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A Look From The Florida "Rocket-Docket" Frontlines: "One Foreclosure Every Two Minutes"

Tyler Durden's picture




 

After Matt Taibbi stirred popular spirits last week with his expose on the Rocket Docket foreclosure mill currently operating in Florida, today CNNMoney's Poppy Harlow follows up with a look at just what happens at the front lines of the foreclosure mess. Per the report, “judges are signing off on up to 25 foreclosures an hour. That's one about every two minutes.” The official story, for those who have not had a chance to read Taibbi's piece, is that since Florida has the second highest foreclosure rate in the country, it is stuck with a huge case backlog that must be cleared. The goal is to clear 62% of the back log in one year.  These special foreclosure courts though, have become highly controversial, with critics dubbing them “rocket dockets,” and claiming judges are rushing through cases, unfairly favoring banks over homeowners. For once, we get the judges' side, which is rather hilarious: "there is no evidence, nothing has been presented to us in the 4th circuit, that there is any fraud being perpetrated upon the court. What is classified as fraud, can also be classified as sloppiness, can be classified as neglect, but the legal aspect of the word fraud, we do not experience that." Could it also be classified as bribery by the TBTF lobby we wonder?

The bottom line is that as the robosigning scandal has highlighted, should even a small percentage of the defendants show up in court demanding that the bank present the original mortgage note (which presumably is missing in a large number of cases), the rocket-docket process will become unfixably stalled, and in effect impose a stand still on all foreclosure activity, preventing banks from clearing excess inventory years into the future. Additionally, it may also allow homeowners to live for free (ethical considerations aside), once it becomes clear that there is no clear title holder to a given mortgage. We have the distinct feeling that very soon the rocket docket will be a thing of the past.

 

 

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Mon, 11/15/2010 - 11:52 | 727558 99er
Mon, 11/15/2010 - 11:51 | 727560 tmosley
tmosley's picture

Hey, at least they are slowing down and taking their time.  That's TWICE as much time as they used to devote to these things.

Mon, 11/15/2010 - 11:54 | 727570 goldmiddelfinger
goldmiddelfinger's picture

Summary judgement arsewormz!

Mon, 11/15/2010 - 11:55 | 727571 Hansel
Hansel's picture

Great.  If a judge can't recognize obvious fraud, who can?

Mon, 11/15/2010 - 12:18 | 727629 Fearless Rick
Fearless Rick's picture

If a judge doesn't see it, then it's not fraud </sarc>

Mon, 11/15/2010 - 12:57 | 727769 detersbb
detersbb's picture

Hey Judge I have an affidavit that say I own your mortgage.

Hey Judge I have an affidavit that say I lost your original note.

Hey Judge I have an affidavit that say I you are in default.

Hey Judge I have an affidavit that say I you have failed to respond and have agreed to a public auction on your house.

_______________________

Hey Judge are you going to see this as fraud?

Mon, 11/15/2010 - 13:56 | 727888 Careless Whisper
Careless Whisper's picture

"I am not there to, uuhh, check every exhibit." The Honorable A C Soud

Mon, 11/15/2010 - 11:57 | 727573 SheepDog-One
SheepDog-One's picture

I'd sure go in and demand to see the note from the judge. And in other news, dollar up now means stocks up, blowing up another market paradigm myth, apparently. Well for this hour anyway. Maybe its ust a bunch of frontrunners running other frontrunners.

What a joke.

Mon, 11/15/2010 - 11:57 | 727574 LoneStarHog
LoneStarHog's picture

I am still waiting to see the reaction when a screwed homeowner fires the first shot, following Gerald Celente's Thesis:  When people lose everything and have nothing to lose, they lose it.

Mon, 11/15/2010 - 11:59 | 727579 SheepDog-One
SheepDog-One's picture

A guy here attacked a judge, beat him, and made him eat his own beard. :D

But it wont be on CNBC or NY Times.

Mon, 11/15/2010 - 11:59 | 727578 pat53
pat53's picture

The woman can't pay her mortgage, but has 2 dogs running around. LOL

Mon, 11/15/2010 - 12:07 | 727598 LoneStarHog
LoneStarHog's picture

The woman can't pay her mortgage, but has 2 kids running around. -- The difference is?

Mon, 11/15/2010 - 12:23 | 727643 Gone Full Retard
Gone Full Retard's picture

You can always eat your babies if things get reals toughs?

Mon, 11/15/2010 - 12:30 | 727668 Joe Davola
Joe Davola's picture

She could wok the dogs.

Mon, 11/15/2010 - 12:07 | 727581 goldmiddelfinger
goldmiddelfinger's picture

Poppy Harlow? Her parents didn't hate her?

 

 

 

 

.............................................................

Mon, 11/15/2010 - 12:02 | 727585 williambanzai7
williambanzai7's picture

Mon, 11/15/2010 - 12:39 | 727696 chindit13
chindit13's picture

Don't know why this would be junked, unless ZH has a lot of Florida judges.  Clever stuff, Mr. Bonzai.

