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Merrigan v. Bank of New York | ACLU Charges High-Speed Florida Foreclosure Courts Deprive Homeowners Of Chance To Defend Homes
ACLU Charges High-Speed Florida Foreclosure Courts Deprive Homeowners Of Chance To Defend Homes
April 7, 2011“Mass Foreclosure Docket” In Lee County Ignores Procedural Safeguards In Rush To Clear Cases
FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org
CAPE
CORAL, FL – The American Civil Liberties Union today filed a petition
in a Florida appellate court charging that the foreclosure court
system in Lee County systematically denies homeowners a fair
opportunity to defend their homes against foreclosure.
The
special “mass foreclosure docket” established in December 2008
operates under rules that differ substantially from those that govern
the rest of Lee County’s civil cases and was designed to speed through
as many foreclosure cases as possible without providing homeowners
facing foreclosure a meaningful opportunity to develop their cases or
present defenses, according to the petition.
“Operating against
the backdrop of well-documented disarray and fraud in mortgage
documentation, the shortcuts taken in Lee County courts mean that
homeowners may never have a meaningful opportunity to refute faulty
evidence supposedly supporting foreclosure,” said Larry Schwartztol,
staff attorney with the ACLU Racial Justice Program. “By elevating
speed over accuracy, Lee County subjects homeowners to foreclosure
proceedings that violate the due process rights guaranteed by the
Constitution.”
The petitioner in the ACLU’s case, Georgi Merrigan
of Cape Coral, FL, is facing foreclosure after leaving her job as a
flight and ground paramedic to care full time for her husband, who
suffered massive injuries in a catastrophic car accident. Merrigan has
every intention of vigorously contesting her foreclosure case. But
because Merrigan’s case is assigned to the “mass foreclosure docket,”
the ACLU charges that she cannot get a fair shot at defending her
home. The ACLU’s petition asks that Merrigan’s case be re-assigned to
the general civil division so that she will be afforded due process
under the Florida and U.S. Constitutions.
“No one should ever
have to go to court with the deck already stacked against them,” said
Howard Simon, Executive Director of the ACLU of Florida. “Nowhere does
it say someone is entitled only to the justice we have time for. We
can’t allow the basic protections of due process to be the victim of
judicial shortcuts.”
The ACLU’s petition is the culmination of a
months-long investigation into foreclosure court systems throughout
the state of Florida, where media reports have long suggested that the
constitutionally-protected due process rights of homeowners have been
ignored in a rush to push foreclosure cases through the courts. With
one in every 288 housing units in foreclosure, Lee County has the
highest percentage of foreclosures in the state of Florida, arguably
the epicenter of the nation’s foreclosure crisis.
According to
the ACLU’s petition, officials in Lee County seek to clear the
foreclosure court docket as quickly as possible, at the expense of
complying with basic procedural rules. Despite explicit instructions
from the chief justice of the state supreme court that reducing the
backlog of foreclosure cases should not “interfere with a judge’s
ability to adjudicate each case fairly on its merits,” judges move
through cases at lightning speed, sometimes seeing as many as 200
cases a day, according to the petition.
“Despite the extremely
high stakes for homeowners, procedural violations in the ‘mass
foreclosure docket’ are rampant,” said Rachel Goodman, an attorney
with the ACLU Racial Justice Program. “Homeowners face systemic
handicaps, and banks get a pass in proving their cases because the
courts have effectively suspended the rules that give homeowners a
chance to review the evidence against them.”
About 25 percent of
Lee County’s population is black or Latino, and government data show
that the foreclosure crisis across the country has disproportionately
impacted communities of color. According to a recent report by the
Center for Responsible Lending, nearly 8 percent of both African
Americans and Latinos have lost their homes to foreclosures, as
compared to 4.5 percent of whites. Additionally, the indirect losses in
wealth that result from foreclosures as a result of depreciation to
nearby properties will also disproportionately impact communities of
color. The Center for Responsible Lending report estimates that by the
end of 2012, the African American and Latino communities will be
drained of $194 and $177 billion, respectively, in these indirect
“spillover” losses alone.
Be sure to check out the case files below...
Explosive...
www.4closureFraud.org
Merrigan v. Bank of New York - Appendix
»
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Give credit where credit is due. (no pun intended)
Speaking Through Data
The only way to prove fraud - is by proving fraud.
Bravo Michael O.
$3.95 Stock Trades at OptionsHouse. Why Pay More?
Not sure if You Saw this Yet, But worth Reading: Wednesday, April 6, 2011 Banks Win Again: Weak Mortgage Settlement Proposal Undermined by Phony Consent DecreesWow, the Obama administration has openly negotiated against itself on behalf of the banks. I don’t think I’ve ever seen anything so craven heretofore.
As readers may recall, we weren’t terribly impressed with the so-called mortgage settlement talks. It started out as a 50 state action in the wake of the robosigning scandal, and was problematic from the outset. Some state AGs who were philosophically opposed to the entire exercise joined at the last minute, presumably to undermine it. Not that they needed to expend much effort in that direction, since plenty of Quislings have signed up for the job.
The supposed leader of the effort, Tom MIller of Iowa, promised criminal prosecutions, then promptly reneged. His next move was to get cozy with the Treasury, presumably out of his interest in heading the Consumer Financial Protection Bureau. Federal regulators, such as the OCC and the Fed, who do not like being upstaged by states, were similarly keen to exert “leadership”, which really meant “lead a hasty retreat from anything that might inconvenience the banks.” So Miller, who was supposed to be representing the interests of the states, was instead working with the Treasury et al. to beat the state AGs into line (and separately, since the state and Federal legal issues are very different, the idea of having a joint effort was questionable from the outset). Not only have some Republicans (predictably) rebelled, but so to have the more aggressive Democrats, such as Eric Schneiderman of New York, Lisa Madigan of Illinois, and Catherine Masto of Nevada.
May the people rule this nation again ... someday ... .hopefully sooner
which people might that be? The minority who imposed the american revolution? The majority who imposed the welfare nanny state? White males above the age of 18? How far back we going?
so let's summarize. In order to save time and money...the mortgage holders never registered the debt in the lawful land registry system. Instead they actually circulated spreadsheets of the mortgages.
When the defaults occured...they started forclosure mills with people swearing documents that they had never seen.
Can you say broken chain of title/ownership boys and girls.
The reality is that the banks KNOW they fucked up and they KNOW they are on the hook for the toxic paper they resold.
The only way out for them is to forclose as fast as possible and flip the property to anyone that will take it so that the asset is sold before anyone can lay challenge the paperwork...OR it depreciates any further.
Don't let trivialities like the law get in the way
Might Makes Right as the banksters say.
Fail. Foreclosing with fraudulent paperwork has gotten them in the whole fiasco... It is their worst nightmare. About the only possibility for covering their tracks is a re-fi... and that's not without drawbacks.
Macho, first I have to say I'm still scarred by the way the Ms. Elizabeth thing went down.
I'm over it now. Yesterday you remarked about the Moll brief being excessively lengthy. If you can suffer through the speed issue here is a link to the lawyer who filed it on Power Talk Radio. (Some of the callers were a little flipped out as well.)
Atty G. Babcock on Property Law Today recording, 4/3/2011...
He explains the need for "over-lawyering".
Burn the banks.
Here is all the evidence we need.
Are you making your payments? No?
Then get the fuck out.
Anybody who argues otherwise is just a grifter trying to get something for nothing....well not nothing...they have the chutspah to believe they should have taxpayers pay for their house by giving them a subsidy.
Here's all the eveidence we need.
Did you lend money to someone who couldn't pay you back...expect not to get paid back!
You can't tell me 1 out of 8 Americans are grifters! I'm not a person that doesn't pay his bills, but those with the money knew damn well who they were lending to at the time. Those same lenders couldn't care less, cause they were selling the loans the next day in a packaged CDO in Europe or to your pension plan. WTF do they care? They got bailed out already, and are still getting ZIRP!
You lose a manufacturing job to some $2week guy in China, you pay 10k or more in taxes and see GE pay zero as they park money abroad, then see how much sympathy you have for TPTB instead of the guy clinging to the roof over his head.
You are taking the exact path they want all of us to take! Blame your neighbor, keep it local, don't look at the big picture. Your rant is misdirected.
That is all the evidence you need to enforce a contract, get a judgment, and then enforce the judgment... a mortgage, not so much.
An ACLU lawsuit is not going to put a stop to this. What WOULD put a stop to it is an American version of the Mexican "el Barzon" movement, followed by Fannie and Freddie being funded to repurchase the CMOs (with appropriate haircuts for the morons who bought this stuff [and also preserve said mrons' right to go after the banks for whatever they can get]) and also to take the servicing away from the banks and create a modern-era version of FDR's "HOLC" so that homeowners can get back on their feet and stay in their homes.
If anyone doesn't think people who were paying their mortgages got screwed around by lenders and servicers, then at the very least you know nothing of Fairbanks Capital and Ocwen.
So your solution is that people like me who pay our loans on time should pay for your house too?
Our government already decided that you/we should pay for others (people/banks/us government) that don't pay their loans on time, or otherwise handle their finances responsibly! We're calling it bailouts, and as far as TPTB are concerned, it's OK for us little guys to pay for the big guys mistakes, but not for them to pay for their own mistakes they made by lending to those that couldn't pay it back! Until those in positions of power lead by example, why should we keep walking the straight and narrow? Why shouldn't the banks PROVE they have correct documents? How much complaining have you done about paying off the big guys Bailouts or QE? When the guilty aren't punished it creates an attitude that it's acceptable.
Oh...and i dispute your assertion that these innocent little angels are paying on their mortgages.
Of course you dispute it! Why read about those who were screwed when it wasn't yourself who got the shaft? -.- I am wishing you and your ilk some Karma
A unicorn with a free lunch skewered on its horn.
Way to show up in the middle of the movie, ACLU.
If the cavalry showed up before the opening titles, it would be a short movie...
pinocchio judges,pinocchio lawyers, KILL GEPPETTO!!!!!! (the bankerzzzzzz)
Although I am Canadian I have been reading a lot about the foreclosure fraud. We might be catching that same cold if we aren't wary.
Most people remain ignorant as it "isn't happening to them" but being most Americans are just a few steps away from unemployment and are not immune to illness, accidents and injury, it would be wise if more people paid attention to the real economy (it ain't the stock market although of course they are sadly too intrinsically tied)
Whether you like it or not, most people's wealth are tied to their property, people's property values are tied to their neighbours and everyone is at risk. And the situation is getting worse and will continue to do so because the foreclosure fruad is a pandora's box that the Government refuses to open and the banks are trying to sit on.
The 'rocket dockets' in Florida are reprehensible. The court system has been in collusion with fraudulent banks and servicers to screw homeowners out of their rights and to hide the fact that documents are fraudulent. Matt Tabbi did a piece on the lapse of judicial protocol in this article from the end of 2010:
http://www.rollingstone.com/politics/news/matt-taibbi-courts-helping-ban...
I am wondering if the transparency that the Internet brings, with instant spread of the incredible stench of hubris/arrogance of banks, their surrogate 'paid bitches' in the legal system who defend their corporate interests, does not plunge into dire embarrassment this stinking clique at having their fragile 'fig leaf' of 'judicial privilege' torn to shreds before the very eyes of the world. A bit like Julian Assange has torn the mask from criminal arm twisting of 'state department' in its dealings with corrupt surrogate despotic clients. Butt kicking in public of these incestuous bastards is never too good to contemplate for any true lover of justice...Kick away, kick away...the stench of corruption...like muck to be flushed down the tube.
But there has to be due diligence to put the whole bunch away...a recurrent enduring process...not just a 'flash in the pan brand' of popular indignation that dies like a brush fire and lets the rot set in again.
