Trawick on FLA 4th DCA Decision: “ROCK SOLID”

MOST POPULAR ARTICLES

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

“Orsini did not know who, how, or when the data entries were made into Home Loan Services’ computer system,” the decision states. “Orsini could state that the data was accurate only insofar as it replicated the numbers derived from the company’s computer system.”

EDITOR’S COMMENT: Those of you who have downloaded or received the Attorney’s Workbook will see the same reasoning and wording as contained in this decision. A competent witness satisfies four elements: OATH-PERSONAL KNOWLEDGE-MEMORY- COMMUNICATION. It’s basic law. Signing an affidavit is less credible than live testimony, so it is subject to more stringent adherence to the rules of evidence. The banks have tried to skate past the these requirements by adhering to common practice, hoping it would get by. It did, until now.

Thousands of Summary Judgments were granted based upon affidavits of people who knew nothing about the the status of the debt or anything else about the homeowner’s transactions with the pretender lender. They are all defective judgments and all subject to being reversed. It has taken a long time to get to this point, but we have turned the corner. While this decision doesn’t touch the core of the accounting problem for homeowner liability on mortgage obligations — the amounts paid and traded by third parties that should have been credited to the amount owed tot he investor/lenders — it paves the way for attorneys to seek and get the truth.

Most of the loans were not in default because the servicers and other parties were paying vast sums of money to the investment bankers who created the loans and the bogus mortgage bonds that funded the transactions. At the end of the day, when every dollar has been counted, the investors and the borrowers will have some interesting questions and claims for the intermediaries who inserted themselves as principals in a line of transactions in which they were only conduits.

This is about the truth and being heard in court on the merits, not on presumptions and innuendo about the character of borrowers. Even if the borrowers want a free house, that does not justify giving the house away to a pretender lender who has even less invested in the house than the borrower. And if the mortgage was defective and did not attach to the land as a lien, the debt is unsecured.

You can kick and scream all the way to the ideological house of horrors that brought us this mortgage mess; we are either a nation of laws or a nation of men. Our founders chose a nation of laws. Collateral damage and collateral benefit is a natural consequence of the application of general laws to specific situations. It usually works out better for those with the most money and the best lawyers. This time, maybe, the tables are turned. Attorney Ice, aptly named for this work, has brought home the bacon — establishing that just because you don’t like the result doesn’t mean you should abandon the rule of law.

Fla 4th DCA: Faking It Won’t Make It

By Kimberly MillerPalm Beach Post Staff Writer
In a decision that could have staggering implications on foreclosure proceedings statewide, an appeals court ruled Wednesday in favor of the owners of a Wellington home whose bank filed documents sworn to by employees with no personal knowledge of the case.

The ruling from the 4th District Court of Appeal reversed in part a 2010 Palm Beach County Circuit Court summary judgment that said homeowners Gary and Anita Glarum owed LaSalle Bank $422,677.

That amount was based on an affidavit of indebtedness signed by loan servicer employee Ralph Orsini, who pulled the information from a company computer ­– a move that appeals court judges said amounts to hearsay.

Orsini did not know who, how, or when the data entries were made into Home Loan Services’ computer system,” the decision states. “Orsini could state that the data was accurate only insofar as it replicated the numbers derived from the company’s computer system.”

The ruling means the home on Amesbury Court, which has been in foreclosure since September 2008, can’t go to a foreclosure sale until the bank either gets another summary judgment or goes to trial. The Glarums still live in the home.

Tom Ice, whose firm Ice Legal represents the homeowner, said Wednesday’s decision hits at the essence of the nation’s foreclosure robo-signing scandal in which tens of thousands of foreclosure court documents were signed by people swearing that they had personal knowledge of cases when they did not.

While some lenders called the document problem a technicality, foreclosure defense attorneys called it perjury and fraud.

Foreclosures came to a virtual standstill in the fall after the robo-signing revelations were made as banks worked to revamp their processes and redo paperwork where they could.

Between July 1, 2010, and June 30 of this year, 104,126 foreclosure cases were dismissed in Florida’s courts, often by lenders needing to refile pertinent paperwork.

