege facts as to transfer of ownership)…..

(d) Plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note, and the document(s) that grant(s) plaintiff the authority to act on behalf of the person entitled to enforce the note is/are as follows ………………………..(attach documents if not already attached).

6. Plaintiff did not transfer the note or lose possession of it as the result of a lawful seizure.

7. The property is now owned by defendant who holds possession.

8. Defendant has defaulted under the note and mortgage by failing to pay the payment(s) due …..(date(s))….. , and all subsequent payments …..(identify other defaults as applicable)…..

9. Plaintiff declares the full amount payable under the note and mortgage to be due.

10. Defendant owes plaintiff $………. that is due on principal on the note and mortgage, interest from …..(date)….. , and title search expense for ascertaining necessary parties to this action.

11. Plaintiff is obligated to pay its attorneys a reasonable fee for their services. Plaintiff is entitled to recover its attorneys’ fees for prosecuting this claim pursuant to …..(identify statutory and/or contractual bases, as applicable)…..

WHEREFORE, Plaintiff demands judgment foreclosing the mortgage, for costs (and, where applicable, for attorneys’ fees), and if the proceeds of the sale are insufficient to pay plaintiff’s claim, a deficiency judgment.

NOTE: An action for foreclosure of a mortgage on residential real property must contain an oath, affirmation, or the following statement as required by rule 1.115(e).

VERIFICATIONPage 12

Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.

Executed on …..(date)…..

/s/_________
(Person Signing Verification)

*****AFFIDAVIT OF COMPLIANCESTATE OF FLORIDA
COUNTY OF ………………..

BEFORE ME, the undersigned authority, personally appeared …..(name)….., who, after being first duly sworn, deposes and states, under penalty of perjury:

1. I am the plaintiff (or plaintiff’s ……….) (identify relationship to plaintiff).

2. I am executing this affidavit in support of plaintiff’s Complaint against defendant and I have personal knowledge of the matters set forth herein.

3. On …..(date)….. , the public records reflect that defendant executed and delivered a mortgage securing the payment of the note to …..(plaintiff/plaintiff’s predecessor)…… The mortgage was recorded on …..(date)….. , in Official Records Book ………. at page ………. of the public records of ………. County, Florida, and mortgaged the property described therein, which was then owned by and in possession of the mortgagor, a copy of the mortgage and the note being attached.

4. (select a, b, c, or d) Plaintiff cannot reasonably obtain possession of the note because

(a) the note was destroyed.

(b) the note is lost.

(c) the note is in the wrongful possession of an unknown person.

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(d) the note is in the wrongful possession of a person who cannot be found or is not amenable to service of process.

5. (select a, b, c, or d)

(a) At the time the original note was lost, plaintiff was the holder of the original note secured by the mortgage.

(b) At the time the original note was lost, plaintiff was a person entitled to enforce the note under applicable law because …..(allege specific facts)…..

(c) Since the note was lost, plaintiff has directly or indirectly acquired ownership of the note from a person who was entitled to enforce the note when loss of possession occurred as follows: …..(allege facts regarding transfer of ownership)…..

(d) Plaintiff has been delegated the authority to institute a mortgage foreclosure action on behalf of the person entitled to enforce the note, and the document(s) that grant(s) plaintiff the authority to act on behalf of the person entitled to enforce the note is/are as follows …………………………(attach copy of document(s) or relevant portion(s) of the document(s)).

6. Below is the clear chain of the endorsements, transfers, allonges or assignments of the note and all documents that evidence same as are available to Plaintiff: …..(identify in chronological order all endorsements, transfers, assignments of, allonges to, the note or other evidence of the acquisition, ownership and possession of the note)….. Correct copies of the foregoing documents are attached to this affidavit.

7. Plaintiff did not transfer the note or lose possession of it as the result of a lawful seizure.

FURTHER, AFFIANT SAYETH NAUGHT.

/s/_________
[signature]

/s/_________
[typed or printed name of affiant]

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STATE OF FLORIDA
COUNTY OF…………..

BEFORE ME, the undersigned authority appeared …..(name of affiant)….. who ….. is personally known to me or ….. produced identification …..and acknowledged that he/she executed the foregoing instrument for the purposes expressed therein and who did take an oath.