Not really. The necessity for rocket dockets arose out of the abundance of home note defaults, not faulty paperwork between banks. Whether the particular entity foreclosing can prove it is the real holder is irrelevant... the rocket docket would have to be created anyway out of rudimentary triage of court time.
It was called a rocket docket because if the homeowner failed to appear (which often happened because the entire foreclosure process of notification was not followed and no papers were served, are you saying you think it is ok for the judge to not even look at docs and just rubber stamp the rubber stamped fraudulent documents? Ouch... May I ask what your profession might be?
How can there be any justice when that is allowed? Why do you think there is so much fraud when even lawyers and judges do not follow the rule of law?
Here's a newsflash bud. If ANYONE does not make an appearance in a lawsuit within the requisite amount of time, they default... regardless of whether a rocket docket or otherwise.
It was called a rocket docket because the cases were decided quickly. The court was narrowly focused and the time to trial was short. The issue before the court was, generally speaking, incredibly simple: did they default? Yes. Ok. Foreclose.
The issue was not notification (generally, failure to effectuate service according to law is grounds to VOID a judgment)[somtimes rendering it only voidable]. The issue was passing off fraudulent assignment documents as the real deal and, further, swearing to the Court they were legit... clearly, a rocket docket does not properly account for these issues.
How can there be justice? Do you really think justice necessarily entails rigidly following a procedure, all else be damned? You haven't the slighest clue of what justice is... And yes, I think justice is largely served where people do not care to contest lawsuits against them have a judgment rendered against them... In this particular case, it was because they knew they were in default of their promissory notes and mortgages and there was nothing to litigate... What your justice entails is giving the debtors a second chance to lose the lawsuit... placing them back in a home they cannot afford only to go through the process again shortly thereafter.
If you want to talk about justice, talk about why there have been no perp walks for the financial fraud...
Hello? besides not being you "bud", this was no court proceeding. The banks did not follow procedure, not did the lawyers. A judge got overtime pay to sit at a table and do his or her version of rubber stamping of a pile of documents. That is not the court process AND once the judges knew that the documents were fraudulent, the process should have been shut down!
I hope they have to eat their "work" (and their rubber stamp) and get a whole lot of "redos" as well as fines for not following procedure.
Thank goodness a few are actually looking at the documents and acting like real judges.
Ok. So it was sanctioned by the legislature/courts... it was in a courtroom... a judge decided it... lawyers were present... the decisions rendered from it carry the authority of the state... but yet it wasn't a court proceeding... got it.
And yes, rest assured that those persons who have been foreclosed upon will come out of the woodwork to get a slice of the pie. Either they will come out or plaintiffs attorneys will drag them kicking and screaming to court... they'll be there with bells on. There will be plenty of re-do's.
PS, these are real judges... they were asked to dispense with all of the cases in a quick fashion given the sheer number of them...
Wow just-looking, you are way out of touch. The mortgagee may be behind in his payments but the banks can't even prove they hold the mortgage paper because it has been packaged and sold to who knows who. You should search for last week's 60 minutes interview and watch it.
Oh dear, this is rich "... nearly 8 percent of both African Americans and Latinos have lost their homes to foreclosures, as compared to 4.5 percent of whites. " = yes because they should have never been given loans in the first place. They did not qualify.
This is the same stupid argument that black make up a higher % of prison inmates than the general popluation, yes, again it is because a higher % of black commit crimes.
ah, actually no, Hurdy, blacks don't commit more cirmes in general...just one example, on drug crimes, many studies, including FBI say blacks and whites use and traffic in drugs at same rates, latinos actually use drugs less than rest of us. And yet blacks are disproportionately arrested for drugs, are more likely to be convicted for same crime once arrested, recieve disproportionate sentences compared to whites for same crime etc..
Think about it, if you had to sell some drugs and did not want to be caught, which scenario would make it more or less likely you would end up in jail, being black, selling drugs in a black neighborhood, or being white and selling drugs in a white neighborhood? If you were facing a jury, which are almost invariably mostly white, even in black majoiryt jurisdictions, which would you rather be when jury decided your fate, black or white?