“Bank officers cannot simply regurgitate what they read off computer printouts,” Ice said. “This has been a major battleground in foreclosure cases.”

A message left for the bank’s legal representative, Orlando-based Butler & Hosch, was not returned Wednesday.

The appeals court ruling was called “rock solid” by Sarasota-based attorney Henry Trawick, an expert on Florida’s judicial rules and author of Trawick’s Florida Practice and Procedure.

He said a valid affidavit of indebtedness would have to be sworn to by the person who actually entered the information into the computer system. He expects the decision to further snarl Florida’s courts.

“I think a whole lot of summary judgments on these foreclosures are not valid because of this,” said Trawick, who is also concerned about how allegedly bogus affidavits will affect getting clear title to homes. “The real problem ahead of us is years to come when all these properties are being sold.”

But not everyone is convinced of the magnitude of Wednesday’s decision.

Palm Beach County Chief Judge Peter Blanc said while it sets precedent for similar cases, it’s too early to tell what the implications will be.

Fort Lauderdale attorney Shari Olefson, who represents banks in foreclosure cases, said the ruling doesn’t change what’s been going on since the robo-signing scandal broke.

“The people I’ve been talking to have set aside affidavits and have to start all over again,” she said. “This is pretty consistent with the way things have been going.”

About these ads

39 Responses

  1. @marilyn – so what do you have pending now to set aside the sale? what’s the plan?

  2. @tnharry

    I have sent the book already to everyone I want to have the book.

  3. Sorry to add confusion to everyone. I’ll go with ANON, so we can be differentiated. i P– ME OFF, how every so called entity known and unknowns in collusion made their money then. Now its our turn to turn the tide. May they all be brought to the forefront and be NAMED, so everyone else can know them too. The whole chain from closing, lender, substitute (FAKE) trustee, pretented lender, investers, title companies, judges, lenders attorney, MERS,all those incorporated in the loop of fraud, may they face the same fate they put us through.

  4. not exactly a catchy title…

    do you have anything pending to set aside the sale?

  5. @marilyn – how do i get the book?

  6. @tnharry

    Yes I do and it is all described in a book I wrote entitled
    “Saccharin Sweet & Sleazy Judge Alice Schlesinger of New York Supreme Court Perpertrated Title Fraud with Thomas P Malone of Fidelity National Title and David K Fiveson of Coronet Title.”

  7. @marilyn – do you have proof of this bribe you’ve mentioned 15 times on this site? because if you don’t each one of those is libelous. just a word of caution – you could suddenly find yourself liable.

    if you do, then stop telling us about it — go to the news, the AG, the board of judiciary, the FBI, etc.

  8. @carie

    Lets figure out a plan. What I have noticed is that all the officiers at the Title companies keep playing musicial chairs with their positions.

    William P Foley CEO of Fidelity, past chair of LPS DOCX among other titles, retires from a position as soon as the corruption at one of his many entities starts to become exposed.

    When the only thing stopping me from getting possession of my two condos after the Bank admitted they auctioned off my two properties without ever owning them was the corrupt title companies that paid a
    bribe to Judge Alice Schlesinger for her to rule against the US Supreme Court case of Elliot v. Piersol. (on court juridiction)

    I wrote a simple letter to William P Foley “what went wrong at Fidelity that your NY attorney finds himself fighting for a forged deed?”

    Fidelity’s anwer was …it is proper..

    This was a little before the fraud of LPS DOCX being in the business of producing any and all documents for the banks to be able to procure a fraudulent foreclosure with their computer programs and and their network attorneys and their corrupt connections with the courts and land records, not only in New York but all other the country.

  9. So how DO we expose the title company crooks??? ‘Cause I’ll do it…

  10. Some people think if you have lost possession of your property by fraud there is nothing you can do and it is time to go on. I don’t

    I will not rest until the shysters living in my properties that knowingly bought the forged deeds with the help of corrupt title attorneys Frank P Malone of Fidelity National Title and David K Fiveson of Coronet Title get thrown out.

    We must start exposing the crooks at the title companies that are siding with the banks hiding the fraud so that they don’t have to indemnify.

