Fla 2d DCA Gets It: Switching or Subsituting Plaintiffs Does Not Eliminate Standing Issue of the Party Who Originally Filed Foreclosure Lawsuit

For General Information Only

For further information please call 954-495-9867 or 520-405-1688

Always seek the advice of a licensed   competent attorney before acting on anything you read on the internet.

============================

see Substituted Foreclosure Plaintiff Must Still Prove Standing of the Original Plaintiff

The importance of this case, is that the 2d DCA is showing its discomfort with the musical chairs strategy employed by banks in foreclosure. Standing is required in order to file a lawsuit. You can’t acquire it after the lawsuit is filed and you can’t get around THAT by “substituting” a new party Plaintiff.

I would go further to state that the substitution of the new Party Plaintiff raises questions that MUST be answered in discovery and MUST be part of the prima facie case of the new Plaintiff or the Old Plaintiff. The door is opening on the ability of homeowners to be very aggressive in discovery and pre-trial motions.

And, as I said when I started the blog, these cases will vanish once homeowners start winning motions relating to discovery. The banks cannot comply because they don’t know the answers — ownership of the debt, note and mortgage, consummation, and balance after settlements paid to the alleged “creditor” who is suing to foreclose. Those payments are credits against the amount due to the creditor.

That must mean that as between the designated creditor and the alleged “borrower” the principal and interest have been paid down. The same goes for servicer advances. If the servicers want to argue subrogation then let them plead it — with the result that the debt, the note and mortgage become subject to split ownership.

It is simple contract and commercial instruments (Bills and Notes) law and practice. If a creditor has in fact received part payment or all the payments they were intending to receive, then the amount due from the borrower as to that creditor is correspondingly reduced.

The loan payable from borrower remains unaffected, but the loan receivable on the books of the creditor is reduced. Whoever paid off the creditor MIGHT have a claim to receive the proceeds of foreclosure BUT THAT CLAIM is NOT secured the way the creditor’s claim is secured — i.e., the mortgage.

By ignoring this simple black letter legal proposition, the courts are granting a security interest to a third party who was never in privity with the origination or acquisition of the loan.

11 Responses

  1. a blast from the past… (2014/04/26)
    (nothin’ changes if nothin’ cnages… and nothin’ changes…)

    http://chicago.suntimes.com/uncategorized/7/71/167531/guilty-as-charged-courts-arent-cutting-it

    Guilty as charged: Courts aren’t cutting it
    Written By EDITORIALS Posted: 04/26/2014, 06:14am

    When the metaphorical gavel finally came down, the Illinois Supreme Court issued this stunning verdict: the Cook County Circuit Court needs to go to reform school.

    The state’s top court on Friday found so many things wrong with the local courts, including a huge backlog of detainees waiting for their trials, that it issued 40 recommendations. And don’t be fooled by the benign word “recommendations.” For the Supreme Court to step in and say Cook County is not administering its courts properly is very unusual indeed. By no stretch of imagination was this report a vote of confidence.

    Cook County Chief Judge Timothy Evans issued a statement that he was “gratified” by the report. We hope that doesn’t mean Evans — widely seen as a go-along guy who is averse to telling lackadaisical judges to do their jobs — thinks this report is something that can quietly be pushed aside. The courts system desperately needs a change, and this report should be the hammer to make that happen.

    Gov. Bobby Jindal drops out of 2016 presidential race
    Statoil follows Shell, abandons Arctic operations
    At least 30 dead in Nigerian bomb explosion

    The Supreme Court-ordered audit by the Administrative Office of the Illinois Courts zeroed in on the job of pretrial services, which is supposed to provide background information that judges can use to decide which suspects need to be locked up and which can be safely released while awaiting trial. Effective pretrial services can reduce jail overcrowding and recidivism. But the audit found that judges believe they can’t rely on the information they get from pre-trial services. That’s a stunning conclusion.

    The statistics in the County Jail also are stunning. As of March 18, 1,345 people had been in for one to two years; 503 for two to three years; 187 for three to four years, and 142 for four to nine years. The average length of stay rose from 49 days to 57 from 2007 to 2012. People sit in jail just because they are poor and can’t make bail while others charged with more serious crimes are freed because they have the cash. It’s not just the courts; what the state’s attorney and police do also play a role. But these numbers are going in the wrong direction.

