4th DCA Florida gets It!! Judgment Reversed for Borrower! HSBC Goes Down in Flames

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This is not a legal opinion on your case. Get a lawyer.

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This case is important for many reasons:

  1. It is short. While that seems inconsequential, it seems highly significant to me that the 4th DCA would reverse the trial judge and direct entry of judgment for the Borrower based upon the application of simple laws and rules that I have been advocating for 8 years.
  2. It does not remand for a new trial or further proceedings. it directs that judgment be entered for the borrower. End of story.
  3. Standing: If the foreclosing party lacks standing it doesn’t matter how many payments were allegedly “missed.” A party who has no injury or interest in the subject matter cannot bring the claim.
  4. The assignment and the note “endorsement” was after the suit was filed. Hence at the time of the filing of the foreclosure lawsuit, there could be no standing and therefore the lawsuit should have been dismissed. It is for that reason that the 4th DCA directs judgment for the borrower.
  5. The burden of proof is on the bank — not the borrower. IN order to sustain a complaint at trial, the burden of proof is on the alleged creditor to prove its standing. AND THAT MEANS that discovery demands, routinely rejected by judges, can be enforced.
  6. The alleged endorsement was undated: The Court found that an undated endorsement cannot prove standing. The witness at trial must testify that he/she knows everything relevant about the endorsement, who did it, when and why. Robo-witnesses don’t have that information because the bank won;t let them have it. If they did have that information they would either be required to reveal that there was no underlying transaction, or perjure themselves.
  7. The court completely accepts the fact that the banks are backdating documents and it says backdating an assignment does nothing to help the bank. In other words, lying about it doesn’t cure the bank’s case.
  8. EVIDENCE: The witness testified that he knew nothing other than what he could see on the face of the assignment. As I have said for 8 years, that is pure hearsay — simply reading a document into the record does not mean that the recitals in the document are true. The fact that it is a document doesn’t mean it is a business record. And the fact that it is a business record doesn’t mean it is a valid exception to the hearsay rule. Judges, by the thousands ruled in millions of cases that such a proffer was admissible evidence. They were and remain wrong for doing so. If the witness cannot testify from personal knowledge about the matters asserted in a document, then neither the witness nor the document can be admitted into evidence. The question is not whether the the witness correctly read aloud what was in the document (probably backdated and forged). The question is whether the information on the document is reliable and trustworthy and true. A document could have the appearance of reliability and trustworthiness but the recitals in the document might not be true. The homeowner cannot cross examine a document and a homeowner cannot cross examine a witness about the accuracy of the matters asserted in the document if the witness knows nothing except what is written on the document.

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JUNIOR A. HARRIS,
Appellant,

v.

HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee for NAAC Mortgage Pass-Through Certificates Series 2007-1,
Appellee.

No. 4D14-54

[September 9, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Cynthia G. Imperato, Judge; L.T. Case No. CACE08029493(11).

Kenneth V. Hemmerle, II, Fort Lauderdale, and Richard P. McCusker, Jr., Delray Beach, for appellant.

Donna L. Eng, Michael K. Winston, and Dean A. Morande of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellee.

GERBER, J.

The borrower appeals from a final judgment of foreclosure entered for the bank after a trial. The borrower argues that the bank failed to prove it had standing when it filed the action. We agree and reverse for entry of judgment for the borrower.

The bank’s original complaint attached a copy of a note payable to another entity. The note did not contain an endorsement.

The bank later filed a second amended complaint. Attached were copies of the note and an assignment of the note. The note now contained an endorsement to the bank. However, the endorsement was undated. The assignment purported to transfer the note to the bank on an “effective” date before the bank filed its original complaint.

However, the assignment was executed after the bank filed its original complaint.

The borrower answered and raised lack of standing as an affirmative defense. The borrower argued that the endorsement was undated and the assignment was executed after the bank filed its original complaint.

At trial, the bank introduced into evidence the original note and the assignment. On the factual issue of whether the note was assigned to the bank before or after the bank filed the original complaint, the bank’s witness possessed no knowledge or information other than what the assignment’s face reflected.

After the close of all evidence, the trial court entered a final judgment of foreclosure for the bank.
This appeal followed. Our review is de novo. See Lloyd v. Bank of N.Y. Mellon, 160 So. 3d 513, 514 (Fla. 4th DCA 2015) (“We review the sufficiency of the evidence to prove standing to bring a foreclosure action de novo.”) (citation omitted).

We agree with the borrower that the bank failed to prove it had standing when it filed the action. We reach this conclusion for three reasons.

First, the note’s endorsement to the bank was undated. See Matthews v. Fed. Nat’l Mortg. Ass’n, 160 So. 3d 131, 133 (Fla. 4th DCA 2015) (“[T]he note introduced at trial . . . did not establish standing when the suit was commenced. The blank endorsement was undated.”).

Second, the assignment was “backdated” after the bank filed the action. See id. (“Nor does the backdated assignment, standing alone, establish standing.”) (citation omitted); Vidal v. Liquidation Props., Inc., 104 So. 3d 1274, 1277 n.1 (Fla. 4th DCA 2013) (“Allowing assignments to be retroactively effective would be inimical to the requirements of pre-suit ownership for standing in foreclosure cases.”).

Third, on the factual issue of whether the note was assigned to the bank before or after the bank filed the original complaint, the bank’s witness possessed no knowledge or information other than what the assignment’s face reflected. See Lloyd, 160 So. 3d at 515 (“Plaintiff’s evidence supporting its claim that the assignment . . . ‘related back’ to before the suit commenced was also insufficient to prove standing in this case. The witness testified that he did not have any information, other than the document itself, to verify when the assignment took place.”).

Based on the foregoing, we reverse and remand for entry of judgment for the borrower.

Reversed and remanded.

GROSS and DAMOORGIAN, JJ., concur.

– See more at: http://stopforeclosurefraud.com/2015/09/09/harris-v-hsbc-bank-usa-na-notes-endorsement-to-the-bank-was-undated-the-assignment-was-backdated-factual-issue-of-whether-the-note-was-assigned-to-the-bank/#sthash.FLUGXD2A.ynDnEINB.dpuf

37 Responses

  1. Jamie Diamon wearing his presidential cufflinks are a good example of intangible assets ( gosh i nearly said ,” ass”#%^*)

  2. …. Yeah that was a looong time ago … Things changed…

  3. Well sc They still got Al Capone

  4. Emperor is Naked. .. QQ
    The Fine New Clothes are an Illusion.

  5. Perhaps a bloodline could be considered infinite rehypothication?

  6. Corporate names is a good example of intangible asset.
    Don’t pay your taxes and see what happens is a good example of infinite rehypothication.

  7. Jg its a case of
    Emperor has new fine clothes
    Did you ever read Bill Blacks book ” Best way to rob a bank is to own one,” they use ” good will” intangible assets to balance their books
    Think about the word ” intangible” and words like “infinite rehypothication” ( wow am i hot on spelling today)

  8. THE MERS DESTROYED THE PAPER TRAIL.

    THE REAL PAYOFF ARE THE DERIVATIVES.

    THE CENTRAL BANKS ARE INSOLVENT.

    THEY ARE MASKING THEIR INSOLVENCY BY REFUSING TO REPORT “M3” SINCE 2006.

    HOW CAN ANY OF US OWE ANYTHING TO ANY BANKS THAT HAVE DESTROYED THEMSELVES THROUGH THEIR OWN NEGLIGENCE AND FRAUDULENT MISCONDUCT??

    IT IS A CRIMINAL FARCE AND ANTITHETICAL TO WHY THIS COUNTRY WAS CREATED IN THE FIRST PLACE!!!!

  9. 40%GDP
    What happens when the river feeding the lake runs dry?

  10. Good Catch Deb!

  11. I’m too thick, but then, I’ve got a lot of company. It never occurred to me that one really good reason for foreclosure is for more inventory which is needed to continue the scam with new loans.

    “In the year prior to the inception of MERS, the estimated cost of preparing, recording, and mailing 11.1 million loan documents totaled about $210 million.[20] University of Missouri Economics Professor L. Randall Way summarizes the culture of deregulation and easy profits that led to the creation of MERS: “Wall Street wanted to transform America’s housing sector into the world’s biggest casino and needed to undermine property rights to make it easier to run the scam. The payoffs were bigger for lenders who could induce homeowners to take mortgages they could not possibly afford. The mortgages were packaged into securities sold-on to patsy investors who were defrauded by the “reps and warranties” falsely certifying the securities as backed by top grade loans. In fact the securities were not backed by mortgages, and in any case the mortgages were sure to go bad. Given that homeowners would default, the Wall Street banks that serviced the mortgages needed a foreclosure steamroller to quickly and cheaply throw families out of the homes so that they could be resold to serve as purported collateral for yet more gambling bets.”

    Modification also messes up inventory for new sucker loans since those receiving loan mods will likely stay in their homes (they wont’ be sold and there will be no new loan to another party), plus loans mod’d have to be themselves pulled from the alleged trusts they’re in as I recall. Plus whether they actually modify or not (Lord knows what all shaninigans are implememted when a loan is allegedly modified), it’s risky business to purport to modify a loan, owner unknown.

    MERS HAS TO GO AND TAKE SECURITIZATION WITH IT

  12. And they do change positions but it doesn’t change what they did and the capacity under which they did it, and if irs on record then it the facts must be illuminated in light of other evidence to the contrary.

  13. It’s the how and the who did it

  14. SC said
    Worth repeating being fundamental,
    Mers purports to ” assign the deed of trust and note”
    SC said “Shadowcat on September 20, 2015 at 10:10 am
    TAKE 101…..

    MERS HAS NO AUTHORITY TO ASSIGN THE MORTGAGE OR DEEDS OF TRUST.

    INVESTERS GOT THE MORTGAGES….NOT THE NOTES!

    You could say …. The notes went MIA like the deeds.
    Wild Things.

  15. TAKE 101…..

    MERS HAS NO AUTHORITY TO ASSIGN THE MORTGAGE OR DEEDS OF TRUST.

    INVESTERS GOT THE MORTGAGES….NOT THE NOTES!

    You could say …. The notes went MIA like the deeds.
    Wild Things.

  16. NG, this is from a case from 2014 in the north with which you may be familiar:
    Court:
    “MERS internally recorded the transfer of the Deed of Trust”

    Really? “mers” did? How’s that?

    “and remained the nominal beneficiary of record, but was now the nominee for IndyMac Bank, not E-Loan

    again, really? How’s that? How does mers become the nominee of a transferee of the deed of trust? Osmosis? It’s a deed (of trust) covenant, restriction, condition that runs with the dot, WHAT?

    Neither of these are facts in evidence imo. And is it material if it’s ‘mers’ who makes any entry into the database system owned by merscorp (because it isn’t ‘mers’, it’s someone else) and if it’s “internally recorded” in the private database, of what evidentiary value is that? (Here I hasten to add it’s a crime to keep false records in private books for anyone’s reminder).

  17. Before there was Neil Garfield there was Ralph Nader…
    he’s still kickin’ but not for much longer…

    https://blog.nader.org/2010/03/29/attention-deficit-democracy/

    “The banks own this place,” says Senator Richard Durbin (D-IL), evoking the opinion of many members of a supine Congress ready to pass weak consumer and investor protection legislation while leaving dominant fewer and larger banks.

    we know the rest…

  18. Hey TU

    do you know where this call originated?
    they don’t give the name of the group or website…
    thanks
    g

    Trespass Unwanted, on September 17, 2015 at 6:36 am said:
    http://www.freeconferencing.com/playback_nv.html?n=/storage/sgetFC/OZ4nw/ulPfV
    Last quarter of the audio, allow it to buffer before using slider.

  19. If you’re interested in the rbs deal but it’s too small to read it here, you can always look it up at scribd.

  20. The NV AG sued a company for funding uying/ securitizing junk loans from Countrywide. “RBS Financial Products, Inc.” entered into an “Assurance of Discontinuance” of its objectionable practices and was fined 36,000,000 in 2012. It was accused mol of assisting CW with all the predatory stuff I holler about occasionally by FINANCING and or buying the garbage CW was vomiting. The AG’s exact reasons for looking into this co. are imo the reasons people who got these loans have cause to rail against them as independent claims or as counter-claims in recoupment.
    I’m going to go ahead and post the “Assurance” here for its recitation of bs, which I normally avoid due to length. Note where this case was filed (Business Court). I found this online and believe it’s legit.

  21. – please pass this along –
    Garfield’s Goose & Friends
    Description: A Follow-Up Q&A call to our friend Neil Garfield’s Thursday night call… where fans and those in need of clarification might find friends and sympathetic souls…

    First – Neil’s Show
    Click to tune in at
    The Neil Garfield Show
    “http://www.blogtalkradio.com/neilgarfield”
    Or call in at (347) 850-1260
    6pm Eastern Thursdays (for 30 min)
    Then…
    (every Thursday night 15 minutes after Neil)
    Garfield’s Goose & Friends
    http://www.talkshoe.com/tc/139335
    Or call in at (724) 444-7444 (then use Call ID: 139335)
    6:45 PM Eastern Thursdays (for 60 min)

    RULES

    Talkshoe lets you call-in or log-in 15 minutes ahead of the start time…
    First 5 questions posted ON CHAT BOARD get discussed – more if short
    – 10 min max each – IN ORDER –
    Call-In’s will be limited to people helping others by giving answers or explaining similar situations to the posted questions…

    The Call will be run Strictly – “like a Roman Centurion” – at least to start with – lol…
    [to get a feel for the flow of information…]

    (One Hour is MY ABSOLUTE limit)
    NO COMMERCIALS ALLOWED AT ANY TIME!
    If people need to hook up by private email or phone – and you send your contact info to me; i will provide a secure private reference service between parties who have posted or spoken that they mutually grant me permission to facilitate direct intercourse…
    i may ask you later “off-line” for written confirmation first…
    Otherwise – Publish your email or number at your own risk!
    recordings will all be public…

    host is a man; not a legal entity and reserves all inherent rights with none waived
    host indemnifies “talkshoe”; its heirs, assigns, creditors, et. al. for an unlimited amount against all claims
    this service is a volunteer action on the part of the host for which any compensation is refused and no quid pro quo exists
    this ongoing event is without recourse
    void where prohibited by law

    i hope this helps…

    Hosted by: Greg
    Phone Number: (724) 444-7444 Call ID: 139335
    “http://www.talkshoe.com/tc/139335”
    “http://www.talkshoe.com/custom/images/icons/TC-139335-MainIcon.jpg”

  22. When people were induced to get and sign seconds concurrently with a first mtg, ostensibly so that they didn’t need pmi on the first (the truth – 1 of a couple – no pmi insurer would insure the loan), they unwittingly helped mess themselves over. It’s been a few years now since this crossed my path, but from what I can recall, when someone other than the (named) lender owns the second, certain rules don’t apply which would benefit the borrower. So what banksters do is see to it that the first and second are claimed to be owned by diff parties. Sorry I can’t say more; I just can’t remember. I’m mentioning it so that those who got sucked into a combination 1st and 2nd and attorneys at least can start the hunt. Imo, the best route will be asserting that the borrower was willfully not informed of the detrimental ramification of a combined 1st and 2nd and has lost certain defenses and rights as a result.
    lay opinions

  23. http://www.newyorklawjournal.com/id=1202737413993/Paralegal-Indicted-for-Forging-Signatures-of-76-Judges?slreturn=20150818002804#ixzz3m0lyJdCT

    Requires membership to finish reading at the link.

    So paralegal just signs orders and clerk of court files them and there is no supervision? Must be some money behind those signatures or there would be no need to forge them, right?

    Trespass Unwanted, Creator, Corporeal, Life

  24. Absolutely TU! A Good Attorney will help initiate the process along with complaints to other agencies.

    Greg….you have seen the hyenas here…but you missed Linda from Chicago….unfortunately she lost grip with reality and endangered many lives. Giving you that info will only give you the parties..the motions and rulings…
    NO PLEADINGS…

    Any Good Illinois Attorney is familiar with the case law used.

  25. One still has the option of using the complaint process that deals with individual accountability. This new direction and focus may be late, but some things have no statute of limitation.

    We can use what is available to us.
    Find that paper in the court docs that had the most weight in the decision but shows the biggest problem with the claim of a right to steal the home.

    The link to the information:
    http://www.justice.gov/dag/file/769036/download

    CFPB already did an amicus on trustee as the debt collector.
    A debt collector cannot – go read the Fair Debt Collection Practices Act, or the One’s state Business Code, Unfair and Deceptive Trade and Practice Act.

    Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, People, State, In Jure Proprio, Jure Divino

  26. SC can i see your case file?
    what is the number?
    thanks
    g

  27. then… there is the matter of failure of personal service to establish defendant’s standing to be sued… servicing companies lie on affidavits and get them entered into court cases without your knowledge… then the judge thinks you ought to have been there when you didn’t know squat, they do a summary or default and then you are running uphill….

    all fraud

  28. Java
    You keep going back to court –
    As long as you do not miss a timeline and maintain your stance.

  29. Yes SC
    everyone would be well served to learn the difference between antecedent English/US “Land Law” and “Property Law”

    Land cannot be sold, only granted (a small fee for the processing)
    Property are the improvements upon the land…

    “if you think my house is yours… get the damn thing off my land (and do it without trespassing on my land)”

    or not?

  30. I am with Java gild on this one. I had same issues and they were dismissed by judge. Assignment to trust over 4 years AFTER loan was given. NOT 90 days or less by law…
    Any ideas? I have not given up hope of recovering my home of over 30 years. Just ran out of money…

  31. re: Louise’s link at 10:43. I quit listening when I saw, unbelievably, that Franklin Raines (yes, THAT Franklin Raines) was sitting next to Ackman. Raines was one of them (read thee guy) at the helm when Fnma quit doing diligence / quality control about the junk it was buying so guys like Mister Raines could get massive production bonuses. He was, as I recall, ordered to give some (key word) of it back but spent not one night in the 8 x 8 room with his name on it. Now he’s sitting next to a guy squauking about FNMA stealing from HIM / squabbling over the booty from the sweat of our labor? I’m now only surprised the private-practicing Holder (Holder / private practice – this is new?!) wasn’t’ up there with them.

  32. As we have also said for 8 years+, homeowners either don’t hire competent trial lawyers knowing the evidence codes and requirements of proof or try pro se to fight a rather obvious defect. It is clear where the Note has no assignments by endorsements to another entity that a different entity-forecloser has no proof it owns the note.
    We can help you if you call us today at 818.453.3585…Consumer Rights Defenders, ask for Sara or Steve.

  33. Java. .. I do not know.
    What I do know is .. Its not our job to establish the elements of standing. Its not our job to Prove a Claim made against us.
    It is not our job to prove who the creditor is ….its their job!

    Having been feed up with the … No person has the authority to fix errors or mistakes by the servicer. …and refusing to pay disputed amounts…..I wanted to payoff the RPII.

    But everybody has a want for the same Knowledge as KC.

    No party can show proof of claim … Standing to invoke the jurisdiction of the court….UNLESS…. the persons on the land …?…and the would be trespasser is allowed to enter ….. By Agreement.

    The land keeps me and the bank firmly grounded.
    Time to get the Gardening Gloves on…
    .. Many Blessings to All.

  34. See this link on Fannie and Freddie http://www.businessinsider.com/bill-ackman-on-fannie-mae-and-freddie-mac-2015-9 Hedge fund manager who owns major amount of stock in the GSEs says they are stealing from us and that the ownership of private property is in major jeopardy.

  35. The record in the court cases is full of lies, fraudulent and forged documents which is also fraud on the court. Javagold, looks like there are going to be many, many wrongful foreclosure lawsuits if we see some more of this type of ruling.

  36. What about those who already lost houses in fraudclosure because of those backdated lies ? !!!!!!!!!!!!

  37. Want of acknowledge
    Lack of Knowledge

    Its a knee jerk reaction …..

    My judgment against banksters is public record …….
    Going Once….
    Going Twice….

    Standing on the Sidelines

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