  11. the comment below is not me either

  12. The ANONYMOUS below is not ME — that (some) of you have come to know and love (ha-ha).

    Neil — either ask me to change my “name” — or ask the new ANONYMOUS to change his/her name. This is confusing to long time readers of your blog.

  13. I have something of the same– So, offer to modify? So what you give the the paperwork by way of a do over. Of course, the paperwork would likely be fixed in a do over. I too, have a letter from the lender thanking me but strongly suggests that should I go this route, that it be better if I did it though them, this servicer and–Everyone out there is a a scammer, just not them and their motives when one has their back up against the wall. Other thing to be aware of, don’t let you Homeowners Association move in on you, behind your back, as a tactic to force foreclosure. It pushes us to get informed legal assistance.

    That’s another thing to be mindful of. One family I know went to mediation last week with a probono attorney. The comments spoken back in discussion made me to know that this legal assistance was superficial, and just was there to take care of the moment. But she didn’t seem to have any knowledge or interest, and about the bigger picture discussed here, it didn’t exist in their conversation. So, this pro-bono attorney to say the least had no backbone to put forth to support this family, even in the mediation. What good was she? A filler like junk food to the body.

    The only comment she seemed to put forth to these people was that in Maryland, nothing holds, nothing works. They know somethings, more than the representation, and because they are kinda country type folk, she didn’t give them anything to boost their case, but she served to be adversarial in discouraging them.

    However, I support because we know the servicers are caught at this time, more and more between a rock and the hard place. It’s about time, these servicers have painted to many families into a corner, with their threats and tactics to FALSELY forclose on people’s home. Brazenly ARROGANT, the servicers never thought they would be caught, and CALLED OUT. It needs to keep happening. Cause the truth is the truth, and they need to be held to THAT TRUTH. They did it.

  14. MUST WATCH/LISTEN IF YOU HAVEN’T ALREADY!!!

    Former Assistant Secretary Of Housing Catherine Austin Fitts’ brilliant and insightful explanation of the TRUTH—problems and possible solutions—do yourself a favor and really listen to what she is saying:

  15. WOW!!! We keep asking when banksters and attorneys will go to jail for what could be the most historic PONZI SCHEME known to mankind? Is it because they know something most homeowners & investors don’t? Well the article I just read has shaken me to my core!!! Will someone PLEASE confirm that this is article is NOT TRUE? Check it out and let me know your thoughts..

    Perjury is not enforced in Civil Court –
    http://www.court-house.com/?p=11

    Judge’s Letter -
    http://www.court-house.com/pdf/judge_stuart_letter.pdf

  16. WHY ISN’T BOSCO IN JAIL?

    After years of reports of self-dealing, in-house robo-signing and outright lying in Court, Tiffany and Bosco is coming under the scrutiny of Judges and law enforcement. I have received dozens of uncorroborated reports about Tiffany and Bosco, telling me that Bosco utilized his secretary and his father as straw-men in friendly transactions that resulted in Bosco taking ownership of a house that never should have been foreclosed in the first place.

    The practice of allowing the bid to slip quietly to friends has, according to all reports, been endemic to the entire foreclosure scenario. Since the Banks are not actually losing any money on these deals (having used investors money), they are allowing some properties to go to preferred people thus allowing a person to pick up a house that originally sold for $600,000 for as little as $40,000. I have personally seen US Bank fight tooth and nail for property that is of dubious value — except to the neighbor nearby who has wanted to grab it for years. I have no proof, but the deals out there probably include sharing fees and expenses of litigation and potentially contracts to sell the property to “friends of the bank” long before the foreclosure or long before the litigation is over.

    To those who have received such benefits I would say, besides shame on you, that you are in a position where you could be liable for what you have done. You didn’t just buy a piece of property. You entered into a conspiracy to deprive a homeowner of their rightful home.