Mon, 11/15/2010 - 12:42 | 727712 fuu
fuu's picture

Your work just keeps getting better and better.

Mon, 11/15/2010 - 13:12 | 727795 Cognitive Dissonance
Cognitive Dissonance's picture

WB7

Courtesy flush please! I'm begging you. Have some decency, will ya?

Mon, 11/15/2010 - 14:32 | 727978 williambanzai7
williambanzai7's picture

The judge stole the handle

Mon, 11/15/2010 - 12:03 | 727589 rapacious rachel wants to know (not verified)
rapacious rachel wants to know's picture

Fraud? I don't see no fraud. Do you see fraud? Sir, we have standards. You'll have to get in that line over there to place your so called evidence into the system. See it, the one that curls round the corner and out to the street where the police are arresting loiterers?

Mon, 11/15/2010 - 12:08 | 727599 No Mas
No Mas's picture

Another day, another disappointment for those here at ZH.  I have offered a clarification on this before, but since these kinds of articles continue to pop up, here is another look into the future regarding forclosures:

Banks will make money; lawyers will make more money.  No one will have to "show me the note."

Mortgage holders who default will be kicked to the curb where they will become renters, subsidized via Section 8 programs around the country. 

Mark to market will never be in the FASB playbook again and the Fed will never "exit" from the toxic assests purchased in QE 1.  Moderate inflation will be the norm and life will, inexplicably to most ZH readers, go on.

Now back into your bukers boys, bad news is-a-comin'!!!

Mon, 11/15/2010 - 12:12 | 727601 Fearless Rick
Fearless Rick's picture

Sung to the tune of "Jet Song" from "West Side Story"

When you're a judge, 
You're a judge on the take
From your first robo-signer 
To your last banker's take. 

When you're a judge, 
If the shit hits the fan, 
Appeals denied, 
You're in Florida, man! 

You never are wrong, 
And always so respected! 
The homes no one own
bank errors are neglected, 
No fraud detected! 

Then you are set 
With a big BofA, 
Which you always will get 
Till they cuff you some day. 
When you're in jail, 
You'll stay a Judge! 

Mon, 11/15/2010 - 12:13 | 727613 Gimp
Gimp's picture

Fraud in Florida?  Only half the elected officials in South Florida end up in jail for some sort of corruption. Half of the Palm Beach County Commissioners are either serving time or have been sentenced to prison in the past five years. The FBI has a huge office in North Miami Beach w 500+ agents and they can't keep up with the on-going bribes and corruption. No fraud here, move along.

Mon, 11/15/2010 - 19:43 | 728845 MaldelBot
MaldelBot's picture

Yeah. And we've only had like 75% of all convicted Ponzi schemers.

 

and the fed opened up a branch here to deal with all the paper money making it's way from overseas.

 

Yup, nada que ver a qui amigos. Move along....vamos.

 

(BTW am I the only one that wants to kill myself every time I see the Jim fucking Cramer add to my right?)

Mon, 11/15/2010 - 21:10 | 729111 StychoKiller
StychoKiller's picture

Go to:

http://www.mvps.org/winhelp2002/hosts2.htm

Follow the directions for installation, and most ads won't even get loaded by your browser.

Mon, 11/15/2010 - 23:16 | 729452 MaldelBot
MaldelBot's picture

 my eyes thank you.

Mon, 11/15/2010 - 12:17 | 727623 LloydCata
LloydCata's picture

Bush put a gun to Musharraf's head and the US Army used Pakistan

as a doormat to enter Afghanistan.

Goldman Sachs put a gun to Obama's head and the Banksters used the White House

as a platform to control the American economy.

Musharraf will return to Pakistan. Obama will return to Chicago.

Neither gun was loaded, because the blowback for using the gun would have been

more severe than the alternative...but neither victim had the brass to find out.

 

 

Mon, 11/15/2010 - 12:27 | 727658 Almost Solvent
Almost Solvent's picture

It was Hank Paulson (Goldman Saks) who put the gun to GWB's head and the Banksters used the White House and stayed along for the ride with Obama.

 

there, fixed it fer ya.

 

 

Mon, 11/15/2010 - 12:17 | 727625 Gone Full Retard
Gone Full Retard's picture

Can some explains this to me. I think my house was improperly foreclosed on because I did not pay my mortgage and everyone else is doings these strategic defaults so I said thats easy I can do this too.

What can I do? Can I sue the bank?

Mon, 11/15/2010 - 12:22 | 727641 Fearless Rick
Fearless Rick's picture

Sure, just sue the bank. Sounds so simple. You blew it on the first go-round, by not contesting the foreclosure. Now, do you have $5k to pay a lawyer? No? Sorry, but a little knowledge is a terrible thing.

Mon, 11/15/2010 - 12:26 | 727649 Gone Full Retard
Gone Full Retard's picture

Can I get one of the free houses? Like mines? For free?

I knew a girl in High School. Her name was Contessa... I wonder if she got a free house? Do you know?

Mon, 11/15/2010 - 12:30 | 727667 Almost Solvent
Almost Solvent's picture

It's easy to get your house back representing yourself (pro se).

 

Just head on down to your local courthouse and they will help you get your house back.

 

(/sarcasm, although I'm sure you're serious)

Mon, 11/15/2010 - 12:26 | 727644 Cognitive Dissonance
Cognitive Dissonance's picture

At 2:55 in the video.

Reporter: But are two or three minutes, is that enough time to look at a foreclosure case and make that final judgement?

Head Judge: Most of the cases where you see a property owner not there, that means that property owner has defaulted. So, when that is the case, then three minutes that the lawyers who we know say that everything is in order, then we feel like that's adequate time.

Reporter: But the lawyers represent the banks. Doesn't the judge need to look for his or her self?

Head Judge: We are not. I am not there to check every exhibit.

-------------

So the real question is this. What is the purpose of the presiding judge? To make sure the law is followed, even if the defendant doesn't show? Or to simply accept the word of "lawyers who we know" that all is in order?

Considering the voluminous MSM stories regarding missing paperwork and robo signed documents, should the judge presume the paperwork is in order after a superficial check at best and that the lawyers are acting in the best interest of the people's court?

That's what this is all about. The lawyers are presumed to be acting ethically and properly and are given great leeway when problems are discovered simply because they are "lawyers whom we know", meaning part of the club.

Presumably a lawyer from out of town (but from within the State) won't get this type of treatment.

Mon, 11/15/2010 - 12:40 | 727698 fuu
fuu's picture

I just want to know how we fight the death of the rule of law.

Mon, 11/15/2010 - 13:20 | 727806 Bob
Bob's picture

Yeah, I heard that too.  I don't think that presumption is literally limited to attorney's they know, however.  I think club membership alone is sufficient--consider the 100% rate of adjournments (postponements) for plaintiffs who don't have their cases "in order" (including even demonstrating standing!) when defendants show up with representation of their own. 

Sad, too, that CNN would appear to have cherry picked a case that would on its face garner no sympathy for the defendant . . . and even then failed to even say what the plaintiff bank's "paperwork" deficiency was.

CNN failed to really inform us of any of the substance of the allegations of fraud other than the speed at which cases are processed.  So lame!

Mon, 11/15/2010 - 15:40 | 728157 MachoMan
MachoMan's picture

I think the biggest issue here is that the lawyers may not even be aware of the issues surrounding title...  in other words, they never look at the chain of title...  the client comes in, says I'm the holder, they show an affidavit and a lineage of assignments, we do a cursory inspection, and head to court.  As attorneys, now that the issue has come to everyone's attention, we have no excuses not to inspect the documents more carefully we submit to the court.  Obviously, it is hard to implement a steadfast rule of diligence, but I believe in this particular case (the chain of title), it may be reasonable to expect attorneys (now that we all know of the issues) to perform due diligence on the chain of title... 

that said, the mechanisms are already in place for the fraud committed by the plaintiffs...  and no new rule is necessary...  you practice fraud on the court, you risk getting your judgment overturned.  Simple as that.  The court will also likely be required by the ethics committee to report the issue and the attorneys responsible...  so they will be reprimanded with fines/suspension/disbarment.

The rocket dockets simply expediently get those foreclosures out of the way where people refuse to contest the foreclosure (BECAUSE THEY KNOW THEY ARE NOT MAKING PAYMENTS AND ARE NOT ENTITLED TO KEEP THE PLACE).  If you think that there may be an issue with your chain of title, you are always free to utilize discovery to make that determination and, if so, as a defense to the action.  No one is playing hide the ball...  the documents in the cases finding fraud are fraud and caught because they are patently fraudulent...  (acknowlegments before conveyance, etc.).

Mon, 11/15/2010 - 17:19 | 728465 Cognitive Dissonance
Cognitive Dissonance's picture

My main question was.....what is the role of the judge(s) in this matter? I thought the judge was supposed to make sure the rules are followed if nothing else.

Considering s/he is "approving" the foreclosure, what amount of due diligence is required of him or her to make sure the law is followed, particularly if (but not just because) the defendant doesn't show?

Mon, 11/15/2010 - 17:47 | 728566 RichardENixon
RichardENixon's picture

You are making the assumption that what the judge is supposed to do is what the judge is actually doing.

Tue, 11/16/2010 - 12:48 | 728598 MachoMan
MachoMan's picture

The role of the judge essentially varies with the judge (I really am trying to answer the question).  Given our adversarial system, most of the issues of fraudulent acknowledgments/robo signing/etc. are beyond the court's purview.  Essentially, the court relies upon the adversarial position of the parties to come to the proper conclusion.  When one of the parties defaults and makes no appearance in court, the judge only has one barking dog in his ear.  Given the adversarial system, it is not the court's providence to make the defaulting party's arguments for him.  Some issues may be raised sua sponte, but by and large, the court just listens to the facts as presented by the only party there and then rules according to those facts.

