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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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there are many cases of people paying all their payments and still mistakenly getting foreclosed on and there are even many cases of people who owned their house outright, who had no mortgage that came home to a sheriff kicking them out of the houses. It is just that messed up. Clear title and ironclad propetry rights are one of the big differences between stable, lawful, orderly first world countries and third world banana republic countries where many plots of land lay fallow as twenty people argue over who owns the land.
All banks have to do is what they did twenty years ago, show they own the rights to take the property for an non-performing loan, otherwise they simply have an unsecured debt just like credit card company.
Also, it is law that if fraud was involved in mortgage, it is not valid. There are plenty of whistle blowers from former mortgage mills that admit to regularly forging/copying peoples signatures on papers they did not sign, people insisting on a fixed rate mortgage but the borkers sneaking a piece of paper in end of pile that gave them a bad variable rate etc...This is not from some whiney homeowner, this is straight from the horses mouths, the guys that brokered these loans everyday. They did not say they were doing it alone in a dark room but were in a sea of cubicles with everyone around them lying and cheating their mortgage customers. Fraud negates contracts, rightly so.
If banks do own rights the house, they can prove it, it will just take more time and money. Why should they not be reuired to follow the letter of the law? We regular citizens are expected to. Do laws only apply to little people?
First, you're arguing the exception and not the rule where debtors are up to date on their balances with banks and also get foreclosed...
Second, the fraud is not in mortgage origination (at least not as to the borrower heh)... Rather, the fraud is in documenting the assignments. Unless you can show a concert/civil conspiracy between all of the chain of assignment, I think you've got a hard sell on fraud as to the original mortgage. The fraud comes in when someone attempts to substitute a subsequent mortgage as having been validly assigned... and, this is fraud committed upon the court, not the homeowner, given privity. (Which is also what allows the court to set aside foreclosure decrees... as the court would likely not be able to do so for mere fraud against the debtor).
I understand where you are coming from as it is indeed fraud on the courts, but the rocket dockets are allowing said fraud and also robo signing foreclosure "hearings" and not following the rule of law... which is why this charge is being made in the first place.
But besides those who defaulted because they could not pay, there were were actions on the part of the banks and servicers which caused the default. Hamp turned out to be a way to protect the banks interest rather thn the homeowners and allow exhorbitant fees.
Look up parallel foreclosure and servicer fees for a list. (The servicer began the foreclosure procedure as soon as the modified payments came in as they were less then the mortgage ... that is not default and it was not the way HAMP was supposed to be offered ... or... the servicer lied and said they must be in default for 3 months to apply for a mod ... or they switched insurance companies and made them in arrears)
There are more which you can read about on the dozens of foreclosure sites including this guys...
http://4closurefraud.org/
What % of loans did HAMP affect?
Google is your friend. I am not about to search for 50 states and their complaints, but, you might search on the URLs I already gave. Being the HAMP stats are coming from the crooked servicers, I am not about to use the Gov stats to tell you how many actually were done by the books. (but here is the banks and their stats http://projects.propublica.org/bailout/loan_mods/list )
Also, remember that the 26 page AG report included the plethora of problems that servicers were inflicting upon homeowners, many in the name of HAMP! Please tell me I do not have to show you a URL for that... or tell you that the main points of it were to reiterate that banks and servivers follow servicer agreements, the law and the intent of the Hamp program.
This is a progression of URLS from a Reuters blogger that have links as well.
From the beginning it was a sham
http://blogs.reuters.com/felix-salmon/2010/08/23/the-cruelty-of-hamp/
And failed to do what it was (supposedly) set to do:
http://blogs.reuters.com/felix-salmon/2010/08/23/the-failure-of-hamp/
A prime example of the failure:
http://blogs.reuters.com/felix-salmon/2010/09/10/hamp-failure-of-the-day/
So what % would you GUESS HAMP was? 5%? 10? The point is, don't argue the exception...
So google on 'Jason Grodensky'. Folks have been foreclosed on without the benefit of a mortgage. Folks have been foreclosed on because the mortgage servicer 'lost' their payments, or simply delayed posting the payment so they could tack on high late fees, thus pushing folks over the edge. Zerohedge has noted some of this, Yves Smith has more. It's out there if you are paying protection.
Even huffingtonpost had an article in March about illegal foreclosures against active duty overseas military. The banks have dirty hands.
And then, there's the fraudclosure problem. You don't want to lose your house to the wrong bank, and then still owe the right bank. In foreclosure, the person who's late on payments has the right to be sure that after foreclosure, some other bank with the real paper won't show up and want payment.
you have now ...
"Jason Grodensky paid cash for a South Florida home last December. With no mortgage and full ownership, he had no fear of foreclosure.
And yet, Bank of America foreclosed on the house seven months later, according to the South Florida Sun Sentinel. The court-ordered foreclosure took place July 15.
Grodensky tried for months to get answers from the lawyers and lenders involved. He got nowhere until ..."
http://tinyurl.com/2fco7lw
Spoken like someone who hasn't been paying attention. (actually morelike a banker) Spouting the "it's all the borrower's fault" bank line isn't cool. There are still some people still living in their homes after years of defaulting and not paying a dime... mansions, because the banks are too afraid the homes will be trashed as the homes will be sitting unsold. So why are the banks picking on those who made payments and need help to CONTINUE to do so, have foreclosure procedure begun the moment they can't make a single payment?
The people that you are talking about, deadbeats who wanted to flip or live outside their means are either long walked away or are baby sitting properties for free.
And speaking of secured loans, the securitization process was also fraudulent. I suppose you also think it is ok that the notes were destroyed and not delivered to land titles, that the chain of title Docs were forged, that no one knows who owns the homes because the mortgages were chopped up and sold in CDOs, that no one was following the rule of law?
Not to mention all the taxes and filing fees the bankster pricks beat local governmnets out of. Sure, a lot of homeowners deserve some heat for bad decisions but they should not be alone in taking their lumps. I don't know how accurate the estimates in this link are but it is certain that it is not an insignificant amount of money the banks evaded by not paying the required monies that should have gone into the chain of title documents.
2. Property Tax Cost: As housing values decline, property tax revenue losses are estimated to be $3.8 billion – $2,058 property tax loss for every foreclosure.
3. Local Government Cost: Foreclosure-related costs for multiple agencies and multiple levels of government for maintenance of blighted properties, sheriff evictions, inspections, public safety, trash removal, and other costs are estimated
to be $17.4 billion – $19,229 cost for every foreclosure.
http://www.homedefendersleague.org/wp-content/uploads/2011/03/Home-Wreck...
Please explain the legal basis for your assertion that the banks beat local governments out of transfer fees considering the vast majority, if not all, have passed legislation not requiring assignments to be recorded and, further, even if they are required to be recorded, this is only to be afforded priority protection from the state.
This is a NYT article from March about MERS and how it worked (didn't work)
http://blogs.cfed.org/cfed_news_clips/2011/03/mers-it-may-have-swallowed...
MERS failed in keeping a chain of titles, while at the same time allowing the destruction of notes and he coverup of improper mortgage securitization practices while quickly making loans available to be sold over and over again
This county deeds officeer would like to have the money owed them for recording fees.
http://www.nakedcapitalism.com/2011/02/mers-endgame-nearing-one-county-s...
I will bring to your attention that MERS reps own account, "it took no part in the assignment of the Note in this case, but merely provided a database which allowed its members to electronically self-report transfers of the Note."
Yes. MERS is a defunct piece of shit business model... we get it. However, please provide me the legal requirement for ANYONE to record a lien. The proposition is simple, record to take refuge in the locale's recording acts (get priority) or roll them bulls and take your chances. It may also be such that only the original mortgage must be recorded and all subsequent assignments are not even required to be recorded (uniform law)... your response does not deal with these fundamental issues...
Those fundamental issues you are referring to are THE PROBLEM that is still not being addressed. I am not here to deal with the problems... just comment on them.
The fact is that you Americans have messed up your recording of titles, securitization and even basic loan banking standards by adopting MERS. The reason Canada is not yet in the same mess you are is because the banks were required to follow a standard and it is enforced that they and there were few subprimes and actually require borrowers to show their assets before securitization. That way the taxpayers who are on the hook aren't shafted.
I didn't mire the US in this s**t and am not at all interested in which states do/did not have laws that require proper title or note tranfers. But I am pretty positive that they all had a requirement to at least record with MERS within 90 days... which some banks did not do.
Please stay on topic. What does this have to do with the necessity of paying recording fees.
So it's full gangster nation, then. I'm rooting for the deadbeats in that scenario, sorry.
same crap going on in Maine....and if you can believe this one....
we have a bill going thru the legislature here that requires a bank to show the court the mortgage document when it starts foreclosure proceedings.
the banks are fighting this tooth and nail. seems their "word" that they hold someone's note should be good enough.
we now have a fraudulent economy legitimized by a government. .....institutionalized and state-sponsored theft.
Clearly with a bill drawing attention to the matter, the Judges have no capacity to say that they aren't aware of the problem. If the bill doesn't pass, they still have the discretion to require it in every case when it is presented just because it's necessary to the case and they feel like seeing it. Ajourn if they don't have it, but make it clear that we won't be talking again unless they are handing it up to the Bench.
when you have been proven liars, your word is no longer good...the funny thing, is there will be many cases where the evidence they are presenting is legit but now their cost of litigation just shot sky high because every inch, every word, every signature will be sucritinized, no one will stipulate to anything, and judges will have to agree with need for more proof than a Linda Green signature given the massive evidence of fraud in many jurisdictions.
And that increased expense should be used to the fullest against them by prospective debtors facing foreclosure... or who have already been foreclosed. Nobody should want the houses back... but, they can knock the hell out of any deciciency or get a helluva down payment on the next house they default on. The shit clings to all the parties it should and the world can rejoice.
Finally these good for nothings at the ACLU are doing something useful.
Have a clue.