It is axiomatic that if you borrow money, you must pay it back, which is why most borrowers don’t fight foreclosures and most judges consider the defenses of borrowers a waste of time. The people who think that are half right. Foreclosures are a colossal waste of time – but for the opposite reason that is thought to be axiomatically true — there was a legitimate loan, properly documented, sold and then foreclosed by the owner of the loan. Nothing could be further from the truth.
The logjam in the Court is self-imposed by a judiciary that refuses to follow its own rules — especially requirements of pleading that the loan was made by the originator and proving that the actual sales of the loan occurred as set forth in the PSA. In most cases the loan was NOT made by the originator, which is why dubbed them pretender lenders 6 years ago. No loan? Then the note and mortgage mean nothing. No injury? Then the foreclosure is void from the outset because the court lacked jurisdiction.
Mark Stopa, Esq., an innovative litigator in foreclosure defense, has expressed here (see link below) the frustration and disgust and yes, contempt for the Courts that has been expressed in private by attorneys on both sides. Judges are irritable because of the backlog of cases. But instead of looking at the root cause of the problems — namely bad rulings — the legislature and the Bench are essentially blaming the victims of the greatest economic crime in human history.
The Judges are irritable because they have married themselves to a failed group of assumptions and continue to issue rulings inconsistent with due process and the realities of loans subject to claims of securitization. This is turning into a body of law that will allow a convicted felon for economic crimes to commit a variety of acts for which he can argue are not punishable.
Using the assumptions of many judges on the bench, anyone can initiate a foreclosure on a home claiming to be the Servicer and claiming some vague authority to represent the lender. You don’t need to allege that you loaned any money. You don’t need to allege that you bought the loan. You just need a copy of the recorded mortgage and allege a lost note. Fabricating the lost note for copying is easy using photoshop. You allege a date when the borrower stopped paying, demand judgment and poof, it is awarded and a sale date is set.
At the auction, as the party to whom judgment was awarded, you submit a credit bid (no cash) and a deed is issued to you on foreclosure that is hard to attack. If history is any example, most of your cases will be entered by default, because the homeowner knows they stopped paying, but didn’t know he was paying the wrong party and didn’t know that his identity was stolen when the loan was originated.
The result is a free house for anyone who wants one.
If the Bench wants to be less irritable, and far less back logged, then all they need todo is to establish a threshold that eliminates the cries of foul from the homeowners. Foreclosure defense was never a specialty before. The reason it is now is that there are real defenses, including third party payment, that never existed before.
If the Bench was to require the forecloser to produce an affidavit and copies of the money trail, and if the Bench were to follow the most commonplace rules of pleading, there would be no backlog because there would be no Foreclosures.
How did pleading requirements evolve such that no loan need be alleged? Really? You can sue to collect on the note without pleading that the loan (i.e. actual advance of money from THAT lender) stated in the note actually happened? How did pleading evolve such that the foreclosing party does not have to plead and prove economic injury? Really? Hasn’t it been well settled for centuries that the court has no advisory role? Isn’t it true that no court has jurisdiction over a controversy in which neither party alleges injury or financial damage?
The entire foreclosure season, extending over 7 years and expected to last another 7 years, was manufactured by lies, fraud upon the court by foreclosers. The Banks relied on the fact that the Bench would react by grouping all the foreclosure victims as deadbeats “You didn’t make the payments. What do you expect? A free house?”
Instead of taking each case and requiring compliance with standard rules of pleading and proof, the Courts allow deviant legal practices that have clogged the courts with hundreds of thousands of homeowners who correctly proclaimed they were being victimized but who were blocked by the Judge from obtaining discovery that would have proven their case.
I intend to do something about that. And I must say that my experience so far is that Judges will listen if you are not shy. They may not agree with me yet, but they are allowing me to proceed to show the failure of consideration, the defects in the chain, and the absence of injury. And let’s face it, part of the problem is poor preparation that produces timid argument from attorneys. Lawyers would do well to follow the examples set by Weidner and Stopa.
Foreclosure Court: The Erosion of the Judiciary by Mark Stopa, Esq.
Yang vs. Sebastion Lakes 4th DCA Florida
Requirement of Pleading Injury
Filed under: CDO, CORRUPTION, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: Marl Stopa, Matt Weidner, pleading injury, Pleading the loan exists, proving or pleading financial loss |