Back to my original point, although not necessarily required to, some judges take it upon themselves to assure themselves at least most of the documents are ok on their face and they'll do a cursory audit.  This is where they may uncover patently fraudulent documents (latently fraudulent transactions cannot be determined unless admitted).  Given the amount of documentation involved in these cases and the size of the docket, there simply is not very much time to dedicate to a complete and total audit of all the documents presented.  As a result, a safeguard has been built into the rules of civil procedure, that allows judgments to be set aside in the event someone commits a fraud upon the court.

The court's job is to administer justice.  However, the degree of administration is hamstrung by the policy of judicial efficiency.  Where there is a dispute, judicial efficiency largely prevails.  Meaning, the court has limited resources and incredible demand for its time and as a policy measure, we've said push these things through and in the event there is a major problem, they can always revisit the issue with the court.

In summary, there are a myriad of competing factors and basically you're seeing one of the problems with an adversarial court system...  when one of the adversaries doesn't show up, justice may not be administered as best as could be.  Of course, the other side of the argument is that justice is always properly served against a party who slumbers on his right to defend himself.

Often times, practically speaking, courts are not much different than the robostampers...

Mon, 11/15/2010 - 12:34 | 727680 been there done that
been there done that's picture

OK, Question for all the smart people here on ZH.  What happens to home prices in hhigh inflation starts or even Hyper-inflation?  Is this why the banks are finally throwing people out? so they can't pat off debts easily like in Russia with worthless paper??? Gonzalo Lira seems to think that housing will FALL.  I realize most people need credit and now there is less, or none, so how can it rise? Oil/food/ bsic necessities/imports YES but housing???  Please weigh in.  Thanks,  Mr. Been There

 

 

Mon, 11/15/2010 - 12:38 | 727695 Caviar Emptor
Caviar Emptor's picture

Gonzalo is in the biflation camp, the one I've been banging the drum for here for a long time. There can be simultaneous inflation and deflation. Housing is vulnerable especially if raw materials and other input costs go up because US consumers will have less disposable income, less credit and less confidence. 

Bottom line, if the cost of homeownership and the cost of living rise, real estate will be under severe pressure.

Mon, 11/15/2010 - 12:35 | 727684 Caviar Emptor
Caviar Emptor's picture

Don' you get it? Rocket Docket is just a test case. You gotta think big: 

Foreclosure mills will expand to include small biz loan defaults, muni debt defaults, state government defaults and yes, even US debt defaults when the timing is right. 

It's the only way out: mark down the debt and start over. 

Mon, 11/15/2010 - 12:36 | 727685 JW n FL
JW n FL's picture

If the Banks are allowed to foreclose on $2.4 Trillion dollars worth of Peoples homes... that will be bad... for the Economy of the United States...

 

If the Banks are forced to refi all those 15% loans into 2% performing loans... the home prices will stabilize and the secondary market will have performing paper to trade...

 

If you are not smart enough to understand that, do the United States and favor and go shoot your-fucking-self... before you damage the rest of us any more.

Mon, 11/15/2010 - 12:40 | 727700 Joe Davola
Joe Davola's picture

You might have a look at the HAMP stats.

Mon, 11/15/2010 - 15:42 | 728163 MachoMan
MachoMan's picture

Who picks up the tab on the difference?  You?

Mon, 11/15/2010 - 15:46 | 728180 MachoMan
MachoMan's picture

Who picks up the tab on the difference?  You?

Thu, 11/18/2010 - 02:18 | 736951 JW n FL
JW n FL's picture

2% v. 15%.... the original loan amount need not change... thusly? what difference? 9% interest? that was bundled up and sold off at plus par... to be cut up and re-sold off at plus, plus par... to squared fucking infinity?

 

How about for $700b in TARP and the 0% FED window used to pay back those TARP funds we call it even.. as far as the potential losses?

 

So, the banks who sold this shit off at plus par... are we the people going, never mind we already have...

 

Putbacks? what do you mean who is paying for the difference you fucking idiot?

Thu, 11/18/2010 - 11:34 | 737695 MachoMan
MachoMan's picture

Sure, if you want to control all the constraints of waiving the magical wand and making americans solvent, then we can create any number of possible solutions.  The post before mine was correct, what happens to loans that are attempted to be reformed and made into performing?  Essentially, the fact of the real world, is that homeowners are hopelessly underwater and up to their eyeballs in ancillary debt.  In short, they have literally no ability to perform at ANY rate of interest.  Hell, you could come in at a severely negative rate and still people couldn't pay for it.

The other issue is, how do you change the interest rate of an instrument without affecting its value?  How do we refinance without paying off the note?  Who pays for the costs of refinancing?  In other words, who picks up the difference?

Mon, 11/15/2010 - 12:44 | 727721 de Cosmos
de Cosmos's picture

The law is an ass.

And, some people are very deeply into it.

 

Mon, 11/15/2010 - 12:55 | 727765 Amish Hacker
Amish Hacker's picture

The two most outrageous aspects of the "rocket docket," revealed in Taibbi's article: if the homeowner doesn't show up, or has the tiniest deficiency in his/her presentation, the judge rules for the banks. Next case.

If the bank's case has so many contradictions and blatant lies that even the corrupted judge can't swallow it, or if the bank's attorneys show up without any paperwork at all, the judge grants an extension, and the bank gets another whack at it next week. In fact, the bank can keep coming back again and again, changing its falsified evidence each time, until the hapless homeowner is finally out on the street.

 

Even more chilling, the judge threatened Taibbi after he tried to talk to one of the victims of this sickening travesty of justice. What the judges, the banks, and all the other weasels fear more than anything is that the truth should come out. So they light the afterburners on the rocket docket lies, and hope the truth can never catch up.

Mon, 11/15/2010 - 13:25 | 727816 Bob
Bob's picture

++

Pretty fucking lame to issue a continuance on a case in which the plaintiff has failed to even demonstrate standing

Hard to imagine anything more maniacally biased than that. 

Thu, 11/18/2010 - 02:24 | 736958 JW n FL
JW n FL's picture

the judge hearing the case... with just the banks esquires present.. plus the retired judges who have to clear the 60% plius back log in one years time... dont care that there is NO! representation for the home owners? fair and balanced? how can a judge, hear and decide a fair outcome in a one sided arguement? one sided motions? proven guilty thru a no show? for the sake of being able to close 1 case per minute?

http://floridalegal.org/

The lobby monies to protect poor homeowners within the beltway is just gigantic!

Mon, 11/15/2010 - 12:58 | 727772 mphre
mphre's picture

I paid off my mortgage a few months ago, received a satisfaction of mortgage, but never received the original note back (two written requests, no answer; have not hired a lawyer yet). At this point I assume they have no idea where the note is. And, my concern is that a holder in due course could attempt to collect on it.

Any thoughts on course of action, damages...?

Mon, 11/15/2010 - 13:11 | 727793 Cognitive Dissonance
Cognitive Dissonance's picture

Refinance and kick the can down the road. Purchase Gold and Silver with proceeds. The PM's will eventually be worth much more than the home.

Abandon home to local homeless and retire to Paraguay. I hear Bush as a few building lots next door to his humble abode for sale.

Mon, 11/15/2010 - 14:19 | 727942 Seymour Butt
Seymour Butt's picture

CD, heard Mengele might a room for rent in Assuncyon. Packing my bags.

Mon, 11/15/2010 - 13:32 | 727828 weinerdog43
weinerdog43's picture

1st, well done!  I've still got about 4.5 years to go before mine's paid for. 

But while your state law may vary, I would go down to my county clerk's office and formally get it filed showing you as the sole owner.  You'll have to inquire with the Clerk what that entails in your state.  Good luck.

 

Mon, 11/15/2010 - 14:16 | 727935 Seymour Butt
Seymour Butt's picture

Your assumption is the new reality. 

www.wheresthenote.com  or google "where's my note." 

 

Re: the promissory note is still outstanding.

While unlikely, it may be possible that some unscrupulous person could take the note and try to collect against you. You'll win because you have proof that you paid off the loan, but it will be a hassle and an expense to get an attorney to defend you.

 

Beware of attorneys with "good" intentions and not really specialized in RE. Scammers are coming out of the woodwork to cash in. 

 

 

Tue, 11/16/2010 - 04:27 | 730074 j0sh1130
j0sh1130's picture

fairly simple, make sure the reconveyance deed, or satisfaction, is recorded against the title of your property.  if whoever you are paying signed off on the document it should have been recorded as a matter of course.  as long as it is recorded, if anyone tried to collect, you go to court and show them the docs.  the originals are all well and great, but to think that in this day and age they are necessary is silly. 

Mon, 11/15/2010 - 13:18 | 727803 Fraud-Esq
Fraud-Esq's picture

Wait till these judges actually understand that some of this "mistaken paperwork" is the evidence of an early fraud committed in the banks securitization prospectuses against one party, now another party, in both cases wanting their cake and lying to get it.

Judges don't get it yet. Some do, most don't.  

Mon, 11/15/2010 - 13:27 | 727820 trav7777
trav7777's picture

like I've said before, the homeowner was just the human to put ink on a document to close the loop in a MASSIVE spiral of fraud.

Most of the iceberg is under the waterline...and it's a fucking big berg

Mon, 11/15/2010 - 13:52 | 727858 Fraud-Esq
Fraud-Esq's picture

true enough. Private banking cartel created more debt (money, inflation) and inflated more broader assets in the aggregate than any government Greenback experiment that I'm aware of.

I hope we've learned something here. The Greenback may not be the best solution and has its own risks, but at least we'd have some roads, bridges, autobahns, light rail to have our Depression with. 

Private bankers and their affiliates have the money, not the nation. We've been gutted. 

That should give the "all things private" and anti-Greenpback sect some pause.

I'm ready to issue Labor Notes memorializing WORK given to the country, put them in circulation as legal tender. That should support the deflationistas agenda and it's anti-bank, pro-labor, pro-employement, pro-infrastructure. They might even be able to afford their debt. To save banks (and capitalism), you can never follow the banker's advice. They're short term profit animals who will destroy their own system for a year's bonus. Fight the virus!

Mon, 11/15/2010 - 13:51 | 727866 johngaltfla
johngaltfla's picture

Bankster Lawyer: You're honor, there is no evidence of fraud in this case.

Judge: But the Social Security Number is 000-00-0000.

Bankster Lawyer: That's just a technical error, let me correct that real quick.

Judge: Okay.

Bankster Lawyer: There, corrected. Sorry about that your honor.

Judge: Yes, I see, 000-00-0001 is much better.

Mon, 11/15/2010 - 14:22 | 727951 Fraud-Esq
Fraud-Esq's picture

Motion to vacate judgment.

yeah. bank nightmare. ABA will probably change this too.  

Thu, 11/18/2010 - 02:29 | 736967 JW n FL
JW n FL's picture

I.                    PLAINTIFF LACKS STANDING AS IT DID NOT HOLD

THE NOTE AT THE TIME THE FORECLOSURE ACTION WAS FILED.

 

Plaintiff is not entitled to maintain an action in which it seeks to foreclose on a note which Plaintiff does not hold and own. Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975).  Every mortgage loan is composed of two documents – the note instrument and the mortgage instrument.  No matter how much the mortgage instrument is acclaimed as the basis of the agreement, the note instrument is the essence of the debt.  Sobel v. Mutual Dev. Inc., 313 So. 2d 77 (Fla. 1 DCA, 1975); Pepe v. Shepherd, 422 So. 2d 910 (Fla. 3 DCA 1982); Margiewicz v. Terco Prop., 441 So. 2d 1124 (Fla. 3 DCA 1983); RESTATEMENT (THIRD) OF PROPERTY (MORTGAGES) § 5.4 (1997).   The promissory note is evidence of the primary mortgage obligation.  The mortgage is only a mere incident to the note.  Brown v. Snell, 6 Fla. 741 (1856); Tayton v. American Nat’l Bank, 57 So. 678 (Fla. 1912); Scott v. Taylor, 58 So. 30 (Fla. 1912); Young v. Victory, 150 So. 624 (Fla. 1933); Thomas v. Hartman, 553 So. 2d 1256 (Fla. 5 DCA 1989); RESTATEMENT (THIRD) OF PROPERTY (MORTGAGES) § 1.01 (1997)   The mortgage instrument is only the security for the indebtedness.  Grier v. M.H.C. Realty Co., 274 So. 2d 21 (Fla. 4 DCA 1973); Mellor v. Goldberg, 658 So. 2d 1162 (Fla. 2 DCA 1995); Century Group Inc. v. Premier Fin. Services East L. P., 724 So. 2d 661 (Fla. 2 DCA 1999). 

            The subject promissory note is a “negotiable instrument” because it is an unconditional promise to pay a fixed amount of money and it was payable to the order of Irwin Mortgage Corporation at the time it was first issued. (§ 673.1041(1), Fla. Stat. (2009);  § 673.1041(2), Fla. Stat. (2009); § 673.1041(5),Fla. Stat. (2009);  and § 673.1091(2), Fla. Stat. (2009)).  Florida law establises three categories of those who are entitled to enforce a negotiable instrument:

(1)    The holder of the instrument;

(2)     A nonholder in possession of the instrument who has the rights of a holder; or

(3)     A person not in possession of the instrument who is entitled to enforce the instrument pursuant to s. 673.3091 or s. 673.4181(4).

§ 673.3011, Fla. Stat. (2009). 

In this case, Plaintiff originally filed a complaint with two inconsistent counts.  Count I stated the promissory note was lost and therefore the action was being brought under subparagraph (3).  Plaintiff, subsequent to the filing of the complaint, has now filed a notice of filing of the original promissory note.  Hence Plaintiff’s claim now is under Count II where Plaintiff alleges it is the “present designated holder of the note and mortgage with authority to pursue the present action.”  For it to be a holder, Plaintiff has to present evidence there was a transfer of possession and an endorsement by the holder prior to the filing of the law suit.  

This Plaintiff has not done.  Plaintiff has claimed to file the original promissory note.  However, it “bears an undated indorsement that appears to be a carbon/toner reproduction, not one signed in color ink.”  Paragraph 17 of affidavit by Gregory Clark.  Morevover, Plaintiff “has not submitted admissible evidence in support of its authority or power.”  Paragraph 18 of affidavit by Gregory Clark. 

The mere filing of the original promissory note subsequent to the filing  of the initial complaint is not evidence that Plaintiff was the holder at the time of the filing of the lawsuit. 

