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Florida Wrongful Foreclosure Victims Get $2k, Banks get $2,000k

If you are looking for legal representation in S Florida, please call 520-405-1688 where Neil has established an office again after 30 years of practicing trial law in S. Florida.

Editor’s Note: For those who have given, up, moved on and don’t want to fight about it, the $2,000 check they are about to receive is like found money. But it is a surrender to greed, bullying and criminal behavior. The banks are giving the paltry sum of $2,000 in exchange for an average loan of $200,000 which they neither funded nor purchased, but which they sold multiple times, 1000 cents on the dollar.

As I understand it, you can take the $2,000 and also sue for wrongful foreclosure, but you can be sure that despite that, most people will not sue and those who do are going to be met with the argument that we already settled that.

For those interested in getting their check, read the article below or go to the Sun Sentinel or WPTV.com. You’ll get the information you need.

From WPTV.Com by Donna Gehrke-White, Sun Sentinel

Some 167,398 Floridians who lost homes to foreclosure may each get about $2,000 as part of the nation’s largest consumer financial protection settlement.

The checks will be sent out in early 2013, with more than a third going to people who lost homes in Broward, Palm Beach and Miami-Dade counties, estimated Jack McCabe, a housing analyst based in Deerfield Beach.

People need to send in forms to receive the money by Jan. 18. How much people will receive depends on how many borrowers participate.

Already, Minneapolis-based Rust Consulting has “sent out notification postcards to eligible borrowers nationwide,” said John Lucas, a spokesman for the Florida Attorney General’s Office that is helping administer the historic federal, 49-state settlement.

“A low percentage of those postcards were returned, and Rust is conducting further research to locate those borrowers,” Lucas added in an e-mail. People can call toll-free 866-430-8358 to see if they qualify to be part of the settlement.

A former Pompano Beach homeowner who would only give his first name, Mike, said he called and found that he was on the list to get a check. He said he hired too late an attorney to fight his foreclosure. “I was in denial,” he said. “Divorce, job and house — I lost all three.”

In all, about $1.5 billion will be given nationwide to people who lost homes to foreclosure, with Floridians getting about $334 million.

The agreement covers borrowers who lost their homes to foreclosure from 2008 to 2011 and whose mortgage were serviced by Ally/GMAC, Bank of America, Citi, JPMorgan Chase and Wells Fargo.

The five lenders agreed to a massive $25 billion national settlement earlier this year. By August more than 23,000 struggling Floridians had received $1.7 billion in mortgage relief, including principal forgiveness, loan modifications and the suspension of mortgage payments until a later date, according to an interim report by the independent National Mortgage Settlement Administrator. Floridians will ultimately receive about $8 billion in relief.

Part of that includes money to owners who already have lost homes to foreclosure, including those Floridians served fraudulent “robo-signing” foreclosure notices by the five lenders. State and federal investigations found that the banks had routinely signed foreclosure-related documents outside the presence of a notary public and without really knowing whether the facts they contained were correct.

Roy Oppenheim, a foreclosure defense lawyer in Weston, said the projected $2,000 settlement to each foreclosed homeowner doesn’t go far enough in helping those South Floridians who were tossed out of their homes with such fraudulent paperwork.

“They should have been given more money,” Oppenheim said. “Those were criminal acts.”

But the settlement makes no distinction and gives the same amount, regardless of the circumstances of how people were foreclosed on, Oppenheim said.

Other foreclosure victims have been given much more money, he added. Another unrelated foreclosure settlement, for example, gave $25,000 to each soldier who was foreclosed on while fighting overseas, Oppenheim said.

Real estate analyst Jack McCabe agreed that the estimated $2,000 settlement doesn’t fully resolve the pain of foreclosure. “It’s like pocket change,” he said. Some homeowners, for example, lost tens of thousands of dollars in home equity when they were foreclosed on, McCabe said.

Still, it’s some cash: Most Floridians who lost homes to foreclosure won’t get anything, McCabe added. About 400,000 Floridians were foreclosed on between 2008 and 2011 but the settlement affects only 167,398 of them, he said. About 233,000 others had lenders who aren’t part of the agreement.