  17. A couple of blurbs from the Brennan Center for Justice E-Newsletter:

    Ohio Legal Services Providers Sign Amicus Brief in Case Before State Supreme Court Challenging Banks’ Ability to Foreclose Without Proper Paperwork
    Jim Phillips, “SEO Legal Services weighs in on big anti-foreclosure lawsuit,”Athens New, September 5, 2011

    Athens New writes: “An attorney with a local legal aid agency has signed onto a ‘friend of the court’ brief filed with the Ohio Supreme Court in a case that could have a big impact on home foreclosures in the state. The brief, in U.S. Bank National Association v. Antoine Duvall, was submitted Aug. 16 by Peggy P. Lee of Southeastern Ohio Legal Services, along with representatives of many other legal aid agencies and activist groups around Ohio. SEOLS and others who signed onto the amicus curiae brief have been involved in the Save the Dream Ohio project, a statewide foreclosure intervention initiative, and they report that since 2008, they collectively have represented more than 12,000 homeowners in various foreclosure-related actions. The Duvall case is complex, but essentially addresses a growing legal issue that could seriously impact home foreclosures in Ohio: the issue of whether a foreclosing bank can actually prove that it owns the mortgage. . . .Lee of SEOLS said in foreclosure cases, the strategy of demanding that the foreclosing party produce the actual mortgage documents has been catching on among homeowners, which has led to a number of cases around Ohio in which appellate courts have come to different conclusions on whether you have to have the mortgage documents in hand to take a foreclosure to court. ‘There’s been a lot of different opinions from a lot of different appellate districts,’ she said, which is why the state Supreme Court has been asked to review the question. Lee and other legal-aid lawyers want the Supreme Court to rule that before a plaintiff has standing to sue for foreclosure, it must show that it owned the note and the mortgage when the complaint was filed. If the court rules this way, she predicted, it could potentially affect hundreds of thousands of Ohioans facing foreclosure. ‘It could very well mean that future foreclosures will be more stringent for the plaintiffs,’ that is, the parties trying to foreclose, she said.”

    and then……

    Under New Restriction, Minnesota Legal Aid Groups Unable to Bring Lawsuits in Federal Court with State Dollars
    Paul Demko, “Legal aid groups wrestle with new restriction,”Saint Paul Legal Ledger; September 7, 2011

    The Saint Paul Legal Ledger reports: “State funding has been ‘hugely important because of its flexibility,’ said Catharine Haukedahl, executive director of Mid Minnesota Legal Assistance, one of the state’s largest providers of legal representation to poor individuals. ‘We would prefer not to see less flexibility.’ Organizations receiving state grant dollars can no longer use that money to pursue federal court cases. A little-discussed provision in the public safety budget bill is causing headaches for legal services organizations across the state. The legislation states that ‘priority must be given’ to clients with cases in state courts when spending state dollars. Despite the seeming ambiguity in that language, legal aid groups are interpreting it as a prohibition on spending state dollars to litigate cases in the federal courts. It’s the first time that state funds for legal services have been restricted in such a manner. . . . Sen. Warren Limmer, R-Maple Grove, chairman of the Senate Judiciary Committee, says the provision was simply intended to remind legal aid organizations about the proper use of state dollars. ‘There was discussion about whether or not mission creep has affected legal services over the years,’ Limmer said. ‘This was a reminder to legal services that we should keep in mind the original intent of the funding.’ . . . . The state budget allocates $22 million for civil legal services during the current biennium. . . . . The 11-member Legal Services Advisory Committee, which is appointed by the Minnesota Supreme Court, is responsible for allocating $1.5 million of that money. It’s part of a two-year, $4.1 million grant pool that comes from three funding sources. The restriction on spending has already altered the grant process, said Bridget Gernander, the state’s legal services grant program manager. Most notably, the advisory committee decided to use only non-state funds in making grants to the Immigration Law Center of Minnesota and the Advocates for Human Rights, which work almost exclusively on federal court matters. In addition, the relevant language from the legislation was included in each grant contract in order to make certain that legal aid organizations are aware of the change. . . . . The change comes at a time when legal services groups face dwindling budgets. The court system was one of the few areas to largely avoid the budget axe in the deal reached in July. But legal services was an exception, taking a 6.8 percent cut. It could have been much worse: The initial bill passed by the Legislature contained a 17 percent reduction in spending for legal aid. . . . . The restriction on how state dollars may be spent is already changing the way that legal aid groups do their work. It’s causing organizations to implement additional administrative tasks to track state dollars so that they can prove to legislators that none of it is being spent on federal cases. . . . It also could alter where aid groups file lawsuits. If they have a choice between seeking redress in state or federal courts, they may be more inclined to choose the former in order to allow the use of state funds.”