In this case, U.S. Bank failed to meet this burden because the record before the trial court reflected a genuine issue of material fact as to U.S. Bank's standing to foreclose the mortgage at issue. The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder's representative. See Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So. 2d 394, 395-96 (Fla. 2d DCA 1995); see also Philogene v. ABN Amro Mortgage Group, Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006) ("[W]e conclude that ABN had standing to bring and maintain a mortgage foreclosure action since it demonstrated that it held the note and mortgage in question."). While U.S. Bank alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the mortgage attached to the complaint lists "Fremont Investment & Loan" as the "lender" and "MERS" as the "mortgagee." When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000) ("Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss."); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations "have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable"). Because the exhibit to U.S. Bank's complaint conflicts with its allegations concerning standing and the exhibit does not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not establish its entitlement to foreclose the mortgage as a matter of law.

        Moreover, while U.S. Bank subsequently filed the original note, the note did not identify U.S. Bank as the lender or holder. U.S. Bank also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage. Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage. Accordingly, the documents before the trial court at the summary judgment hearing did not establish U.S. Bank's standing to foreclose the note and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor.

 

BAC Funding Consortium Inc. ISAOA/ATIMA, 35 Fla. L. Weekly D369 (Fla. 2d DCA Feb. 12, 2010).

Plaintiff has not established that it is the real party in interest, is in privity of contract with the true holder of the note or is shown to be authorized to bring this action. In re:  Shelter Development Group, Inc., 50 B.R. 588 (Bankr. S. D. Fla. 1985) [It is axiomatic that a suit cannot be prosecuted to foreclose a mortgage which secures the payment of a promissory note, unless the Plaintiff actually holds the original note, citing Downing v. First National Bank of Lake City, 81 So.2d 486 (Fla. 1955)]; Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975), See also 37 Fla. Jur. Mortgages and Deeds of Trust ‘240 (One who does not have the ownership, possession, or the right to possession of the mortgage and the obligation secured by it, may not foreclose the mortgage).

Since Plaintiff has failed to present any evidence that it obtained possession and became the holder of the promissory note prior to filing this complaint, this Court should grant Ms. Ponce’s motion for summary judgment and dismiss this case with prejudice.

 

II.                 THE UNDISPUTED FACTS SHOW THAT PLAINTIFF DID NOT HAVE THE RIGHT TO ENFORCE THE MORTGAGE AT THE TIME OF THE FILING OF THIS LAWSUIT.

 

Even if Plaintiff is the holder of the promissory note, that does not automatically give it the right to foreclose on the mortgage.   In this case, the undisputed facts show that Plaintiff does not have the right to foreclose upon the mortgage that was attached to the complaint.

Presumably, Plaintiff is relying upon the assignment attached to the notice of filing served on November 11, 2208.  That assignment is dated November 10, 2008, several months after when this suit was filed.  Hence, the assignment on its face is ineffective because it post dates the filing of the complaint.  Where a plaintiff does not own a mortgage or have any interest in the mortgage at the time of filing foreclosure action, the case must be dismissed for failing to comply with statutory requirements of standing.  See Davenport v. HSBC Bank, 275 Mich.App. 344, 347-348, 739 N.W.2d 383, 385 (Mich.App.,2007); Fleet Nat. Bank v. Nazareth, 75 Conn.App. 791, 794-795, 818 A.2d 69, 71 (Conn. App. 2003).

Furthermore, the assignment is a nullity regardless of the date because Mortgage Electronic Registration Systems, Inc. (“MERS”) was not granted the authority to assign the mortgage.  Gregory Clark’s affidavit, which has not been refuted, states:

5.        That said mortgage explicitly states in paragraph (C) on page 1 of the instrument (in bold print) that “MERS is the mortgagee under this security agreement”.

 

6.        The grant language which operates as the conveyance of the specific real estate lien interest to the mortgage appears on page 3, and reads as follows: “Borrower does here mortgage, grant and convey to MERS...

 

7.        According to said grant language MERS is the holder of said mortgage.

 

8.        That the mortgage, however, limits or restricts the mortgage conveyance to MERS by identifying said holder’s interest under the mortgage with the additional language: “Solely as nominee for Lender...

 

9.        Said mortgage further limits or restricts the holder’s grant by use of a redendum clause that does not grant MERS the power or authority to transfer or sell the mortgage, nor the power to assign or convey its interest or duties as “nominee.”

 

10.      The mortgage does not otherwise define the term “nominee” nor does it contain, by incorporation, any other written extrinsic document expanding the power or authority of MERS beyond that restrictively granted in the mortgage. Furthermore, the grant language contained in the redendum, utilizes conditional language that is vague and ambiguous rendering the grant indeterminate.

 

The original mortgage states that MERS is the nominee of the Lender and is the mortgagee.  As the nominee, MERS does not have the power or authority to assign the mortgage or the promissory note.

"The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. [Citation omitted.] Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. [Citation omitted.] The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust." Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo. App. 2009).

The Missouri court found that, because MERS was not the original holder of the promissory note and because the record contained no evidence that the original holder of the note authorized MERS to transfer the note, the language of the assignment purporting to transfer the promissory note was ineffective. "MERS never held the promissory note, thus its assignment of the deed of trust to Ocwen separate from the note had no force." 284 S.W.3d at 624; see also In re Wilhelm, 407 B.R. 392 (Bankr. D. Idaho 2009) (standard mortgage note language does not expressly or implicitly authorize MERS to transfer the note); In re Vargas, 396 B.R. 511, 517 (Bankr. C.D. Cal. 2008) ("[I]f FHM has transferred the note, MERS is no longer an authorized agent of the holder unless it has a separate agency contract with the new undisclosed principal. MERS presents no evidence as to who owns the note, or of any authorization to act on behalf of the present owner."); Saxon Mortgage Services, Inc. v. Hillery, 2008 WL 5170180 (N.D. Cal. 2008) (unpublished opinion) ("[F]or there to be a valid assignment, there must be more than just assignment of the deed alone; the note must also be assigned. . . . MERS purportedly assigned both the deed of trust and the promissory note. . . . However, there is no evidence of record that establishes that MERS either held the promissory note or was given the authority . . . to assign the note.").

Kesler v. Landmark National Bank, 216 P.3d 158 (Kan. 2009). 

Hence, the language in the assignment filed in this action which purportedly transfers the debt is a nullity and has no effect.  Sobel v. Mutual Development, Inc., 313 So. 2d 77 (Fla. 1st DCA 1975).  “An assignment of the mortgage without an assignment of the debt creates no right in the assignee.”  Vance v. Fields, 172 So. 2d 613, 614 (Fla. 1st DCA 1965). 

Recently, the Second District Court of Appeal, in a case very analogous to this one, reversed a summary judgment of foreclosure that was granted simply because the Plaintiff produced an assignment from MERS.  See Verizzo v. Bank of New York, 35 Fla. L. Weekly D494 (Fla. 2d DCA March 3, 2010).

Plaintiff is probably going to argue the principle of equitable assignment.  However, Plaintiff is precluded from relying on this theory as it did not plead equitable assignment.   Moreover, if Plaintiff does wish to refile and plead equitable assignment, then it would not be entitled to seek a money judgment for payments for taxes, insurance and other items that are contained in the written mortgage, but not the promissory note.  In addition Ms. Ponce would have other possible affirmative defenses applicable to a claim for foreclosure on an equitable lien which are not avaiable to a foreclosure of a written recorded mortgage.

Thu, 11/18/2010 - 02:37 | 736968 JW n FL
JW n FL's picture

Duplicate, the first one was long enough.. but good case law should be made available to all who need a helping hand crushing the banks!

Mon, 11/15/2010 - 14:31 | 727972 bugs_
bugs_'s picture

You do sixteen frauds, and what do you get, another day older and deeper in debt.

Man even the judges can't retire, Saint Peter don't you call them cause they can't go, they owe their soul to the robo.

Mon, 11/15/2010 - 16:31 | 728263 Zerohedge fan
Zerohedge fan's picture

Hey lawyers; contact all those homeowners before the court date.  That's the easiest money you ever make. And appeal the rulings, all docs is garbage.

During the French revolution the first to go were corrupt judges. Who likes them, anyway.

http://www.youtube.com/watch?v=lo5BBHtn4tM

Thu, 11/18/2010 - 02:27 | 736960 JW n FL
JW n FL's picture

the filing fees for an appeal... just the monies paid to the court... so that the case can be heard start at $5k...

Mon, 11/15/2010 - 19:52 | 728877 Kina
Kina's picture

Where is Robespierre when you need him? We need a Committee of Public Safety.

The aristocracy and their lackey judiciary need to mill around a guillotine.

Mon, 11/15/2010 - 21:58 | 729250 Bob
Bob's picture

Is it true that the head continues to live for 1 1/2 to 2 minutes after separation?  I'd love to get those last words . . .

Mon, 11/15/2010 - 23:40 | 729610 own (not verified)
own's picture

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Tue, 11/16/2010 - 04:24 | 730073 j0sh1130
j0sh1130's picture

this is a load of shit.  i think the banks can eat my ass.  but lets look at facts - if you, as a borrower, cant be bothered to show up to attmept to stop the foreclosure of your home, you are essentially admitting that yo have no case and, just like in ANY other court case, the juddge is not going to consider your side.  with this dumb bitch in the video - i get it, your life sucks, youve lost a lot and you cant figure out how to balance everything out.  i dont think youre a bad person and i feel for you.  but you have not made a mortgage payment in 2 motherfucking years!!  you should have been tossed out on your ass 18 months ago.  if you have not used that 24 months to try to get ahead and be prepared for the inevitable, then you deserve everything coming to you.  the borrowers need to stand up for themselves, the banks need to get their shit together and this whole scam of keeping worthless assholes in their homes is a joke. 

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