PHH Loses Again: 2d DCA Florida Reverses Trial Judge and Enters Judgment for Borrowers

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The courts have turned the corner. Decisions like this are coming out across the country from the trial and appellate benches as Judges and Justices are expressing their frustration and anger over the false submissions by banks pursuing foreclosures. Here the court had the option of remanding for further proceeding, allowing the Plaintiff in foreclosure to refile its claim. But instead, the Appellate court decided that the Defendant Borrowers should simply win the case.

There are other issues that are potentially present here as this case goes forward. Title is not cleared and there are other tactics that can be tried by other claimants who are relying upon the false documentation produced at “closings.” But one thing is clear — the Judges are starting to pay attention and they are highly frustrated by the shell game of changing servicers, trustees and even Plaintiffs without amendment explaining the change. Several Judges have ruled for borrowers and expressed deep questions of credibility regarding a “foreclosure” case where the only witness is someone who knows nothing and is the corporate representative of an entity that never had any relationship with the loan documents or the collection process and obviously no connection with the original loan “closing.”

Judges are asking: “why are they choosing to hire people to testify who have no basis of knowledge of any facts relevant to the case? If that is their strategy, what are they trying to hide?”

http://4closurefraud.org/2014/09/08/fl-2nd-dca-may-v-phh-mortgage-corporation-bank-failed-to-demonstrate-it-possessed-the-note-at-time-it-filed-complaint/

http://www.economicpopulist.org/content/foreclosure-starts-and-90-day-defaults-rise-again-july-average-time-foreclosure-now-1001

30 Responses

  1. James, this is how:

    A servicing agent has standing to prosecute a foreclosure case on behalf of the principal. Mortgage Electronic Registration Service v. Azize, 965 So. 2d 151 (Fla. 2d DCA 2007) (court held that a party who was not the beneficial owner of a mortgage had standing to foreclose upon the mortgage); Taylor v. Deutsche Bank Nat. Trust Co.,
    44 So. 3d 618 (Fla. 5th DCA 2010) (Florida Rules of Civil Procedure allow an action to be prosecuted for someone acting for the real party in interest).

  2. Can someone help me out. Im just trying to figure out how WF can initiate a foreclosure on behalf of a Creditor that no longer exists. Below are the opening statements of the Foreclosure Letter:

    Dear Mr. Smith:

    Please be advised that this law firm has been retained by Wells Fargo Home Mortgage (“Servicer”) regarding a default in your Deed of Trust/Mortgage Note payable to Mortgage Lenders Network USA, Inc.(“Creditor”) in the original principal amount of $135,000.00 (“Note”). Repayment of the Note is secured by a Deed ofTrust/Mortgage on the referenced property.

  3. “REVERSE” the tables on them.

  4. I Agree Rock. No need to even go there, cut them off at lack of standing.

  5. Hey userkarguy, the Emigrant case was vacated like most of these cases making stall arguments.
    Emigrant Mortg. Co. v. Corcione, 2010 NY Slip Op 33906 (N.Y. Sup. Ct., 2010) (“ORDERED , ADJUDGED and DECREED that this Court’s Order dated April 16, 2010 (Emierant Mortgage Co. Inc. v. Anthony J. Corcione. et. al., 2010 NY Slip Op 20133, 28 Misc 3d 161, 900 NYS 2d 608) be and the same is hereby vacated, annulled, set aside and shall be of no further force and effect.”)

  6. It’s only taken a half decade or so for some serious main stream introspection into the rampant criminality going on in fraudulent foreclosures. Will anything change? Not unless we force the change. Predatory capitalism will not release its death grip without a fight.

    Homeowners steamrolled as Florida courts clear foreclosure backlog – Initiative funded by mortgage fraud settlement meant to help borrowers

    If not now, when?

  7. Agreed. It will all come out eventually.

  8. Timing is right now Louise. I talk to folks everyday from all walks of life and they know – maybe not all the messy details but they know public awareness of the PONZI scheme is on the rise. The internet is here and we can tweet stuff around the world in seconds! Too late Pandora’s box is open and that is that. True will prevail and they know it will deep down.

  9. Actually, the proverbial shit is starting to hit the fan. If they go to trial with me, it will be very interesting.

  10. Well Louise I had a federal judge ” quiet title” after presumptions and the real material facts being warped beyond redaction!

  11. wow. everybody left.
    I know how you feel.

  12. Love the FDCPA. I think we all should have been using the federal statute for causes of action against the fraud and foreclosure BS.

  13. NEW YORK! NEW YORK!
    I LOVE NEW YORK!

    This little ditty is from the fine folks at Troutman And Sanders….

    In Emigrant Mtge. Co., Inc. v. Corcione, 2010 NY
    Slip Op 20133 (Sup. Ct. Suffolk Co. 2010), the court
    denied Emigrant Mortgage Company’s motion for
    summary judgment in a residential foreclosure action
    and assessed $100,000.00 in exemplary damages
    “in light of Plaintiff’s shockingly inequitable, bad faith
    conduct.” In addition, the court limited Emigrant to
    collecting the outstanding principal balance of the loan
    and barred any claims for interest, default interest,
    attorney’s fees, legal fees, costs, disbursements,
    advances, or any other sums.
    In May 2008, the defendants, Jane and Anthony
    Corcione, defaulted on their mortgage note. The court
    found that, upon the default, the defendants made
    significant, continuing, though ultimately unsuccessful,
    efforts to reach a mutually satisfactory loan modification
    with Emigrant. Emigrant then filed a foreclosure
    action on July 23, 2009, more than a year after the
    initial default. The court partially relied on Emigrant’s
    delay in filing the foreclosure action when it denied the
    application for interest and other sums beyond the loan
    principal balance.
    Under New York law, the parties were required to
    participate in a mandatory settlement conference. At
    the conference, Emigrant submitted a loan modification
    agreement under which portions of the default
    interest accrued would be forgiven if defendants
    made payments in accordance with the modification
    for a period of 12 months. Under the agreement,
    the defendants acknowledged that the modification
    agreement would not prejudice Emigrant’s loan
    acceleration or foreclosure rights.
    In contrast, the defendants, by signing the loan
    modification agreement, agreed to waive their rights
    under, as characterized by the court, “each and every
    state and federal law in the State of New York intended
    to regulate the mortgage banking industry.” Most
    troubling to the court, the defendants also agreed
    to waive the protections of the Bankruptcy Code’s
    automatic stay.
    The inclusion of these waivers convinced the
    court that Emigrant did not approach the settlement
    negotiations with the requisite good faith. As a result,
    the court found the plaintiff’s actions regarding the loan
    modification agreement to be “over-reaching, shocking,
    willful, and unconscionable,” and the court used its
    equitable powers to award exemplary damages against
    Emigrant. The court stated that it was awarding the
    exemplary damages to make an example of Emigrant
    and discourage future bad faith conduct by Emigrant
    or any other party during foreclosure settlement
    negotiations.

  14. 15-7-5032 Grubb v. Green Tree Servicing LLC, U. S. Dist. Ct. (Wolfson, U.S.D.J.) (20 pp.) In this matter, plaintiff alleges that defendant, a debt collection agency, violated the Fair Debt Collection Practices Act by sending false or misleading debt collection letters. Defendant moves to dismiss the FDCPA claims. The court finds that defendant’s May 1 letter was not simply a “welcome” letter but was a communication related to the collection of a debt and thus constitutes debt collection activity under the FDCPA. It also finds that the May 1 letter failed to effectively convey the “amount of debt” in compliance with the statute and as such, plaintiff has stated a claim pursuant to 15 U.S.C. § 1692g. However, it does not find that the letter failed because it provided the amount of debt once day prior to the date of the letter but because it failed to include information regarding how the amount of the debt was calculated. The court also finds that plaintiff stated a valid § 1692g claim because even if the May 1 letter had effectively conveyed the amount of the debt, by sending the May 3 letter which contained a different amount (the amount of the loan balance without fees, costs and interest) the least sophisticated debtor could reasonably be confused as to the “amount of debt” actually owed. The court also finds that plaintiff has stated a claim pursuant to § 1692e, based on the same facts and theories of the § 1692g claim. Defendant’s motion to dismiss is denied. [Filed July 24, 2014]

  15. The W.D. Sayath. T.I.E. With rights of Survivorship.

  16. Unless thee have my permission or thee get a tax lIen. Just say No to Drugs n Greedies.

  17. Thee can not fc on a irrev living trust on a debt of only one settlor. 🙂.

  18. UKG, its called Slander of Title. Sucessor Liability no matter how many times thee kick the can down the road. In many cases they didn’t even bother to assign the mortgages before filing LPs, no lone endorse the notes. In our case all that is Moot! The Greedies made it an irrevacable living trust at closing. Shall I hold them to it?

  19. I don’t know how the editor missed the significance of this one. Again, there can be no equitable assignment of the mortgage without proof of transfer FOR CONSIDERATION of the NOTE, for the mortgage to FOLLOW THE NOTE. How much clearer can we make it?

    I know a lot of you attorneys poo-poo the idea of pleading RICO and state racketeering violations, but when the evidence of the conspiracy is spread throughout the court record with the multiple, trailing forged assignments created at the request of the attorneys trying to get the foreclosure, the time is right! As scattershot as the courts have been in ruling FOR and AGAINST MERS right to assign (even to say that their power stops at the assignment of the right to record only), assignments by bank employees signing as MERS officers is also found to be fraudulent. I just wish so many people didn’t throw their keys on the floor and leave.

    http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=116771

    The Wisconsin Court of Appeals had remanded the Dow Family case on August 6, 2014, 838 N.W.2d 119 (2013) finding “PHH has not submitted evidence sufficient to support a finding that the copy of the note is what PHH claims — namely, a true and correct copy of an
    original note in PHH’s possession,”¶20. The Supreme Court of Wisconsin held at ¶24,“There are simply too many questions surrounding the document PHH submitted for us to conclude it is a
    true and correct copy of an original note in PHH’s possession. As a result, PHH has not made a prima facie showing that the copy of the note would be admissible in evidence. See Gross, 259
    Wis.2d 181, ¶ 31, 655 N.W.2d 718. Without the original note, or a properly authenticated copy, there is no factual showing that PHH is entitled to enforce the note as the party in possession of a note endorsed in blank. Consequently, PHH has failed to make a prima facie case for summary judgment. We therefore reverse the grant of summary judgment in PHH’s favor and remand for a trial on the issue of whether PHH is entitled to enforce the note.”
    The reason this is most significant, and believe me when I tell you that bank attorneys are spinning this as some kind of victory for their side, but that position is mistakenly one sided.
    Yes, equitable assignment (the mortgage follows the note) is alive, but you have to have
    1) an original note that is validly endorsed, not forged, that is held by a holder in due course or a holder with rights of a party entitled to enforce (again, by proper ENDORSEMENT).
    2) In Dow Family, the Wisconsin Supreme Court plainly held that the documents necessary to establish that a foreclosure claimant is entitled equitable assignment by operation of law must be determined in evidentiary proceedings and affirmed the Court of Appeals’ remand to the circuit court for further proceedings. A copy of an unendorsed note with an unrecorded mortgage lacking assignment does not a foreclosure case make! Got it?
    Because the purchaser of real estate in Dow Family can challenge the authenticity of the Note produced in support of a claim of equitable assignment, the owner of the property has no less a right to the production of an authenticated copy of the Note or the original
    Note, free from forgeries than the purchaser of real estate from the owner, before equitable assignment by operation of law may be determined based on the alleged possession of the original Note.

  20. ” [F]our people charged with mortgage fraud were acquitted Friday [Aug. 22] by a jury in Sacramento federal court after defense attorneys argued the real culprits are the so-called “victim lenders.”

    According to experts, it is the first time in such a trial that a court has allowed the defense to present evidence that lenders ignored gaping holes and blatant lies in loan applications during the years leading up to the economic meltdown. ”

    http://www.truthdig.com/eartotheground/item/california_trial_places_mortgage_blame_on_bankers_20140908

  21. FTP, google title title abstact or land banks in you area. I suggest you hire one of the attornies suggested by UKG. They can do this for you also. More importantly is to have your note n mortgage reviewed by an Attorney. Use your mortgage payment to pay them, but keep the tax n ins paid. Don’t lose your home to a tax sale n fc as many here have. Best Wishes to you n your Family.

  22. MCJ do you know of a pay service like Tapestry for FL? It is not included in their network.

  23. Exactly! I wanted to buy the house at full price to payoff my husbands loan, as I was tired of the servicers incompitence. And I wanted my name on the title as it should have been at closing. I only had my commision a few weeks before we closed in 07 on this property, got my abstract certification in 2011. Anyway I hired an attorney to represent me in the matter in 2010 after BAC refused to clear CW LP from title. All hell broke loose after that.

  24. I contacted an atty here about doing a complete title search and to get an opinion on my house. They refused to do it and said that they would represent a borrower to sell the house as long as loans were satisfied in the transaction. Or, in other words, business as usual. Their fear of me was palpable. As to other comments, a house does not control my life. I will leave it in the dust if necessary. My life is more important than a beat-up old house.

  25. Deb, no different for us as the appraisers. Do it their way or they will find someone who will. Speaking from 1st hand experience. Any guesses why I semi retired early? I wouldn’t n couldn’t participate in illeagal activity. Paycheck or Not. I am the investor, taxpayor n homeowner. I sat on the sideliners because no matter what I do … I step on my own foot.

  26. Louise ask yourself why there are so many rent to owns on the market. Its not becasuse they are under water either. 1st hand experience says stay put or be a landlord for 30yrs.

  27. Charles I 100% agree
    The staff are taught just enough to do their part and no more.

  28. The industry has removed most of these employee in the difference stages of these crimes. The secret to the success of the crime is have employee that are not fully trained and the training they do receive is what the lender wants the employees to know.

    The bank defense is that the staff did not intentionally break the law but were justice under trained, and this has worked fine and followed is a settlement with the Federal or States agencies, but the homeowners under funded and no understanding by attorney were on an Island by themselves without any help.

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