    As he has when other complaints have been raised about the courts, Evans trotted out his usual defense that the court system’s problems can be traced to budget cuts. He’s right that his budget has been cut, but he’s wrong to use that lame excuse. Judge Evans can still do much to fix problems he’s long ignored. Many of the audit’s recommendations wouldn’t cost anything to implement.

    The system has many fine judges who are working hard, but it also has judges who aren’t. The lights go off in too many courtrooms shortly after lunch. Especially when good golf weather comes around. In one inexcusable case, a judge waited five years after a civil trial was fully completed to arrive at a decision.

    Evans seems to think there’s not much he can do about those things because full judges are independently elected. Nonsense. Be a real “chief judge” or step down.

    We’ve seen too much fighting over turf among the county’s elected leaders. Evans and Cook County Board President Toni Preckwinkle, who in September asked the Supreme Court to step in, have been political rivals since the 1980s and ’90s, when Preckwinkle repeatedly challenged Evans for his 4th Ward City Council seat before finally beating him. Preckwinkle has had public disagreements over Cook County Sheriff Tom Dart’s and Evans’ budgets. And Evans and Dart have publicly sparred over the County Jail’s electronic monitoring program.

    Any court system as large as Cook County’s — one of the largest unified court systems in the world — is going to have problems. But the Cook County courts have managed to snarl themselves in inefficiency to a remarkable degree. The Supreme Court audit is a signal that it’s time to change.

  2. CITIZENS BAD – GOVERNMENT GOOD (really?)
    here’s a good laugh – brought to you by the folks at the cook county recorder of deeds office (with at least one assistant under FBI indictment for selling fraudulent recordations to an FBI sting operative)
    http://cookrecorder.com/dirty-deeds-nbc-shows-how-loophole-could-cost-you-your-home/

    i don’t indorse the whack-a-do sovereign citizen folks but understand their frustration…

    notice how it is citizens; having been trespassed upon; trying to find remedy and being ignored; who are the so-called bad guys…

  3. no room for people who just want to be left alone to enjoy life, their work, their families ON THEIR LAND?

  4. Judges, Lawyers,Deputy’s, Teachers……Greed has No Boundaries.

    As to Neil’s point of the article… If the party who filed the original lawsuit had no standing…..the purported successor does not get…what the other didn’t have.
    NOTHING EQUALS NOTHING!

    Great News! We finally get the conveyances and reconveyances along with that dag gone trustee agreement.

    Life is Good!
    God is Good!
    Many Blessings to All !

    My Cookie Jars

  5. @ louise

    That has already happened. If I recall correctly, it was about 2010-2011, maybe Ohio or somewhere there about.

  6. Kalifornia, on November 17, 2015 at 4:15 pm said:

    @ david belanger

    The Oregon ruling denying a motion to dismiss on the ground of a TILA rescission notice following Jesinoski:

    http://law.justia.com/cases/federal/district-courts/oregon/ordce/6:2015cv01420/122936/12/

  7. Even if the judges have their pensions invested in MBS’s, they usually own a house which may have been purchased after 1995 and, therefore, has MERS, an undisclosed entity in the mix. Sooner or later, one of the judges is going to get into trouble with their house, and we shall see which way they go.

  8. Kalifornia, on November 17, 2015 at 4:54 pm said:

    @ DwightNJ & david belanger

    DwightNJ: Be sure to insert the following language from the Oregon ruling into both the reply and the separate objection, and don’t forget to submit a request for judicial notice with Jesinoski and the Oregon ruling attached as exhibits. Also, in the reply and the objection make sure to cite to those exhibits. It is probably a good idea to add the Rivers case as an exhibit as well.

    “As the Supreme Court explains,
    [W]hen this Court construes a statute, it is explaining its understanding what the statute has meant continuously since the date when it became law. . . . Thus, it is not accurate to say that the Court’s decision … ‘changed’ the law that previously prevailed . . . when the case was filed. Rather, given the structure of our judicial
    system, [a Supreme Court] opinion [interpreting a statute] finally decide[s] what [the statute] had always meant and explain[s] why the Courts of Appeals ha[ve] misinterpreted the will of the enacting Congress. Rivers v. Roadway Exp., Inc., 511 U.S. 298, 313 n.12 (1994).” (p. 13)

    “Jesinoski revealed the majority of federal courts had “misinterpreted the will of the enacting Congress,” Rivers, 511 U.S. at 313 n.12, in allocating to borrowers the burden to go to court to enforce their statutory rescission rights under TILA.” (p. 18)

  9. neil, the ownership of the original debt is easily solved, it there is no county recorded document showing the loan changed ownership then the original lender is imo the original lender. servicers rights and the rest of the bs should not matter. If you sign a note and mortgage with chase bank then unless an assignment is recorded then when some other entity comes along and tries to claim ownership, there should be no argument, “no assignment, no argument”. this has always been the practice, why make it so complicated and the court system is aiding and abeting the fraud. enough already! im sorry if I just cant comprehend the fraudulent process here and with good reason.

  10. When I started down this road, I compared the bankers to the grifters in the movie, “The Sting”.

    In “The Sting” the thing the criminals are betting on are horseraces.

    In the phony gambling parlors of the mortgage brokers and the MERS, the criminal bankers are betting on “house-races”…

    They are controlling the environment, just like in the movie.

    The movie characters are betting on how a horse will finish…

    The criminal bankers are gambling on how a “house” will finish.

    The upshot is: the bankers took mortgages somebody else paid for already and then they put them in a bucket that they, alone, controlled.

    Then they sat back and allowed the servicing companies to collect the borrower’s monthly fees.

    Then those fees were distributed as per Pooling and Servicing Agreements…

    The money kept rolling in every thirty days…

    The Bucket loans remained hidden from everybody: Taxmen, IRS, SEC, borrowers, institutional investors etc… all the way down the line.

    They started by manipulating LIBOR to the banks advantage…

    And didn’t get caught…

    They said the interest was one number and then they switched it in the bank’s favor to another number.

    Then they said to themselves, “Why don’t we get third parties to pay these things and then collect all the money for ourselves over a period of 20 or 30 years (the duration of the loan) by creating private “trusts” nobody knows exist…

    And we, the criminal, central banking pigs will deny discovery because everyone else is a third party to our criminal behavior.

    Bernie 2016.

    HillBillary’s husband got caught with Monica Lewinsky…

    Three republican senators extorted him into passing the “Graham, Leach, Bliley” Act.

    The Graham, Leach, Bliley Act suppressed “Glass-Steagall”.

    In the absence of “Glass-Steagall”, the criminal filth on Wall Street manipulated “subprime lending”…

    The MERS became the filing cabinet to track all the “house-races”…

    The banks control both “parties”…

    The Stock Market is a gambling addicts PARADISE…

    And…

    If you are a Washington Insider, the stock market will allow you the appearance of fabulous riches…

    Stay tuned. It is a rigged game. And the central banking FILTH are fixing to pull the rug from under it.

    There are now 1200 TRILLION DOLLARS OWED TO THE AFTERMATH OF THE WALL STREET, CENTRAL BANKING, CRIMINAL FILTH AS INSIDER BETS THAT ARE PREDICATED UPON FORECLOSURE FRAUD.

    THESE “NOTIONAL DERIVATIVES” ARE NOW A SELF-FULFILLING PROPHECY…

    IF YOU DON’T GET YOUR HOME TAKEN IN A CRIMINAL FRAUD… THE CRIMINAL, CENTRAL BANKING FILTH WILL LOSE THEIR DERIVATIVE “BETS” AND BE FORCED TO SHOW THEY ARE…

    HOPELESSLY INSOLVENT.

    The banks books work like this:

    Assets- good debt on one side;
    Liabilities- bad debt on the other side.

    One side cancels the other out.

    The banks have destroyed themselves by using American Mortgages to launder criminal behavior…

    A GLARING example is HSBC and Wells Fargo using American Mortgages to launder drug and terrorist cartel money…

    Don’t believe me?

    Google it.

    HillBillary and her central banking CHUMS are a threat to national security…

    But…

    Not because of “Benghazi”…

    But…

    Because they are fixing to destabilize the American Dollar so they can then export there criminal scams into China and India…

    It is past time, We The People have eradicated these criminal FILTH, ONCE AND FOR ALL…

    God Bless This Country…

    Plant more acorns, We, The People, are gonna need more trees.

  11. The decision reached by the Supreme Court was that the
    plain language of the statute (supra) requires only the former, stating that “[t]he language of the statute
    leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to
    rescind.” [Idem at 792]

    In a unanimous opinion, the Supreme Court held that providing a notice of rescission within
    the three-year period is timely and sufficient to effectuate rescission within the meaning of 15 USC § 1635(f),
    the operative statute.

    The Supreme Court was asked to decide whether borrowers are required to provide a notice of intent to
    rescind, or affirmatively sue the creditor to effectuate the rescission rights within the three year limitation
    period. [Jesinoski, 135 S. Ct. 790, 790 (2015)]
    The decision reached by the Supreme Court was that the
    plain language of the statute (supra) requires only the former, stating that “[t]he language of the statute
    leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to
    rescind.” [Idem at 792]
    The defendant’s gambit was to use the equitable principle in common law for rescission. Under common
    law, the equitable principle is that borrowers must be able show that they can tender the property received
    at origination back to the creditor before being permitted to rescind the loan. Specifically, rescission
    traditionally requires either that the rescinding party return what was received before a rescission could be
    effectuated (rescission at law) or else that a court must affirmatively decree rescission (rescission in
    equity). The Supreme Court’s position, however, was that this principle cannot be applied to interpret the
    TILA rescission regime. [Idem at 793]
    Countrywide’s argument fell flat when it argued that Congress could not have intended to eliminate both of
    these long-standing common law requirements and allow a borrower to rescind a loan simply by writing to
    its lender. Furthermore, the defendant advanced a counterfactual conundrum which hypothesized that
    allowing rescission in this manner would simply encourage frivolous claims from borrowers. But the
    Supreme Court had the last word: “The clear import of §1635(a) is that a borrower need only provide
    written notice to a lender in order to exercise his right to rescind. To the extent §1635(b) alters the
    traditional process for unwinding such a unilaterally rescinded transaction, this is simply a case in which
    statutory law modifies common-law practice.”

    and the Supreme Court certainly rejected this puffed out stretch of an
    argument. To quote the ruling: “Section 1635(a) nowhere suggests a distinction between disputed and
    undisputed rescissions, much less that a lawsuit would be required for the latter.”

    only the former, stating that “[t]he language of the statute
    leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to
    rescind.” [Idem at 792]

    Creditors will need to reevaluate their responses to borrower rescission notices that they intend
    to dispute.
    Outcome: Creditors must consider the cost of disputing the rescission attempt
    against the potentially added cost and complexity of rescinding a loan many
    years after origination, since the procedures of rescission generally require
    creditors to return all funds received from the borrower and to terminate
    security interests – even if borrowers are unable to return any funds they
    received at origination. In other words, the costs to creditors will be far higher
    over time as rescission takes place from the date of the loan. [12 USC
    1635(b)]
    A lender has twenty days to determine whether the rescission notice is valid or whether it is
    going to seek a declaratory judgment in court that would block the rescission based on the
    theory that it provided sufficient disclosures.
    Outcome: Creditors may consider retaining a security interest in the mortgage or
    give up its rights to get repaid. This means going through records from
    mortgages from commencement of origination.

    LENDERS COMPLIANCE GROUP is the first full-service, mortgage risk management firm in the country, specializing exclusively in residential mortgage
    compliance and offering a full suite of services in residential mortgage banking for banks and non-banks. We are pioneers in outsourcing solutions in
    residential mortgage compliance. We offer our clients real-world, practical solutions to mortgage compliance issues, with an emphasis focused on
    operational assessment and improvement, benchmarking methodologies, Best Practices, regulatory compliance, and mortgage risk management.
    Information contained in this website is not intended to be and is not a source of legal advice. The views expressed are those of the contributing authors, as well as news
    services and websites linked hereto, and do not necessarily reflect the views or policies of Lenders Compliance Group, any governmental agency, business entity,
    organization, or institution. Lenders Compliance Group makes no representation concerning and does not guarantee the source, originality, accuracy, completeness, or
    reliability of any statement, information, data, finding, interpretation, advice, opinion, or view presented herein.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: