Florida Laws

  1. florida-foreclosure-procedure
  2. florida-recording-requirements
  3. ORIGINAL NOTE REQUIRED: fl-statute-90
  4. Florida Rules of Appellate procedure
  5. florida-defines-mortgage-fraud-pretender-lenders-included
  6. florida-usury
  7. florida-lending-laws
  8. Florida Laws on ID Theft and Mortgage Fraud: florida-id-theft-and-mortgage-fraud-statutes
  9. mers-mortgage-electronic-registration-systems
  10. see also Fla Stat 701.02 For Recording Requirements
  11. 4TH DCA CONFLICT WITH 2D DCA ON STANDING, NECESSARY AND INDISPENSABLE PARTIES. 4TH DCA SAYS MERS HAS NO STANDING. 2D DCA SAYS YES IF THEY PLEAD THE RIGHT WAY. BUT THE ARGUMENT DOESN’T END THERE. standing-versus-necessary-and-indispensable-parties-florida-2d-dca-holds-that-fact-that-mortgagee-mers-lacked-the-beneficial-interest-in-note-did-not-deprive-it-of-standing-to-sue-azize
  12. florida-id-theft-and-mortgage-fraud-statutes

120 Responses

  1. From America’s No. 1 Litigation Support group Consumer Rights Defenders who you can reach today at 818.453.3585:

    UNPRECEDENTED CIVIL JURY VERDICT FINDS MAJOR U.S. BANK GUILTY OF FRAUD BANK BREACHED MORTGAGE AGREEMENT IN CASE BROUGHT BY U.S. GOVT. FRAUD INVESTIGATOR
    Jan 30, 2013 – Washington, DC: In October 2012, an historic civil jury verdict in the District of Columbia found that OneWest Bank, which also does business as IndyMac Mortgage Services, violated DC’s consumer protection law by breaching its contract and committing fraud against the plaintiff, Ross Yerger (“the customer”) – a Special Agent with the United States Secret Service. Actual damages were awarded and accompanied by punitive damages and attorney fees. This is the highest level at which any such case has been decided against a financial institution in favor of victory for the plaintiff.
    This case is also being considered by the United States Attorney’s Office for additional action and has already been considered similar in nature to the current Bank of America lawsuit filed by the U.S. Government. The case citation is Yerger v. OneWest Bank, No. 2011 CA 000706 in the Superior Court for the District of Columbia. JR Howell, Esq. of JRH Legal Strategies represented the customer.
    In August of 2009, OneWest Bank, solicited the customer into joining its “Equity Accelerator Program.” Under that program, OneWest promised to debit the homeowner’s mortgage payment in two bi-monthly installments every month for the remainder of the loan. OneWest said that the program would result in over $170,000.00 in interest savings and a gain of nearly $70,000.00 of equity in ten years. OneWest Bank’s promises were reduced to a written agreement.
    The program was not executed as promised. The bank never debited any money from the customer’s account. However, the bank consistently charged the customer hundreds of dollars in late fees. The customer repeatedly cured the bank’s failures by making the mortgage payment manually, including the fees that were charged because the bank failed to make the debits. Each time he made these payments, he was told the debits would continue under the program as agreed. But that never happened.
    Several months later, the customer was threatened with foreclosure. The bank’s lawyers told the customer to pay $9,878.22 to stop the foreclosure in August of 2010. The customer immediately paid this amount, but three weeks later the customer received that payment back from the bank, which said it was refusing to accept the payment. The foreclosure was scheduled for October 21, 2010.
    The bank’s lawyers then demanded over $16,000.00 a few weeks later, otherwise it was going to sell the customer’s home in a foreclosure sale. The customer came up with the money. At trial, several thousands of the dollars were labeled as miscellaneous fees and remained unexplained. Hundreds of dollars were never applied to the customer’s account and remained unaccounted for at trial. A witness for the bank was unable to explain why the customer was charged several thousand dollars in unspecified fees and what the bank did with hundreds of dollars of the customer’s money.
    A few days later, the customer was sent a mortgage statement rife with accounting errors, saying that the customer was a month behind on his mortgage-even though the bank told him that the $16,000.00 payment would bring him current. Even though the bank’s lawyers told him the accounting error was fixed, the following month he was sent a mortgage statement demanded three times his regular mortgage payment. OneWest Bank refused to accept the amount of the regular monthly mortgage payment and demanded the customer pay the full amount that they insisted. In deposition, the witness for the bank confessed that these statements were mistakes. But at trial, the witness recanted this statement and restated that the November 2010 statement was accurate. Neither the bank, nor an independent auditor completed an audit of the customer’s account.
    The lawsuit began in January of 2011. When the summons was served on the bank, the customer’s legal counsel sent a letter with the complaint, explaining that there was no need for litigation to fix this issue and that the parties could negotiate their differences amicably. There was no response to the letter. Instead, OneWest Bank forced the customer to undergo two years of protracted litigation, as well as surveillance on the residence by the bank’s contractors and other harassment.

  2. If you need a great Foreclosure Defense Attorney call the Carman Law Firm, P.A. has participated in hundreds of commercial and residential real estate transactions, loan modifications, short sales and foreclosure defense cases, Or their website http://floridaforeclosuredefenders.net

  3. Does The Florida Supreme Court Require Residential Mortgage Complaints to Be Verified?
    June 13th, 2012 | Author: Matthew D. Weidner, Esq.
    THE JUDGE: Go ahead, please.
    5 MR. WEIDNER: Please the Court, Your
    6 Honor, Matthew Weidner on behalf of William
    7 Donovan. As the court is acutely aware,
    8 this Florida Supreme Court passed the rules
    9 requiring plaintiffs to verify every
    10 complaint. That rule is effected in 2010.
    11 The complaint that stands before the
    12 Court, the amended complaint, was required
    13 to be verified pursuant to the rule. To
    14 the extent that opposing counsel may argue
    15 to the contrary, I’ll present to the Court
    16 the case, it’s JPMorgan Bank versus Jurney.
    17 The cite is 37 Florida Weekly D.
    18 May I approach?
    19 THE JUDGE: Yes.
    20 MR. WEIDNER: So there was an argument
    21 that the plaintiff’s side made regarding
    22 whether or not the verified complaint rule
    23 was in force and in effect during the time
    24 period that there was a rehearing pending.
    25 I believe it was Shapiro Fishman, in fact,

    that filed the motion for rehearing before
    2 the Florida Supreme Court, and they
    3 unfortunately left out a key sentence in
    4 their motion for rehearing; and that is
    5 they needed to ask for the application or
    6 enforcement of the rule to be stayed
    7 pending disposition of the rehearing.
    8 They did not, and so they can’t even
    9 credibly make the argument that the
    10 enforcement of the supreme court rule
    11 should have been stayed during that period.
    12 But that’s subsequently been definitively
    13 answered, there’s just no question what the
    14 — residential mortgage foreclosure
    15 complaints must have been verified
    16 beginning February 2010, period. The
    17 complaint before the Court is not verified
    18 and so we move under 1.420B to dismiss the
    19 complaint for failure to comply with
    20 Court’s order or rules of the Court.

    36204 HEARING 051412.full
    http://www.scribd.com/doc/97140194/FL-Hearing-Transcript-The-issue-of-Complaint-Verification

  4. BELOW SHOULD SAY FL 3RD IN NATION BEHIND CA AND NV
    AZ IS 4TH IN HOME PRICE DECLINE

  5. SPECIAL INSPECTOR GENERAL REPORT-APRIL 12 2012- FACTORS AFFECTING…..

    SOME ASTOUNDING STATISTICS WITHIN–FL HOME PRICE DECLINE AT 37.4% AND IS 3RD IN NATION BEHIND CA AND AZ

    OTHER STATS……

    http://www.scribd.com/doc/89529518/CA-38-9-NV-49-9-FL-37-4-AZ-36-8-Declines-in-Home-Price-report-on-FACTORS-AFFECTING-IMPLEMENTATION-Special-Inspector-General-for-TARP-Report

  6. South Florida Foreclosure Defense Attorney who ‘Gets it”: Dillon Graham Esq. 305-445-9185

    Free initial consultation. Reasonable fees, payment plans available
    http://www.prlog.org/10871686-attorney-dillon-graham-named-as-florida-legal-elite.html

  7. STATE BY STATE LIST OF AMOUNTS OF THE FORECLOSURE SETTLEMENT

    http://www.scribd.com/doc/81116415/2-9-2012-AG-Foreclosure-Settlement-Amounts-BY-STATE

  8. NEW-ACTION PLAN TO STOP FORECLOSURES-COMMUNITY BASED

    http://www.scribd.com/doc/80735841/Action-Plan-to-Stop-Foreclosures

  9. link to the Schneiderman foreclosure settlement article:

    http://www.democratandchronicle.com/usatoday/article/38443577

  10. ALBANY, N.Y. (WTW) — New York Attorney General Eric Schneiderman says one of his major objections has been resolved in a proposed settlement between U.S. states and the nation’s biggest mortgage lenders over deceptive foreclosure practices.

    Schneiderman, named Friday to help lead a nationwide probe of wrongdoing in the mortgage-backed securities market, says his issue with the multistate settlement was that it shouldn’t interfere with a comprehensive investigation.

    He says he’s confident those liability releases for the banks have been “narrowed.”

  11. Is your predatory lender now in bankruptcy? Think about doing this!!
    Form a borrower’s committee!!

    http://www.scribd.com/doc/78906500/Mortgage-Borrowers-Win-Official-Committee-Status-in-a-Predatory-lender-bankruptcy-AHM

  12. FLORIDIANS—THERE ARE SOME FLORIDIANS UP IN THIS SUBPRIME LENDER BKR

    Bankruptcy Trustee pays 100-300K per month to attorneys but frets that pro se homeowner-creditors may take liquidation monies away from the likes of Deutsche etc.

    attorney witness testifies she never thought of homeowner-borrower’s of New Century Mortgage to become creditors!! no notice given to homeowner-borrowers that New Century delcared banktuptcy.

    http://www.scribd.com/doc/75946262/NEW-CENTURY-BANKRUPTCY-TRUSTEE-PAYS-COUNSELS-100-300K-PER-MONTH-WORRIES-ABOUT-PRO-SE-HOMEOWNERS-MAKING-CLAIMS-THAT-THEY-WILL-TAKE-LIDQUIDATION-MONIES

  13. AGENDA FOR COURT IN DELAWARE – FLORIDA PRO SE HOMEOWNERS ARE FIGHTING THE NOTORIOUS SUBPRIME LENDER

    http://www.scribd.com/doc/75515999/NEW-CENTURY-LIQUIDATING-TRUST-AGENDA-FOR-DEC-13-2011

  14. Service of Process – Make The Banks Do It Right
    by Mark Stopa
    One of the most basic elements of any lawsuit, including a foreclosure lawsuit, is a plaintiff’s obligation to effectuate service of process on a defendant. Service of process is a fundamental tenant of a defendant’s right to due process, as it ensures a defendant knows about a lawsuit and is given an opportunity to defend.

    Florida Statutes govern the manner in which service of process must be effectuated. There are many different statutes, and many of them are quite technical, but the most common method of service is set forth in Florida Statute 48.031(1). If you don’t remember anything else about service of process, remember this:

    Service of process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.

    This one sentence sets forth at least three ways in which a defendant can challenge the manner in which service of process is effectuated (in a typical situation). Specifically:

    •The process server cannot merely hand-deliver the Summons/Complaint – he/she must also inform the defendant of their contents. (See below for how I utilized this requirement in a pending foreclosure case.)
    •The process server cannot give the Summons/Complaint to a child – the person to whom the paperwork is given must be 15 or older.
    •If the process server does not serve the defendant personally, then the paperwork must be given to someone who resides at the home where that defendant resides. Service on an overnight guest of the defendant is insufficient. Likewise, if a husband and wife are not living together, then service on one spouse does not constitute service on the other. If the lawsuit is a foreclosure lawsuit, and the property is a rental property, service on the tenants at the property does not constitute valid service against the homeowner.
    These requirements sound quite basic, but process servers screw them up all of the time. To illustrate, I had a hearing scheduled for tomorrow in a foreclosure lawsuit on a Motion to Quash Service. My argument was that service should be quashed because the process server did not inform the defendant of the content of the documents when he effectuated service. I wasn’t denying my client received the Summons/Complaint, but that’s not enough – the process server was required to inform my client of the contents.

    I can only presume the plaintiff’s lawyer realized my motion was well-taken, because he just cancelled the hearing. Bear in mind – it doesn’t matter that this homeowner was behind on mortgage payments or had been personally served – the fact that the process server failed to inform him of the contents of the documents invalidates the service.

    There are many cases regarding these propositions of law. For a flavor, check out Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So. 2d 558 (Fla. 3d DCA 1981) (service quashed where defendant was not informed of contents), and Johnston v. Halliday, 516 So. 2d 84 (Fla. 3d DCA 1987) (service quashed where the defendant’s son did not reside with her and was under 15 years of age).

    I raise this issue, of course, because this is yet another argument that homeowners can raise when defending a foreclosure case.

    The banks have done many things wrong in recent years. Let’s at least make them effectuate service of process the right way.

    Mark Stopa

    http://www.stayinmyhome.comhttp://www.scribd.com/doc/54945244/5DCA-Deficient-Service-Process-BAC-Homeloan
    http://www.scribd.com/doc/44631556/3rd-DCA-Quash-Service-Debbie-Bennette-v-Christina-Bank
    http://www.scribd.com/doc/73855840/FL-Defendant-Motion-to-Quash-Service-and-Set-Aside-Default
    http://www.scribd.com/doc/70915999/Appeal-Initial-Brief-Motion-to-Quash-Service

  15. More Florida foreclosure defense related linfo, egal pleadings, case law Appeal Opinion at

    . http://www.scribd.com/my_document_collections

    Some more forms and info at http://www.foreclosureprose.com, http://4closurefraud.org/

    These are free sites. Hope it helps .

  16. http://www.prlog.org/11704152-shapiro-fishman-found-in-contempt.html

    Shapiro & Fishman CONTEMPT Florida 1st Judicial District

  17. http://www.prlog.org/11704152-shapiro-fishman-found-in-contempt.html

    Shapiro & Fishman Attorneys At Law CONTEMPT

  18. South Florida Foreclosure Defense Attorney who ‘Gets it”: Dillon Graham Esq. 305-445-9185
    Free initial consultation. Reasonable fees, payment plans available
    http://www.prlog.org/10871686-attorney-dillon-graham-named-as-florida-legal-elite.html

  19. BOMBSHELL-The Banksters Strike Back- The Florida Foreclosure Fraud Forgiveness Act of 2012
    August 13th, 2011 | Author: Matthew D. Weidner, Esq.
    THEY’RE BAAACKKKKK—–WATCHOUT!

    The banksters are in trouble. Big trouble.

    They have made a crime scene of our nation’s formerly sacred public records.

    They have blatantly and without remorse ignored hundreds of years of real property law.

    They have blatantly and without remorse ignored and disregarded fundamental and Constitutional law that form the very foundation of our entire country.

    They have blatantly and without remorse disregarded rules and procedures that have governed and kept secure the court systems all across this entire country.

    And now they want a free pass. They want to just walk away from it all.

    They have introduced souped up version of the prior (and very ugly) non judicial foreclosure bill. Make no mistake this is one of the ugliest, most anti-consumer pieces of legislation ever introduced in this state.

    This is the Bad, Bad Bankster Fraud Forgiveness Act of 2012!

    Have a read at some of the lowlights!

    Once suit has been filed, the public interest is served by moving foreclosure cases to final resolution expeditiously in order to get real property back into the streamof commerce… (NO FOLKS, ONCE A SUIT HAS BEEN FILED OUR COURTS SHOULD BE FOCUSED ON UPHOLDING HUNDREDS OF YEARS OF LAW)
    Section 57.105, Florida Statutes, (Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee) is repealed. (THE FRAUDCLOSING PLAINTIFFS ARE PAYING ATTORNEYS FEES FOR IMPROPER CONDUCT, THIS WOULD PROTECT THEM FROM PAYING FOR THEIR IMPROPER CONDUCT.)
    Following dismissal of the foreclosure case, and upon request of the plaintiff, the clerk may return the original promissory note without need for further order of the court. (WHY, SO THE NOTE CAN BE SOLD TO A ZOMBIE DEBT COLLECTOR?)
    In any action or proceeding in which a party seeks to set aside, invalidate, or challenge the validity of a final judgment of foreclosure or to establish or re-establish a lien or encumbrance on the property in abrogation of the final judgment of foreclosure, the court shall treat such request solely as a claim for money damages and shall not grant relief which adversely affects the quality or character of the title to the property. (THIS IS A BIGGIE PEOPLE, THIS IS THE REAL BIG ONE HERE, THE GET OUT OF JAIL FREE CARD!)
    After foreclosure of a mortgage based upon the enforcement of a lost, destroyed or stolen note, a person, not party to the underlying foreclosure action, who claims to be the Actual holder of the promissory note secured by the foreclosed mortgage, shall have no claim against the foreclosed property after it has been conveyed for valuable consideration to a person not affiliated with the foreclosing lender. (ANOTHER RED ALERT BIGGIE HERE, A TOTAL REWRITE OF EXISTING LAW)
    In uncontested mortgage foreclosure proceedings, the court shall enter final judgment within 45 90 days from the date 0of the close of pleadings. (GOTCHA!)
    Where the amount of principal and interest, exclusive of fees and costs, owed to a foreclosing lender equals or exceeds 120% of the just value of the property subject to
    foreclosure, as determined by the county property appraiser in the most recent certified tax roll, the foreclosing lender may elect to foreclose without a judicial sale of the property. (THIS HERE IS THE REAL THING, GOTCHA!, GOTCHA!, GOTCHA! WE DON’T NEED NO STINKIN’ JUDGES OR COURTS OR DUE PROCESS!)
    In any mortgage foreclosure action, upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney. (REMEMBER ABOVE WHEN THEY ELIMINATED THEIR OWN LIABILITY FOR ATTORNEY’S FEES IF THEY WERE CAUGHT? WELL, THEY ADDED FEES AGAINST DEFENDANTS. THIS PUNITIVE SECTION WILL PREVENT ANY CONSUMER FROM HAVING ANY ATTORNEY REPRESENT HIM IN COURT.)

    Now, the real question is who is going to sponsor this MOST ABSOLUTELY HORRIBLE, ANTI-CONSUMER legislation? Now just for starters, even before session begins, this thing has already been drafted. Who drafted this bill? What special industry group paid for and submitted this? What banking group, what group of foreclosure mills? What special industry groups?

    MAKE NO MISTAKE THIS LEGISLATION IS BOUGHT AND PAID FOR AND IT WILL BE A TOP PRIORITY OF THE 2012 LEGISLATIVE SESSION!

    AND WHAT CAN YOU DO TO FIGHT AGAINST IT? FILL OUT THE PETITION at

    http://mattweidnerlaw.com/blog/wp-content/uploads/2011/08/WeidnerPetition2.pdf

    THEN MAIL IMMEDIATELY TO:

    MATTHEW WEIDNER

    329 4TH AVENUE SOUTH

    ST. PETERSBURG FL 33701

    This YOUR chance to be part of the MOST EXCITING REVOLUTION to sweep Florida politics in a generation. This opportunity to make your voice heard comes around only once every ten years. Please make the most of this opportunity. Print out multiple petitions and have your neighbors, friends and co-workers sign as well! Please forward this post around to as many of your social networks are you can. Remember, this is not just about getting me on the ballot, this campaign is about GETTING REAL, EVERYDAY FLORIDIANS THAT CARE ABOUT AMERICA ON THE BALLOT!

    The crucial thing to understand about this is any registered voter, from any county in Florida, from any party can sign this petition to get me on the ballot! This incredible quirk of the petition process comes around only once every ten years. And it just so happens that in this tenth year, the incumbent politicians are more vulnerable than ever before.

    DO NOT MISS YOUR CHANCE TO BE PART OF HISTORY!

    SIGN THE PETITION, PRINT OUT SEVERAL AND PLEASE MAIL ORIGINAL PETITIONS TO ME IMMEDIATELY!

    PLEASE CLICK HERE TO ENSURE THAT YOU ARE REGISTERED TO VOTE

    http://election.dos.state.fl.us/voter-registration/voter-reg.shtml
    See more details at
    http://mattweidnerlaw.com/blog/register-to-vote-do-it-now-dont-wait/

    2011+draft+sent+to+bill+drafting http://mattweidnerlaw.com/blog/wp-content/uploads/2011/08/2011+draft+sent+to+bill+drafting1.pdf

    Spread the word

  20. I’m looking for a lawyer to go the Quiet Title route in Orlando , I have some money but will likely need terms, funding docs from title company show undisclosed 3rd party as actual funder and there are no assignments recorded , I have Neils combo package and access to the trustees investor website with “inside baseball” info ,, I have received a NOD but it is not yet recorded.. e:mail me at brian_tracy AT cfl.rr.com I want to be on offense rather than defense .. I may have another client for you also..

  21. by Richard Shuster Esq.
    Three Rules For Defeating the Bank’s Motion For Summary Judgment in Foreclosure Cases
    One of the attorneys in our Miami office watched a sole practitioner foreclosure defense attorney ( at attorney who is NOT associated with this firm) go down in flames on a summary judgment hearing before a Miami judge. As a civil litigation firm that successfully handled well over one thousand summary judgment hearings in general civil and insurance cases, I wanted to explain for other foreclosure lawyers and for homeowners some important pointers for successfully defending a lender’s motion for summary judgment in a foreclosure case.