In addition, there are now about 339,000 more Floridians fighting foreclosure in court. More than a third — or 38 percent— live in Broward, Palm Beach or Miami-Dade counties, McCabe estimated.

In addition another 530,000 Floridians are more than 90 days late in paying their mortgage and face losing their home, he said.

“We’ve still got a full ways to go before we resolve this foreclosure crisis — another two to three years,” McCabe said.

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If you believe that you are eligible for relief and have not received a Claim Form, please contact the National Mortgage Settlement Administrator at 1-866-430-8358, Monday through Friday 7 a.m. – 7 p.m. Central Time

South Florida Foreclosures Rising Sharply

For Legal Representation in South Florida call 520-405-1688. Neil Garfield has established an office there again, where he practiced for 30 years.

Editor’s Notes: With the increase of over 37% over last year, S. Florida is becoming a hotbed of foreclosure activity just as some “old” foreclosure areas are rising and a lot of new areas are suddenly experiencing a vast increase in foreclosure activity.

The Banks are on the move again and all I see, with a few exceptions, is lawyers and pro se litigants admitting practically everything, not knowing when to object or take control of the narrative, and then asking for relief. If you do that, you are not giving the Judge any choice.

Once you have admitted all the essential elements of the foreclosure, the forecloser has “proven” its case in satisfying the doctrine of a prima facie case. Even if you only admit most of what is alleged the rest will likely be presumed. And then, your affirmative defenses and counterclaim sound like hollow protests against the bad guys or pleas for mercy.

The judicial system exists in order to bring finality to any controversy that is properly brought within its jurisdiction. Judges are not there to give you mercy or to fashion their own ideas of justice. And the system is not  corrupt just because you lost.

Even in the appellate decisions the courts are telling us over and over again that the “facts” of the case clearly show the loan, obligation, note and mortgage were all valid. The loan receivable account is presumed to exist, and the obligation of the  borrower to repay the loan is not subject to any effective defense even if you find some evidence of fabrication or even forgery. (More on forgery and fabrication later this week).

This is why I have coined the defense tactic “Deny and Discover.” The tactic is nothing more than a restatement of common litigation where the party sued denies anything that is either not known by them or is arguably deniable, which simply means that the allegations must be PROVEN not accepted as the truth.

The wording varies but you will notice in many cases that the pleading states that the borrower entered into a deal with the mortgage originator in which a mortgage was executed. Denied. You don’t know that the originator was actually the source of the loan funding so why would you admit that? In fact, you will also find that through discovery and information obtained from Title and Securitization Analysis and Commentary that the funding came from an undisclosed third party.

So if you look at yesterday’s post on interrogatories you can see what you you should be looking for. The point is that I have decided to get personally involved in cases in South Florida (especially since I am moving back to Florida soon).

If you represent a client, be careful what you admit and don’t refer to the note as evidence of the loan because in most cases it probably is not evidence at all but rather an executory contract in which the loan was NOT funded by the originator (the payee on the note and mortgage).

You should be directing the attention of the court to the obligation, not the note. You will remember, lawyers, from first year law school, that the note is not the the obligation. It is supposed to be evidence of the obligation. And the mortgage is the tail of the dragon that can only be a perfected lien capable of foreclosure if it refers to a valid note.

If the note contains the wrong payee because that payee funded nothing and if the note differs from the repayment terms presented to the lenders (i.e., the mortgage bond issued by an unfunded and therefore non-existent REMIC) then the note is invalid both because it names the wrong party and because the terms are different than the real lender was offering.

You end up with an obligation for which there is no documentation other than the closing instructions and wire transfer receipt from a third party that shows that the transaction is not FBO (for benefit of the originator) but rather creating a common law obligation of repayment, the terms of which are yet to be determined.

There is nothing under Florida law or the law in any state that allows for imposition of an equitable mortgage with terms that are determined by the Court. Thus the obligation, while owed is not subject to a mortgage and thus not capable of being foreclosed.

If the Banks were playing this straight up, they would have funded the REMIC and put the name of the REMIC on the mortgage or the actual funding source (investment bank) on the note and mortgage, but that would have subjected them to lender liability under various laws (TILA, RESPA, Deceptive Lending) and other misbehavior.