  18. carie,

    Yes. CFPB – however, is not yet set up to take mortgage related complaints — currently only taking credit card complaints. Mortgage related complaints — may not be available for review until at least the end of the year — maybe next year.

    So — have to keep all going — until CFPB can review — no guarantee — but, nevertheless, have to hold out.

    Too many people have a financial interest. But, will not last forever — without eventual full exposure.

  19. Christopher King how is the case in Orange County, CA going.

    Be Strong and Courageous

  20. Right on, ANONYMOUS. The sooner everyone wakes up to the fact that it’s all unsecured debt—and starts treating it that way—the sooner we can start rebuilding our lives, and hopefully have a more transparent financial system…isn’t that why the CFPB was formed?

    But, I guess the truth—ugly as it is—is just too hard to accept for some people…

  21. This has been going on in states like NJ — already.

    “Hear-say.” Not valid — and Florida had been already starting the same.

    Quote –”that does not justify giving the house away to a pretender lender who has even less invested in the house than the borrower.”

    Absolutely — and those (subprime) undisclosed “lenders” were the debt buyer “investors” — from the onset — by which, the “pretend lenders” did their dirty work for.

    But, the undisclosed lenders did not lend anything other than cash-out — did not have to — they purchased (unsecured) collection rights —for a steep bargain — and these debt buyer bank “investors” — funded very little – if anything. But, they leveraged the collection rights ANYWAY. Leveraged the collection rights over and over for derivative CDOs and squared CDOs — for — collection rights to unsecured charged off debt. Not a pretty picture — but– the truth.

    The “investors” — had almost nothing invested in their unsecured investments — they wanted your home — and dirt cheap — period.

    The problem is that so much has been covered up — it is now extremely difficult for the fraud to be exposed and admitted. But — certainly, within our means. However, it will take everyone here to be on board — and not seeing that yet. Seeing whining “investor” debt buyers — still trying to (secretly) claim your home.

  22. Damn guys, POTUS is back on my journal pages…. and the theme you will see is a continuing pattern and practice of corruption:

    http://mortgagemovies.blogspot.com/2011/09/potus-is-back-at-kingcast-reading-more.html

    MONDAY, SEPTEMBER 12, 2011

    POTUS is back at KingCast, reading more about dirty Columbus, Ohio school board issues and the unprecedented Gene Harris “No Confidence” Vote.

  23. Basel III was attended by thousands of bankers and financiers from around the world.

    Basel IV will be attended by a few bands of wandering nomadic hunter gatherers seeking sustenance among the ruins.

    Thanks Jamie!

  24. @ A man,

    I have a few chosen words for Jamie Dimon… but I will limit it to “delusional”…

    Hey Jamie, pal, did you consider that America represents only a mere 5% of the world population but in the past years, you and your cronies bankers have managed to ruin the world economies with your bright ideas, your scheming, shamming, conniving, fraud and what not? Don’t cry now that nobody trusts us and everyone wants to protect itself against your malfeasance: it’s your master piece. You worked very hard to get there. And by the way, this, buddy, is only the beginning. Have you noticed that here, in America, we’re all waiting to see you stripped of everything and reduced to one of us. Have you noticed that more and more of us are actually doing something to see it come to pass?

    The good thing is that you, as everyone of us, will have to croak one of these days. And believe you me, you will meet your creator. You might want to start thinking about that one… You’re fairly young. You can still make amends. Don’t wait too long though.

    And for the rest of us: this post is still very encouraging. Since a year ago, 104,126 foreclosures have been dismissed just in FL alone. That’s a heck of a lot better than what was happening two or three years ago. Multiply that by the number of states involved and I clearly see headways. Banks now have to decide whether they want to refile after having incurred attorneys and legal expenses and many of them simply won’t. It’s becoming too darn expensive to keep on cheating. So much so that BofA is streaming down. Other banks have laid off as well. pretty soon, we’ll be able to move on to community-based banks and put the whole thing behind us. So, it may be slow but I see progress. What we need to do is keep on fighting.