WITNESS my hand and seal in the State and County aforesaid, this …..(date)……

/s/_________
NOTARY PUBLIC, State of Florida

Print Name: …………………………

Commission Expires: ……………..

Committee Note        2014 Adoption. This form is for installment payments with acceleration. It omits allegations about junior encumbrances, unpaid taxes, unpaid insurance premiums, other nonmonetary defaults, and for a receiver. Allegations must be added when appropriate. This form may require modification. This form is designed to incorporate the pleading requirements of section 702.015, Florida Statutes (2013), and rule 1.115. It is also designed to comply with section 673.3091, Florida Statutes (2013). Adequate protection as required by sections 702.11 (2013) and 673.3091(2), Florida Statutes (2013), must be provided before the entry of final judgment.

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FORM 1.944(c) MOTION FOR ORDER TO SHOW CAUSE

PLAINTIFF’S MOTION FOR ORDER TO SHOW CAUSEFOR ENTRY OF FINAL JUDGMENT OF FORECLOSURE        1. Plaintiff is a lienholder of real property located at …..(address)…… or is a ….. Condominium Association/Cooperative Association/Homeowner’s Association……

2. The plaintiff has filed a verified complaint in conformity with applicable law, which is attached.

3. The plaintiff requests this court issue an order requiring defendant(s) to appear before the court to show cause why a final judgment of foreclosure should not be entered against defendant(s).

4. The date of the hearing may not occur sooner than the later of 20 days after service of the order to show cause or 45 days after service of the initial complaint.

ORCOMMENT: Use the following when service is by publication:

4. When service is obtained by publication, the date for the hearing may not be set sooner than 30 days after the first publication.

5. The accompanying proposed order to show cause affords defendant(s) all the rights and obligations as contemplated by applicable law.

6. Upon the entry of the order to show cause, plaintiff shall serve a copy of the executed order to show cause for entry of final judgment as required by law.

7. This is not a residential property for which a homestead exemption for taxation was granted according to the rolls of the latest assessment by the County Property Appraiser.

Plaintiff requests the court review this complaint and grant this motion for order to show cause for entry of final judgment of foreclosure, and grant such further relief as may be awarded at law or in equity.

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/s/_________
Plaintiff

Certificate of Service

Committee Note

2014 Adoption. This form is designed to comply with section 702.10, Florida Statutes (2013).

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FORM 1.944(d) ORDER TO SHOW CAUSE

ORDER TO SHOW CAUSE        THIS CAUSE has come before the court on ….. plaintiff’s/lien holder’s….. motion for order to show cause for entry of final judgment of mortgage foreclosure and the court having reviewed the motion and the verified complaint, and being otherwise fully advised in the circumstances, finds and it is

ORDERED AND ADJUDGED that:

1. The defendant(s) shall appear at a hearing on foreclosure on …..(date)….. at ……(time)….. before the undersigned judge, in the …..(county)….. Courthouse at …..(address)…… to show cause why the attached final judgment of foreclosure should not be entered against the defendant(s) in this cause. This hearing referred to in this order is a “show cause hearing.”

2. This ORDER TO SHOW CAUSE shall be served on the defendant(s) in accordance with the Florida Rules of Civil Procedure and applicable law as follows:

a. If the defendant(s) has/have been served under Chapter 48, Florida Statutes, with the verified complaint and original process has already been effectuated, service of this order may be made in the manner provided in the Florida Rules of Civil Procedure; or, if the other party is the plaintiff in the action, service of the order to show cause on that party may be made in the manner provided in the Florida Rules of Civil Procedure.

b. If the defendant(s) has/have not been served under Chapter 48, Florida Statutes, with the verified complaint and original process, the order to show cause, together with the summons and a copy of the verified complaint, shall be served on the party in the same manner as provided by law for original process.

3. The filing of defenses by a motion or verified answer at or before the show cause hearing constitutes cause for which the court may not enter the attached final judgment.

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4. Defendant(s) has/have the right to file affidavits or other papers at the time of the show cause hearing and may appear at the hearing personally or by an attorney.