Instead they put the name of a nominee on the note and mortgage (deed of trust) so that they could control the APPARENT movement of the loan through a false chain of securitization starting with an originator who never funded or purchased the loan in a transaction in which money exchanged hands.

This is what enabled the banks to divert money from the investor lenders and money and property from the homeowner borrowers into a wheel and spoke system of multiple sales of the loan for 100 cents on the dollar even if it was known with 100% certainty that the loan would be in default. It was all possible because the actual funding source was left off the documents.

The borrower didn’t mess this up and no incentive to do so. The borrower was required to have disclosure and choices under TILA and state laws, but didn’t get it because of the sneaky game in which they “borrowed” the loan to trade on it, get insurance, credit default swaps and bailouts for loans that the banks never funded not purchased with money.

Thus the loan closings were intentionally “botched” and designed to mislead both the borrower and the lender which was done quite successfully. Recognition of this simple fact, would stop foreclosures and restore the wealth of the middle class partially because the investor lenders would easily be able to recover their full investment from the banks that sold them.

Those investors, lest we forget are not fat cats. They are managed pension and retirement funds, for the most part, that will be begging for federal bailouts next year because of losses caused solely by the misbehavior of the banks and had nothing to do with the borrower. Those retirement accounts and pension funds are the lifeblood of the middle class.

MIAMI—South Florida recorded more than 13,200 foreclosure actions in the third quarter, a 36% year-over-year rise. Lenders also filed 35,700 notices of default so far this year in Miami-Dade, Broward, and Palm Beach counties, according to new report from CondoVultures.com.

Still, that’s a far cry from previous years. In 2009, there were 75,500 foreclosure actions in the same period and in 2010 there were 49,000 through the first three quarters, according to the report based on filings with the Clerks of the Court for each county.

Peter Zalewski, a principal with Condo Vultures, points to administrative irregularities that he calls “robo-singers” in the repossession process that caused a hiccup in the process. He tells GlobeSt.com robo-singers first surfaced late September 2010, creating a foreclosure freeze.

That slowdown continued through 2011. The nation’s five largest mortgage servicers reached the National Mortgage Settlement Agreement with the federal government and the attorneys general from 49 states to provide at least $25 billion in relief to borrowers in February 2012.

“We are tracking roughly 330,000 foreclosure filings and we’ve seen about 182,000 bank repossessions or forced sales of the properties,” Zalewski says. “Those numbers may be inflated by condo foreclosures, which usually result in multiple filings. So it appears that the worst part of the foreclosure mess is over.”

Zalewski says investment groups set up to buy the bank-owned property are waiting in the wings. As soon as the banks process the repossessions, he says, chances are the product is going move relatively quickly.

“If I were going to guestimate I’d say we are in the seventh inning of a nine inning ballgame,” Zalewski says. “We anticipate there will continue to be foreclosure filings in the upcoming quarters, then you will start to see a slow down. All indications are pointing toward 2014 getting into a growth phase.”

 

John Kennerty, Caryn A. Graham – MERS Assistant Secretary, VP of Documentation, VP of Communications, BofA, Countrywide, Wells Fargo

Editor’s Note: Another example of attorney as MERS Assistant Secretary through access to password and user ID. She is an attorney with Marshall Watson and has appeared on numerous documents signing also as having limited power of attorney for Bank of America, Countrywide, Wells Fargo and probably others. Check your documents in Florida. If you see an assignment or any other document signed by her other than a pleading it is suspect, to say the least. You have the right to see the original, the basis for the “authorization,” and to conduct discovery — interrogatories, request to produce, request for admissions, depositions upon written questions and live deposition.

Caryn A. Graham – MERS Assistant Secretary

Caryn A. Graham – Attorney at Law at foreclosure mill Marshall Watson Fort Lauderdale, FL

Also listed on “Limited Power of Attorney” at Broward county records for BoA, Countrywide, and Wells Fargo.

JOHN KENNERTY-Signed for MERS as VP of Documentation on MERS assignments

JOHN KENNERTY-Signed as VP of Communications for America Servicing Company [owned by Wells Fargo] on other docs

JOHN KENNERTY-Signed as VP for Wells Fargo on other docs

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