    Rule One: Always Bring a Court Reporter: In most (but by no means all) foreclosure cases if the bank wins their summary judgment motion then the bank wins their case and the Court will set a sale date in 30 to 90 cases. A foreclosure defense lawyer should consider the bank’s motion for summary judgment to be equivalent of a trial. If the motion is lost, the homeowner is unlikely to get a second chance. Since the summary judgment is a critical part of the case it is ESSENTIAL that the homeowner’s attorney bring a court reporter to the hearing. By having a court reporter there is a record of the proceedings. If the judge males an erroneous ruling either by disregarding applicable case law (controlling legal precedent) or disregarding evidence or lack of evidence then the homeowner will need a record of what happened in order to appeal the judge’s ruling.

    Some judges do not like presiding over foreclosure cases. Some judges fell that if the homeowner did not pay the mortgage then the bank should win. One judge in Southwest Florida even commented to the press the rapid processing of foreclosure cases was necessary so that real estate prices would stabilize. If there is no court reporter at the hearing the judge can rule against the homeowner and know that the homeowner will be unable to appeal. If a court reporter is present the judge knows that if he or she does not follow the law the judge may be reversed on appeal by a higher appellate Court. Most judges hate being reversed on an appeal. For a judge, being reversed means a higher Court writes an ruling saying the judge made a mistake. Rulings of Florida’s appellate Courts are published in the Florida Law Weekly and Florida Law Weekly Supplement which is mailed to every Court in the state and sent by subscription to most Florida law firms.

    Rule Two: Prepare: A lawyer can’t wing a summary judgment hearing. Meticulous preparation is required. The attorney should review the lender’s motion for summary judgment, analyze the case law cited in the motion, prepare a counter argument, anticipate the bank’s lawyer’s counter-attacks, and bring to Court three copies of each case they cite in opposition to the lender’s motion.

    Rule Three: Do not waive objections: In the hearing where a Miami sole practitioner lost the case, the lawyer asked the Court to continue the summary judgment hearing because the bank had not provided discovery responses. Florida appellate courts have consistently held that summary judgment motions should not be heard until discovery is complete. The Court refused the continue the summary judgment. The judge rejected the last minute oral request for a continuance and explained the homeowners lawyer that if the bank did not provide discovery responses then the homeowner’s lawyer should have filed a motion to compel. The judge also felt that a motion for continuance should have been in writing and served long before the summary judgment hearing. If the homeowners lawyer was counting on a continuance perhaps the did not prepare as hard for the hearing. The solo should have reviewed their file when they received the motion for summary judgment and prepared a motion to compel if discovery was still outstanding.

    I often wonder whether the foreclosure lawyers who change a “one time fixed fee” are able to spend adequate time to prepare and argue motions to compel. When clients go to the cheapest foreclosure lawyer, does that lawyer plan to bring a court reporter to the summary judgment hearing or even attend the hearing themselves. When homeowners interview prospective lawyers for foreclosure defense the homeowner should inquire about how the firm defends summary judgments and whether the price they are paying will include having a court reporter at the hearing.

    The foreclosure lawyers in the Miami, Plantation, and Melbourne offices of Shuster & Saben, begin preparing for summary judgment the moment we open the file. Our discovery is planned and drafted for the purpose of defeating the lender’s motion for summary judgment and winning cases for our clients. When lender’s do not provide the discovery we ask for we follow through with motion to compel. Most homeowners cannot successfully defeat summary judgment without an attorney. When hiring counsel the homeowner should act as soon as possible so that their lawyer has time to conduct discovery prior to the summary judgment hearing.

  22. A Great foreclosure defense attorney (one of the best in area) is Jack MacKie at 239-595-0589
    Tell Him Dan sent you and he’ll give you a free consultation!!

  23. Pam, try Dennis Bessey 941.575.6621

  24. PLEASE ADVISE! I am trying to find a knowledgeable and successful foreclosure defense attorney (who handles cases in southwest Florida) who will look over and discuss my case prior to going into foreclosure. Can’t get anyone to respond to emails or phone calls. Thanks.

  25. I need a template for an EMERGENCY MOTION TO STOP FORECLOSURE SALE.
    Can anyone please help me get this form a.s.a.p
    Your help is greatly appreciated.

  26. AN EXCELLENT FLORIDA MOTION TO DISMISS
    ——————————————————–
    Thank you D. Graham Esq. 305-445-9185 for sharing

    http://www.scribd.com/doc/40130404/Fla-Motion-to-Dismiss1-Foreclosure-D-Graham-Esq

  27. The Best Foreclosure Court Order yet Published in Florida
    —————————————————————-
    http://www.mattweidnerlaw.com/blog
    Fraudclosuregate continues to spin out of control. Absurd statements from Bank of America and the other institutions and law firms that fostered the festering crisis to the contrary, things are only going to get worse. Title claims and will soil our public records for decades and litigation will choke our already bogged down court systems.

    When the autopsies are completed, there will be dramatic distinctions and differences in the problems that will be faced by each of this state’s court circuits. It is no secret at all that the judges in the Sixth and Twelfth Judicial Circuits are among the toughest in this state. If you practice here, you are prepared to be put through your paces….no matter what side of the argument you are on. That’s the real business of judging.

    For a variety of technical reasons, there are not a great deal of reported court opinions that address many of the substantive issues we face in foreclosure. The primary problem is Orders on Motions to Dismiss are not typically appeal-able orders so there are not many reported decisions that can be cited. The opinion below however, provides much needed answers to many of the questions concerning the practices and procedures that govern foreclosures in this state.

    If you’re a homeowner wondering whether there are still judges out there that apply the law fairly and correctly….READ THIS OPINION….IT WILL RESTORE YOUR FAITH.

    If you’re an attorney who feels beaten down and abused by the system…..READ THIS OPINION…IT WILL INSPIRE YOU TO KEEP UP THE FIGHT!

    If you’re a reporter who is struggling to understand the depth of the Fraudclosuregate crisis….READ THIS OPINION…IT WILL DETAIL BOTH THE PROBLEMS AND THE SOLUTION.

    Finally, consumers, judges, attorneys and reporters owe a debt of gratitude to the homeowner’s attorney in this case, Mark Stopa. (Click for link to his website.) Mark is among the most tenacious, committed and dedicated attorneys out there sticking his neck out and fighting the fight…FIGHTING THE FIGHT FOR ALL OF US.

    Please do the world a favor…..read this opinion, savor this opinion, but most importantly make sure everyone in the world reads this opinion.
    http://mattweidnerlaw.com/blog/wp-content/uploads/2010/10/rondolinoOrder.pdf

  28. South Florida Foreclosure Defense Attorney who ‘Gets it”: Dillon Graham Esq. 305-445-9185
    Free initial consultation. Reasonable fees, payment plans available
    http://www.prlog.org/10871686-attorney-dillon-graham-named-as-florida-legal-elite.html

  29. http://www.mattweidnerlaw.com/blog

    ARE FORECLOSURE ROCKET DOCKETS EVEN CONSTITUTIONAL?

    That’s a very important question that must be analyzed carefully with special attention paid not just to the mechanism by which these courts have been implemented, but also taking into consideration exactly how these courts are working in the real world. By now most of us have sat through enough Foreclosure Rocket Docket proceedings to know just how much the deck feels stacked against the foreclosure defendant and frankly against any sense of fairness or consideration of the more significant issues in foreclosure…..important issues like…

    DOES THIS PLAINTIFF EVEN HAVE THE RIGHT TO FORECLOSE?

    HAS THE PLAINTIFF LAW FIRM COMMITTED FRAUD?

    DO THE AFFIDAVITS AND ASSIGNMENTS SHOW OBVIOUS SIGNS OF FRAUD?

    Such pesky details are largely ignored in the context of the Rocket Docket proceedings where the real emphasis is placed on churning through this docket as quickly as possible. (Nevermind that the Plaintiff’s themselves have announced they wish to suspend the proceedings. Nevermind that many of these Defendants either have no notice of the proceedings or are in a formal repayment plan.)

    Earlier I reported on the Rocket Docket judge that asked, “So what’s this TARP I’m hearing about?” Just today, a defendant called to tell me about the totally disrespectfully and entirely impermissible treatment she received in a 9:00 a.m. Rocket Docket hearing where the judge advised her, “You’re going to lose your home and there is nothing you can do about it.”
    This just cannot continue.

    Well, one tough fighter decided that he would stick his neck out there and try to do something about it. I get a lot of calls from clients seeking representation in North Florida and encourage you all to contact Daniel W. Uhlfelder for representation. For all you reporters and folks at bigger thinking folks out there, read his memo. As I know you folks know, we need your help down here….Dan’s Memo provides a framework.

    But most importantly, read the transcript of the proceeding….

    ROCKETDOCKETTRANSCRIPT
    http://www.scribd.com/doc/38989293/Rocket-Docket-Transcript-1

    http://www.scribd.com/doc/38989219/Defendant-s-Motion-for-Transfer-of-Action-Unconstitionalityofseniorjudges

    ShareTweet this!

  30. Claude,
    I believe that People are now getting their Judgment and Sale vacated by the Court if they can prove there were fraudulent documents submitted by the Plaintiff in the lawsuit.
    Check if the Affidavits for Plaintiff’s Motion for Summary Judgment are fraud.
    Go see a lawyer as soon as you can to ask if he can file a Motion to Vacate Summary and Sale for you if the Affidavits are fraud or fraudulently signed by Robot Signors.
    Where are you in Florida ? I know some excellent Florida you can go for free consultation.

  31. Fighting foreclosure since 2006 I have filed counterclaim, defaulted Stern. I also have Land Patent filed in the county recorder’s office and I hold CERTIFICATE OF TITLE on the land where the property sits and he still sold my property on may 7, 2010. STERN was issued Certificate of Title on my property on Aug. 3, 2010 I reveieved a 90 day notice to vacate my property. any suggestions? The judge Marc Schumacker in Miami was the jusge on this case On the emergency hearing I noticed the judge and stern’s office with a FBI packed Mortgage Fraud and fraud upon the court and I recently checked who is handling the case and it’s been passed over to another judge.
    any suggestions? I am still in my home.. fighting till the end.

  32. Does a Null and Voided Notrary on a Personal Gurantee make the whole PG not legal?

  33. I have a Fla Statute which I haven’t seen (to my knowledge) seen any of you speak of. As we know, the Mills are trying to use the assignment of the mortgage to try to validate their claim and confuse the court.
    Since the mortgage is recorded in public record, does this not apply?? I believe this stands and there is NEVER a notice of assignmnet given! The source link is below.

    Florida Laws: FL Statutes – Title XLI Statute of Frauds, Fraudulent Transfers, and General Assignments Section 727.101 Intent of chapter.
    (1) The assignee shall give notice of the assignment by publication in a newspaper of general circulation published in the county where the petition is filed and in any other county or counties where the assignment is required to be recorded pursuant to s. 727.104(2), once a week for 4 consecutive weeks, the first notice to be published within 10 days after filing of the petition; and by mailing notice to all known creditors within 20 days after filing of the petition. The notice of the assignment shall include the date of filing of the petition; the name of the court where the petition is filed and the case number assigned to the petition; the last day on which a proof of claim may be served upon the assignee, to be determined in accordance with s. 727.112(2); and the name and address of the assignor, the assignee, and the assignee’s attorney, if any.
    (2) The notice of assignment shall be in substantially the following form:
    NOTICE OF ASSIGNMENT

    IN THE CIRCUIT COURT

    OF THE_____

    CIRCUIT, IN AND FOR

    _____COUNTY,

    FLORIDA

    IN RE: ____________________,

    Assignor,

    to:____________________,

    Assignee.
    TO CREDITORS AND OTHER INTERESTED PARTIES:
    PLEASE TAKE NOTICE that on __________, a petition commencing an assignment for the benefit of creditors pursuant to chapter 727, Florida Statutes, made by __________, assignor, with principal place of business at __________, to __________, assignee, whose address is __________, was filed on _____, (year) .
    YOU ARE HEREBY further notified that in order to receive any dividend in this proceeding you must file a proof of claim with the assignee or the assignee’s attorney on or before_____(120 days from the date of the filing of the petition).
    __________
    ASSIGNEE

    Attorney for assignee (if any):_____

    Address:____________________
    (3) The assignee shall give the assignor and all creditors not less than 10 days’ notice by mail of an examination of the assignor pursuant to s. 727.108(2).
    (4) The assignee shall give the assignor and all creditors not less than 20 days’ notice by mail of a proposed sale of assets of the estate other than in the ordinary course of business, the assignee’s continued operation of the assignor’s business for longer than 14 calendar days, the compromise or settlement of a controversy, and the payment of fees and expenses to the assignee and to professional persons employed by the assignee pursuant to s. 727.108(7). Any objections to the proposed action must be filed and served upon the assignee and the assignee’s attorney, if any, not less than 3 days before the date of the proposed action. The notice must include a description of the proposed action to be taken, the date of the proposed action, and the date and place for the hearing at which any objections will be heard. If objections are not timely filed and served, the assignee may take action as described in the notice without further order of the court or may obtain an order of the court granting such motion if the assignee reasonably believes that the order is necessary to proceed with the action contemplated by the motion.
    (5) The assignee shall give the assignor and all creditors not less than 20 days’ notice by mail of the filing of his or her petition for discharge and the final report of receipts and disbursements pursuant to s. 727.116. The notice shall include a summary of all receipts and disbursements of the estate and shall set forth the date and place of the final hearing.
    (6) For good cause shown and without notice of hearing, the court may shorten the notice period or limit the parties to whom notice need be given, pursuant to subsection (3) or subsection (4).
    (7) Wherever notice is required to be given under this chapter and the period of such notice is not specified, the court shall fix such period of notice as is appropriate in the particular circumstances.
    (8) Wherever notice is required to be given under this chapter, a certificate of service of such notice shall be filed with the court, and notice shall be given to all consensual lienholders and counsel who have filed a notice of appearance with the court or who are identified in the assignor’s schedules.
    (9) Wherever notice is not specifically required to be given under this chapter, the court in its discretion may consider motions and grant or deny relief without notice or hearing.
    History.–s. 11, ch. 87-174; s. 943, ch. 97-102; s. 34, ch. 99-6; s. 9, ch. 2007-185.

    Florida Laws: FL Statutes – Title XLI Statute of Frauds, Fraudulent Transfers, and General Assignments Section 727.101 Intent of chapter.
    (1) The assignee shall give notice of the assignment by publication in a newspaper of general circulation published in the county where the petition is filed and in any other county or counties where the assignment is required to be recorded pursuant to s. 727.104(2), once a week for 4 consecutive weeks, the first notice to be published within 10 days after filing of the petition; and by mailing notice to all known creditors within 20 days after filing of the petition. The notice of the assignment shall include the date of filing of the petition; the name of the court where the petition is filed and the case number assigned to the petition; the last day on which a proof of claim may be served upon the assignee, to be determined in accordance with s. 727.112(2); and the name and address of the assignor, the assignee, and the assignee’s attorney, if any.
    (2) The notice of assignment shall be in substantially the following form:
    NOTICE OF ASSIGNMENT

    IN THE CIRCUIT COURT

    OF THE_____

    CIRCUIT, IN AND FOR

    _____COUNTY,

    FLORIDA

    IN RE: ____________________,

    Assignor,

    to:____________________,

    Assignee.
    TO CREDITORS AND OTHER INTERESTED PARTIES:
    PLEASE TAKE NOTICE that on __________, a petition commencing an assignment for the benefit of creditors pursuant to chapter 727, Florida Statutes, made by __________, assignor, with principal place of business at __________, to __________, assignee, whose address is __________, was filed on _____, (year) .
    YOU ARE HEREBY further notified that in order to receive any dividend in this proceeding you must file a proof of claim with the assignee or the assignee’s attorney on or before_____(120 days from the date of the filing of the petition).
    __________
    ASSIGNEE

    Attorney for assignee (if any):_____

    Address:____________________
    (3) The assignee shall give the assignor and all creditors not less than 10 days’ notice by mail of an examination of the assignor pursuant to s. 727.108(2).
    (4) The assignee shall give the assignor and all creditors not less than 20 days’ notice by mail of a proposed sale of assets of the estate other than in the ordinary course of business, the assignee’s continued operation of the assignor’s business for longer than 14 calendar days, the compromise or settlement of a controversy, and the payment of fees and expenses to the assignee and to professional persons employed by the assignee pursuant to s. 727.108(7). Any objections to the proposed action must be filed and served upon the assignee and the assignee’s attorney, if any, not less than 3 days before the date of the proposed action. The notice must include a description of the proposed action to be taken, the date of the proposed action, and the date and place for the hearing at which any objections will be heard. If objections are not timely filed and served, the assignee may take action as described in the notice without further order of the court or may obtain an order of the court granting such motion if the assignee reasonably believes that the order is necessary to proceed with the action contemplated by the motion.
    (5) The assignee shall give the assignor and all creditors not less than 20 days’ notice by mail of the filing of his or her petition for discharge and the final report of receipts and disbursements pursuant to s. 727.116. The notice shall include a summary of all receipts and disbursements of the estate and shall set forth the date and place of the final hearing.
    (6) For good cause shown and without notice of hearing, the court may shorten the notice period or limit the parties to whom notice need be given, pursuant to subsection (3) or subsection (4).
    (7) Wherever notice is required to be given under this chapter and the period of such notice is not specified, the court shall fix such period of notice as is appropriate in the particular circumstances.
    (8) Wherever notice is required to be given under this chapter, a certificate of service of such notice shall be filed with the court, and notice shall be given to all consensual lienholders and counsel who have filed a notice of appearance with the court or who are identified in the assignor’s schedules.
    (9) Wherever notice is not specifically required to be given under this chapter, the court in its discretion may consider motions and grant or deny relief without notice or hearing.
    History.–s. 11, ch. 87-174; s. 943, ch. 97-102; s. 34, ch. 99-6; s. 9, ch. 2007-185.

    http://law.onecle.com/florida/statute-of-frauds-fraudulent-transfers-and-general-assignments/727.111.html

  34. IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR
    PINELLAS COUNTY, FLORIDA
    HSBC BANK, USA, NATIONAL ASSOCIATION, CASE NO. 09-005190-CI-19 NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLEY AS TRUSTEE ON BEHALF OF GSAA HOME EQUITY TRUST 2005-12
    PLAINTIFF,
    v.
    KIMBERL Y BOLIN

    DEFENDANT’S REQUEST FOR TAKING JUDICIAL NOTICE/OBJECTION TO
    PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT/
    MOTION TO ABATE FORECLOSURE PROCEEDINGS

    COMES NOW, the Defendant KIMBERLY BOLIN, by and through undersigned counsel MATTHEW D. WEIDNER, and respectfully files this REQUEST FOR TAKING JUDICIAL NOTICE, OBJECTION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, and MOTION TO ABATE PROCEEDINGS, in the above-titled civil action, and as grounds therefore states:
    1. During the Summary Judgment hearing held on August 17, 2010 in this matter your undersigned counsel asserted that disputed questions of material fact existed in this case which precluded the entry of Summary Judgment. Your undersigned further asserted that this court should be aware of investigations into the practices of the law firms that are responsible for pursuing the majority of foreclosure cases on this court’s docket by the Florida Attorney General and that this court should be aware of allegations made against one of those firms in two separate lawsuits that are pending in Federal Court for the Southern District of Florida. Your undersigned respectfully asserts that the existence of these investigations and lawsuits creates serious issues of material fact that should preclude this court from proceeding in any case where the firms
    Matthew D. Weidner, PA
    1229 Central Avenue· St. Petersburg Fl, 33705
    727/894-3159
    identified herein have appeared. Moreover, your undersigned feels he has a specific duty, as a member of the Bar, to make sure this court is aware of these issues generally because they potentially impact a significant number of cases pending on this court’s docket and specifically with regard to this case because the nature of the alleged violations calls into question the veracity of the affidavits upon which Plaintiff relies in support of summary judgment in this case. The question presented by this motion is whether the existence of formal investigations by this state’s chief law enforcement officer regarding the authenticity and veracity of documents submitted in this case and others should cause this court to have second thoughts about proceeding with this case and all ofthe other thousands of cases that are currently pending before this court.
    2.
    As this court is aware, judgments entered by any court which are the product of fraud are either void or voidable and the judgment may be attacked pursuant to Florida Rules of Civil Procedure, 1.540(b) for allegations of fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party for up to one year after entry of that judgment.
    3.
    Moreover, judgments entered by this court when service ofprocess is improper may be challenged as void at any point in time and there is no limitations period to challenge such judgments. Shurman v. All. Mortgage & Inv. Corp., 795 So. 2d 952 (Fla. 2001); Shepheard v. Deutsche Bank Trust Co. Ams., 922 So.2d 340 (Fla. 5th DCA 2006); see also Redfield Inv.
    A.V.V. v. Vill. Of Pinecret, 990 So.2d 1135 (Fla. 3d DCA 2008) Batchin v. Barnett Bank of Sw. Fla., 647 So.2d 211 (Fla. 2nd DCA 1994LM,L. Builders, IncLY. Reserve Developers, LLP, 769 So. 2d 1079 (Fla. 4th DCA 2000) (citing Ramagli Realty Co. v. Craver, 121 So.2d 648 (Fla. 1960). Given the profound implications of judgments that are void based on improper service
    Matthew D. Weidner. PA
    1229 Central Avenue· St. Petersburg Fl, 33705
    727/894-3159

  35. Liz in Sarasota,
    I’ve been fighting for 6 + years, so I know how hard and stressful it is.
    I just want to say … GOOD JOB – KEEP UP THE FIGHT and NEVER GIVE UP!!! OH … and Chase is an evil entity.

  36. B. StLaurent,
    Call D. Graham Esq. at 305-445-9185 or e-mail Dillon@grahamlegal.com. My friend’s case is also with BOA and Florida Default Group and Graham is defending her house.

  37. Found this on the Internet- Foreclosure Road Map
    ——————————————————————–
    WHAT DO I DO IF I AM SUED FOR FORECLOSURE IN fLORIDA

    1. Respond to the Complaint
    You have twenty days after service to respond to the Complaint. You can file a Motion for Time Extension to ask for another 20 days to file a response The response can be an Answer or a Motion to Dismiss. If justified, the initial response should be a motion to dismiss. The Motion to Dismiss delays the time for an Answer until the motion is denied. You will waive many issues if you omit them from the motion, so you should hire a lawyer to represent you if at all possible.

    2.Draft the Motion to Dismiss
    Consider: 1. Was service on you proper? (In your hand, or if at home in the hand of you or another adult resident) 2. Is a copy of the promissory note attached to the Complaint? 3. Does the plaintiff adequately show the plaintiff owns and holds the note? 4. If there is a count to re-establish a lost note, does the count say it was lost while in the possession of the plaintiff? Are the allegations generic or specific? 5. Does the Complaint show that the taxes on the note were paid? 6. Does the Complaint show that you signed the note or have an interest in the property (2d mortgage holder, tenant, etc) — being a spouse of the debtor is no reason to sue you. Serve the motion to dismiss. Send the original to the clerk of the court. (If possible, bring a copy of the original to the clerk of the court with the original motion and have the clerk time-stamp your copy to show it was on time).

    3. Wait until the judge rules on the motion
    Some circuits require that you send a copy of the motion to the judge with a blank order and envelopes. If there is such a requirement, do it. You do not have to do anything else until the motion is denied. Under the above procedure, this might happen without a hearing, or the judge might request a hearing. In the circuits that do not require notifying the judge about a motion to dismiss, the plaintiff will have to contact you, discuss the merits of the motion, and if you do not agree, either set it for hearing or Amend the Complaint. (If the Complaint is amended, go back to step 1, above). If the matter is set for hearing, attend the hearing and tell the judge why the Complaint is defective (not why you do or do not owe the money). If the Plaintiff has no Standing to foreclose(i.e does not own the notes or Plaintiff is not a Party of Interest etc ), the Judge still denies your Motion to Dismiss, you can consider go to Appeal. Remember to go to the hearing with a Court Reporter as you need certified transcript to go to Appeal Court.

    4. Answer the Complaint
    You should have a lawyer do this in order not to miss important issues. But consider: 1. Denying all the material facts alleged. 2. Adding Affirmative Defenses; consider these: A. The same issues detailed in the Motion to Dismiss considerations B. Predatory lending C. Illegal interest rates D. Waiver E. Violation of the Truth in Lending Act F. The Complaint fails to state a cause of action. G. The Complaint fails to state a cause of action because it does not show endorsement of the promissory note to the plaintiff. H. Plaintiff has failed to present the promissory note for payment as required by Fla. Stat. §§673.011, et. seq. I. Plaintiff is in violation of Florida Statute §57.011 because it is a non-resident of the State of Florida that has not posted a non-resident cost bond after a demand that it do so. J. Plaintiff is not the real party in interest

    5. The matter will be set for mandatory mediation
    The Florida Supreme Court has recently adopted rules requiring mandatory managed mediation in all residential foreclosure cases. You will be contacted by the organization responsible for the mediation. TAKE THE CALL. COMPLY WITH THE REQUEST TO CONTACT THE CREDIT COUNSELOR. PROVIDE THE REQUESTED INFORMATION. Attend the mediation when it is set.

    6. Attend mediation
    Consider these possibilities: If you want to leave the home, consider: 1. Giving a deed in lieu of foreclosure (be sure you get a guarantee of debt forgiveness) 2. Asking for move-out money (“Cash for Keys”) 3. A short sale (be sure you get a guarantee of debt forgiveness) 4. Setting a move-out date long into the future. If you want to stay in the home, consider: 1. Ask for a reduction in principal to the value of the home (A recent federal program may help facilitate this in part) 2. Asking about the HAMP program (if you qualify, the interest rate is reduced and the term extended so that the payments are reduced) 3. Asking about conventional refinancing to current rates Remember, you do not have to agree on anything. You can let the foreclosure take its course. Remember, the promissory note is negotiable paper, it may be able to be sold and then enforced against you if you do not get the original note back.

    7. If mediation is unsuccesful, send discovery to the plaintiff
    You need a lawyer to do this well. The discovery should be aimed at showing that you do not owe this plaintiff anything. Consider: 1. Interrogatories 2. Request to Produce 3. Request to Admit Be aggressive if you do not timely receive responses. File motions to compel and set them for hearing. The plaintiff’s lawyers are probably working on a flat fee and may leave you alone if you are difficult to deal with. Be sure to properly respond to the plaintiff’s discovery. (Request to Admit are deemed admitted if you do not timely respond).

    8. When the Motion for Summary Judgment is filed; Respond with an Affidavit
    A trial will be needed if any material allegations are at issue. These might include who owns the note, are you in default, as well as the legal defenses set forth above. But, the judge will only defenses presented in a timely, properly drafted and filed affidavit, Get a lawyer to help you do this. Avoid a Summary Judgment.

    8.If there is a trial, defend aggressively. Make sure you hire a court reporter for trial
    Raise all the issues stated above. Bring witnesses and documentary evidence. Concede nothing.

    10. If you lose
    Consider an appeal, but this is costly and does not delay the foreclosure without posting a bond. You can still redeem the property by paying the judgment until the clerk of the court issues the certificate of title. Consider refinancing. You can also file Bankruptcy to delay the sale and have your debts including the mortgage wipe out.

    Loading…

  38. 27 LEGAL AFFIRMATIVE DEFENSES – FORECLOSURE
    ——————————————————————–
    Thanks Dillon Graham Esq. 305-445-9185

    Download it at
    http://www.scribd.com/doc/36661894/Foreclosure-Answer-Affirmative-Defenses

  39. I can’t believe I’ve been fending off Chase f/k/a WAMU and Shapiro & Fishman almost four years into their summary judgment – five foreclosure sales I’ve fought off pro se – and I’ve never known about this site.
    I have been in foreclosure since 2006. The kinds of shenanigans you’d see in my file would curl your toes.
    Two weeks ago I filed a new action against Chase & have a motion for a temporary injunction (they’ve scheduled their 6th sale…) in front of the 12th circuit. I was working on my memorandum today & came across something interesting. I thought I might be able to use it & would appreciate any insight anyone might be able to offer.
    The affidavit in support of their motion for summary judgment was signed back in 2006 by a Dory Goebel, who I understand has gotten in trouble from time to time, and was actually singled out in a U. S. Bankruptcy Court finding because of her “false” affidavit. Dory also made the list of the “Top 200 Signs of Fraudulent Documents” put together by Gardener’s Bankruptcy Boot Camp. She’s having quite a career!
    In this new action against Chase I’m alleging as pretty a case of extrinsic fraud as you’d hope to see, and, whether you’d characterize the “Dory Document” as intrinsic or extrinsic, I’d love to drag her and her affidavit into my motion for a temporary injunction. Anyone else have any dealings with Dory? Has her charming name graced your documents? If anyone can offer information about these sorts of dubious documents – in an appropriate manner, of course – I would appreciate it mightily.

  40. I am seeking an enterprising attorney who would like to go after BOA and their representative mill Florida Default Law Group through my foreclosure case. Please contact at your earliest.

  41. HOW TO ARGUE FLORIDA ASSIGNMENT FRAUD TO JUDGES
    http://www.amartinezlaw.com

    In accordance with the Disclaimer posted on this site, nothing here shall be construed as legal advice. The information below is strickly commentary designed to help enhancing the presentation skills. The hiring of an attorney is very important. If you are in need of legal assistance, consult a licensed attorney for legal advice.

    The Assignment Not Attached To The Complaint & Is Dated After The Complaint Was Filed

    It is important to note here that judges like rulings from the appellate division that cover their circuit or other opinions from WITHIN their circuit (colleagues). Find those cases first and if you can’t and have to use other Florida cases, show the judge WHY they should rule the same. Remember you have 5 minutes to bring it home.

    I’m going to use Deutsche Bank National Trust Company as Trustee for FFMLT 2006-3 as the Plaintiff and Marshall C. Watson as their counsel for this example.

    Judge: We’re here on Defense Counsel’s Motion to Dismiss. Counsel please proceed.

    Defense Counsel: Good morning Your Honor. This Motion is based on 3 points that warrant dismissal of this action (we will only focus on one – Standing)

    1) Plaintiff lacks standing to bring this foreclosure action against my client (FACT/OPINION). The allegations in the complaint allege Plaintiff is the OWNER and HOLD of the NOTE that they seem to have apparently LOST (FACT) but have failed to identify, WHEN they became the OWNER and HOLDER of the Note (FACT) and HOW they became the OWNER and HOLDER of the Note (FACT), or the approximate date WHEN they allegedly lost the NOTE (FACT) and explaining HOW they allegedly lost it (FACT). They have attached a copy of a print out from court records AND NOT THEIR CLIENTS FILES of the Mortgage (FACT) which indicates First Franklin as the ORIGINAL Lender (FACT) and does not mention Plaintiff Deutsche Bank anywhere on THAT document (FACT). No NOTE or a CERTIFIED COPY of such nor has a LAWFUL and EQUITABLE ASSIGNMENT been ATTACHED to the Complaint (FACT) in support of their allegation that they are the OWNER and HOLDER of the NOTE (FACT).

    STOP RIGHT HERE (EDITORS NOTE): First always state facts and not opinions. If you have to state an opinion it better be extremely persuasive and you need to have sufficient evidence to back it up. Second, if there was a Notice of Filing after the complaint was filed and you filed your Motion to Dismiss of the Assignment you want to say:

    In an attempt to cloud the court’s judgment (OPINION), PLAINTIFFS COUNSEL has magically caused an Assignment to appear (FACT) which according to the date was CLEARLY drafted, executed and filed AFTER the filing of this action (FACT) where numerous case-law opinions throughout Florida PROHIBIT such Assignment filings warranting dismissal (FACT)!

    STOP RIGHT HERE (EDITORS NOTE): You don’t want to come off as condescending here. Your want to come off as confident to your position and a little fantastical about Opposing Counsel’s Actions (Not PLAINTIFF) in filing the Affidavit this way. You have to end your speaking presentation here because you don’t ever want the judge to cut you off to allow opposing counsel to speak but you want your last words to the judge the prompt the question…what case law and opinions do you have to support your position?

    Judge: Plaintiffs Counsel what do you have to say?

    Plaintiff’s Counsel: Your Honor, our Complaint clearly states a cause of action (OPINION). Plaintiff is in possession of the original Promissory Note and we are prepared to drop the Re-establishment Count Your Honor. Since we have possession of the Original Note, the Court should find that an equitable assignment occurred prior to the actual dated assignment and the date of the assignment is irrelevant (OPINION). We only need to have possession to be the holder in due course judge which allows us to bring this action. I have numerous case-law to support our position.

    Judge: Such as?

    Plaintiffs Counsel: Well Your Honor, WM Specialty Mortgage, LLC v. Salomon, 874 So.2d 680 (Fla. 4th DCA 2004) and Johns v. Gillian, 184 So. 140 (Fla. 1938) clearly state that because Plaintiff had possession of the original Promissory Note the Court should find that an equitable assignment of the mortgage occurred prior to the actual dated assignment and the date of the assignment should be deemed irrelevant.

    Judge: I see…Defense Counsel?

    Defense Counsel: Your Honor, Counsel’s argument is misplaced (FACT/OPINION). WM Specialty Mortgage requires that, whatever the form of the assignment, there MUST first be an “unconditional” transfer of interest BEFORE the assignee may maintain a foreclosure (FACT). Unlike the matter presently before the Court, in WM Specialty Mortgage the Plaintiff alleged facts of a physical transfer of the mortgage to the assignee prior to the Plaintiff filing suit (FACT). The allegation of physical delivery SUPPORTED an equitable assignment (FACT) and based on THAT fact the Court in WM Specialty Mortgage overlooked the late executed assignment and allowed the foreclosure to continue (FACT). In the matter before this Court, the Plaintiff made no allegation IN THE Complaint of physical delivery (FACT) within the holding of WM Specialty Mortgage and the allegations in the Complaint do not rise to the standard of showing an “unconditional” transfer of the assignor’s rights to Plaintiff (FACT) nor has Plaintiff alleged in the Complaint it is the HOLDER IN DUE COURSE which counsel is alleging here.

    Your Honor, before Plaintiff’s Counsel responds, I’d like the court to note that PRESENTING Affidavits that are dated AFTER the a Complaint is filed and the foreclosure has been initiated in the manner done so EXACTLY as seen here (FACT/OPINION), is a pattern and practice amongst the law firms Marshal C. Watson, Florida Default Law Group, Law Offices of David J. Stern and Shapiro & Fishman (FACT) who represent over 90% of foreclosures in the State of Florida (FACT). In fact the argument I’ve just expressed to the court comes straight from Judge Anthony Rondolino of the 6th Judicial Circuit in and for Pinellas County BANK OF AMERICA vs. COLLEEN M. MCKENNA Case No. 09-4179-CI-13 (FACT) which Marshall C. Watson was counsel of record for, where His Honor granted Defendant’s Motion to Dismiss against Marshall C. Watson for the very same reason (hand a copy of 16 Fla. L. Weekly Supp. 833c to Judge) (FACT). At a glance I have over ten (10) cases where this tactic has been used and the case was dismissed as a result (FACT) (hand Judge the cases with the points highlighted). Those cases are BRANCH BANKING AND TRUST COMPANY vs. REGINALD JENKINS, 16 Fla. L. Weekly Supp. 642a, CHASE HOME FINANCE, LLC v. JANET DOBSON, 16 Fla. L. Weekly Supp. 428a, CITIMORTGAGE, INC. vs. MICHAEL EASOM, 17 Fla. L. Weekly Supp. 100b, CREDIT BASED ASSET SERVICING AND SECURITIZATION, LLC v. TAMMY D. HARDY, 16 Fla. L. Weekly Supp. 1147a, SUNTRUST MORTGAGE, INC. vs. ELENA V. FULLERTON, 16 Fla. L. Weekly Supp. 1146b, THE BANK OF NEW YORK MELLON v. MARY L. BARNICH, 17 Fla. L. Weekly Supp. 100a, U.S. BANK NATIONAL ASSOCIATION v. BRENDA C. ROSE, 16 Fla. L. Weekly Supp. 1044a, US BANK N.A. v. JESUS TACORONTE, 17 Fla. L. Weekly Supp. 17a and WACHOVIA BANK NATIONAL ASSOCIATION vs. JUANITA NORTON, 16 Fla. L. Weekly Supp. 1043a.

    All of these cases support that where an Assignment is filed AFTER the Complaint is filed and the Complaint fails to allege and/or Plaintiff fails to submit other documentary evidence showing conclusively an EQUITABLE TRANSFER of the Note (FACT), Plaintiff lacks standing to bring a foreclosure action and the case should be dismissed (FACT). I would ask the court at this time based on the OVERWHELMING support I have provided to dismiss this case.

    STOP RIGHT HERE (EDITORS NOTE): I cannot tell you what the judge will decide or what Opposing Counsel will say after this point…you be the judge. What I will say is that Judges want to hear the FACTS. You have presented the FACTS very well here. The key to success in this example is your flow of words in a strong and confident manner without studder, interruption or indecisive pause.

    Another very important point and cross argument I want to point out is the Assignment is 99% of the time from MERS to the Plaintiff. There are two (2) important positions to take on this.

    (1) While the Mortgage may name MERS as the Nominee for Lender, it does so only in the Mortgage and the Mortgage interest only. MERS is not mentioned ANYWHERE on the Note hence it can not assign an interest greater than that which it is entitled to. The MERS assignment (outside of the number of fraudulent issues that may exist on the face of it) will casually state in the language that it is transferring ALL beneficial interest in the Mortgage AND Note. Be sure to bring to the court’s attention that MERS name is not mentioned anywhere on the NOTE as the Lenders Nominee and Plaintiff has NOT provided evidence to support MERS ability to transfer the beneficial interest of the Note.

    (2) In instances where the Plaintiff is Trustee for a securitized pool of loans, find the Pooling & Servicing Agreement at http://www.secinfo.com/. Show the court that it would be impossible for MERS to transfer interest to Deutsche when it is clear from the case caption that this loan is part of a pool of loans (FYI – just because they allege your loan is part of a pool does not mean it is but for argument sake use this allegation against them). The Pooling and Servicing Agreement will show who the Depositor is, Servicer, Master Servicer and Deutsche as Trustee. This document is evidence that a) the loan transferred from the original lender to at the very least, the Depositor (where is the evidence of this transfer?), and from the Depositor to the parties in the pool (where is the evidence of this transfer or transfers) and that the Trustee gets its alleged power from this pool and agreement which only begs the question…why is counsel here attempting to claim this Note has moved from MERS to Plaintiff directly?

    This is a great point to proving the assignment is a fraud. Watch what opposing counsel answers to this because it will probably amount to testimony at which point you need to be quick to say to opposing counsel “unless you intend to recuse yourself as counsel from the Plaintiff please refrain from testifying on their behalf.” Because at this point anything opposing counsel says will not be supported by anything alleged in the complaint or in the court record and that should always be your…”maybe so your honor but Plaintiff has not alleged such in the complaint…Plaintiff has not submitted any documented evidence to support what counsel is saying here today.”

    Well my fellow soldiers of the cause, that is my 2 cents. Master this in 5 minutes and I think the outcome will be a positive one. I’d be very interested to hear any comments and feedback on this. My next topic will be Summary Judgment. I hope this helps.

    Anthony Martinez Esq.

  42. JUDGE FINES LEGAL FIRM FOR FORECLOSURE CONDUCT

    Lawyers to pay $49,000 for not showing up at scheduled hearings
    By Todd Ruger
    Published: Tuesday, August 31, 2010 at 1:00 a.m.

    MANATEE COUNTY – A circuit judge singled out a Fort Lauderdale foreclosure firm on Monday, finding its business model violates legal ethics and leveling a $49,000 fine for scheduling hearings and then not showing up in court.

    Circuit Judge Janette Dunnigan scolded five lawyers from the Smith, Hiatt and Diaz firm in connection with a Manatee County foreclosure case filed in 2007. The firm is one of several “foreclosure mills” filing thousands of foreclosure cases monthly.

    The firm’s attorneys filed what amounted to “sham” paperwork setting seven hearings over two years, and then failed to appear in court or tell the judge or other parties when they were canceled. The case is still unresolved.

    The behavior is willful, deliberate and flagrant and violates oaths of professional practice for lawyers, Dunnigan said. The firm also routinely does not comply with local court rules about how foreclosure cases should be handled, Dunnigan ruled.

    “It is disrespectful and inconsiderate of the court’s time and impedes judicial administration,” Dunnigan said.

    Sarasota attorney Michael Belle, who is trying to clean up the foreclosure process, said it was the first major penalty from a state judge about how the so-called “foreclosure mills” do business.

    The firms handle the majority of foreclosure cases for lenders, bidding against each other to handle large numbers of cases.

    In a judicial district that has taken a hard line on fraudulent or messy foreclosure filings, the judge’s ruling is the first time a court officer has openly attacked the methods of one of the firms responsible for thousands of foreclosures statewide.

    Circuit Judge Janette Dunnigan scolded five lawyers from the Smith, Hiatt and Diaz firm in connection with a Manatee County foreclosure case filed in 2007. The firm is one of several “foreclosure mills” filing thousands of foreclosure cases monthly.

    The firm’s attorneys filed what amounted to “sham” paperwork setting seven hearings over two years, and then failed to appear in court or tell the judge or other parties when they were canceled. The case is still unresolved.

    The behavior is willful, deliberate and flagrant and violates oaths of professional practice for lawyers, Dunnigan said. The firm also routinely does not comply with local court rules about how foreclosure cases should be handled, Dunnigan ruled.

    “It is disrespectful and inconsiderate of the court’s time and impedes judicial administration,” Dunnigan said.

  43. From http://www.msfraud.org

    When it comes to fighting foreclosures, homeowners and their lawyers may have found a new strategy to score courtroom victories.

    Defense lawyers across the state are increasingly attacking the validity of affidavits that owners of notes must file with the courts as part of the foreclosure process.

    Attorneys like Dustin Zacks, of the firm Ice Legal in West Palm Beach, are successfully arguing that plaintiffs — usually a trust that owns the note or the servicer of the note — are violating court rules by filing affidavits with no records attached to support their foreclosure suits. The records include details of the loan, borrower fees and payment history.

    The Florida Rules of Civil Procedure (Rule 1.510) states that “sworn or certified copies” of all records referred to in the affidavit must be attached as evidence in the foreclosure case.

    The rule helps ensure that homeowners’ due process rights aren’t violated — namely that the lender has to prove it is entitled to press its claim.