5. If defendant(s) file(s) motions, they may be considered at the time of the show cause hearing.

6. Defendant(s)’ failure to appear either in person or by an attorney at the show cause hearing or to file defenses by motion or by a verified or sworn answer, affidavits, or other papers which raise a genuine issue of material fact which would preclude entry of summary judgment or which would otherwise constitute a legal defense to foreclosure, after being served as provided by law with the order to show cause, will be deemed presumptively a waiver of the right to a hearing. In such case, the court may enter a final judgment of foreclosure ordering the clerk of the court to conduct a foreclosure sale. An order requiring defendant(s) to vacate the premises may also be entered.

7. If the mortgage provides for reasonable attorneys’ fees and the requested fee does not exceed 3% of the principal amount owed at the time the complaint is filed, the court may not need to hold a hearing to adjudge the requested fee to be reasonable.

8. Any final judgment of foreclosure entered under section 702.10(1) Florida Statutes, shall be only for in rem relief; however, entry of such final judgment of foreclosure shall not preclude entry of an in personam money damages judgment or deficiency judgment where otherwise allowed by law.

9. A copy of the proposed final judgment is attached and will be entered by the court if defendant(s) waive(s) the right to be heard at the show cause hearing.

10. The court finds that this is not a residential property for which a homestead exemption for taxation was granted according to the rolls of the latest assessment by the county property appraiser.

Page 19

DONE AND ORDERED at …..(county)…..Florida …..(date)……

/s/_________
CIRCUIT JUDGE

Copies to:

Committee Note        2014 Adoption. This form is designed to comply with section 702.10(1), Florida Statutes (2013).

Page 20

FORM 1.996(a). FINAL JUDGMENT OF FORECLOSURE

FINAL JUDGMENT        This action was tried before the court. On the evidence presented

IT IS ADJUDGED that:

1. Amounts Due. Plaintiff, …..(name and address)……, is due

Filed under: foreclosure | Tagged: , , , , , | 6 Comments »

NY J SHACK FINDS WAMU ATTORNEY IMPOSTERS

Posted on December 6, 2010 by Neil Garfield

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

SEE STOPFORECLOSUREFRAUD.COM

Editor’s Note: I usually advise lawyers that from the very first word that opposing counsel utters, an objection ought to be raised, because it is all a lie. A “living lie.” From the moment he states his name and then says whom he represents, you ought to have something on hand that questions the validity of whether he actually represents the party upon whose behalf he says he is making his appearance. It is usually in the rules that you can demand proof of authority to represent. I know of a few cases that ended up dismissed on those grounds alone because the attorney never came back, never called back and never filed anything.

The way you win these cases is by forming the intent to win it. You can’t form that intent unless you believe it. Believe it! These are all impostors, pretenders and people out to make a buck at the expense of the Court and your client. Don’t get lost in their narrative.

Remember that besides the monthly payment issue, you have a right to seek modification or settlement or to ask for an evidentiary hearing on the amount required for redemption — that requires an accounting from the creditor. How are you going to do that with the wrong party standing in the courtroom and a lawyer who does not even represent anyone? Judges are  latching on to this argument, because it makes sense to them. They are not absolving your client of liability but they will force the issue, and make sure the real deciders are present IF YOU AGGRESSIVELY PURSUE IT.

[NYSC] JUDGE SCHACK Tears up WaMU’s Counsel For “Defective Verification, Phony NY House Counsel” WAMU v. PHILLIP

Posted on02 December 2010. Tags: , , , , , , , , , , , , , , , , , ,

[NYSC] JUDGE SCHACK Tears up WaMU’s Counsel For “Defective Verification, Phony NY House Counsel” WAMU v. PHILLIP

Washington Mut. Bank v Phillip
2010 NY Slip Op 52034(U)
Decided on November 29, 2010
Supreme Court, Kings County
Schack, J.