  25. Go Christopher King,
    Can you please create last few words of US Constitution
    Send written Complaint – First Amendment Petition To Redress Grievances humbly seeking authority to enforce law. The State Governor under Oath as Commander-in-Chief to enforce laws of State of New Jersey.

    The Money Laundering, Wire Transfer, Identity Theft Fraud, etc., all acts exempted c/o Office of Comptroller of Currency – Federal Reserve System Oversight, visitorial powers enforced 2002 c/o Supramacy Clause.

    All ‘Mortgage Servicer’s affiliates of National Banks ‘exempted’ from unlawful business acts, where by, the Senator your are speaking with and former State AG do not have ‘authority’ to enforce laws.

    The root of the matter and frustration you have experienced and document so eloquently, must incorporate the ‘exemptions’ I’ll send some of them in email to you.

    Kind Regards,

    Keep up the excitement and your health for the ‘stress’ they cause when a Corporation is taking over a Soverign Government is deadly.

  26. Here is some news

    http://stopforeclosurefraud.com/2011/09/12/breaking-bank-of-america-expects-to-cut-30000-jobs-in-next-few-years/

    Let the Whistle Blowers begin.

    Money Talks B%llSh#t Walks

    http://quotes.wsj.com/BAC

    Death watch

  27. just as interesting – http://www.leagle.com/xmlResult.aspx?page=5&xmldoc=In%20BCO%2020110906461.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7

    creditors’ attys in NY should be smarter by now. all it takes is a note with endorsements and/or allonges, but they still present absolute crap to the courts.

  28. i found it. http://www.4dca.org/opinions/Sept%202011/09-07-11/4D10-1372.op.pdf

    it’s certainly interesting and a slight setback, but the decision seemed to be more technically based on the hearsay exception and the Orsini affidavit not meeting the strict requirements. i bet they regroup, make a better affidavit, and try again. a victory, but likely a temporary one.

  29. i’d rather read the opinion myself than take one paragraph as the gospel. anyone seen a link to it?

  30. Neil—your last sentence says it ALL:

    “…establishing that just because you don’t like the result doesn’t mean you should abandon the rule of law.”

    Moral hazard my A**!!!!

  31. On the affidavit in my case the affiant only listed two of the four servicers I made payments to.
    I did point it out to the court. But I have already discovered the win in my case, so this is extra gravy.

  32. RIGHT—I am Joe Schmo and I work for the Wizard of Oz and I have the right to take your house—so there!

  33. Correct. Faking it will not make it. Nashua PD have now promised to investigate the forgery and wire fraud issues I complained about 8 friggin’ years ago!

    How I forced Nashua PD’s hand to investigate Forgery and Wire Fraud on Mortgages: Senator Ayotte still silent…… I paid her ass a video visit three times now about these issues….. I can’t wait to see how this goes!

    http://mortgagemovies.blogspot.com/2011/09/nashua-pd-to-investigate-mortgage.html

  34. MOVE ALONG! Nothing to see here … That affidavit , signed by a mill attorney self identifying as an officer of ABCDEFG BANK or ghij Servicing or WXYZ as Trustee who had no personal information or knowledge is absolutely perfectly valid and that’s that!

  35. [...] Livinglies’s Weblog Filed Under: Foreclosure Law News, Foreclosure News Tagged With: crisis, foreclosure, [...]

  36. So a start over is the only thing that happens? What if we object again to their new perjured “estimate?”

    I have many things going on that I prefer to be called perjury and fraud rather than allow a start over. The paperwork would likely be fixed in a do over. I have a letter from the lender thanking me for honoring my commitment to pay, sent a month AFTER the alleged default, and the discovery documents verify the same. If I bring this up, will I just have to start all over? I don’t think can handle this again. The stress is awful.

  37. [...] See original article: Trawick on FLA 4th DCA Decision: “ROCK SOLID” [...]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 3,119 other followers

%d bloggers like this: