Florida Law Changes

PDF Baker Donelson Mortgage Newsletter – Summer 2013

I recommend following the articles at http://www.jdsupra.com. From what I have read so far, these people are knowledgeable and they write well. The latest is the changes in Florida law, and while the tactics to deal with these changes are not revealed (for good reason), the changes are explained very well. Here is part o their latest article:

“The most substantial change for lenders is the creation of Florida Statutes § 702.015, which was created to speed up the foreclosure process, but in actuality, requires more paperwork for lenders. A lender who fails to comply with this statute may be subject to sanctions.3 The statute applies to a plaintiff filing a complaint, on or after July 1, 2013, seeking to foreclose upon residential real property (one to four family dwellings), and requires the following:4

  • Affirmative allegations that the plaintiff is the holder of the original note secured by the mortgage OR specific allegations of the factual basis by which the plaintiff is entitled to enforce the note.5
  • When a party, such as a loan servicer, has been delegated authority to file a mortgage foreclosure action on behalf of the note holder, the complaint must describe the authority and identify with specificity the document that grants the party to act on behalf of the note holder, such as a power of attorney.6
  • When the plaintiff possesses the original note, as a condition precedent to and contemporaneously with filing the complaint, the plaintiff must attach copies of the note and all allonges, and certify, under penalty of perjury, that it possesses the original note and provide specific details regarding its physical location and plaintiff’s verification of same.7
  • When the plaintiff seeks to enforce a lost, destroyed or stolen note, it must execute an affidavit under penalty of perjury, and attach it to the complaint. The affidavit must include the following: (1) a chain of all endorsements, assignments or transfers of the note; (2) facts showing plaintiff is entitled to enforce the note; and (3) exhibits including copies of the note and allonges, audit reports showing physical receipt of the original note, or other evidence of acquisition, ownership and possession of the note. The plaintiff must also provide adequate protection as required under Florida Statutes § 673.3091(2) before final judgment.”

See also Eighth Circuit TILA rescission decision rejects CFPB position
http://www.jdsupra.com/legalnews/eighth-circuit-tila-rescission-decision-72968/

Banks shiver as UBS swallows $885 million U.S. fine
http://www.reuters.com/article/2013/07/26/us-usa-ubs-settlement-idUSBRE96O1FH20130726

Setting Aside A Judicial Foreclosure Sale
http://www.jdsupra.com/legalnews/setting-aside-a-judicial-foreclosure-sal-79798/

Re-Default: Up To 46% Of Bailed Out Homeowners Can’t Pay Their Mortgage (Again)
http://dprogram.net/2013/07/25/re-default-up-to-46-of-bailed-out-homeowners-cant-pay-their-mortgage-again/

Bad Derivatives Trades Added to Detroit’s Woes
http://www.nakedcapitalism.com/2013/07/bad-derivatives-trades-added-to-detroits-woes.html

 

17 Responses

  1. That’s because they are not real “notes”. Just “collection rights” transferred over and over—to unsecured debt…with fake notes masquerading as “mortgages”.

  2. N, you can be sure that there are forged notes out there of all kinds and styles, which, of course, means that there are two or more notes floating around. If I was a judge and two (original) notes showed up, I would be sanctioning somebody.

  3. @ LOUISE ,

    I didn’t want to speculate on what an autopen sig looked like in person as I haven’t seen one up close ,,, I may have to visit a “sports memorobilia” shop to educate myself… I know that they simply don’t look real because the pen is held at one angle (usually dead on vertical) for the process … and pressure on the pen obviously is static , the one giveaway I’ve seen on web photos of autopens is that the lines are too good and too uniform … I’ve seen enough real sigs using both my loupe and a usb microscope attached to my laptop to know what real sigs look like.

    I’m really hoping a blue ink note turns up in my case … the “bank” insisted on the closing company using black ink and we have the instructions…

  4. @ HELP re: 08:50 post ,

    I’m going to say that the “LENDER” (which should be the Trustee for the REMIC TRUST) can give NOD through a master servicer / servicer or a sub-servicer ,, however I would add the stipulation that the party issuing the NOD would also have to file at a minimum an assignment of that right or a POA from the trustee when the foreclosure is filed. Lets face it , the courts are never going to enforce that to the letter. We all know that in most cases there are no lenders , the loans were table funded before there were borrowers, the money was floating around looking for warm bodies. IANAL

  5. Welcome back KC. Stripper is gone and so is most of her insane prose.

    This link leads to a series of charts showing the very tight relationship between our government and big business and how that revolving door has been used in the past couple of years. Sobering. I strongly suggest people look at those charts. Naming a Monsanto guy to be head of the FDA was nothing in the big scheme of things.

    There are no fewer than 105 people who moved from government positions to pharma, oil, finance, GE, media, etc. The level of corruption in this country is simply unfathomable…

    And the people remain silent.

    http://fairwhistleblower.ca/content/revolving-door-between-us-government-big-business

    Revolving Door Between Government, Big Business
    Topics:
    USA, Monsanto, Oil & gas industry, Pharmaceutical industry, Financial industry, Conflict of interest, Revolving door, Media

    December 22, 2011

    A series of Venn diagrams shows visually how strong the links are between the US Government and big business: dozens of people moving to and fro between top positions in government and in politically-connected corporations.

    It is blatant conflicts of interest like these that lead to regulatory capture, corruption and crony capitalism. The industries covered in this analysis are: Big Oil, Comcast, General Electric, Goldman Sachs, Media, Monsanto and Pharmaceuticals.

  6. LENDER

    Paragraph 22 says the LENDER must provide notice?????

    If the loan has been sold to a REMIC TRUST and is serviced by a loan servicer with no ownership of the loan….WHO SENDS THE NOTICE BY LAW???

    If the Loan servicer sends the notice is that meet the Paragraph 22 rules? Or does the notice have to be sent by the REMIC TRUST, since they are claiming to own the loan/note/deed/mortgage

  7. Good Morning LL Family and Friends,
    We just returned from an extended unannounced family vacation. We had a wonderful time with all 5 grandsons … no phone service… (I was grounded).. hahaha. I have to finish unpacking, return phone calls and catch up the paperwork. Catch Up with You all Later!

    Many Blessings to All

  8. N, I have done some research on auto pens. Yes, a metal plate is manufactured of the signature to be created. Thus, anyone’s signature can be made into a “wet ink signature.” Blue ink is used to make sure you can tell a signature is actually blue ink when signed. However, certain individuals have made a blue ink signature with a color copier. Very easy to see it is not real. Of course, the other issue with that is that a second “wet ink note” might come to light. How embarrassing!

    However, the auto pen signature can be seen (usually with the naked eye) by a waving or wavering of the up stroke line and blunt endings that do not come to a point at the end of the signature. Auto pen signatures can be “outed” by anybody examining them closely enough.

  9. @louise ,

    re-auto-pen … autopens require an original signature be traced and scribed into a template , the templates are fairly expensive… the signatures are most likely simple photoshop cut and pastes… I have found SEVERAL fakes by simply looking at the document under a jewelers loupe ,, you can clearly see that it is printed as there are dots and not a continuous ink line.

    My title/closing company REQUIRED me to use their black ink pens ,, I thought it odd at the time but complied , their reason was that it FAX’d better (we all know blue faxes just fine) … we can assume that the reason is to save disk storage space with a B&W scan compared to a much larger file created by a color scan.

  10. Oh boy, this is getting really exciting!

    So… is Dolley Madison NG or is she… New England Blond, aka… (you know who you are and so do a few of us in the trenches. Ocwen didn’t work out so well, did it? Hopefully, New Century will pan out a little better…)

    In any event, NG still not willing to meet with Mandelman. And John Wright intent on making public who Dolley Madison is and making sure whoever reads LL knows what he is up against

  11. A lot of people in the foreclosure defense business, particularly people selling securitization audits and foreclosure rescue services fought against that new law, claiming it would get mortgagors in default thrown out of their houses more quickly.

    I say if they ought to get thrown out, they should get out and not dawdle. But I have also complained about the very nonsense banks pull by refusing to produce the original note for the foreclosure proceeding with ALL PAPERWORK IN ORDER. These new provisions make their obligation crystal clear, even though the law had already made them clear. This question remains: WILL the courts start punishing plaintiffs and their attorneys for bringing bad cases to court without their paperwork in order, or will the plaintiffs keep plaguing the foreclosure with counterfeit mortgage documents, robosigning, and musical chairs?

    The courts must use iron-fisted punishment on plaintiff scalawags and their counsel in order to deter their nonsense. Once the banks get used to this, they’ll come to court prepared properly for a foreclosure. And that means foreclosure defense attorneys will have fewer defense legs to stand on, and they’ll bilk their clients less.

    Maybe then some of them will turn to what they should have done to begin with. Get the mortgage docs examined for causes of action at the inception of the loan. Then they can hammer the lender for a settlement or earn their salt by suing for compensatory and punitive damages. If any need help with the mortgage examination, they should call me for free information at 727 669 5511. Not a lawyer, I charge nothing for helping people.

  12. Poppy, look up auto pen. It is a device that “signs” a document through use of a metal plate made of the signature to be “signed” onto a document. It has an arm-like structure that holds the pen and signs the signature. It is used by the President of the U.S. and others for signatures. You are quite right. Phoney blue ink notes abound

  13. In state court last year against BOA, the defendants produced what they claimed to be an “original” blue-ink note, asked for it to be put in evidence and the attorney said: oh no, we do not want it in evidence, your honor and the judge agreed.

    After the state judge told me; if I didn’t like his ruling….appeal it, we went into the hallway and asked to look at this “original” note…in a
    mili-second I said this is not an original note, this is a fake and drum roll here….the lawyer said, I didn’t do it, as he was sweating profusely on his brow! Enough said…

    Counterfeits abound ladies and gents!

  14. http://www.floridasupremecourt.org/clerk/comments/2009/09-1460_093009_Comments%20(FBA).pdf

    Damn , I wish I had some $$$$ I know of a nice house that’s been foreclosed upon 3 times over one loan (competing interests, house used as colatteral for SBA business loans) and the “base” loan was a WAMU from 2006 … talk about building a castle on a foundation of sand… I’d love to do a cash for keys ,, the owners name is still on the title despite losing every fight and the house has been vacant for about 2 years. There isn’t a bank in the world that would fight me on a quiet title if they had to put up cash against me and 2 other entities in the event they lost.

  15. MS ,

    Well for one the notes were scanned and destroyed (verified by the branch manager of my “lender” , friend of my wife) so no receipt offering proof of physical delivery is possible, I would also say printing a fresh copy off of a server doesn’t make it “true copy” as it was accessible in read AND write mode to thousands of people over the years. There is no fraudclosure lawyer desperate enough to verify anything under penalty of CRIMINAL perjury, especially if one were to request a visit to the location they offer as the original docs home to have a look-see.

    In my case the second bullet point is lots of fun ,,, obviously for most people here the trustee has no authority as the trust doesn’t really exist and even if there is a contract or power of attorney it’s meaningless , in my case the servicer is not really a servicer but a debt collector , “loan” (yeah I know it didn’t exist after the certificates were issued but I’m going to use their construct for a minute) existed but was paid in full by AIG in 2008 , if properly accounted for Maiden Lane had nothing but unsecured collection rights to sell to the new owner (who owns the servicer) ,,, and although never disclosed it is guesstimated that the buyer paid about 20% of face. My “verification” of complaint was signed off on by a known LPS robosigner who signed as an employee of the fake servicer the debt collector owns.

    I like this , it asks for proper and necessary documentation… and ASSUMES the banks are playing it straight … looks like a new NEVADA to me.

    673.3091(2) ROCKS … here’s some reading

    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.

    http://4closurefraud.org/2010/05/25/whoa-florida-judge-wipes-out-homeowners-207000-mortgage/

  16. Well, I predict with my crystal ball that there will be a considerable slow down in foreclosures in Florida because of the new law. There are several states (including Nevada) that passed similar laws, and the foreclosures came to a screeching halt. Very interesting. Why are courts accepting bogus documents? Their pension plan is heading for the chopping block, too, if we do not get the economy going again. Resolve the housing crisis; resolve the economy.

  17. When the plaintiff possesses the original note, as a condition precedent to and contemporaneously with filing the complaint,

    The court afforded judicial notice for the claims brought by moving party is aided in hearing the arguments for injunction and damages. In so much as foreclosure claims in Fla merit a judicial response , the affirmative defenses need to extend further out and beyond these garden variety claims being made by the editor

    “. . . .the plaintiff must attach copies of the note and all allonges, and certify, under penalty of perjury, that it possesses the original note and provide specific details regarding its physical location and plaintiff’s verification of ….”

    One familiar with what your asking for in discovery may not know that the request is impossible – Why?

    And why would the foreclosing parties attorneys cause a monumental err if they were to enter into discovery certified copies for the production requested – -as you outlined herein and above?
    ,
    registerclaims@live.com

    Not an attorney and not to be construed as legal advice – nor is this forum to be read as legally recognized opinion . Call your state Bar for information

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