Excerpts:

Further, the verification of the complaint was not executed by an officer of WAMU, but by Benita Taylor, a “Research Support Analyst of Washington Mutual Bank, the plaintiff in the within action” a resident of Jacksonville, Florida, on June 4, 2008. This is the same day that Ms. Maio claims to have communicated with “Mark Phelps, Esq., House Counsel.” I checked the Office of Court Administration’s Attorney Registry and found that Mark Phelps is not now nor has been an attorney registered in the State of New York. Moreover, the Court does not know what “House” employs Mr. Phelps. [*5]

Both Mr. Phelps and Ms. Maio should have discovered the defects in Ms. Taylor’s verification of the subject complaint. The jurat states that the verification was executed in the State of New York and the County of Suffolk [the home county of plaintiff’s counsel], but the notary public who took the signature is Deborah Yamaguichi, a Florida notary public, not a New York notary public. Thus, the verification lacks merit and is a nullity. Further, Ms. Yamaguchi’s notarization states that Ms. Taylor’s verification was “Sworn to and subscribed before me this 4th day of June 2008.” Even if the jurat properly stated that it was executed in the State of Florida and the County of Duval, where Jacksonville is located, the oath failed to have a certificate required by CPLR

<SNIP>

Ms. Maio should have consulted with a representative or representatives of plaintiff WAMU or is successors subsequent to receiving my November 9, 2010 order, not referring back to an alleged June 4, 2008 communication with “House Counsel.” Affirmations by plaintiff’s counsel in foreclosure actions, pursuant to Chief Administrative Judge Ann t. Pfau’s October 20, 2010 Administrative Order, mandates in foreclosure actions prospective communication by plaintiff’s counsel with plaintiff’s representative or representatives to prevent the widespread insufficiencies now found in foreclosure filings, such as: failure to review files to establish standing; filing of notarized affidavits that falsely attest to such review, and, “robosigning: of documents.

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , , , , , , , , , , , , , | 9 Comments »

APPRAISAL FRAUD IN DETAIL

Posted on May 11, 2010 by Neil Garfield

APPRAISAL FRAUD IS THE ACT OF GIVING A RATING OR VALUE TO A HOME THAT IS WRONG — AND THE APPRAISER KNOWS IT IS WRONG. This can’t be performed in a vacuum because there are so many players who are involved. They ALL must be complicit in the deceit leading to the homeowner signing on the the bottom line and advancing his home as collateral on a loan which at the very beginning is theft of most of the value of the home. It’s like those credit cards they send to people who are financially challenged. $300 credit, no questions asked. And then you get a bill for $297 including fees and insurance. So you end up not with a credit line of $300, but a liability of $300 just for signing your name. It’s a game to the “lenders” because they are not using their own money.

And remember, the legal responsibility for the appraisal is directly with the appraiser, the appraisal company (which usually has errors and omissions insurance) and the named lender in your closing documents. The named “lender” is, according to Federal Law, required to verify the value of the property.

How many of them , if they were using their own money, would blithely accept a $300,000 appraisal on a home that was worth $200,000 last month and will be worth $200,000 next month? You are entitled to rely on the appraisal and the “verification” by the “lender” (see Truth in Lending Act and Reg Z). The whole reason the law is structured that way is because THEY know and YOU don’t. THEY have access to the information and YOU don’t. This is a complex transaction that THEY understand and YOU don’t.

A false appraisal steals money from you because you rely on it to make the deal for refinancing or for the purchase. You think the home is worth $300,000 and so you agree to buy a loan product that puts you in debt for $290,000. But the house is worth $200,000. You just lost $90,000 plus closing costs and a variety of other expenses, especially if you are moving into anew home that requires all kinds of additions like window treatments etc. But the “lender” who is really just a front for the Wall Street and the investor pool that funded the loan, made out like bandits. Yield spread premiums, extra fees, profits, rebates, kickbacks to the developer, the appraiser, the mortgage broker, the title agency, the closing agent, the real estate broker, trustee(s) the investment banking entities that were used in the securitization of your loan, amount in some cases to MORE THAN YOUR LOAN. No wonder they are so anxious to get your signature.

“Comparable” means reference to time, nearby geography, and physical attributes of the home and lot. Here are SOME of the more obvious indicators of appraisal fraud:

  1. Your home is worth 40% of the appraisal amount.
  2. The appraisal used add-ons from the developer that were marked up for the home buyer but which nobody in the secondary market will pay. That kitchen you paid an extra $10,000 for “extras” is included in your appraisal but has no value to anyone else. That’s not an appraisal and it isn’t collateral or fair market value.
  3. The homes in the immediate vicinity of your home were selling for less than your home appraisal when they had the same attributes.
  4. The homes in the immediate vicinity of your home were selling for less than your home appraisal just a few weeks or months before.
  5. The value of your home was significantly less just a  few weeks or months after the closing.
  6. You are underwater: this means you owe more on your obligation than your house is worth. Current estimates are that it might take 20 years or more for home prices to reach the level of mortgages, and that is WITH inflation.
  7. Negative amortization loans usually allow the principal to rise even above the falsely inflated appraisal amount. If that happened, then they knew at the time of the loan that even if the appraisal was not inflated, it still would not be worth the amount of the principal due on the obligation. For example, if your loan is $290,000 and the interest is $25,000 per year, but you were only required to pay $1,000 per month for the first three years, then your Principal was going up by $13,000 per year compounded. So that $300,000 appraisal doesn’t cover the $39,000+ that would be added to your principal balance. The balance at the end of 3 years will be over $330,000 on property APPRAISED at $300,000. No honest appraiser, mortgage broker, or lender, would be complicit in such an arrangement unless they were paid handsomely to do it and they had no risk because they were not using their own money for the loan.

Filed under: foreclosure | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 26 Comments »

Berating the Raters and Appraisers

Posted on April 29, 2010 by Neil Garfield

“of AAA-rated subprime-mortgage-backed securities issued in 2006, 93 percent — 93 percent! — have now been downgraded to junk status.”

Editor’s Note: What homeowners and their lawyers, forensic analysts, and experts need to realize is that the ratings scam on Wall street was only one-half of the equation in a scheme to defraud homeowners. If you don’t understand how an appraisal of a home is the same thing as the rating of the security that was sold to fund the home, then you are missing the point and the opportunity to do something meaningful for borrowers.

TILA and Reg Z make it clear that the LENDER is responsible for verification of the appraisal. The LENDER is responsible for viability of the loan, NOT THE BORROWER. IT’S THE LAW! Instead the media and Wall Street PR and lobbyists are drumming a myth into our heads — that 20 million homeowners with securitized loans cooked up a scheme to get a free house. Where did they meet?

We have ample evidence that the entire scheme depended upon reasonable reliance upon those who were in fact not reliable and who were lying to us. If you bought a house for $600,000, the odds are:

  • the house was actually worth less than $400,000
  • the appraiser put the value at $620,000
  • the rating agency called it a triple AAA loan
  • you thought the house was worth what you were paying
  • the house is now worth $300,000
  • your mortgage is at least $500,000
  • Even if you can afford the payments, you will not be able to sell your home for more than the amount owed on it until at least 15-18 years have passed.
  • You will not be able to sell your home for what you paid for at least another 25-30 years, and that is only with the help of inflation
  • Counting inflation, you will never sell your home for what you paid for it or the amount you thought it was worth when you refinanced it

Besides obvious violations of federal and state lending statutes it is pure common law fraud. You are now faced with options that go from bad to worse, UNLESS you sue the people who caused this and your lawyer understands the basic economics of securitization. Your opposition knows all of this. That is why the cases, for the most part ,never get to trial. These cases are won or lost in demanding discovery, enforcing your demands, and relentless pursuit of the truth.

REGISTER NOW FOR DISCOVERY AND MOTION PRACTICE WORKSHOP MAY 23-24

April 26, 2010
Op-Ed Columnist

Berating the Raters

Let’s hear it for the Senate’s Permanent Subcommittee on Investigations. Its work on the financial crisis is increasingly looking like the 21st-century version of the Pecora hearings, which helped usher in New Deal-era financial regulation. In the past few days scandalous Wall Street e-mail messages released by the subcommittee have made headlines.

That’s the good news. The bad news is that most of the headlines were about the wrong e-mails. When Goldman Sachs employees bragged about the money they had made by shorting the housing market, it was ugly, but that didn’t amount to wrongdoing.

No, the e-mail messages you should be focusing on are the ones from employees at the credit rating agencies, which bestowed AAA ratings on hundreds of billions of dollars’ worth of dubious assets, nearly all of which have since turned out to be toxic waste. And no, that’s not hyperbole: of AAA-rated subprime-mortgage-backed securities issued in 2006, 93 percent — 93 percent! — have now been downgraded to junk status.

What those e-mails reveal is a deeply corrupt system. And it’s a system that financial reform, as currently proposed, wouldn’t fix.

The rating agencies began as market researchers, selling assessments of corporate debt to people considering whether to buy that debt. Eventually, however, they morphed into something quite different: companies that were hired by the people selling debt to give that debt a seal of approval.

Those seals of approval came to play a central role in our whole financial system, especially for institutional investors like pension funds, which would buy your bonds if and only if they received that coveted AAA rating.

It was a system that looked dignified and respectable on the surface. Yet it produced huge conflicts of interest. Issuers of debt — which increasingly meant Wall Street firms selling securities they created by slicing and dicing claims on things like subprime mortgages — could choose among several rating agencies. So they could direct their business to whichever agency was most likely to give a favorable verdict, and threaten to pull business from an agency that tried too hard to do its job. It’s all too obvious, in retrospect, how this could have corrupted the process.

And it did. The Senate subcommittee has focused its investigations on the two biggest credit rating agencies, Moody’s and Standard & Poor’s; what it has found confirms our worst suspicions. In one e-mail message, an S.& P. employee explains that a meeting is necessary to “discuss adjusting criteria” for assessing housing-backed securities “because of the ongoing threat of losing deals.” Another message complains of having to use resources “to massage the sub-prime and alt-A numbers to preserve market share.” Clearly, the rating agencies skewed their assessments to please their clients.

These skewed assessments, in turn, helped the financial system take on far more risk than it could safely handle. Paul McCulley of Pimco, the bond investor (who coined the term “shadow banks” for the unregulated institutions at the heart of the crisis), recently described it this way: “explosive growth of shadow banking was about the invisible hand having a party, a non-regulated drinking party, with rating agencies handing out fake IDs.”

So what can be done to keep it from happening again?

The bill now before the Senate tries to do something about the rating agencies, but all in all it’s pretty weak on the subject. The only provision that might have teeth is one that would make it easier to sue rating agencies if they engaged in “knowing or reckless failure” to do the right thing. But that surely isn’t enough, given the money at stake — and the fact that Wall Street can afford to hire very, very good lawyers.

What we really need is a fundamental change in the raters’ incentives. We can’t go back to the days when rating agencies made their money by selling big books of statistics; information flows too freely in the Internet age, so nobody would buy the books. Yet something must be done to end the fundamentally corrupt nature of the the issuer-pays system.

An example of what might work is a proposal by Matthew Richardson and Lawrence White of New York University. They suggest a system in which firms issuing bonds continue paying rating agencies to assess those bonds — but in which the Securities and Exchange Commission, not the issuing firm, determines which rating agency gets the business.

I’m not wedded to that particular proposal. But doing nothing isn’t an option. It’s comforting to pretend that the financial crisis was caused by nothing more than honest errors. But it wasn’t; it was, in large part, the result of a corrupt system. And the rating agencies were a big part of that corruption.

Filed under: bubble, CDO, CORRUPTION, Eviction, expert witness, Fannie MAe, foreclosure, foreclosure mill, Forensic Analysis Workshop, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, STATUTES, trustee, workshop | Tagged: , , , , , , , , , , , | 7 Comments »

FLORIDA MOVES TOWARD RESOLUTION OF SECURITIZED MORTGAGES

Posted on February 12, 2010 by Neil Garfield

See FLSC new RULES

First, rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded ―lost note counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. Next, the Task Force proposed a new form Affidavit of Diligent Search and Inquiry. In its petition, the Task Force explained that many foreclosure cases are served by publication. The new form is meant to help standardize affidavits of diligent search and inquiry and provide information to the court regarding the methods used to attempt to locate and serve the defendant. We adopt this form as new form 1.924, with several modifications. The

Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: , , , , , , | 13 Comments »

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