    In a foreclosure suit, the plaintiff’s affidavit outlines how much the homeowner owes, asserts that there are no unresolved disputes between the lender and borrower and that the home is legally ready to be sold.

    Judges rely on the affidavits as critical evidence when they hand down a summary judgment in favor of the lenders, which paves the way for the sale of a property at a foreclosure auction. Since most foreclosure cases are unopposed, the validity of the affidavits and compliance to the rules have rarely been questioned.

    When a summary judgment is denied — because an affidavit is flawed, among other reasons — the homeowner can face the lender at trial.

    A deficient affidavit can be the difference between homeowners losing their properties through a summary judgment or going to trial, Zacks said. “These affidavits are the linchpin of cases when they are trying to win a house at summary judgment,” he said. “A summary judgment cuts short [a homeowner’s] right to a full trial.”

    Several judges and lawyers say deficient affidavits are rare in most other civil cases, but are rampant in foreclosure cases. “Our entire judicial system is under attack as a result of this foreclosure process,” said St. Petersburg lawyer Matthew Weidner, who blogs about foreclosures. “Judges, just like us, have just sort of overlooked this in the midst of this crisis.”

    AG’s Investigation

    Foreclosure firms are increasingly under scrutiny for questionable practices, including the alleged falsification of documents. Earlier this month, Florida Attorney General Bill McCollum launched a probe into the Law Offices of David J. Stern in Plantation; the Law Offices of Marshall C. Watson in Fort Lauderdale; and Shapiro & Fishman, with offices in Boca Raton and Tampa.

    McCollum’s office is investigating whether the three law firms submitted false affidavits or fabricated court documents to obtain final judgments against homeowners.

    The Law Offices of David J. Stern and Shapiro & Fishman deny wrongdoing and have filed motions to quash or modify the subpoenas issued by the AG office.

    Defense lawyers, who have been filing civil lawsuits against the foreclosure law firms, welcomed the investigation. They claim some plaintiff lawyers are rushing through large volumes of foreclosures on behalf of lenders, often improperly serving notice on homeowners or filing false pleadings.

    Some judges say they don’t have the resources nor it is their job to make sure every affidavit is proper, but at least two said they are interested in hearing the argument.

    “It is a genuine question that should be raised,” said Miami-Dade Circuit Judge Jennifer Bailey. “The question is, where should each judge draw the line about the degree of investigation they are going to do on these affidavits? There is no clear answer.”

    In June, Zacks persuaded Palm Beach Circuit Judge Howard Harrison Jr. to deny a motion for summary judgment because of a flawed affidavit.

    Harrison told a representative of the Bank of New York, the loan’s trustee, that it needed to produce the loan records rather than having an employee of the plaintiff attorney or the loan servicer attest that documents are in order before signing the affidavits.

    “It basically just says he looked at and plugged some numbers in,” Harrison said, according to a transcript of a June 29 hearing. “If they are not contested, that’s fine. But where somebody just basically says, ‘I looked at the records,’ this is it. That’s not enough for me to agree.”

    Harrison’s ruling gave Elizabeth and David Mosquera a temporary break. The couple owes $1 million on a six-bedroom Wellington home they bought for $1.4 million in 2007, according to Palm Beach County property records. The couple fell behind on their mortgage payments last year.

    In May, Zacks got Palm Beach Circuit Judge Jack Cook to strike an affidavit that did not include records. Now it will be up to Wells Fargo Bank, as trustee, to file a new affidavit.

    Challenging Rule

    In addition to requiring a copy of the records, Rule 1.510 also says that the person signing the affidavit must have personal knowledge of the facts of the case. That can be a challenge since most loans have been sold several times since they were originated and have been processed by different servicers. Many notes and mortgages are not available for review. Since the foreclosure crisis started in 2008, it has become common for plaintiff lawyers and servicers to assign an employee to sign hundreds of affidavits, even though they usually are not familiar with the cases.

    “I’d like to see in one of these cases where a defense lawyer cross examines, takes a deposition of these people [so] we can see whether they ought to be charged with perjury for all of these affidavits,” Pinellas Circuit Judge Anthony Rondolino said during an April 7 hearing.

    At that hearing, he vacated a summary judgment he granted in January in favor of GMAC Mortgage.

    Rondolino reconsidered his decision after defense lawyer Michael Wasylik of Dade City asked for a rehearing to challenge GMAC’s affidavit, which did not include any sworn or certified documents.

    Rondolino said he hasn’t seen many defense lawyers use flawed-affidavit arguments as a defense, “but when they do raise these issues, I listen to the argument carefully.”

    Wasylik said summary judgments that were granted based on insufficient affidavits can be appealed and set aside. “If courts are fooled into granting judgments … it could be disastrous for Florida’s real estate,” he said.

    Attorney Mark Romance, with Richman Greer in Miami, said people who lost their homes to foreclosure can appeal a judgment that was the result of an insufficient affidavit or on a mistake.

    “That doesn’t help necessarily the person whose home has been foreclosed upon and sold … but they can still get some relieve from the court,” he said.

    Nonjudicial process?

    The Florida Bankers Association is pushing state lawmakers to make the foreclosure process nonjudicial so lenders can repossess properties faster.

    It can take more than a year for uncontested cases to move through the overworked court system and several years if a homeowner defends the case.

    A bill proposed by the FBA to make foreclosures nonjudicial failed earlier this year during the legislative session in Tallahassee. The industry group is considering re-introducing the bill in the 2011 session, said Anthony DiMarco, the FBA’s executive vice president and director of government affairs.

    “Everybody has the right to a defense, but if they do it just to slow down the process, they are just going to slow down the [recovery of the housing market,]” DiMarco said. “And the faster we get through all this, the faster we are going to get to the end of the crisis and we can move on.”

    Paola Iuspa-Abbott can be reached at (305) 347-6657.

    Source: http://www.dailybusinessreview.com/news.html?news_id=64829&stripTemplate=1 8/26/2010

  44. Thanks Roger William for sharing this news
    ————————————————————
    In a decision which is noteworthy for its directness and brevity, Florida’s First District Court of Appeal reversed a summary judgment in favor of American Home Mortgage Servicing, Inc. (AHMSI) on August 10, 2010, in the case:

    Kontos v. American Home Mortgage Servicing, Inc., Case No. 1D09-2803, 2010 Fla. App. LEXIS 11698 (Fl. App. 1st Dist., 2010)

    http://opinions.1dca.org/written/opinions2010/08-10-2010/09-2803.pdf

    Reading the decision, without benefit of reading the briefs, it appears that the appellee must have conceded that the record before the trial court was devoid of any evidence of an assignment of the alleged mortgage indebtedness from the named Lender on the alleged instruments in favor of AHMSI.

    EVIE KONTOS,
    Appellant,
    v.
    AMERICAN HOME MORTGAGE SERVICING, INC.,
    Appellee.
    IN THE DISTRICT COURT OF APPEAL
    FIRST DISTRICT, STATE OF FLORIDA
    NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
    CASE NO. 1D09-2803
    _____________________________/
    Opinion filed August 10, 2010.
    An appeal from the Circuit Court for Walton County.
    Kelvin C. Wells, Judge.
    Matthew W. Burns, Destin, for Appellant.
    Katherine E. Giddings and Nancy M. Wallace of Akerman Senterfitt, Tallahassee, and William P. Heller, Akerman Senterfitt, Fort Lauderdale, for Appellee.
    PER CURIAM.
    In this mortgage foreclosure action, appellee, American Home Mortgage Servicing, Inc., obtained a final summary judgment. This judgment relies in part upon appellee’s allegation that it is the assignee of the original holders of the mortgage and note executed by appellant. As all parties acknowledge, however,
    2
    the uncontested facts of record do not establish that appellee is presently entitled to foreclose because the record contains no evidence of any assignment or comparable transaction. Accordingly, we VACATE the final summary judgment and REMAND this case for further proceedings.
    HAWKES, C. J., KAHN and WEBSTER, JJ., CONCUR.

  45. NEWS RELEASE

    For Immediate Release

    August 10, 2010
    FINALLY !!

    FLORIDA LAW FIRMS SUBPOENAED OVER FORECLOSURE FILING PRACTICES
    ———————————————————————

    TALLAHASSEE, FL – Attorney General Bill McCollum today announced his office has launched three new investigations into allegations of unfair and deceptive actions by Florida law firms handling foreclosure cases.

    The Attorney General’s Economic Crimes Division is investigating whether improper documentation may have been created and filed with Florida courts to speed up foreclosure processes, potentially without the knowledge or consent of the homeowners involved.

    The new investigations name The Law Offices of Marshall C. Watson, P.A.; Shapiro & Fishman, LLP; and the Law Offices of David J. Stern, P.A. The law firms were hired by loan servicers to begin foreclosure proceedings when consumers were in arrears on their mortgages.

    Because many mortgages have been bought and sold by different institutions multiple times, key paperwork involved in the process to obtain foreclosure judgments is often missing. On numerous occasions, allegedly fabricated documents have been presented to the courts in foreclosure actions to obtain final judgments against homeowners.

    Thousands of final judgments of foreclosure against Florida homeowners may have been the result of the allegedly improper actions of the law firms under investigation.

    The Attorney General’s Office is also investigating whether the law firms have created affiliated companies outside the United States where the allegedly false documents are being prepared and then submitted to the law firms for use.

    Subpoenas have been served on each of the law firms listed above, and the investigations are ongoing.

    For an official, downloadable photograph, please visit http://www.myfloridalegal.com/picture.html. Also, follow the Attorney General’s Office on Twitter! http://www.twitter.com/myfloridalegal

  46. MEMOS AND MOTIONS THAT MAY SHUT THE FORECLOSURE MILLS

    http://www.mattweidnerlaw.com/blog

    In honor of all the national reporting that’s starting to break about all the abuses that are being committed by the foreclosure mills and as part of the continued efforts to support all the good judges out there that really “get it” and who are doing the right thing, I want to share a treasure chest of motions that I have filed over the last several months.
    I hear the criticisms of our judges but truth be told, I’ve never had a bad experience in front of a foreclosure judge….when I did my job, prepared my case and had a court reporter present. And while I respect the efforts of homeowners who start the fight pro se, if you want to save your home, if you want the respect of the court and the opposing party, you must hire an experienced foreclosure defense attorney to fight this battle.

    I’m posting these Motions and memorandum primarily so that other attorneys from around the state will use them, develop them and argue the issues in front of judges. The issues contained within these documents are very important and frankly they require experienced and committed attorneys to make the arguments correctly. These documents and the issues presented are tools and like any tool they should only be used by operators who are trained to use them. Having said that I just hate seeing these coverage attorneys for the foreclosure mills wheeling in their boxes of hundreds of foreclosure cases and throwing this garbage into our courtrooms. I am appalled that the mills have joined forces and share the same coverage attorneys between all the mills. Where is the formal and specific authorization for that attorney to represent that client before the court?

    How can coverage attorneys represent to the court that, there are no issues of material fact in the hundreds of files that are in his wheelbarrow when those files have been prepped by another law firm? Why is that attorney not required to file a Notice of Appearance so the court knows what attorney is affirmatively representing to the court the veracity and authenticity of all the facts in his case?

    Special thanks to my intrepid law clerk Michael Fuino who is primarily responsible for all the excellent research and drafting contained within these memos and motions. Hats off to him! Enough of all of that, here go the goods.

    affidavitmotiontostrike

    affirmitivedefenses

    allongemtd

    answernotverifiednotnegotiableetc

    objecttofeememorandumfeeaffidavit

    Get out there and keep up the fight…

  47. Florida :Watch out for Concilation/Mediation Scam
    ———————————————————————-
    Florida Default Group is emailing foreclosure defense attorneys with emails stating “Per your request, conciliation will be scheduled for your client…” that is how the are scamming even REPRESENTED defendants out of their right to a third party mediation (not that they are going to work anyway).

    As I myself have witnessed on many occasions, some mill attorneys, or LOCAL COUNSEL, like Peter Porcaro local counsel for Stern’s office, bring pro se defendants out of the courtroom, smooth talk them into an agreement where there is an “extended sale date 120 days into the future, and an agreement for “conciliation” (which differs from mediation because mediation for primary residences cost the plaintiff $750 each and also there is a mediator) and a waiver of mediation. Conciliation is at no cost to the plaintiff and is between the two parties without a mediator. There is no explanation of mediation vs conciliation and no telling that the FL Supreme Court mandates mediation unless it is waived. There is no acknowledgment of months if not years of frustrated attempts at “conciliation” in terms of loan mods or short sales or deeds in lieu and how the defendants have a right to mediation. If any issues regarding the veracity and/or authenticity of the documents in the court file are raised, the answer given in these hallway dirty dealings, is “I’m not involved with that. I don’t work for their office.”

    The same thing happens with all the mills. Attached is what the defendant in a Marshall Watson case walked away with…..just read it to see …………

    See for yourselves. Stand outside of courtroom 10H or the other “foreclosure mill courtrooms” and watch this play out.

    Sincerely,
    Lisa Epstein
    ForeclosureHamlet.org

  48. One of Prominent Florida Foreclosure Defense Lawyers : D. Graham Esq. 305-445-9185.
    ————————————————————————–

    What do I do if I am sued for foreclosure in Florida?
    1. Respond to the Complaint
    You have twenty days after service to respond to the Complaint. You can file a Motion for Time Extension to ask for another 20 days to file a response The response can be an Answer or a Motion to Dismiss. If justified, the initial response should be a motion to dismiss. The Motion to Dismiss delays the time for an Answer until the motion is denied. You will waive many issues if you omit them from the motion, so you should hire a lawyer to represent you if at all possible.

    2.Draft the Motion to Dismiss
    Consider: 1. Was service on you proper? (In your hand, or if at home in the hand of you or another adult resident) 2. Is a copy of the promissory note attached to the Complaint? 3. Does the plaintiff adequately show the plaintiff owns and holds the note? 4. If there is a count to re-establish a lost note, does the count say it was lost while in the possession of the plaintiff? Are the allegations generic or specific? 5. Does the Complaint show that the taxes on the note were paid? 6. Does the Complaint show that you signed the note or have an interest in the property (2d mortgage holder, tenant, etc) — being a spouse of the debtor is no reason to sue you. Serve the motion to dismiss. Send the original to the clerk of the court. (If possible, bring a copy of the original to the clerk of the court with the original motion and have the clerk time-stamp your copy to show it was on time).

    3. Wait until the judge rules on the motion
    Some circuits require that you send a copy of the motion to the judge with a blank order and envelopes. If there is such a requirement, do it. You do not have to do anything else until the motion is denied. Under the above procedure, this might happen without a hearing, or the judge might request a hearing. In the circuits that do not require notifying the judge about a motion to dismiss, the plaintiff will have to contact you, discuss the merits of the motion, and if you do not agree, either set it for hearing or Amend the Complaint. (If the Complaint is amended, go back to step 1, above). If the matter is set for hearing, attend the hearing and tell the judge why the Complaint is defective (not why you do or do not owe the money). If the Plaintiff has no Standing to foreclose(i.e does not own the notes or Plaintiff is not a Party of Interest etc ), the Judge still denies your Motion to Dismiss, you can consider go to Appeal. Remember to go to the hearing with a Court Reporter as you need certified transcript to go to Appeal Court.

    4. Answer the Complaint
    You should have a lawyer do this in order not to miss important issues. But consider: 1. Denying all the material facts alleged. 2. Adding Affirmative Defenses; consider these: A. The same issues detailed in the Motion to Dismiss considerations B. Predatory lending C. Illegal interest rates D. Waiver E. Violation of the Truth in Lending Act F. The Complaint fails to state a cause of action. G. The Complaint fails to state a cause of action because it does not show endorsement of the promissory note to the plaintiff. H. Plaintiff has failed to present the promissory note for payment as required by Fla. Stat. §§673.011, et. seq. I. Plaintiff is in violation of Florida Statute §57.011 because it is a non-resident of the State of Florida that has not posted a non-resident cost bond after a demand that it do so. J. Plaintiff is not the real party in interest

    5. The matter will be set for mandatory mediation
    The Florida Supreme Court has recently adopted rules requiring mandatory managed mediation in all residential foreclosure cases. You will be contacted by the organization responsible for the mediation. TAKE THE CALL. COMPLY WITH THE REQUEST TO CONTACT THE CREDIT COUNSELOR. PROVIDE THE REQUESTED INFORMATION. Attend the mediation when it is set.

    6. Attend mediation
    Consider these possibilities: If you want to leave the home, consider: 1. Giving a deed in lieu of foreclosure (be sure you get a guarantee of debt forgiveness) 2. Asking for move-out money (“Cash for Keys”) 3. A short sale (be sure you get a guarantee of debt forgiveness) 4. Setting a move-out date long into the future. If you want to stay in the home, consider: 1. Ask for a reduction in principal to the value of the home (A recent federal program may help facilitate this in part) 2. Asking about the HAMP program (if you qualify, the interest rate is reduced and the term extended so that the payments are reduced) 3. Asking about conventional refinancing to current rates Remember, you do not have to agree on anything. You can let the foreclosure take its course. Remember, the promissory note is negotiable paper, it may be able to be sold and then enforced against you if you do not get the original note back.

    7. If mediation is unsuccesful, send discovery to the plaintiff
    You need a lawyer to do this well. The discovery should be aimed at showing that you do not owe this plaintiff anything. Consider: 1. Interrogatories 2. Request to Produce 3. Request to Admit Be aggressive if you do not timely receive responses. File motions to compel and set them for hearing. The plaintiff’s lawyers are probably working on a flat fee and may leave you alone if you are difficult to deal with. Be sure to properly respond to the plaintiff’s discovery. (Request to Admit are deemed admitted if you do not timely respond).

    8. When the Motion for Summary Judgment is filed; Respond with an Affidavit
    A trial will be needed if any material allegations are at issue. These might include who owns the note, are you in default, as well as the legal defenses set forth above. But, the judge will only defenses presented in a timely, properly drafted and filed affidavit, Get a lawyer to help you do this. Avoid a Summary Judgment.

    8.If there is a trial, defend aggressively. Make sure you hire a court reporter for trial
    Raise all the issues stated above. Bring witnesses and documentary evidence. Concede nothing.

    10. If you lose
    Consider an appeal, but this is costly and does not delay the foreclosure without posting a bond. You can still redeem the property by paying the judgment until the clerk of the court issues the certificate of title. Consider refinancing. You can also file Bankruptcy to delay the sale and have your debts including the mortgage wipe out.

  49. From http://www.mattweidnerlaw.com/blog

    Judge Vacates Final Judgment and Sale- Foreclosure Courts are Courts of Equity!
    We’ve all seen it and it happens too often…Borrower is in a formal modification with the lender or servicer or has fallen victim to a foreclosure rescue scam and doesn’t respond to the lawsuit. Unbeknownst to the homeowner, the lender is moving right ahead with the foreclosure sale and their home is lost. This happened to a family in Port Charlotte, but rather than losing everything, Elizabeth Boyle and the Super Foreclosure Heroes from GulfCoast Legal got the good judge to cancel the sale, vacate the final Order and allowed the Defendants to Answer. A copy of the Order is below:

    akeysersettingaside

    A key point made in the order is that foreclosure courts are Courts of Equity. Keep in mind that this bedrock principle is embodied in the law used by these reckless mills to engage in this widespread fraud. We should all begin quoting the following statute in every pleading submitted before the court. We need to constantly remind our judges that courts of equity are fundamentally different than courts of law…here is the cite:

    FLORIDA STATUTES 702.01 Equity.–All mortgages shall be foreclosed in equity.

    Courts of Equity- A chancery court, equity court or court of equity is a court that is authorized to apply principles of equity, as opposed to law, to cases brought before it.

    Next thing that Boyle (and anyone else facing Indymac in litigation) needs to do is challenge the right of Indymac to proceed with the litigation. I’m pretty confident that if we pull back hard enough on the Indymac curtain we’re going to find

    INDYMAC HAS NO RIGHT TO PROCEED AS A PARTY PLAINTIFF- THOSE RIGHTS WERE SURRENDERED FIRST TO THE FDIC THEN TO ONEWEST

    While we’re on the subject of courts vacating sales, I publish again the fantastic Order Vacating the Order Substituting Party Plaintiff recently entered in St. Johns County.

    7th+Cir+Judge+Trayno+USBankvMcCleod-vacatewprejudice

    We’re all aware that Plaintiffs are morphing in and out of cases through ex-party Orders, Assignments of Bid and other improper means. We all know that standing is being falsely created through questionable endorsements and improper Assignments of Mortgage. I particularly like the section of that Order that quotes the Rules Regulating the Florida Bar 4.3-3(a)(1)-

    “A lawyer shall not knowingly make false representations or fail to correct a false statement of fact made to the court.”

    It disturbs me that this rule is being widely ignored and on the much larger level, I am deeply troubled that billions of dollars in foreclosure judgments are being issued to entities that are not properly identified, that change right in front of the courts eyes and which we have no way of tracking or identifying.

    JUDGE- EXACTLY WHO ARE YOU GRANTING FORECLOSURE TO?
    WHO DOES THE AFFIANT WORK FOR?
    WHO SIGNED THE ASSIGNMENT OF MORTGAGE?
    WHOSE INCOMPLETE, ILLEGIBLE MARK IS ON THAT NOTE?
    WHO PROFITS FROM YOUR JUDGMENT OF FORECLOSURE?

  50. FLORIDA COURT ORDER – MERS CANNOT ASSIGN ANYTHING.- MOTION TO DISMISS GRANTED
    ——————————————————————

    http://www.msfraud.org/law/lounge/mers-auroraslammed.pdf

  51. Courtesy of Richard Shuster Esq.

    Three Rules For Defeating the Bank’s Motion For Summary Judgment in Foreclosure Cases

    One of the attorneys in our Miami office watched a sole practitioner foreclosure defense attorney ( at attorney who is NOT associated with this firm) go down in flames on a summary judgment hearing before a Miami judge. As a civil litigation firm that successfully handled well over one thousand summary judgment hearings in general civil and insurance cases, I wanted to explain for other foreclosure lawyers and for homeowners some important pointers for successfully defending a lender’s motion for summary judgment in a foreclosure case.

    Rule One: Always Bring a Court Reporter: In most (but by no means all) foreclosure cases if the bank wins their summary judgment motion then the bank wins their case and the Court will set a sale date in 30 to 90 cases. A foreclosure defense lawyer should consider the bank’s motion for summary judgment to be equivalent of a trial. If the motion is lost, the homeowner is unlikely to get a second chance. Since the summary judgment is a critical part of the case it is ESSENTIAL that the homeowner’s attorney bring a court reporter to the hearing. By having a court reporter there is a record of the proceedings. If the judge males an erroneous ruling either by disregarding applicable case law (controlling legal precedent) or disregarding evidence or lack of evidence then the homeowner will need a record of what happened in order to appeal the judge’s ruling.

    Some judges do not like presiding over foreclosure cases. Some judges fell that if the homeowner did not pay the mortgage then the bank should win. One judge in Southwest Florida even commented to the press the rapid processing of foreclosure cases was necessary so that real estate prices would stabilize. If there is no court reporter at the hearing the judge can rule against the homeowner and know that the homeowner will be unable to appeal. If a court reporter is present the judge knows that if he or she does not follow the law the judge may be reversed on appeal by a higher appellate Court. Most judges hate being reversed on an appeal. For a judge, being reversed means a higher Court writes an ruling saying the judge made a mistake. Rulings of Florida’s appellate Courts are published in the Florida Law Weekly and Florida Law Weekly Supplement which is mailed to every Court in the state and sent by subscription to most Florida law firms.

    Rule Two: Prepare: A lawyer can’t wing a summary judgment hearing. Meticulous preparation is required. The attorney should review the lender’s motion for summary judgment, analyze the case law cited in the motion, prepare a counter argument, anticipate the bank’s lawyer’s counter-attacks, and bring to Court three copies of each case they cite in opposition to the lender’s motion.

    Rule Three: Do not waive objections: In the hearing where a Miami sole practitioner lost the case, the lawyer asked the Court to continue the summary judgment hearing because the bank had not provided discovery responses. Florida appellate courts have consistently held that summary judgment motions should not be heard until discovery is complete. The Court refused the continue the summary judgment. The judge rejected the last minute oral request for a continuance and explained the homeowners lawyer that if the bank did not provide discovery responses then the homeowner’s lawyer should have filed a motion to compel. The judge also felt that a motion for continuance should have been in writing and served long before the summary judgment hearing. If the homeowners lawyer was counting on a continuance perhaps the did not prepare as hard for the hearing. The solo should have reviewed their file when they received the motion for summary judgment and prepared a motion to compel if discovery was still outstanding.

    I often wonder whether the foreclosure lawyers who change a “one time fixed fee” are able to spend adequate time to prepare and argue motions to compel. When clients go to the cheapest foreclosure lawyer, does that lawyer plan to bring a court reporter to the summary judgment hearing or even attend the hearing themselves. When homeowners interview prospective lawyers for foreclosure defense the homeowner should inquire about how the firm defends summary judgments and whether the price they are paying will include having a court reporter at the hearing.

    The foreclosure lawyers in the Miami, Plantation, and Melbourne offices of Shuster & Saben, begin preparing for summary judgment the moment we open the file. Our discovery is planned and drafted for the purpose of defeating the lender’s motion for summary judgment and winning cases for our clients. When lender’s do not provide the discovery we ask for we follow through with motion to compel. Most homeowners cannot successfully defeat summary judgment without an attorney. When hiring counsel the homeowner should act as soon as possible so that their lawyer has time to conduct discovery prior to the summary judgment hearing.

  52. Buddyt,

    I notice that Judges listen more to lawyer than us pro-se. Maybe if we go to hearing with a court reporter and have the rules and argurment in written motions , it will help as then we have certified court transcript to go to Appeal. If Judge denies your motion, ask him to state the reason so it can be recorded. It is better to go to hearing represented by a lawyer.
    Remember Appeal court will not hear cases without court certified transcript.

  53. FLORIDA JUDGE DISMISSES FORECLOSURE COMPLAINT FILED BY BANK OF NEW YORK AS TRUSTEE FOR A SECURITIZED MORTGAGE LOAN TRUST FOR FAILURE TO COMPLY WITH SUPREME COURT RULES REQUIRING FORECLOSURE COMPLAINTS TO BE VERIFIED AND FOR FAILURE TO PROPERLY ALLEGE CHAIN OF TITLE FROM ORIGINAL LENDER TO FORECLOSING PLAINTIFF
    May 27, 2010
    May 27, 2010
    In an extremely significant ruling, a Florida Circuit Judge today dismissed a residential foreclosure Complaint filed by the Bank of New York as trustee for a securitized mortgage loan trust for failure to comply with the Supreme Court of Florida Order amending the Rules of Civil Procedure to require that all residential mortgage foreclosure Complaints be verified and as the Plaintiff also failed to properly allege the chain of title from the original lender to the foreclosing Plaintiff as required by recent Florida case law. The Supreme Court of Florida rule amendment and the recent case law requiring proof of chain of title in order to be able to foreclose were both previously reported on this website.

    The original lender was Taylor Bean & Whitaker, which failed and was taken over by the government for fraudulent lending practices. There was no assignment or other evidence showing how the loan went from TBW to the Bank of New York. The Complaint was filed on February 12, 2010, the day after the effective date of the Supreme Court Order requiring verification of all residential foreclosure Complaints.

    The ruling is extremely significant, as it ratifies the effect of the Supreme Court Order requiring that ALL residential mortgage foreclosure complaints filed in Florida after February 11, 2010 be verified and that such Complaints also allege the proper chain of title of the note and mortgage from the original lender to the foreclosing Plaintiff, and that if the Complaint does not do both, the Complaint is subject to dismissal.
    The borrower is represented by Jeff Barnes, Esq., who filed the Motion to Dismiss and argued the matter at the hearing.

  54. Rule 1.540. Relief From Judgment, Decrees, or Orders
    You are right the rule appears to be clear. The problem is getting the Judge presiding on the case to abide by the rule, evaluate the evidence and hear the issue without bias and pre-conceived thought. I know I had this issue and was quickly booted out of my hearing….. oh well time for an Appeal!!

  55. HOMEOWNERS – SPREAD THE WORDS AROUND -
    GET YOUR HOMES BACK – HERE IS THE RULES -
    FORECLOSURE MILLS COMMITTED FRAUD UPON THE COURT WITH FRADULENT DOCUMENTS
    ———————————————————————–
    Quote : from D. Graham Esq. 305-445-9185

    Under Rule 1.540 of the Florida Rules of Civil Procedure a judgment can be set aside for various reasons including excusable neglect, newly discovered evidence and fraud on the court. The time limit is one year post judgment except when the judgment is void. Also the property owner can file an independent action and is not limited by Rule 1.540 time limits.

    Rule 1.540. Relief From Judgment, Decrees, or Orders

    (a) Clerical Mistakes. Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

    (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.
    unquote

  56. HOMEOWNERS – TAKE BACK YOUR HOME- THOUSANDS OF JUDGMENTS ARE VOIDED – FRAUDULENT DOCUMENTS ETC.
    From http://www.mattweidnerlaw.com
    A constant theme I hammer on in this blog is that this wave of foreclosures is making a mess of our judicial system. In a perceived need to rush through the foreclosure “crisis“, (a crisis created by the parties who are demanding an unreasonable share of scare judicial resources), the lenders and their Millionaire Foreclosure Mills are ignoring long-established rules of professional ethics. They’re ignoring basic rules of evidence and case law. They’re engaged in a pattern and practice presenting at best questionable evidence and more likely of systematically lying to judges all across this country by adopting practices to create evidence which is not legitimate. They can apparently just ignore the rules and laws of the Supreme Court of Florida.

    The Millionaire Mills Cannot Ignore the Title Insurance Claims That Will Start Rolling in Based on The Issues Contained Within This Post.

    Our elected judges have been given an impossible task as thousands and thousands of cases are dumped on their laps but they’re given no additional support to move things along or to ensure the job is being done correctly. It pains me to see the additional pressures being placed on their staff as they scramble to meet the onslaught. Who benefits from all this?

    THE FAT CAT BANKERS AND THE MILLIONAIRE FORECLOSURE MILLS- My courts have become something that resembles a sloppy fast food restaurant all so that the Millionaire Foreclosure Mill attorneys can buy themselves a few more Ferraris, (apparently that’s the car of choice).My underfunded and underpaid court staffs drop everything to scheduled telephone hearings, sort through missing and misfiled paperwork, manage the Mill’s foreclosure docket as part of a concerted effort to move the docket through for the mills. The files that are being pushed through are a disaster. Lurking within many of these files are title problems and legal claims that will be getting sorted out for years to come. Some of these problems are only potential problems…..litigating them and proving them out will take years and frankly they may not be litigated at all. Other claims (such as those from third party creditors) will be deemed to questionable to carry out so they will be ignored.

    THERE IS ONE CATEGORY OF CLAIMS THAT CANNOT BE IGNORED-

    THOUSANDS OF FORECLOSURES THAT HAVE BEEN PUSHED THROUGH BY THE MILLS AFTER THE COURT HAS ALREADY DISMISSED THE CASE!

    I attach here the Motion I filed which details the issue. I’ve been sitting on it for a while, continuing to do research, meeting with other attorneys and discussing the issues with different title insurance underwriters. NOT A SINGLE ATTORNEY HAS DISPUTED THE FACTS CONTAINED WITHIN THE MEMO. We’re arguing over what the impact of this issue is, but one thing is certain.

    THERE IS A MASSIVE HEAP OF FORECLOSURE JUDGMENTS AND FAILED TITLES TO REAL PROPERTY IN PINELLAS COUNTY IN PARTICULAR

    I don’t know what’s happening in other counties, but the court docket in Pinellas is full of these sorts of cases. I am searching for the cases now, and encourage any of you pro-se people and attorneys out there who are researching dockets to pay real attention to this one and forward examples to me. Keep in mind that this problem was caused by the Plaintiff’s firms themselves. They jammed these cases through. They created Affidavits in Support of Summary Judgment where they swore to the Court that there were no issues of law or fact that prevented the court from entering judgment. They were either careless, reckless or thought they could just get away with it. They cannot and here are just some of the consequences of this problem:

    ■Thousands of people who think the lost their homes have not lost their homes. (They are still the equitable/legal title owners of the property,)
    ■The Final Judgment of Foreclosure that granted the foreclosure sale is not Final, it’s Void. (That means is has no force or effect.)
    ■Second mortgage holders or lienholders who thought they were wiped out through the foreclosure are now attached to the subject property. (Some will take higher priority based on fraud and problems with the first.)
    ■Property owners who think they own a home they bought REO or at a foreclosure sale, are holding worthless title. (Get read for big claims on the title insurors.
    ■Thousands of “active” cases that are sitting on the Pinellas County foreclosure docket are dead, they’re dismissed. The court can take no further action on them. Show the docket cleared, move on to new cases.
    ■The Pinellas County Courts will receive hundreds of thousands of dollars in new filing fees if the Plaintiffs do in fact re-file their cases in order to correct the problems they’ve caused.
    ■Many of the questionable “legal” strategies employed by the Plaintff’s firms in the beginning of the wave are going to be re-examined and found improper.
    ■Much of the improper evidence and questionable documents that were submitted in the early stages of the wave will be examined (for the first time) and appropriate action can be taken to sanction the improper conduct evidenced by the introduction of such evidence.
    Attorneys and advocates, examine your cases. All of you other people out there, particularly you bright legal scholars….pick this Motion apart and please post any critiques of this Motion here publicly. The Motion is posted here below…..please read it and let me know what you think….the tide has definitely turned…..

    ShareTweet this!
    http://mattweidnerlaw.com/blog/wp-content/uploads/2010/05/mtd1.0701.pdf

  57. From Matt Weidner Esq at http://www.mattweidnerlaw.com

    I’ve been hearing chatter and rumors about parties affiliated with the foreclosure mills buying properties after they have completed the foreclosure and now apparently reporters have been hearing such chatter as well.

    If anyone has details on such transactions from anywhere in the state, please email that information to me at weidnerlaw@yahoo.com. Some of you good researchers out there, this could be bombshell material. If you’ve got the time, I would be looking at all sales in a given area, then backtrack that sale to see if the last record was a certificate of title. I would suspect that properties would first be going into LLCs or land trusts so multiple deeds going into these would catch my attention.

    We uncovered a mountain of questionable information last time I asked for Assignments, and federal investigations across the country are currently underway into the assignment practices, most notably into the practices of Lender Processing Services, LLC… but that’s just the tip of the iceberg. The feds move slowly, but unlike other crimes, these paper crimes leave a long, recorded trail.

    So get out there are poke around…let me know what you find

  58. FLORIDA MOTION TO DISMISS WITH PREJUDICE
    IF CASE IS FILED AFTER 11 FEB 2010
    ————————————————————————
    IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,
    IN AND FOR PINELLAS COUNTY, FLORIDA
    CIVIL DIVISION
    NATIONSTAR MORTGAGE LLC, CASE NO. lO-6330-CI-20
    PLAINTIFF,
    v.
    xxxxxxx, DEFENDANT.
    DEFENDANT’S MOTION TO DISMISS ACTIONIMOTION FOR MORE DEFINITE STATEMENT COMES NOW, the Defendants XXXXXXX (hereinafter “Defendants”) by and through the undersigned counsel MATTHEW D. WEIDNER and respectfully moves this Court to DISMISS WITH PREJUDICE the above entitled civil action, pursuant to Rules 1.420(b) and 1.11O(b) Fla. R. Civ. P., and precedent case law, and in support thereof states: FACTS
    1. This is an action for foreclosure of residential real property owned by the Defendants.
    2.
    The named Plaintiff in this case is ABC (hereinafter “Plaintiff’). The Plaintiff initiated this action when it filed its complaint on or about April 20. 2010.
    3.
    The Plaintiffs complaint is devoid of any oath, affirmation, or verification statement which should state “under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief’ as mandated by Fla. R. Civ. Pro. 1.11 O(b).
    4. Upon information and belief, the Plaintiffs counsel deliberately chose to not include
    such an oath, affirmation, or verification statement in the complaint.
    5.
    The Plaintiffs counsel has been warned repeatedly by defense attorneys across the state, including your undersigned counsel, of their failure to include this information in foreclosure complaints filed by their firm. Nevertheless, to date, the Plaintiffs counsel has refused to provide any reasonable justification, either in this case or in any case known to your undersigned counsel, for their failure to abide by the express mandate of Rule 1.11 O(b).
    6.
    Moreover, upon information and belief, the Plaintiff itself has manifested to its counsel, either directly or indirectly, that counsel should not comply with Rule 1.11 O(b) for reasons herein unknown.
    STANDARD OF REVIEW
    7.
    In ruling on a defendant’s motion to dismiss, a trial court is limited to the four corners of the Complaint, and it must accept all the allegations in the Complaint as true. See Lutz Lake Fern Rd. Neighborhood Groups, Inc. v. Hillsborough County, 779 So.2d 380, 383 (Fla. 2d DCA 2000).
    8.
    A motion to dismiss tests whether a plaintiff has stated a cause of action. Crocker v. Marks, 856 So.2d ] 123 (Fla. 4th DCA 2003).
    MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION
    I. The Plaintiff’s Complaint Should be Dismissed for Failure to Attach a Verified Complaint
    a. LegalStandards
    9. Fla. R. Civ. Pro. 1.420(b) provides, in pertinent part, that “[a]ny party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply
    with these rules or any order of court.” Thus, any judgment which is not in compliance with the
    Florida Rules of Civil Procedure is null and void.
    10.
    The dismissal of action or claim for failure of an adverse party to comply with the Rules of Civil Procedure or any order of the court operates as an adjudication on the merits. ==”–’-’Airport Mini-Storage, 782 So.2d 983 (Fla. 3d DCA 2001).
    11.
    In Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993), the Florida Supreme Court listed six factors which trial courts should use in determining whether to dismiss a case with prejudice and noted that “if a sanction less severe than dismissal with prejudicial appears to be a viable alternative, the trial court should employ such an alternative.” ld at 818. The trial court is therefore allowed other measures of dispute resolution, such as dismissal without prejudice, should the court feel dismissal without prejudice is a more proper remedy.
    12.
    Nevertheless, the six factors listed in Kozel are as follows: (1) whether attorney’s disobedience was willful, deliberate, or contumacious; (2) whether attorney was previously sanctioned; (3) whether client was personally involved in act of disobedience; (4) whether the disobedience prejudiced opposing party; (5) whether attorney offered reasonable justification for noncompliance; and (6) whether the disobedience created significant problems of judicial administration. Id at 818.
    13.
    The Florida Constitution gIves the Florida Supreme Court complete authority to promulgate or rescind the Florida Rules of Civil Procedure. Specifically, Article V, Section 2(a) of the Florida Constitution provides that “[t]he supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause
    shall be dismissed because an improper remedy has been sought.” See also Ser-Nestler, Inc. v.
    General Finance Loan Co. of Miami Northwest, 167 So.2d 230 (3d DCA 1964) (“Supreme Court is vested with sole authority to promulgate, rescind and modify the Florida Rules of Civil Procedure, which remain inviolate until changed by Supreme Court”), appeal dismissed 174 So.2d 35; State v. Battle, 302 So.2d 782 (3d DCA1974) (“language of the rules promulgated by the Supreme Court of Florida are binding upon the trial and appellate courts”); State v. Lvons, 293 So.2d 391 (2d DCA 1974) (“Supreme Court has right to adopt a rule at variance from its own precedents”).
    14. On February 11,2010 by the Florida Supreme Court amended Fla. R. Civ. Pro. LllO(b)
    to read
    [w]hen filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document shall include an oath, affirmation, or the following statement: Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief. Emphasis added.
    Therefore, mortgage foreclosure action filed after February 11, 2010 must be verified.
    15. The Supreme Court noted that
    [t]he primary purposes of this amendment are: (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate;
    (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded “lost note” counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. In re: Amendments to the Florida Rules of Civil Procedure, No. SC09-1579, (Feb. 1], 2010).
    16. Furthermore, Fla. Stat. §92.525 provides that
    (1)
    When it is authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner:
    (a)
    Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths; or
    (b)
    By the signing of the \\-Titten declaration prescribed in subsection (2).
    (2)
    A written declaration means the following statement: “Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true,” followed by the signature of the person making the declaration, except when a verification on information or belief is permitted by law, in which case the words “to the best of my knowledge and belief” may be added. The written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration.
    See also Muss v. Lennar Florida Partners L L.P., 673 So. 2d 84 (Fla. 4th DCA 1996).
    b. Argument
    17.
    Here, the Plaintiff has failed to file a verified complaint. The instant action is one for foreclosure of residential real property which was filed on or about April 20, 20 I 0 and therefore squarely comes within the authority of the revised Florida Rule of Civil Procedure. Nevertheless, the Plaintiff’s Complaint does not contain an oath, affirmation, or the verification statement as required by Fla. R. Civ. Pro. 1.11O(b).
    18.
    A dismissal with prejudice is warranted based upon the six factors set forth by the Florida Supreme Court in Kozel have expressly been met. Specifically:
    1. The disobedience by the Plaintiff’s counsel was willful and deliberate;
    11. While Plaintiff’s counsel may not have been expressly sanctioned for this act, Plaintiff’s counsel has been warned by defense attorneys across the State, including your undersigned counsel, that their action was in violation of Rule
    1. 110(b);
    Ill. Upon information and belief, the Plaintiff itself was involved in the disobedience as it, directly or indirectly, manifested to its counsel to avoid compliance with the Rule
    IV.
    The disobedience unduly prejUdices the Defendants through coercing them to spend time and resources on a claim which may prove frivolous or one which is otherwise not subject to adjudication;
    v.
    The Plaintiff’s counsel has not offered a reasonable explanation as to its noncompliance; and
    VI. The disobedience creates significant problems to judicial administration as it forces the courts to also expand time and resources on claims which may prove frivolous or otherwise not subject to adjudication.
    19. The Plaintiff’s complaint thus frustrates the purposes given by the Florida Supreme Court for the amendment to Rule 1.110(b) making dismissal with prejudice is warranted under the circumstances.
    WHEREFORE, because the Plaintiff has failed to file a verified complaint and because the six factors set forth in Kozel have been expressly met, the Defendants respectfully request that the Court dismiss with prejudice the instant case and any other relief the Court deems just and proper.
    CERTIFICATE OF SERVICE
    I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
    l’\.F’J-J..U.
    S. Mail on this ‘Mclay of April, 2010 to MICHAEL GELETY, Law Offices of Marshall C. Watson, P.A., 1800 N.W. 49th Street, Suite 120, Fort Lauderdale, FL 33309.
    MATTHEW

  59. Florida Attorney General Bill McCollum Launches Investigations into Florida Default Law Group and Docx, LLC a/k/a Lender Processing Services
    Foreclosure Fraud | April 29, 2010 at 9:45 AM | Tags:

    Great Work Foreclosure Fighters!

    Be sure to share this information with EVERYONE you know.

    Challenge Everything!

    As of this morning, April 29, 2010 the Florida Attorney General Economics Crime Division launched an Official Investigation into the practices of the Florida Default Law Group and Docx, LLC a/k/a Lender Processing Services.

    Florida Default Law Group, PL Case Number L10-3-1095

    Case Number: L10-3-1095
    Subject of investigation: Florida Default Law Group, PL
    Subject’s address: 9119 Corporate Lake Drive, Suite 300, Tampa, Florida 33634
    Subject’s business: Law Firm, Foreclosures
    Allegation or issue being investigated:
    Appears to be fabricating and/or presenting false and misleading documents in foreclosure cases. These documents have been presented in court before judges as actual assignments of mortgages and have later been shown to be legally inadequate and/or insufficient. Presenting faulty bank paperwork due to the mortgage crisis and thousands of foreclosures per month. This firm is one of the largest foreclosure firms in the State. This firm appears to be one of Docx, LLC a/k/a Lender Processing Services’ clients, who this office is also investigating.
    AG unit handling case: Economic Crimes Division in Ft. Lauderdale, Florida

    View contact information for Ft. Lauderdale by clicking here.
    I wonder if the investigations had to do with any of the issues below?

    Foreclosure Fraud of the Week – Two “Original” Wet Ink Notes Submitted in the Same Case by the Florida Default Law Group and JPMorgan Chase

    Scandalous – Substantiated Allegations of Foreclosure Fraud That Implicates the Florida Attorney General’s Office and The Florida Default Law Group

    The Whole Country is BOGUS – Fabricated Mortgage Assignments All Over the Country

    Docx Fabrications & Forgeries – Comparing Signatures & Titles on Mortgage Documents

    Foreclosure Fraud – Guide to Looking Up Public Records for Fraud

    Whatever the case may be, I am sure these investigations will bring out more than we already know.

    If you have any incriminating evidence on ANY of the foreclosure mills in Florida email me @ foreclosurefraud@gmail.com and I will make sure it gets to the appropriate authorities…

    4closureFraud
    1-561-880-LIES
    Florida Foreclosure Defense

  60. Rally in Tallahasse 21 April 2010 Update.

    Florida Homeowners won . The bad bill SB 2270 intended to turn Florida to non Judicial Foreclosure was not voted. Thank you very much for your support. United we win.
    See video of the Rally in Tallahassee at

    http://www.neighborvision.com

  61. Daria,
    Call Matt Weidner Esq. 727-894-3159 http://www.mattweidnerlaw.com or
    Wasylik Esq. 888-830-0830

  62. FLORIDIANS! Please help spread the word – RALLY in TALLAHASSEE Wednesday, April 21, 2020

    http://www.foreclosurehamlet.org/profiles/blogs/freedom-ride-circa-2010-a

    There comes a point of saturation after which the lethargy of the the legislative branch, having been been repeatedly informed and shown clear, undeniable evidence of the massive criminal fraud behind the foreclosure crisis, can only be viewed as tacit approval and complicit aiding and abetting of the criminal fraud itself.

    It is very concerning that elected officials may be incriminating themselves as accessories after the fact should they vote in favor of FL HB1523 and FL SB2270.

    Unlawful and false affidavits of indebtedness, parties filing foreclosure who are not parties to the transaction, false endorsements and/or allonges that merely contain a stamp on a blank piece of paper with no identifying features of the property it claims to attach itself to, and mere copies of purported documents being passed off as original documents.

    Is it possible to walk into a bank with a copy of a check and expect the teller to cash it- of course not. A copy of a check is no more negotiable than a copy of a promissory note. I have seen assignments of mortgage that have so much white sticky strips all over the face of the document where there is writing on top and underneath the white strips, assignments of mortgage that state BOGUS as the grantor, and assignments of mortgage that have witnesses signing as a completely different name than the typed name under the signature line.

    In addition, if, between 2001 and 2007, you or anyone in your family signed a mortgage backed promissory note, I urge you to hire any of the top fraud examiners in your state to review what may be an eye opening experience. Sometimes, personal experience is the best educator.

    All of the above mentioned items are fraudulent. From this point going forward, legislators are hereby noticed that that there is enormous fraud occurring on practically each and every foreclosure filed against homeowners each and every day.

    By ignoring the rampant fraud perpetrated by illegal parties, legislators automatically become accessories after the fact which is a crime. By voting in favor of HB1523 and SB2270 legislators are a party to the fraud which is a prosecutable offense.

    Furthermore, legislators eagerness to sign their names to a bill that will literally result in extraordinary harm to their constituents is causing red flags to go up that they personally may have an undisclosed relationship with the parties pushing so hard to get these bills passed so quickly.

  63. I am in need of a foreclosure defense attorney to answer some questions. My situation began with an imaginary escrow shortage, due to an insurance refund not being put back in escrow. Our eviction date was Christmas 2008. December 2009 we received a letter apologizing for the escrow shortage and saying they had just applied it.

    We do not wish to live in the house again seeing as how we do not trust the back anymore, and also because at some point it was broken into and vandalized. If you know of a good attorney that represents in the Santa Rosa/ Escambia County area please contact me at honey-child@hotmail.com. Thank you.

  64. MOTION TO DISMISS – IF THE FORECLOSURE LAWSUIT IS FILED AFTER FEB 11, 2010-FLORIDA
    ———————————————————————
    Thank you Mr. Joseph D. Ort Esq. 407-228-9770
    Orlando Florida

    Here is the text of an additional argument that you can add to your MTD. I’ve raised it a few times now, and no mill has responded to it yet:

    Defendant, ________, (“_________”) by and through undersigned counsel, and pursuant to Rule 1.140, Florida Rules of Civil Procedure, file this Motion to Dismiss Plaintiff’s Complaint, and in support state:

    1. On February 11, 2010, the Florida Supreme Court released SC09-1460 In re: Amendments to the Florida Rules of Civil Procedure.

    2. The opinion amends Rule 1.110(b) to require verification of mortgage foreclosure complaints involving residential real property. The Court cited this basis:

    The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded ―lost note counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.

    3. The Order requires the document filed to include an oath, affirmation or the following statement “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

    4. The Order states “[t]he amendments shall become effective immediately upon the release of this opinion.”

    5. The Florida Supreme Court Manual for Internal Operating Procedures defines when an opinion is released. It provides:

    Section V. Release of Opinions.

    A. Routine Release. Copies of opinions ready for release to the public are delivered to each justice no later than Friday at noon. At any time before 10:00 a.m., ET, the following Thursday, any justice may direct the clerk not to release an opinion. Unless otherwise directed, on Thursday morning at 11:00 a.m., ET, the clerk electronically releases the opinions that were furnished to the justices the preceding Friday. Publishers other than the Court’s official reporter may receive copies at the rate of fifty cents per page, and all other interested persons may receive copies at the cost of one dollar per page. Opinions are posted on the Decisions and Rules Page of the Court’s website located at http://www.floridasupremecourt.org/decisions/opinions.shtml by noon on the day they are released.

    Fla. S. Ct. IOP Manual § II

    6. The subject opinion was posted on the Court’s website, and released on February 11, 2010. (See attached Exhibit “A”).

    7. The instant lawsuit was filed after February 18, 2010.

    8. Plaintiff did not verify its pleading. Accordingly, Plaintiff’s complaint should be dismissed for failure to comply with Rule 1.110(b).

    WHEREFORE, _________ respectfully request Plaintiffs’ Complaint be dismissed with prejudice and for such other relief as this Court deems just and proper.

    Joseph D. Ort, Esq.

    Joseph D. Ort, P.L.

    907 Outer Road, Suite B

    Orlando, Fl 32814

    P. 407-228-9770

    F. 407-264-6288

    ortlawfirm.com

  65. CHECK THE FRAUD DOCUMENT…
    ————————————————–
    Fraud is constant these days! We have our group gather a collection of discovery! The latest Fraud is from the Law Offices of David J.Stern/on his assignment documents, the latest witness alleged name is: Harry Innocent. We wonder how real that is because the Judge did not think so! They are working very closely with Ellen & Rothman & Tobin. Mr.Stern, must have trained them very well, is what we were informed from an ex-employee staffer (he said). Marshall Watson law firm has had their problems, too! Florida Default Law Group is working very closely with Mr. Stern. He trained them well, too! Mr. Stern, lastest documents have been reported to be doctored up with: Photo Shop. Other names, with Fraud attached on documents, we discovered through massive research are: Bethany Hood, Cheryl Sammons, Eric Tate, Margie Kwiatanowski, Mary Ladd, Erica SethJohnson, Mary Lynch, etc.!
    Mr. Stern’s magic show consist of: Shrinking down the documents & smearing ink signatures, (we have this on good authority from an insider who had worked there for a year)
    You will see a difference if you blow up the documents on the copy machine 150%. No kidding! Plus, his assignments are not even done until several months after a law suit has been filed on the couple. They have no shame! The corporate seal is missing ( a Lot), The Notary stamp is not even in existence, NO value $$$ are listed for consideration, titles of people for companies are invalid because many companies were already out of business already, the list is endless. When Mr. Stern is on paper, the magic show begins….

  66. Attention Attorneys, Homeowners and Advocates:
    >http://mattweidnerlaw.com/blog/2010/04/lawyers-for-homeowners-rights-rally-in-tallahassee/
    >The Florida Legislature is in session until April 30th. There are a variety of bills pending in the legislature which threaten to dramatically change the practice of consumer law and would eliminate homeowner and consumer rights.
    >The bankers, the foreclosure mills and other wrongdoers are lobbying Tallahassee hard and they absolutely will get some kind of legislation passed….if every one of us doesn’t act now to do something about it.
    >Subject to confirmation of the date, we will have a rally on the Capital. The date is tentatively set for Wednesday April 21, but it may be April 19 or 20 if those days would be more effective given committee schedules and other considerations.
    >Please mark your calendars now and please put forth this extra effort of service to our profession, our courts and to the citizens of the State of Florida. As attorneys, we took an oath to defend the Constitution, the citizens and our courts. These are all under attack and we are all duty bound and obligated to rise up and defend them.
    >In Tallahassee, we will meet with our local representatives and with the leadership of both houses. Our message is clear and distinct….
    >
    >We must preserve and restore the dignity of the courts and ensure consumers and homeowners continue to have access to a fair and properly funded judiciary.
    >We cannot allow the continued breakdown of law and lack of respect for courts that currently exists in courts across the State of Florida.
    >We cannot allow the unethical foreclosure mills and zombie lenders to continue to infect our courts with the cancer they are spreading in courts across the State of Florida
    >We owe this duty to our courts. We owe this duty to our judges who are overwhelmed, overburdened and facing impossible pressures from all sides and we owe this duty to the citizens of the State of Florida–whether they are represented by counsel or not.
    >Please mark your calenders and begin making plans now. We will be chartering buses from major areas and more details will be forthcoming! We expect that consumers and other pro-se advocacy groups will rally behind this cause as part of a major grass-roots effort. There are brave and principled leaders in Tallahassee who share our concerns and we need to take our message of support to them.
    >MARK YOUR CALENDERS AND PLAN TO JOIN US IN TALLAHASSEE!
    >
    >

  67. FORECLOSURE FRAUD FIGHTER WEAPON -MOTION TO DISQUALIFY COUNSEL
    ———————————————————————-
    IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
    IN AND FOR SARASOTA COUNTY, FLORIDA

    THE BANK OF NEW YORK MELLON
    FKA THE BANK OF NEW YORK, AS
    TRUSTEE FOR THE CERTIFICATEHOLDERS
    CWALT, INC., ALTERNATIVE LOAN TRUST
    2006-18CB, MORTGAGE PASSTHROUGH
    CERTIFICATES, SERIES 2006-18CB,

    Plaintiff,
    Case No.
    v.

    xxxxxx

    Defendants.
    __________________________________________/
    MOTION TO DISQUALIFY COUNSEL

    Defendants, xxxxxx, by and through their undersigned counsel, move this Court for entry of an Order disqualifying the Law Offices of Marshall C. Watson from (“Watson”) from representing Plaintiff in this case, and would show:
    1. Plaintiff has initiated this lawsuit for mortgage foreclosure, yet TAKACS never signed a Note and Mortgage with Plaintiff. The Note and Mortgage upon which this lawsuit is based reflect that they were entered in favor of Defendant, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (“MERS”), not Plaintiff. As such, it is axiomatic that Plaintiff’s standing to bring this lawsuit is predicated on an alleged Assignment of Mortgage from MERS to it.
    2. Florida’s appellate courts have, for lack of a better term, begun “cracking down” on banks vis a vis these Assignments of Mortgage. To illustrate, on February 12, 2010, the Second District reversed a summary judgment of foreclosure where the plaintiff bank did not show a proper assignment of mortgage. See BAC Funding Consortium, Inc. v. Jacques, Case No. 2D08-3553 (Fla. 2d DCA 2010). This ruling comes on the heels of the Florida Supreme Court’s recent rule change requiring that all mortgage foreclosure lawsuits be executed under oath. Suffice it to say that Florida courts are increasingly concerned about Assignments of Mortgage and ensuring that the correct bank has filed suit for foreclosure.
    3. In the case at bar, the Official Records of Sarasota County, Florida reflect that an Assignment of Mortgage, purporting to transfer the instant Mortgage from MERS to Plaintiff, was recorded on December 31, 2009 (“the Assignment”). A copy of the Assignment is attached as Exhibit “A.”
    4. The legitimacy of the Assignment is very much in question. Quite frankly, it seems clear the Assignment was not executed by MERS in the ordinary course of business, as required, but was fraudulently executed by Plaintiff and Watson in a fraudulent attempt to “push through” this mortgage foreclosure case.
    5. TAKACS and the undersigned realize that is a serious allegation. As such, they invite this Court to take a look at Exhibit “A” hereto. Even an initial, cursory review of the Assignment calls into question its legitimacy. First, it was not executed until December 31, 2009 (after Watson had already filed this lawsuit). Second, the Assignment was “prepared by” and to be “returned to” Watson. Third, the notary block indicates that the Assignment was executed in Broward County, Florida, which is where (as the Assignment reflects), Watson’s office is located, not where the assignor conducts business. If an agent of MERS signed this Assignment, as required and as purported, it strains logic to understand why its agent would sign in Broward County, Florida, where the assignee’s attorney conducts business, rather than in Virginia, where MERS conducts business. Finally, but perhaps most troubling, the Assignment reflects that it was executed by Caryn A. Graham, purportedly as Assistant Secretary of MERS, yet a simple internet search reveals that Caryn Graham is an attorney of Watson, assignee’s attorney.
    6. These facts, viewed in conjunction with one another, raise serious questions. For example, if the Assignment was a legitimate business transaction, and Plaintiff actually obtained an assignment of the instant Note and Mortgage from MERS, then why did Watson, Plaintiff’s counsel in this case, prepare the Assignment? And sign it as the assignor? Shortly after this suit was filed? If this was a legitimate assignment, why was it signed by Plaintiff’s own lawyer rather than an agent of MERS?
    7. Depending on the response interposed to this motion, more discovery on these issues may be necessary. At this point, though, the answer to these questions seems clear. It seems Plaintiff retained Watson to file this foreclosure case and that, upon being retained, Shapiro realized that no Assignment of Mortgage had ever been executed or recorded. As such, Watson drafted the Assignment and caused Caryn Graham, one of Watson’s own lawyers, to sign it (purportedly as Vice President of MERS), in an attempt to “push through” this mortgage foreclosure case.# In other words, it seems that Plaintiff and Watson have created, executed, and recorded a fraudulent assignment and are relying on that Assignment as the basis for standing to sue TAKACS in this case.
    8. Plaintiff and Watson may not agree with these facts. At this point, though, the issue is not whether TAKACS can unequivocally prove that the Assignment is fraudulent. Said issue is for another day, i.e. a hearing on a motion for sanctions for fraud on this Court. Rather, the issue at bar is whether Watson should be permitted to remain as Plaintiff’s counsel in this case. For the reasons set forth herein, Watson should be disqualified.
    9. Rule 4-1.7(a), R.Reg.Fla.Bar, provides:
    A lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the lawyer’s responsibilities to and relationship with the other client; and (2) each client consults after consultation.

    10. Rule 4-1.7(b), R.Reg.Fla.Bar, provides:
    A lawyer shall not represent a client if the lawyer’s exercise of professional judgment in the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation.

    11. Shapiro’s conflict of interest is obvious. As the pleadings reflect, Watson is acting as counsel for Plaintiff against Defendant, MERS. Incredibly, Watson is Plaintiff’s counsel in this case even though it has already acted as counsel for Defendant, MERS, in this very case! It is fundamental that the same law firm cannot represent a plaintiff and a defendant in the same case.
    12. Watson may dispute its representation of MERS, but there is no other explanation for why Watson’s own attorneys prepared the Assignment and executed it on behalf of MERS. In other words, if Watson was not representing MERS in this case, then why did it prepare the Assignment and sign it for MERS? Notably, Watson is counsel of record for MERS in many other, active cases before this Court. As such, Watson’s status as counsel for Defendant, MERS is not reasonably in dispute.
    13. The problems do not end there. After Watson represented MERS vis a vis the Assignment and filed suit against MERS in this case (on behalf of Plaintiff, its other client), Watson moved for and obtained a Clerk’s default against MERS, its own client. As such, Watson represented MERS in the transaction at issue in this case but sued MERS on behalf of a different client, then obtained a default against MERS on behalf of a different client.
    14. Watson’s conflict is not only a textbook violation of Rule 4-1.7, it calls into serious question the fair administration of justice. To illustrate, TAKACS fear that MERS may institute legal proceedings against them in the future. After all, what is to stop MERS from taking the position, at some point in the future, that it is the owner and holder of the Note and Mortgage? Where would that leave TAKACS? Or the then-owner of the subject property? Or the title insurance company that writes title insurance based on the title that is derived from a foreclosure on the subject property (if a foreclosure is allowed)?
    15. Under a myriad of Florida cases, the conflict of interest by which Watson is operating, coupled with the affect that conflict is having on the administration of justice, requires its disqualification as counsel. See State Farm Mut. Auto. Ins. Co. v. K.A.W., 575 So. 2d 630 (Fla. 1991); Koulisis v. Rivers, 730 So. 2d 289 (Fla. 4th DCA 1999); Campbell v. American Pioneer Savings Bank, 565 So. 2d 417 (Fla. 4th DCA 1990).
    16. The Campbell decision is particularly apt, as it required disqualification of attorney who represented a defendant regarding her interest in property and later tried to represent the plaintiff who sued for mortgage foreclosure on that property. 565 So. 2d 417.
    17. To the extent Watson disagrees with the facts set forth herein, this Court cannot simply accept Watson’s version of events as true. Rather, in that event, an evidentiary hearing is required. See School Bd. of Broward County v. Polera Building Corp., 722 So. 2d 971 (Fla. 4th DCA 1999).
    18. TAKACS have not encountered many Florida cases that evaluate a motion to disqualify counsel on facts like those herein. After all, only in recent years have banks and their lawyers begun drafting assignments in mass quantities in an attempt to “push through” foreclosure suits. Other jurisdictions, however, have begun catching on to these unseemly tactics. One New York court, for example, after discussing problems with an assignment of mortgage similar to those set forth above, ruled:
    Even if [plaintiff] is able to cure the assignment defect, plaintiff’s counsel then has to address the conflict of interest that exists with his representation of both the assignor of the instant mortgage, MERS as nominee for HSBC Mortgage, and the assignee of the instant mortgage, HSBC. …

    HSBC Bank USA, N.A. v. Vazquez, 2009 N.Y. Slip. Op. 51814 (2009); see also Bank of N.Y. v. Mulligan, 2008 N.Y. Slip. Op. 31501 (2008) (“The Court is concerned that [the person who signed the assignment] may be engaged in a subterfuge, wearing various corporate hats…”); Deutsche Bank National Trust Co. v. Castellanos, 2008 N.Y. Slip. Op. 50033 (2008) (“If he is a Vice President of both the assignor and the assignee, this would create a conflict of interest and render the July 21, 2006 assignment void.”); HSBC Bank, N.A. v. Cherry, 2007 N.Y. Slip. Op. 52378 (2007) (“The Court is concerned that there may be fraud on the part of HSBC, or at least malfeasance. Before granting an application for an order of reference, the Court requires an affidavit from [the person who signed the assignment] describing his employment history for the past three years.”).
    19. As if Watson’s conflict of interest is not bad enough, the problems do not end there. The propriety of the Assignment is a huge issue in this case. It will be a feature at trial and pre-trial discovery. The obvious problem is that testimony and discovery concerning this Assignment is not possible without involving Watson. After all, Watson prepared the Assignment, executed the Assignment, and is a necessary witness regarding its propriety. That is unfortunate, but that is the situation that Watson created when it prepared the Assignment and puts its name and address in place of MERS on the Assignment.
    20. The situation here is similar to that presented to the First District in Live and Let Live, Inc. v. Carlsberg Mobile Home Props., Ltd., 388 So. 2d 629 (Fla. 1st DCA 1980). In that case, plaintiff’s attorney was the escrow agent for the real estate transaction upon which the lawsuit was based. What he knew or was told at closing was relevant at trial. Id. Deeming him a “central figure in the lawsuit,” the First District required his disqualification. Id. In so ruling, the court cited ethical considerations promulgated by the Florida Supreme Court in In Re Integration Rule of The Florida Bar, 235 So. 2d 723 (Fla. 1970), including DR 5-102, which provides:
    (A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial. (B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.

    21. The situation here is analogous. Watson will be a central figure at trial. There is no way to litigate this case without Watson’s testimony regarding the circumstances in which the Assignment was entered.
    22. Watson may not like this outcome, but it put itself in this position. This is not one of those cases where a party wants to call opposing counsel on an immaterial issue just to generate a disqualification. Watson chose to represent MERS and Plaintiff in the same case, draft the Assignment, and execute the Assignment, all before TAKACS ever knew about this lawsuit. Watson chose to make itself a central figure in this case. It must now reap the consequences.
    23. Notably, this case is still in its early stages. Defendants’ Motion to Dismiss has yet to be heard. As such, there is no reason that Plaintiff cannot procure a different attorney (who lacks a conflict of interest and will not have to testify). Other parties should not be prejudiced by Watson’s conflict where a different attorney can be procured.
    24. In light of the foregoing, the Law Offices of Marshall C. Watson have an irreconcilable conflict of interest, having represented both Plaintiff and Defendant on the matters at issue in this case. As such, Watson should be disqualified. Additionally or alternatively, because Watson is a “central figure” in this litigation, the case cannot proceed with it acting as counsel.
    WHEREFORE TAKACS respectfully request an Order disqualifying Law Offices of Marshall C. Watson from acting as counsel for Plaintiff in this cause.
    VERIFICATION
    Under penalty of perjury, I declare that I have read the foregoing document and that the facts stated in it are true.
    ____________________________________
    Thomas Takacs

    CERTIFICATE OF SERVICE
    I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail to Rebecca Nilsen, Esq, Law Offices of Marshall Watson, 1800 N.W. 49th Street, Suite 120, Fort Lauderdale, FL 33309 on this 2nd day of March, 2010.

    /s/ Mark P. Stopa______________
    Mark P. Stopa, Esquire
    FBN: 550507
    STOPA LAW FIRM
    2202 N. West Shore Blvd.
    Suite 200
    Tampa, FL 33607
    Telephone: (813) 639-7634
    ATTORNEY FOR DEFENDANTS

    If the laws of evidence, rules of courts, case law and statutory law were upheld and applied in foreclosure cases–particularly when the loan has been sold and securitized–it would be virtually impossible for lenders to prevail in their mortgage foreclosure actions.
    One of the fundamental problems is the party that owns or holds the note has no right to collect any payment on that note because he has sold the right to collect the payments on that note to investors. The note holder has no idea whether the investors are receiving their payments because the function of collecting the payments is handled by a third party, the loan servicer.
    From a purely legal and technical perspective, the servicer probably has no idea who actually owns the note and probably has no admissable knowledge regarding who has a right to collect the payments on the note. Securitized mortgages were bundled into billion dollar piles of obligations. Every month dutiful homeowners make their payments to servicers. The servicers aggregate each months’ worth of mortgage payments, then dole the payments from homeowners out to the investment pools that purchased into that pool.

  68. STRIKE BOGUS AFFIDAVITS & ASSIGNMENT
    ———————————————————-
    Defendant’s Motion to Strike Affidavit of (CHRISTOPHER SPADLING and for attorney’s fees and costs
    COMES NOW, the Defendant XXXXX (hereinafter “Defendant”), by and through the undersigned counsel MATTHEW D. WEIDNER, and respectfully MOTIONS THIS COURT TO STRIKE AFFIDAVIT OF CHRISTOPHER SPADLING AND FOR ATTORNEY’S FEES AND COSTS, pursuant to Fla. R. Civ. Pro. 1.510, and in support thereof states as follows:
    FACTS
    This is an action for foreclosure of real property owned by the Defendant.
    The named plaintiff in this case is HSBC BANK, USA, NATIONAL ASSOCATION, AS TRUSTEE FOR THE ACE SECURITIES CORPORATION HOME EQUITY TRUST, SERIES 2005-AG1, ASSET BACKED PASS-THROUGH CERTIFICATE (hereinafter “Plaintiff”).
    On February 2, 2010 Plaintiff, by and through its counsel Florida Default Law Group, P.L. (hereinafter “Florida Default Law Group”), gave Notice of Filing of Affidavit as to Amounts Due and Owing and the accompanying Affidavit (hereinafter “Affidavit”).
    The Affiant of the above-mention Affidavit was identified as Christopher Spradling (hereinafter “Spradling”). Spradling identified himself as a “Foreclosure Manager” for LITTON LOAN SERVICING, LP (hereinafter “Litton”). Litton, in turn, was identified as “the servicer of the loan…[Litton] is responsible for the collection of this loan transaction and pursuit of any delinquency in payments.”[1]
    Spradling, based upon his personal knowledge, averred in the Affidavit that: (1) the Plaintiff or its assigns was owed a total of $408,809.30; (2) the Plaintiff was entitled to enforce the Note and Mortgage; and (3) Plaintiff was entitled to a judgment as a matter of law.[2] The Affidavit does not contain any mention as to who owes the Plaintiff the sum alleged save for one sentences line which cryptically state “[s]pecifically, I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit” and a second which states “I am familiar with the books of account…concerning the transactions alleged in the Complaint.”[3] Emphasis added.
    Nowhere in the Affidavit was either Litton or Spradling identified as either the Plaintiff or the Plaintiff’s authorized agent.
    Upon information and belief, Litton is simply a “middleman” of sorts who is responsible for the transfer of funds between the various assignees of the underlying Mortgage and Note and has no knowledge of the underlying transactions between the Plaintiff and Defendant.
    Upon information and belief, Spradling, as employee of Litton and not the Plaintiff, has no knowledge of the underlying transactions between the Plaintiff and Defendant.
    LEGAL REASONING IN SUPPORT OF MOTION
    I. Plaintiff Failed to Attach Documents Referred to in the Affidavit
    a. Failure to Attach Documents Violates Fla. Stat. §90.901 (1989)
    Florida Statue §90.901 (1989) states, in pertinent part, that “[a]uthentication or identification of evidence is required as a condition precedent to its admissibility.” The failure to authenticate documents referred to in affidavits renders the affiant incompetent to testify as to the matters referred to in the affidavit. See Fla. R. Civ. Pro. 1.510(e) (which reads, in pertinent part, that “affidavits…shall show affirmatively that the affiant is competent to testify to the matters stated therein”); Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla. 2d DCA 1992) (holding, in part, that failure to attach certified copies of public records rendered affiant, who was not a custodian of said records, incompetent to testify to the matters stated in his affidavit as affiant was unable to authenticate the documents referred to therein.)
    Here, Spradling affirmatively states in the Affidavit that he is “familiar with the books of account and have examined all books, records, and documents kept by LITTON LOAN SERVICING, LP concerning the transactions alleged in the Complaint.”[4] Furthermore, Spradling averred that the “Plaintiff or its assigns, is owed…$408,809.30.”[5] Nevertheless, Spradling has failed to attach any of the books, records or documents referred to in the Affidavit. In addition, Spradling does not meet the definition of “custodian,” which is “a person or institution that has charge or custody (of…papers).” See Black’s Law Dictionary, 8th ed. 2004, custodian. By Spradling’s own admission “[t]he books, records, and documents which [Spradling] has examined are managed by employees or agents whose duty it is to keep the books accurately and completely.”[6] Emphasis added. Thus, Spradling has only examined the books, records, and documents which he refers to in the Affidavit while the true custodians of these documents are the employees or agents whose duty it is to keep the books accurately and completely. In essence, Spradling averred to records which he did not submit nor could he testify for the authenticity of just as the affiant in Zoda did.
    Spradling’s failure to attach the documents referred to in the Affidavit without being custodian of same is a violation of the authentication rule promulgated in Fla. Stat. §90.901 (1989), which renders him incompetent to testify to the matters stated therein as the Second District in Zoda held. Therefore, the Affidavit should be struck in whole.
    b. Failure to Attach Documents Violates Fla. R. Civ. Pro. 1.510(e)
    Fla. R. Civ. Pro. 1.510(e) provides, in part, that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Failure to attach such papers is grounds for reversal of summary judgment decisions. See CSX Transp., Inc. v. Pasco County, 660 So. 2d 757 (Fla. 2d DCA 1995) (reversing summary judgment granted below where the affiant based statements on reports but failed to attach same to the affidavit.)
    As previously demonstrated, Spradling referred to books, records, and documents kept by Litton which allegedly concerned the transaction referred to in the Complaint against the Defendant. Nevertheless, as previously demonstrated, Spradling has not attached any of these books, records or documents. This failure to do so is a violation of Fla. R. Civ. Pro. 1.510(e) and is grounds for a reversal of a summary judgment decision in favor of the Plaintiff. Therefore, the Affidavit should be struck in whole.
    II. Affidavit Was Not Based Upon Spradling’s Personal Knowledge
    As a threshold matter, the admissibility of an affidavit rests upon the affiant having personal knowledge as to the matters stated therein. See Fla. R. Civ. Pro. 1.510(e) (reading, in pertinent part, that “affidavits shall be made on personal knowledge”); Enterprise Leasing Co. v. Demartino, 15 So. 3d 711 (Fla. 2d DCA 2009); West Edge II v. Kunderas, 910 So. 2d 953 (Fla. 2d DCA 2005); In re Forefeiture of 1998 Ford Pickup, Identification No. 1FTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000). Additionally, a corporate officer’s affidavit which merely states conclusions or opinion is not sufficient, even if it is based on personal knowledge. Nour v. All State Supply Co., So. 2d 1204, 1205 (Fla. 1st DCA 1986).
    The Third District, in Alvarez v. Florida Ins. Guaranty Association, 661 So. 2d 1230 (Fla. 3d DCA 1995), noted that “the purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief.” Id at 1232 (quoting Pawlik v. Barnett Bank of Columbia County, 528 So. 2d 965, 966 (Fla. 1st DCA 1988)). This opposition to hearsay evidence has deep roots in Florida common law. In Capello v. Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993), the Third District affirmed an order of summary judgment in favor of Flea Market U.S.A as Capello’s affidavit in opposition was not based upon personal knowledge and therefore contained inadmissible hearsay evidence. See also Doss v. Steger & Steger, P.A., 613 So. 2d 136 (Fla. 4th DCA 1993); Mullan v. Bishop of Diocese of Orlando, 540 So. 2d 174 (Fla. 5th DCA 1989); Crosby v. Paxson Electric Company, 534 So. 2d 787 (Fla. 1st DCA 1988); Page v. Stanley, 226 So. 2d 129 (Fla. 4th DCA 1969). Thus, there is ample precedent for striking affidavits in full which are not based upon the affiant’s personal knowledge.
    Here, the entire Affidavit is hearsay evidence as Spradling has absolutely no personal knowledge of the facts stated therein. As an employee of Litton, which purports to be the servicer of the loan, he has no knowledge of the underlying transaction between the Plaintiff and the Defendant. Neither Spradling nor Litton: (1) were engaged by the Plaintiff for the purpose of executing the underlying mortgage transaction with the Defendant; or (2) had any contact with the Defendant with respect to the underlying transaction between the Plaintiff and Defendant. In addition, the Affidavit fails to set forth with any degree of specificity what duties Litton performs for the Plaintiff, save for one line which states that Litton “is responsible for the collection of this loan transaction and pursuit of any delinquency in payments.”[7] At best, Litton acted as a middleman of sorts, whose primary function was to transfer of funds between the various assignees of the underlying Mortgage and Note. Litton is not the named Plaintiff in this case, nor does the Affidavit aver that either Spradling or Litton is the agent of the Plaintiff.
    Because Spradling has no personal knowledge of the underlying transaction between the Plaintiff and Defendant, any statement he gives which references this underlying transaction (such as the fact that the Plaintiff is allegedly owed sums of monies in excess of $400,000) is, by its very nature, hearsay. The Florida Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fla. Stat. §90.801(1)(c) (2007). Here Spradling is averring to a statement (that the Plaintiff is allegedly owed sums of money) which was made by someone other than himself (namely, the Plaintiff) and is offering this as proof of the matter asserted (that Plaintiff is entitled to enforce the Note and Mortgage and that Plaintiff is entitled to a judgment as a matter of law.) At best, the only statements which Spradling can aver to are those which regard the transfer of funds between the various assignees of the Mortgage and Note.
    The Plaintiff may argue that while Spradling’s statements may be hearsay, they should nevertheless be admitted under the “Records of Regularly Conducted Business Activity” exception. Fla. Stat. §90.803(6) (2007). This rule provides that notwithstanding the provision of §90.802 (which renders hearsay statements inadmissible), hearsay statements are not inadmissible, even though the declarant is available as a witness, if the statement is
    [a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. Emphasis added.
    There are, however, several problems with this argument. To begin, and as previously demonstrated, no memorandums, reports, records, or data compilation have been offered by the Plaintiff. Furthermore, the books, records, and documents referred to by Spradling in the Affidavit (which, of course, were not attached) were kept by Litton, who cannot be a person with knowledge as Litton does not have any personal knowledge of underlying transaction between the Plaintiff and the Defendant. Finally, Litton, as the source of this information, shows a lack of trustworthiness because Spradling failed to attach the books, records, and documents to the Affidavit and because neither Litton nor Spradling have knowledge of the underlying transaction between the Plaintiff and the Defendant.
    Because Spradling’s statements in the Affidavit are not based upon personal knowledge, they are inadmissible hearsay evidence. As no hearsay exception applies to these statements, the Affidavit should be struck in whole.
    III. Affidavit Included Impermissible Conclusions of Law Not Supported by Facts
    An affidavit in support of a motion for summary judgment may not be based upon factual conclusions or opinions of law. Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers’ Comp. JUA, Inc., 793 So. 2d 978, 979 (Fla. 2d DCA 2001). Furthermore, an affidavit which states a legal conclusion should not be relied upon unless the affidavit also recites the facts which justify the conclusion. Acquadro v. Bergeron, 851 So. 2d 665, 672 (Fla. 2003); Rever v. Lapidus, 151 So. 2d 61, 62 (Fla. 3d DCA 1963).
    Here, the Affidavit contained conclusions of law which were not supported by facts stated therein. Specifically, Spradling averred that the Plaintiff was entitled to enforce the Note and Mortgage and that the Plaintiff was entitled to a judgment as a matter of law, two legal conclusions, but did not support this conclusion with statements which referenced exactly who the Plaintiff was entitled to enforce the Note and Mortgage against. In fact there is no mention of any of the parties in question save for one cryptic line in where Spradling states that “[s]pecifically, I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit” and another which states “I am familiar with the books of account…concerning the transactions alleged in the Complaint.”[8] Nowhere in the Affidavit does Spradling state that the Plaintiff is entitled to enforce the Note and Mortgage against the Defendant nor does Spradling state that the Plaintiff is entitled to a judgment as a matter of law because the Defendant owes the Plaintiff money. At best the Affidavit accuses someone of owing the Plaintiff $408,809.30 and that the Plaintiff should be able to enforce some Note and Mortgage against that particular someone. By not clearly identifying the parties in question, Spradling has not adequately supported his two legal conclusions.
    Because the Affidavit contained impermissible conclusions of law which were not supported by facts stated therein, the Affidavit should be struck in whole.
    IV. Sanction of Attorney’s Fees is Appropriate
    Fla. R. Civ. Pro. 1.510(g) reads, in full, that
    [i]f it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorneys’ fees, and any offending party or attorney may be adjudged guilty of contempt. Emphasis added.
    The undersigned counsel has expended considerable time and resources preparing to defend against an affidavit which has, on its face, no basis in law. Both Florida Default Law Group and the Plaintiff both knew that Spradling’s affidavit lacked authenticity and reliability yet still chose to file it with the Court. In addition, this is not Florida Default Law Group’s first time filing affidavits in bad faith. Recently, the Bankruptcy Court for the Southern District of Florida sanctioned both Florida Default Law Group and its client, WELLS FARGO, $95,130.45 for false representations made in affidavits in that court as well as other bankruptcy courts in Florida. See In re: Fazul Haque, Case No. 08-14257-BKR-JKO (Order Granting Wells Fargo, N.A.’s Motion for Relief from Stay and Imposing Sanctions for Negligent Practice and False Representations, Oct. 28, 2008). This is indicia of a modus operandi on Florida Default Law Group’s part to present misrepresentations and false affidavits to the Court which make an award of attorney’s fees and costs an appropriate sanction.
    WHEREFORE, Defendant asks this Court to GRANT its MOTION TO STRIKE AFFIDAVIT OF CHRISTOPHER SPRADLING and enter an ORDER granting ATTORNEY’S FEES AND COSTS and any other relief the Court deems just and proper.

    [1] See Affidavit As to Amounts Due and Owing, pg. 1.
    [2] Id, pgs. 1, 2.
    [3] Id.
    [4] See Affidavit As to Amounts Due and Owing, pg. 1.
    [5] Id, pg. 2.

  69. FLORIDA SUPREME COURT RULE STOPS FORECLOSURE . STRIKE/DISMISS THE COMPLAINT
    ————————————————
    Florida Supreme Court issued a rule, effective February 17, 2010, that required, among other things, that all complaints filed after that date be verified or signed before a notary public. (The Mills always used to plead, “Our complaint complies with the Florida Supreme Court Form 1.966 foreclosure complaint rule…..guess they’ll have to remove that paragraph from their form memo.)

    The reason for this was the highest court in this land was sick and tired of the false representations of the mills. I’m going out of my mind because many of the firms are apparently just outright ignoring this order and they continue to file complaints that are not verified.

    ANY RESIDENTIAL FORECLOSURE COMPLAINT FILED AFTER FEBRUARY 17, 2010 IN FLORIDA SHOULD BE ATTACKED WITH A MOTION TO DISMISS OR MOTION TO STRIKE.

    (As a ministerial matter, the complaints should be returned to the filing party by the clerk if they are not in compliance, no need for a motion…but if not the clerk, then certainly judges could return them and refuse to act on them.)

    So I cannot figure out why the Court is just permitting their own rule to be ignored, but one thing is certain…in many cases nonone…and certainly not the attorneys filing these garbage complaints have the requisite personal knowledge to verify a complaint. One of the mills, Shapiro and Fishman in Tampa admits as much. They recently submitted comments to the Supreme Court admitting that they cannot find anyone with personal knowledge of the facts in their foreclosure garbage…stating:

    “The loan servicer, would presumably, have that knowledge [as to the payment
    status of the loan]… but likely would not have personal or direct
    knowledge of other factual allegations [such as, who is the holder of the
    note]“

    The full comments submitted to the Supreme Court by Shaprio and Fisman are found here. As I’ve stated in previous posts, and I have posted the legal memos to that lay all this out, the “facts” that are being provided in support of Summary Judgment, specifically the allegations of amounts due and owing, are not “facts” that are based on the knowledge of the affiant–they’re inadmissible hearsay statements that are not even supported by copies of the hearsay evidence they purport to rely on.

    This Shapiro and Fishman comments will be part of every affidavit challenge I raise against Shapiro and Fisman from now on….they should
    http://www.mattweidnerlaw.com

  70. Have any of you Attorneys Used this to Stop the Foreclosure? My question is…. does this affect foreclosures prior to the ruling??
    As i read the verbiage, It does not include or exclude Foreclosures prior to the effective date

    ADMINISTRATIVE ORDER NO. 2009-065 PA/PI-CIR
    MORTGAGE FORECLOSURE PROCEDURES

    The “Protecting Tenants at Foreclosure Act of 2009” (PTFA), became effective on May 20, 2009. Pub. L. No. 111-22, 123 Stat. 1660. In certain circumstances, the PTFA substantially changes Florida law regarding the rights and obligations of a tenant and a purchaser of foreclosed property, including restraints on the ability of a purchaser at a foreclosure sale to take possession of the property.

    B. Information with Summons PROVISIONS APPLICABLE TO MORTGAGE FORECLOSURE CASES ON HOMESTEAD PROPERTY
    The following provisions apply to all mortgage foreclosure cases on homestead property and apply regardless of the type of lender.
    A. Initial Filing
    When a mortgage foreclosure action on homestead property is filed, the plaintiff must include the following with the initial filing:
    1. A Notice to Homeowner, which provides notice to the homeowner of mediation alternatives and other resources, as provided in Attachment C.
    2. A Plaintiff/Lender’s Contact Information Sheet, as provided in Attachment D.
    B. Information with Summons
    The plaintiff must include the Notice to Homeowner and Plaintiff/Lender’s Contact Information Sheet with each summons in a mortgage foreclosure action on homestead property

  71. THE FORECLOSURE CASE KILLER – AN ALLONGE IS NOT ADMISSIBLE EVIDENCE OF BANK OWNERSHIP.
    ————————————————————————————————–
    From Matt Weidner at http://www.mattweidnerlaw.com

    Across the country, banks are attaching “allonges” to original promissory notes, then using the attached allonge to allege their ownership of the note and their standing to foreclose.

    The problem for the banks is an allonge is only supposed to be used when there is not sufficient blank space on the front or the back of the original note to stamp a “wet” endorsement on the face of that original document to transfer ownership from the lender whose name appears on the face of the note to the next holder of the note.
    Attached here is a Motion to Dismiss I just filed which includes all the relevant research from across the United States that pertains to the use of allonges. It is fascinating to consider that allonges are being used perhaps millions of times across the country in support of bank’s efforts to foreclose on homes when the use of allonges in many of these cases may not be supported by the law or the facts of the case.
    I publish this Motion and challenge attorneys, advocates, academics and any interested party to weigh in on the issue…if anyone can find proper legal justification for the widespread use (misuse) of allonges that currently exists in mortgage foreclosure cases, please send me information and correct me…having said that, I don’t expect that any contrary case law exists.
    As we’ve learned from depositions taken of Angela Nolan (her full deposition here) and other Robo Signers, allonges are being produced by word processors and not signed by hand (as they are supposed to be). The original note is not even in possession of the party when the alleged allonge is created and the allonge is merely stapled or affixed at some later date. All of this violates the intent and purpose of original “wet” endorsements on the face of the documents which are intended to be a permanent record of a negotiable instrument’s chain of title.
    Examine all documents carefully, and challenge the authenticity of everything….this issue is begging for an appellate court decision!

    BANKRUPTCY COURT DENIES LENDER’S RIGHT TO FORECLOSE – QUESTIONABLE EVIDENCE
    The problem with all the “evidence” being created by pretender lender and foreclosure mills is it often lacks the evidentiary basis to establish the claims the documents purport to support. In a hot of the presses, just released opinion from the Federal Bankruptcy Court in the Middle District of Florida, Judge ARTHUR B. BRISKMAN denied the relief sought by a lender because he questioned the veracity of the “evidence” provided by the alleged lender.
    If the same analysis used by judge Briskman were applied in circuit courts across the state, the pretender lenders would be in a real mess….it’s clear when you examine the “evidence” submitted by plaintiffs and read the deposition transcripts of robo signers that the practices employed by the lenders simply cannot withstand proper judicial scrutiny. The full opinion can be found here, excepts of good case law as follows:
    It appears the Allonge and the Assignment were created post-petition for the purpose of the relief from stay proceeding. Movant did not establish Jennifer Henninger and Jack Jacob had authority to execute the Allonge and Assignment.
    Movant’s submissions are insufficient to establish it is the owner and holder of the Note and Mortgage or is authorized to act for whoever holds these documents. In re Relka, No. 09-20806, 2009 WL 5149262, at *5 (Bankr. D. Wyo. Dec. 22, 2009) (granting stay relief where movant established possession of note through testimony of witness who personally retrieved note from movant’s vault); In re Jacobson, 402 B.R. at 370 (denying movant’s stay relief motion due to movant’s failure to establish it was holder of note); In re Hayes, 393 B.R. 259, 270 (Bankr. D. Mass. 2008) (denying movant’s stay relief motion and sustaining debtor’s claim objection due to movant’s failure to establish it was holder of note). Movant has not established it has standing to bring the Motion and the Motion is due to be denied.

  72. For South Florida attorneys who “gets it,” call :
    - Dillon Graham Esq. 305-445-9185
    - Thomas Ice Esq 561-793-5658
    - Matt Weidner Esq. 727-894-3159
    - Carol Asbury Esq. 954-677-8888
    - Kevin LaMontagne Esq. 561-732-0100

    Para Legal : Mike 813-936-1471

  73. Sir
    When did LaSalle Bank go defunct?
    Stan

  74. CHAPTER 650 & 660 FLORIDA STATUS AND FORECLOSURE IN FLORIDA

    Matt you are absolutely right, I have spoken with the Dept of Financial, they informed me that all they can do is oversee if a broker or lender is licensed to do business and that they really don’t have any power to prosecute, their hand are tied!!….. Can u Believe that!

    I have also file complaints with the OTC, FBI, Dept of Thrift Supervision, FTC…. They all told me this is not in their purview!

    WHO IN THE HELL is the Proper Over-site for a Trustee who is a defunct National Association (LaSalle Bank N.A.) who the judge in my case the Judge John Scheffer Pinnelas County 6th, just allowed the Foreclosure Decision to go in their Favor. He allowed a non existent Bank (Plaintiff) possession and scheduled my home for sale early May this year!

    WHO IS WATCHING? Who is the Authority to Punish this Fraud. Obviously I will be filling motions just waiting on my Summary Judgment Transcripts where I pointed out the Same Issues You used in Wachovia v Matcherio and the fact that that they had not filed a non resident cost bond in the mandated time, the Judge allowed them to file within a week after the hearing, WAY BEYOND his Judicial Capacity, GOt any good Judicial Notice Filings or Motion to Kick the Juges Ass?

    Yes I am Pissed off in Largo, Florida , could use some Valium perhaps a Stiff Drink

  75. From http://www.mattweidner.com
    CHAPTER 650 & 660 FLORIDA STATUS AND FORECLOSURE IN FLORIDA
    Florida Statutes Chapters 658 which regulates Banks and Trust Companies and can be found at http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0658/titl0658.htm&StatuteYear=2009&Title=-%3E2009-%3EChapter%20658 and chapter 660, the section of Florida Statutes which specifically regulates trust business in Florida and which can be found at http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0660/titl0660.htm&StatuteYear=2009&Title=-%3E2009-%3EChapter%20660 are two important consumer protection statutes that are being widely ignored by regulators and courts across the state.

    The definition of trust activities provided in statute is very broad and specifically includes many of the activities national banks and foreign corporations engage in related to mortgage foreclosure activities. An analysis of foreclosure cases filed in counties across the state will reveal that a recognizable percentage of the cases are filed “as trustee” for some other party or entity. These statutes provide numerous regulations and requirements that entities engaging in trust activities should comply with, but the regulations are largely being ignored by the entities engaging in trust activities and both courts and the enforcing agency, the Florida Department of Financial Services, http://www.myfloridacfo.com/are ignoring the laws and the application of these laws to entities that are violating them.

    Homeowners who are subject to foreclosure and foreclosure defense attorneys are encouraged to carefully review the cited statutes and consider the application of the statutes to each individual case. Lenders who are engaging in trust activities but who are not properly licensed or registered to do business in the state should be prevented from prevailing in foreclosure actions on equitable grounds based on their failure to comply with these important consumer protection and state interest laws.

    For more information on the application of Chapters

  76. My Florida Foreclosure Defense Lawyer is Mr. Dillon Graham Esq. Tel 305-445-9185. Mr. Graham office is in Miami but he also takes case in West Palm Beach. He is the “Lawyer who gets it” and his fee is affordable. He is defending my home and he is doing excellent job. I did a lot of research, read many manuals including Niel Garfield’s, April Charney’s. I was ready to defend my house pro se then I found him. He is a very experienced litigator at Circuit Court, Appeal Court and Federal Court. He attended many foreclosure defense seminars and he is familiar with Foreclosure Defense strategies. He will give you 1 hour free consultation

  77. I have Foreclosure Defense Training Manuals and pleadings to share. Hope these info. will be helpful whether you defend your home Pro Se or hire a lawyer. A well informed Homeowner has more chance to win.
    E-mail me at ocean11@the-beach.net

  78. Re Vision Bank, if you dont have an attorney… file a motion to extend, it will give you time and you will have responded within 20 days . Hve youdone an Audit on your closed loan documents?

    Hope this helps
    P.S. Not legal advise just common sense

  79. RE; Vision Bank. Fight them NOW, even though they will fight back, that does not mean they will win, they are not above the law.

    If you are still within the 20 day time limit to file an answer then get it done even if it means for you to act ProSe (representing yourself).

    If you ned a good lawyer here is a number for you to call… Foreclosure Defense Lawyer is Mr. Dillon Graham Esq. Tel 305-445-9185. He may not be in your area but that should not make any difference becuae he is licensed in the State of Florida.

    The problem is, while Florida like any state is unnundated with lawyers, it is tough to find one that is famillier with FIGHTING foreclosures. ALL know how to initiate a foreclosure but very few know how to defend against them.

    Here is a point for you to ponder, any loan modification that you agree to will require NEW LOAN DOCUMENTS, those new documents will supercede and delete your original documents which may contain defenses for you.

    Be sure that the New documents will have all of the original documents weaknesses removed, then you are royally screwed if you ever go into default on the new loan Modification. So think twice about making deals with them.

    If you do make a new deal, then BEFORE SIGNING, make sure they include some default protections for you. Of course they will refuse to change their new loan documents, This refusal alone should be a clear signal to you to hang on to your OLD Documents which THEY DON”T LIKE AND WOULD LOVE TO GET OUT FROM UNDER THEM. GET A LAWYER ASAP.

    Good luck, keep us informed.

  80. anyone have any foreclsure experince with a flroida bank called Vision Bank. There annual report shows $150 million in non-perfomring loans…they are fighting everyone and wont take shorts sales or deed-in-lieus

  81. VISION BANK, FLORIDA- does anyone have any filings or data that can help me with Vision Bank, I am in a foreclosure suit with them, they have $150 million in bad loans there annual report states. They are heavily mitigating cases and not working out deals on any of the upside down loans.

  82. Many of the arguments raised, were noticed in my State court case; Original note, redemption, fraud, etc. I have a 12 year foreclosure case. The file is still open, without final order, written opinion or findings of fact, which prevents under the Florida rules appellate review of the entire file. My attorney filed motion to dismiss for fraud on lost mortgage note, with evidence of the note being held by Credit Default Swap Insurance group, without hearing the judge granted ex parte summary judgment. I filed Chapt 13 Bankruptcy, where the judge instructed the parties to execute F.S. 45.0315, the creditor/plaintiff ignored the order and three years later filed ex parte with the State court, where the judge without notice scheduled sale and ordered the Title 11 362(h) stay void, ordering the defendant to file a new bankruptcy petition, (where a second petition voids automatic stay). I filed objection and bankruptcy transcript, asking the State court to review and compel F.S. 45.0315 and F.S. 701.02. The State court refused to rule on motion, ignoring ten motions, and five F.S. 38.10 motions to disqualify the judge. The State court refuses to issue a final order. I have transcripts where the State court decided to hold “Show Cause” hearing because I filed certified notice of bankruptcy orders, where the circuit Judge said; I will not rule on any of your (defendant) subject matter issues”. The 2nd DCA will not under appeal, mandamus, prohibition or cert, review the case. All appeals have been revised to proceed under Rule 9.130 non-final, where the court denies the appeal. Although there is Case law for prohibition and mandamus citing disqualification and jurisdiction (presented as “Federal Question”) the district court continues to deny the Writ’s. Because the decisions are unelaborated, the Supreme court has no jurisdiction. Anyone know of an attorney with guts who will take on the 13th Circuit Court of Hills County, FL? It seems I have an Extrinsic Fraud independent action against not only the mortgage holder, but also the Judge for known lack of jurisdiction over both the subject matter and persons has waived his qualified immunity? Any comments?

  83. My Florida Foreclosure Defense Lawyer is Mr. Dillon Graham Esq. Tel 305-445-9185. He is defending my home and he is doing excellent job. I was ready to defend my house pro se then I found him. He is an experienced litigator and he attended many foreclosure defense seminars. Mr. Graham fee is reasonable and affordable. He will give you 1 hour free consultation.

  84. DS,
    I think your attorney can file an Amended Answer with Affirmative Defenses to add additional defenses .

  85. Foreclosure was filed against me in June. On the same day my mtg. was assigned to a trustee. My attorney filed all of the general defenses in July as a response. Case was not dismissed and as of earlier this month my attorney has not received any discovery. Is it too late to raise additional defenses after discovery is submitted by the lenders?

  86. Does anyone have the answer to PS question in this segment .PS, on August 30th, 2009 at 3:00 pm Said:

    Does the person executing an assignment of mortgage by their signature as Vice President of the Company have to actually be the Vice President of the company as sworn too in the notary statement or can they say they are by some power of attorney. Would they have to disclose such power of attorney on the document?

  87. Florida foreclosure suit pending. Plaintiff just filed a Participant change, what does that mean. They are due by order to answer and produce on Monday.

    Can someone give me a heads up on what it is they are doing?

    Thanks

  88. I have a few questions? Maybe someone can answer them. I am in foreclosure and have a sale pending, and a hearing pending,
    My questions are:
    1 Can a case be dismissed because the opposing atty has not noticed the correct party for hearings or sale requests?
    2 Can a final judgement of foreclosure be dismissed if opposing atty has disreguarded a BK and had a sucessful sale date entered before the BK was dismissed?
    3 Can a foreclosure be persued if the note was reinstated 6 months into the case?
    I guess my questions are as to the proceedures of the opposing atty, if they are not following the proper protocall can all of this be dismissed??
    please reply to hardworker103@gmail.com

  89. i was wondering so many of you are having problems with attorneys. how are you evaluating them before hiring them.i got one that owns real estate and does real estate law. he has something in the pot. just curious

  90. Is anyone coming across Lenders using an In Rem action Complaint in Florida? If so does anyone have any good links to defenses? This seems to be a tactic being used by Florida Default Law Group.

  91. On December 7, 2009, The Homeowners Revolt.Com, a new, and innovative online Step-By-Step fraudulent bank foreclosure fighting service, officially launched its website, and already has homeowners nationwide contacting them, and utilizing their services, in order to fight fraudulent foreclosures by banks that do not legally own, or have any legal rights to pursue foreclose on a homeowner’s property.

    The Homeowners Revolt.Com focuses their services in three main areas: (1) Step-By-Step overview and instructions in understanding what it will take for the homeowner to fight their foreclosure, and Take Their Property Back Free & Clear ; (2) The legal strategy available to pursue; and (3) Instantly downloadable documents to support, and initiate the legal strategy.

  92. QUIET TITLE- does anyone have a quiet tilte suit or know of any agiast a securitzed trust?

  93. Can I file a wrongful foreclosure in Florida after the sale has been confirmed? The property was foreclosed against the wrong person with interest. It was bought back by The New York Bank Trust. They don’t have the Original note. But the foreclosed. The party with interest was never notified.

    Clara

  94. Nik,
    Call us at 772-403-3897, we might be able to help you in your foreclosure efforts.

  95. Dear All:
    I,m a single mon of 3 children; back in May Aurora Loan Services offered me a modification package to modify my morgate; after paying Aurora for 4 month the trial period, Aurora sent me a letter notifiying that I was not approved for the modification; that the loan was in default and yesterday 9/14/09 I received the foreclosure summon paper from the court in Miami.
    My Loan is upside down for more than 250,000 dollars; I tried to negotiate with Aurora and they denied me the chance; in fact they sent me back the last payment I sent them; becasue according to them is not sufficient and I was sent to foreclosure already; please help me; this is my home; I did not purchased it to invest but for me and my family to have a home that now Aurora Loan wants to take away from us.

  96. Does the person executing an assignment of mortgage by their signature as Vice President of the Company have to actually be the Vice President of the company as sworn too in the notary statement or can they say they are by some power of attorney. Would they have to disclose such power of attorney on the document?

  97. Question. In the states of Florida and Texas, can a lender order a deficiency judgement when a borrower accepts the terms of a promissory note in exchange for an approved short sale? These promissory notes are becoming more and more common when dealing with purchase money loans requiring PMI. These notes are typically $25,000 payable over 17 years, no interest. Anyone? Please advise. Thank you!

  98. IN FLORIDA….

    1. Can the lender foreclose on my home WITHOUT the promissory note?

    2. If the judge DENIES re-establishment of the note under 673.3091 (a), (b), (c). Can the lender still foreclose under the strength of the mortgage alone?

    3. The promissory note CANNOT BE FOUND, What happens to the STATUS of the loan, is it SECURED or UNSECURED?

    4. The law states that the mortgage follows the note, YET THERE IS NO NOTE FOR IT TO FOLLOW, What IMPACT if any does this have on the lender foreclosing on my home?

    Please respond to BARBARIANJEFF@GMAIL.COM

  99. My servicer was supposed to modify my high interest A.R.M. to a fixed but never got me any paperwork.

    They told me to talk with their lawyer. The lawyer said they would hasten the process, but then filed foreclosure in the name of a company that had nothing to do with my loan.

    After realizing what they had done, they forged an “assignment” to that wrong company.

    I discovered they did the same thing 9 more times the very same day !

    I then discovered my loan was shown as being “Satisified” with no sums due under it by the real lender – who had been dissolved in Bankruptcy, with no assignement ever having been made by them !!!

    I’m suing the law firm…and the supposed servicer, Americas Servicing Company…which their defense attorney has submitted to the court “..is one and the same as Wells Fargo Bank”.

    Wells Fargo Bank has not registered this name with ANY entity. I want all my payments back and the loan removed from my property – stay tuned

    The case is pending in Broward County Circuit Court, case CACE 08-018999 (13)

  100. Can anyone provide me with 4th DCA case cite that conflicts with Azize?

  101. Florida Foreclosure Defense Litigants,

    As a Ft. Lauderdale Circuit Judge once said about defending a lawsuit in his court, I paraphrase:

    ..”Having or not having a meritorious case has little bearing in defending a case in my court. The ability of good defense attorney that knows how to use the laws properly will block the Plaintiff from ever advancing a lawsuit.”

    Floridians, we are at your disposal.

  102. Florida Pro Se litigants Please commit this to memory! Read it. Read it again. Read it again! Read one sentence and then absorb what it really means for your case.

    Each time I read it, I see a little bit more protection for myself.

    Chapter 673 UNIFORM COMMERCIAL CODE: NEGOTIABLE INSTRUMENTS
    673.3091 Enforcement of lost, destroyed, or stolen instrument.–

    (1) A person not in possession of an instrument is entitled to enforce the instrument if:

    (a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;

    (b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and

    (c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

    (2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, s. 673.3081 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

  103. Greg,

    I assume your speaking to Order Instruments since
    Bearer doesn’t require indorsements?

  104. Everyone defending these cases must beware that you must contest all indorsement signitures, up front, lest you waive the right to question them later. The UCC has a little known provision, Section 673.3081 that is a trap door for the unwary. Since the section doesn’t restrict its Presumption of authenticity to borrower’s signiture only, it can be argued to apply to the chain of indorsements. But read the comment s that follow the statute.

  105. Richard Krigel: Generally speaking they don’t have to FILE the original document they have to produce for court (and your) inspection. And You have the right to ask through discovery how they came into possession of the document, whether they are holding it for someone else as nominee and whether they actually have any interest in the loan. If the answer is “no” they either have no legal standing to initiate foreclosure (whether non-judicial or judicial) which is the answer in most states, or they have the right to bring the foreclosure ONLY in a judicial action in which they join all necessary and indispensable parties (i.e., all the stakeholders who could make a claim for ownership or receipt of proceeds from the loan).

  106. the banks attorney filed what they say is the original note and mortgage. however, upon examination the papers seem to me and the people at the court house who see these things all the time that it is just another copy.what can i do to set this aside. are they allowed to file these as original documents. shouldi get an expert to see them. some advice please, thank you, rick

  107. Xyrant,

    What was at issue- an unrecorded assignment?

  108. In a bankruptcy case (Tarek HALABI vs. Atlantic Mortgage and Investment) the court said that Fl. Statute 701.02 cannot be used by a debtor. Any thought?
    _____________________
    Fla. Stat. § 701.02 provides:

    (1) No assignment of a mortgage upon real property or of any interest therein, shall be good or effectual in law or equity against creditors or subsequent purchasers, for a valuable consideration, and without notice, unless the assignment is contained in a document which, in its title, indicates an assignment of mortgage and is recorded according to law.

    The bankruptcy court held that Fla. Stat. § 701.02′s recording requirement is applicable only to (and enforceable by) competing creditors or subsequent bona fide purchasers of the mortgagee, not by the mortgagor. This construction was based in part on the court’s reading of a related provision, Fla. Stat. § 679.302(2):

    If a secured party assigns a perfected security interest, no filing under this chapter is required in order to continue the perfected status of the security interest against creditors of and transferees from the original debtor. 1

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=11th&navby=case&no=985071man

  109. I am in Pinellas County, Fl. and am fighting Pro se against LaSalle Bank as trustee for WAMU pass through certificates, I have a Summary Judgement scheduled by plaintiffs attorney Albertelli Law. hearing on 4-7 and am asking direction regarding my response, should I respond prior to the hearing, or wait until I am in the Judges Chambers? I can not seem to find how much time to give plaintiff to produce the note and/or mortgage documents. I know there are RESPA and TILA Violations, but I need the procedural direction. I do believe that I can win this just need a little boost!

  110. Dear RT and Dear BT: Who is the atty. &/or Lawfirm suing you & who is listed as the Plaintiff! You must list. We have suggestions from newspaper articles with tidbits of info! Perhaps, this can be a comfort & great asset! God Bless you!

  111. I was served a foreclosure action on my home, in the complaint they changed the description and filed a lost not affidavit. I was served 11/08, I could not file an answer because I couldn’t find an attorney who would take my case without a large sum of money up front. To date I have heard nothing on a motion for summary judgment, etc. Am I too late to pursue a defense based on the fact they don’t have the original note? It is ASC (which I believe is Wells Fargo in disguise) please answer. Thanks

  112. This sounds great. Does anyone know in FLoirda, My foreclosure was filed August 2008, never served. The Trust asked to serve by Publication Feb 2009, 6 months later. SHOULD i file a motion to dismiss uner the 120 day FRCP rule? I ahve to respond to the complaint in 12 days, the clerk nor the trust attorney ever mailed me a copy either. I was going to go the the clerk and get it, but thought if i picked up the complaint, that might hurt my chances to file the motion to dismiss for 120 days? any thoughts?

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