But... but... it was just-looking who said that! I was also disagreeing that blacks are more likely to commit crime.
sorry hurdy, got lost in the string...
perhaps thats why the ACLU is finally getting involved......doubt they care about the 4.5% of whites
the propaganda machine owns your mind, free yourself.
do you think ACLU is biased, they have defended free speech of KKK types as well as all other types
Ah, I see. I made the mistake of replying to you as though you were an adult who is well read and intelligent.
That you can make the argument about blacks and latinos, when the banks targeted those individual with liar loans (the banks and the brokers falsified incomes and didn't take the important step to have verification documents) to feed their fraud and CDO "business", and the white collar criminals are not in jail as you comment... is ludicrous to say the least.
agreed, they were massively targeted and cheated...again, stats show that mortgage brokers were more inclined to try to cheat black people, latinos compared to whites. Blacks were consistently offered worse rates than Whites etc.. Many mortgage brokers admitted they could screw 95 out of 100 of their clients, and they just chose who they wanted to prey on the most.
The other thing people ignore is the fact that the biggest amount of dollars defaulting is among prime loans, these are people that had good FICO scores but were given too much money, with no money down, at one point in Cali, if you had good FICO and you had a house to back it up you could get a million dollar no matter how small your income, and this had nothing to do with Fan or Fred or push to get people into homeownership, it was all about housing bubble mania, and all finance by people that bought commercial paper from Country Wide etc..
I was a mortgage banker and broker. I also worked for banks. I did it from 1986 thru 2010. I didn't renew my license for 2011. I worked in Chicagoland - including Chicago. I'm white and I can't begin to tell you how many referrals I had from non-whites for one simple reason: the cheating and gouging that their former L.O.'s, of their own color/culture, perpretated upon them. I'd review closing statements and my eyes would bulge when I saw the various fees and YSP. I frequently would say "we make used car dealers look like saints" due to the blatant over-charging. That's NOT the issue here, though. Like Willie Sutton, many people figured out that "mortgage lending" was where they could steal A LOT of money - "because that's where the money is at." You therefore had fraudulent purchases and mortgage companies, appraisers, title companies, etc - stealing a lot of money. But THAT'S NOT the issue today, either. You had FNMA/FHMC and Wall St working to maximize earnings by buying just about any mortgage security. Underwriting standards were a joke and I knew it. This was all, falsely, based on one premise: real estate never declines. I thought that HIGHER interest rates would be the catalyst for the ending of the music for that game - how could it NOT be, rates were artificially kept low by Greenspan, etc. in the aftermath of 9/11. The "catalyst," though wasn't higher rates, but the popping of everything that Wall St had manufactured over the preceding 5-10 years.
Next? I had many people tell me, post 2008, that they'd sell their house WHEN prices stabilized and resumed their upward movement. I'd tell them "do it now because the boom was artificial." They didn't believe me and how could they - weren't they hearing/reading about "green shoots" and the NAR saying "next Spring!" and more? Starting in 2007 I begged some of my friends to sell properties that were holding "to get rich" or they had outgrown due to kids moving out or whatever. None did. About 16 months ago I told them "no way out" from financial mess and, sadly, concluded, that all of us needed to start purchasing some "emotional insurance" in the event that "real bad" actually happened. I was referring to gold and silver. No one purchased any. Today? There is STILL "no way out," but our society, bless them, is too busy with "life" and so, like the proverbial frog in the slowly burning pot......
But people who don't make their mortgage payments - regardless of the reason? They should be foreclosed upon and let the market clear. Until that happens.....
very interesting, it does hurt to think lots of insiders knew the housing market was unstable and myth, but now people lose all the money they put into house....insiders knew it was bubble, but regular folks just trying to not get left behind from appreciation
your candor is much appreciated and referring to mortgage banks making
"used car dealers look like saints" was priceless.
So is the marginal difference between the white rates and the colored rates what caused default?
In the end, everyone, regardless of skin color, took out loans they could not repay... or, at the very least, should have known they could not repay. The analysis does not need to be any deeper or convoluted.
Liar loans are also called Ninja (No Income, No Job or Assets) loans if you care to Google them. The banks made them because they could destroy the note, make copies of it, bypassed the county office so it could be in MERS (liar loan heaven) and sell to investors. Who cares if it is a bad investment when all the risk was passed on and still called AAA secured and the bonuses keep on acoming and oh look, knowing you were offering Ninja loans through your servicers/meant you can also short the product knowing it was going to fail!
Gee, I wonder why banks want that Pandora's Box sealed? (the real criminals who should be filling the jails... but then again the best way to rob a bank is to own one, right)
No, that is all crap. You either paid your mortgage, and have the proof of payment or you did not pay and there is nothing else to "defend".
Not ONCE have I ever read that someone who made every mortgage payment was foreclosed. The only foreclosure are against people who have not paid their mortgage.
I do not want to hear about why you should shold not have taken put the mortgage ot the 2nd mortgage or the home equity ... You took out a secured loan and defaulted. Period. Very simple.
Take any opersonal items that you have paid for and move along.
just_looking with banker blinders on. Why do you hate due process under law?
It's not crap, and it's just not that black or white an issue. These bastard banksters artifically inflated home appraisals and have been screwing home buyers by the millions. Wake up and smell the fraud! In my case, Quicken loans originated my mortgage and screwed up the escrow impound, then Chase takes over as servicer and 10 months after closing demand an extra $900 a MONTH for a year, then an additional $400 a month over and above what I agreed to pay! Despite repeated my attempts to work out a compromise, Chase wouldn't even admit there was a problem; my way or the highway! These bastards all deserve to go down; I'm glad the ACLU is beginning to recognize this and stand up for the "little guy".
Ummm... the appraisers artificially inflated appraisals... because they were told "high" (for the question of "high or low")... this was done by all involved whenever it suited their purposes... if the appraisal was higher, the buyer might not have had to pay MI... and/or was better able to qualify... this benefitted all parties... hence, the proliferation.
Too bad the home buyers are the only ones properly situated for the climactic anal scene. It looks like a nymphomaniacal whale pounding guppies to me. What an orgy.
This is patently ridiculous. At what point do adults have accountability for their actions? If duress is not a defense to all the mortgage execution, what is your justifiable explanation for taking out the loans? Helocs?
Do you really propose that someone has NO IDEA they're at substantial likelihood of default when they sign the docs? That on a $50k/year salary a $400k mortgage is appropriate?
The Monster : How a Gang of Predatory Lenders and Wall Street Bankers Fleeced America--and Spawned a Global Crisis
Michael W. Hudson
Introduction:
Bait and Switch
A few weeks after he started working at Ameriquest Mortgage, Mark Glover looked up from his cubicle and saw a coworker do something odd. The guy stood at his desk on the twenty-third floor of downtown Los Angeles's Union Bank Building. He placed two sheets of paper against the window. Then he used the light streaming through the window to trace something from one piece of paper to another. Somebody's signature.
http://www.investorsinsight.com/blogs/john_mauldins_outside_the_box/archive/2010/10/25/how-a-gang-of-predatory-lenders-and-wall-street-bankers-fleeced-america-and-spawned-a-global-crisis.aspx
Also interesting is The Best Way To Rob a Bank is To Own One, by William Black.
An interview: http://www.portervillepost.com/pdf/The_Best_Way_To_Rob_A_Bank.pdf
Businessmen should pay first. It's like your client or mine, they should be able to rely upon us as professionals to be honest--we can't hussle them or fuck them. You know how it is. Unless, of course, we're professional criminals.
Can you please explain what this has to do with debtors knowing they could not repay the loans? Yes, we know they fraudulently executed many documents... what they did not fraudulently execute was the original note and mortgage... the one the debtor signed...