Stopa, Ice and Other Attorneys Taking 3rd DCA to Task on “PCA” Rulings

see http://www.dailybusinessreview.com/id=1202752360518/Defense-Questions-Courts-Silence-on-Standing-in-Foreclosure-Cases?mcode=0&curindex=0&curpage=ALL

 

Sometimes you need to take a risk when you believe passionately enough about something. Mark Stopa who has broken  ground several times in defense of foreclosures is among those lawyers who are challenging the Florida 3rd DCA. Tom Ice has joined him in complaining about PCA opinions from the 3rd DCA. It seems this appellate court is refusing to give opinions or guidance on key elements of the foreclosure suits filed by “strangers” to the action. And the way they are doing it is by issuing rulings that merely say “Per Curium Affirmed” (“PCA”) in favor of the banks. Thus the appellate panel avoids getting into the complex issues involved with the false securitization of mortgage loans. This District Court of Appeal is steadfastly avoiding giving their rationale, reasoning or basis for their ruling leaving virtually all lawyers within their district with zero guidance on what to tell their clients.

Specifically, lawyers are expressing themselves on the issue of standing, void assignments, notes not attached to complaint, and all the other defects in pleading and proof that are nonetheless rubber stamped by trial judges in favor of the banks. Virtually all other districts have analyzed at least some of these issues and given their opinions and guidance on factual and legal issues in dispute.

The third DCA has thus put itself in the unusual position of being reprimanded by the attorneys who practice in their district — not just for their actual rulings but more for their failure to give guidance on what they think in their district should apply as the logic and law of any case. I agree. With all the information in the public domain about fabrications, forgeries, back-dating, robo-signing and other practices that cast doubt on the credibility of bank claims for foreclosure, it is absolutely necessary for the courts of appeal to do their job.

The entire doctrine of stare decisis is based upon the premise that prior decisions can be used as precedent and guidance on future cases. By failing to provide the essence of their ruling, as though there were nothing to really discuss, the 3rd DCA is abdicating its responsibility to contribute to case precedent. it is also avoiding the possibility of reversal by a still higher court. But that is how the law is intended to work. By channeling difficult issues through multiple layers of courts, it is hoped that not only will a case be decided with finality, but that the reasoning of the courts be revealed and used as guidance for future cases.

Some years ago I was encouraging lawyers on the West Coast to bring de novo cases directly to the State Supreme Court because the Judges were refusing to rule on certain issues. The perceived risk of asking the Supreme Court to discipline the lower courts was seen as too much.  There is still an issue that I think is upfront on the West Coast: in a  nonjudicial state, it is my opinion that the states are applying the nonjudicial statutes incorrectly.

When an alleged “borrower” denies the basis of the nonjudicial sale of the property, the parties should be realigned, in accordance with age-old procedural rules.The party seeking affirmative relief (forced sale of the property) should be pleading the basis for their actions and the relief they seek. If the parties are not actually realigned then discovery should be wide open in favor of the borrower. Homeowners are forced to plead facts that are at best sketchy because only the opposition knows the true facts. Hence banks and servicers win cases they could never win in judicial foreclosure cases. To construe the borrower as the party seeking affirmative relief when their posture is purely defensive violates due process, in my opinion.

That means the beneficiary SHOULD plead and prove its case for foreclosure, once the borrower has raised defenses. Any other interpretation forces the borrower to assert facts that in most cases are only known by the opposition. Such an interpretation would and does mean that parties who illegally foreclose can and do prevail in non-judicial cases when they might not even survive a motion to dismiss in a judicial foreclosure. Due process demands that they be equal. The real purpose of nonjudicial foreclosures is to make uncontested foreclosures easier  and less expensive to complete. In a contested situation, the courts are tilting the table toward the banks and creating a nearly impossible burden on alleged borrowers.

Many judicial cases create the same imbalance. A party makes the allegation that it is a holder of the note. They might even assert that they have the right to enforce. That might give them standing to survive a motion to dismiss. But it does not and should not bar the alleged “borrower” from conducting investigations and discovery to determine if those assertions are true or false.

The rebuttable presumption that a holder has the right to enforce is subject to scrutiny unless the allegation is that the foreclosing party is a holder in due course. The incorrect assumption that there MUST be an underlying transaction in which the note was purchased should not be raised to a presumption unless at trial there is no contest on the issue. Yet many judges will bar an alleged “borrower” from seeing the underlying transaction to test the veracity of the allegations even in discovery which then deprives the alleged borrower of his or her right to cross examine the evidence. For example, if the indorsement was forged, then the note is not a negotiable instrument, in which case no presumptions apply in favor of the banks or servicers.

 

18 Responses

  1. Mark Bowen, I couldn’t say it any better! Is there a care number at the 3rd DCA where this is addressed?

  2. Tresspassunwanted.. Finally someone who is helpful. Could you would you please guide dummies like me on how to properly put together a good complaint to the …. what is it.. see I have been studying the fraud and how to “box the judges in ” that I have been missing what seems to be the other half of the process.. my mentor calls it “political pressure” Complaints… CFPB?

    As t my comment on the article…. great! good! Awesome!!!
    In the end though I believe that every one I mean everyone!! seems to be allowing the most egregious assumption and presumption that goes to the heart of the matter to go unchallenged.!!!!
    You say at the very end
    “For example, if the indorsement was forged, then the note is not a negotiable instrument, in which case no presumptions apply in favor of the banks or servicers.”
    Absolutely….
    BUT IT NEVER WAS AND NEVER CAN BE A “NEGOTIABLE INSTRUMENT”!!!!!!!!!!!!!!
    A “negotiable instrument” is defined as “an unconditional promise to pay”
    Excuse my %&&^ language but how many ^*(*(*&^ times do I have to say it… UNCONDITIONAL UNCONDITIONAL UNCONDITIONAL
    IT IS NOT NOT NOT NOT NOT NOT UNCONDITIONAL!!!

    READ THE FIRST WORDS (TERMS, CONDITION) OF THE ^&^^*&^ NOTE (NOT “PROMISSORY NOTE OR ANY OTHER)
    “In return for” ..CONDITION…”a Loan” CONDITION… “I” WHO IS “I”?.. “have” CONDITION…”received”….CONDITION PRECEDENT!!!
    NO mention of the UCC in it so the UCC does NOT apply !!! it is misuse and violates article 1 section 10 of the Constitution. Unless the State was part of the contract… WHAT WAS THAT? “CONTRACT”??

    A CONTRACT IS NOT NOR EVER CAN BE A “NEGOTIABLE INSTRUMENT”!!!!!
    They are having it both ways all three ways, first using the UCC 3 which only applies to “NEGOTIABLE INSTRUMENTS” and the use of the bull sht signed in blank… which is not LEFT BLANK!!!!! MISUSE OF THE DAM CODE WHICH IS NOT USEABLE IN THE FIRST PLACE!!
    If you leave the line “Pay to the order of _____________ BLANK THEN IT IS NOT “SIGNED IN BLANK” BUT LEFT BLANK AND IS NOT NEGOTIABLE..VOID FOR LACK OF A PERSON TO “ORDER PAYMENT”!!!
    “BLANK SIGNATURE” IS WITHOUT THE “PAY TO THE ORDER OF” LINE!!!
    Now once it is established that it is NOT A “NEGOTIABLE INSTRUMENT” and never was intended to be, no one can use the convoluted bullsht “all we have to do is pretend and fabricate documents and affidavits that say we are the “holder” or “owner” or any other such bullshit, and only need a copy of it to exchange for the money, currency (obligations of the Untied States) from the unlawful sale of your property.!!

  3. Now, pay attention… Did you “receive” a “Loan” prior to “Have Received”, you signing and delivering the Note?????? Phuck NO!!!
    So then there never was a “Loan” as defined what a Loan is (see blacks or any other you want, it clearly requires that one party “give” something of substance and value “to” another who “takes” it conditionally to repay in kind or similar in accordance with that agreement for “Loaning” … watch it now…. something that they have in their possession and are authorized to “Loan”.
    If they did not give you something of theirs prior to you delivering the Note to them which clearly is a condition of the giving of the Note “In return for a loan I have received, I promise to pay…” then there was not a “Loan” only a lie. Thus the “promise to pay” is CONDITIONAL UPON THE “LOAN I HAVE RECEIVED” past tense.
    If you did not receive a loan of something of substance and value then the condition precedent was not met and your “promise to pay” is VOID as a result!!! Fraud, fraudulent, counterfeiting.
    Now as to the fact that you “GAVE IN RETURN FOR SOMETHING YOU DID NOT GET” a Note which is conditional upon receipt of a loan and further conditional in the very next line:
    “The Lender or anyone who takes this Note by transfer and is entitled to payments under this Note shall be called “Note Holder”.
    “The Lender” CONDITION… “or anyone” CONDITION… “who” CONDITION… “takes” CONDITION (takes delivery of after inspection and consent to all liabilities, quality, defenses, assertions, and CONDITIONS thereto)… “this Note” CONDITION… “by transfer” CONDITION (not by “assignment” or other contrivance but specifically “transfer” which requires again the taking on of all obligations and responsibilities, defenses and CONDITIONS thereof including but not limited to no provision for converting or using it as a “negotiable instrument” nor a “bearer instrument”)… “and” CONDITION (whenever any instrument has any conditions in which the term “and” it is required that both or alllllllllll the CONDITIONS be met in order for the entitlement to the benefit or right to enforce)… “entitled” CONDITION… (if “the Lender or anyone who takes this Note by transfer” is not “entitled” to payments under this Note, then they can not make use of it nor make claim nor enforce it!!!)… “to payments” CONDITION… “under” CONDITION (not “under” any other, such as the state, code, statute, rules, court, banksters, fabricators, claimant assertions,interpretation, “Holder” “Owner”, “assignee”, “beneficiary”,
    “party” etc. etc).. “this Note” CONDITION (again “this Note” not some other note, statutes, code, interpretations, alteration, conversion, transformation, consent order, determination, court order, or any other not of “this Note”)… “shall be called “Note Holder” CONDITION (not “holder” “owner”, “possessor”, “one in possession”, “assignee” or even “holder in due course”)
    And when you actually read the Note, from that point on only the “Note Holder” has any rights described and what they are and no other! MORE CONDITIONS.

  4. One more time… the deed of trust (at least in mine and most others I have seen) does NOT secure the Note!
    The Deed of Trust (at least in mine and most others I have seen) secures “the debt” ….. wait for it……… “evidenced by the Note”.
    So 1. Without THE Note (not a copy or other facsimile of the alleged Note whether accompanied by an affidavit or not. (false and fraudulent on its face because if they had knowledge that it was a “true and accurate copy” they would have 1. Had to do a forensic on the alleged original to determine that it was an original and to have witnessed the actual signing of that original and the placing and sealing of that original and marked as evidence (as in forensic evidence sealed and marked) and that the seal was unbroken. 2. Were present when it was made a copy of (and under law made sure that the memory or other thing that could possibly have any part of the document saved so as to be able to be made a copy therefrom, erased, destroyed and removed and destroyed) and most probably would know where it was taken to or who took custody of it to insure its safe keeping. (After all it is a “thing” worth as much or more than many precious paintings, diamond necklaces, jewels, artifacts, and other precious materials, such as gold or silver, coins and stamps, thus deserving of the same treatment thereof.) If they care so little for it then they clearly are not entitled to the value thereof… kinda like your rights,,, if you value them so little as to not secure them and assert them and protect them.. Then you are deprived of them aren’t you?.. YES)
    So if they have not “the Note” then they can not possibly make use of a trust created to “secure” something “evidenced by the Note”
    2. Once going back to the “evidence” namely “the Note” what is it that it is required to “evidence”? “Debt”… “the debt evidenced by the Note”. So now one must look and see if the Note actually “evidences” “the debt”… See above. What it actually evidences is that the one who took the Note is a thief and is liable to at the very least, the full face value thereof.
    And as it turns out they, or someone did in fact, transferred various amounts of currency to the various persons as instructed to do by the payout sheet. When that happened the alleged “transaction” was complete. You gave them an instrument which they sold, exchanged or used to acquire the funds to which they were obligated to provide (value for value) and distribute as required. It is done, finished. No loan, but nothing to pay back as a result. It was fraud and misrepresentation but it did not injure you and you received value for value, your Credit Note in exchange for currency of equal amount distributed on your behalf to various parties and including the Fee charged for that service (nothing owed). Since there was no Loan there is no interest on that which was not given or loaned. They charged and got paid a fee for the service of cashing your credit instrument (if it were not credit it could not be sold for value, exchanged for value or deposited for value (see double entry book keeping) and the accounting would reflect such… it does not. It reflects it as a credit, deposited and payment made) (I’d tell you who or what made payment or exchanged it for currency but YOU CAN’T HANDLE THE TRUTH!) So lets just deal with the fact that is was “exchanged as value” as is was including all CONDITIONS thereof “In return for a Loan I have received, I promise to pay…” and “The Lender or anyone who takes this Note by transfer and IS ENTITLED TO PAYMENTS UNDER THIS NOTE shall be called the “Note Holder”).
    So you are not liable for anything and none can come forward and show they are “entitled to payments under the Note”, nor can the copy or even the alleged original “evidence a debt” for which the DOT was created to secure. When the purpose for which the DOT was allegedly created is fulfilled or otherwise extinguished or never materialized or existed in the first place, the DOT is “VOID” and must be dissolved and the “res”(property, thing of value) must be reconveyed to the “Grantor” (you) and if there are any costs involved in that then you the Grantor are to pay those costs…. and ..and.. Not done yet… “the Note shall be returned to the maker and marked “Paid”. Yup it is right there in the DOT… they are in breach yet again for failing to “return the Note marked “Paid”… which should have been done once it was exchanged for value and the property reconveyed.. Transaction complete.
    Everything else that transpired after that is fraud, contrivances, fabrications, securities fraud, uttering and passing of counterfeit instruments both of the counterfeit copies which by law must be 2/3rds or smaller or 1 ½ the size or larger so that anyone who sees them knows they are not originals and are worthless, but any use of the original or any likeness of it and/or any plates, electronic copies from which copies (counterfeits) can be made (MERS, Mortgage Electronic (counterfeiting) Racketeering Scheme, which uses its electronic plates to make and sell by membership fees to banks, attorneys and other criminal enterprises for insurance fraud, fake REMICS, Government programs, securities fraud, derivatives schemes, false interest rate charges and manipulations (see case law in which the banks have admitted to interest rate manipulation) and last but not least used to fraudulently foreclose on fully paid property and steal rights, property, equity and use of private homes for unjust gains, etc. under color of law activities and simulated legal process… to name a few.
    You’re damn right you’re not party to those othercriminal transactions and why would you want to be party to criminal transactions of counterfeit instruments” (18 USC 471 through 474, ten and twenty years each)??
    And ONE MORE TIME… the DOT (in my documents and most of the ones I have seen) provides for only “the Lender at its option” to foreclose… See prior posts… I have to get back to writing my stuff to stop these criminals from stealing yet another property by fraud, fabricated documents etc.

  5. Why can’t I post? I spent four hours of my time to put it together and be useful… grrr???

  6. NAR,CAR Have very strict code of ethics,they just dont apply to me or you and are for their licensees,and they dont mess with it.

    Havent heard of a single realtor coming forward but they know every darn foreclosure thats out there and they have the inside scoop.

    In Los Angeles there are at least in any given month 100 cases where realtors are suspended or lose their licenses for various reasons but 80% are for felony arrests.

    This is a corrupt industry full of corrupt people and I have witnessed it up close and personal.
    CFPB is great in the future but they are already getting theirs and We The People are getting screwed.

    My visits to court [as you know you are never privy to what goes on,because your not invited]Judges make rulings on your life and many times wrongly and youve never even met.

    My case was a txtbook corrupt judge dismissing my case before discovery even with cold hard facts in front of her face and as a gift stuck me with their lawyers bill of 20 k.

    My lawyer in a custody thing was a women who had been screwing the judge and his wife was pregnant with twins at the time so he wants to get laid but she isnt in the mood at that time so he takes it out on me,cuts me out of every other week and I had my son 85% of the time.

    My lawyer for my case with Wells Fargo moves my case to the corrupt judge then lies about it in a email just to turn around and admit it 2 mins later,paid him 20k.
    I hate to say it but if you dont represent yourself forget about it.
    Putting your trust in lawyers is like swimming with sharks,dangerous.

    NUMBERS NUMBERS NUMBERS,BIG NUMBERS TAKING TO THE STREETS OR FORGET ABOUT IT.

  7. I am taking the lead to try and put pressure on NAR and CAR, but I doubt I will get very far as I think they may be all bought and paid for like all the Congress people who don’t respond and just turn a deaf ear! I will keep trying. If we can find attorneys and title companies willing to work on the side of the good people of this country maybe we can get a firestorm going again. The 49 attorney generals, the USDOJ, and the CFPB sure have dropped the ball, in my humble opine, as those cases against B of A were not final and supposedly open to further monitoring and scrutiny which I highly doubt in happening. God bless us ALL and God bless America.

  8. Reblogged this on Deadly Clear.

  9. I’ve filed complaints with the CFPB. Lets all of us do it after due diligence

    Not an attorney

  10. Spot on Trespass this also applies to recusing Judges after due diligence

  11. In my experience and opinion; CFPB is not useless.

    They are not going to act as our attorney, but they are effective in getting these businesses to respond for the acts they do.

    Of course, anyone that doesn’t know how to use them, has never filed a complaint with the CFPB, want the CFPB to solve their problem on the back of a complaint someone else has made; will think the CFPB is useless, or anyone who doesn’t want another someone to use the CFPB for documenting the fraud, will say so.

    There are people wanting to ride the coat tails of someone else’s CFPB complaint without making their own; and get mad when the penalty the thieves pay is minuscule compared to what the thieves accumulated from their thievery.

    If everyone complained the the CFPB, the cumulative value of all the purported debts would be calculated against these corporations and the penalty would be higher, in my opinion.

    I will say people are in the ‘I need someone to represent me’, [state of mind] and in being that way, they are not ready to stand on their own and speak their will, and state their claim, and document their harm.

    There is no savior that will wipe all the complaints everyone has on the individual basis, and stick them all together into one, there is no class action complaint.

    Each of us have to be our own savior and stand on our own and make our own complaint, point our own fingers at the people and corporations that are harming is, and make our message be known as the individual and as part of the collective at the same time.

    It’s because everyone that is attacked by these businesses, that do not use the CFPB service to put that information in their huge database of illegal activity; that the CFPB service is not taking care of everyone’s problem when they investigate the thieves.

    If a man steals from a town that has 30 people and only one pf the people complain; he appears as a petty thief. If the town of 30 people all complain, he’s identified as a career criminal, and as one who breaches the peace and needs to be punished.

    If you choose, of your free will, and it’s all about your free will; if you choose of your free will to disregard the services of CFPB, and only read about what others have done when they use them; there is no one to blame.

    I’m certain Portfolio Recover Services and Encore wish everyone they trespassed against did not complain on them to the CFPB.
    http://www.consumerfinance.gov/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/

    Two largest it says, so why can’t some of these others be counted among them?

    They could if people would not think that a posting on a blog is going to solve the problem.

    Documented complaints can be used in court, in my opinion, and in legal proceedings to show a pattern of wrongdoing and other illegal unlawful activities.

    There are many companies, in my opinion, that want to ride under the radar of CFPB, by doing just enough to make the profit and get into trouble just enough to give enough back some of what they obtained as the cost of doing business.

    Those corporations factor in the fines and penalties into their business model and profit projections.

    If more people would post their complaints to the CFPB, stating under penalty of perjury the things they witness first hand, in my opinion, the cost of doing business may include a hotel stay at Hotel Gray Bar, with a rotating set of clean clothes every other week.

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

  12. It is far cheaper and way easier for banks to buy our congress,buy our courts,buy our elected officials the steal our homes in order to keep the machine moving.
    90% Of all realtors,title,escrow etc related to the housing industry are corrupt,they are a team you must know this and they dont care about anyone outside of their click.
    Have you heard or seen anyone of them open their mouth and rat on their industry?NO,and I would wager the rest of my life in hard labor that justice Scallia had enough of the crap and thus why they eliminated him.

    The housing finance industry has corrupted everything in this country and homes are now treated as stocks and bonds to be traded and our own government wants a piece so you may see the odd case here and there but there is no justice until we get together in the multi millions and demand it.
    I mean what would you do?Its like taking candy from a baby,pay the judges and done deal,fabricate what you need ,same thing,take the cash,live for the moment and go on to screw more folks over.

    Why do you think the organizations like the so called “Mafia ” came about because the people had to take care of their own.

  13. Check out bankruptcy court.

  14. There are five (5) notes and trust deeds all originated by Countrywide and I even have the docs the three different attorneys representing B of A supposedly and I just don’t have the money to hire and attorney and am totally screwed here in Colorado with Rule 120, but I have written the state, the CFPB, the USDOJ, and Congress people Scott Tipton and Corey Gardner and no one is interested in doing the right thing!!! That is why I agree wholeheartedly that they are all in cahoots. Don’t trust the Ganenbein Law Firm or Holland and Heart as they are on the side of the lenders as I have found out anyway!!!!

  15. All the assignments are forged, all the endorsements are forged even if they do exist. There is massive fraud on the court all over the country. There are three notes in my case. Wow!

  16. Screw the attorneys. Why do attorneys have any more say in these matters than anyone else (pro se litigants)? I am aware of specific situations where the 2nd DCA has rendered PCA’s in cases that absolutely required written opinions. Nothing to see here; the DCA’s are protected by the Supreme Court by the integration rules, aka The Rules Regulating the Florida Bar. Sadly, over 80% of foreclosure judgments are met with a PCA in the 2nd DCA. The PCA is another fabrication of the Courts designed to sweep massive fraud under the rug. Business as usual in the Florida Judiciary. Rocket Docket…anyone?

  17. Many Blessings to All!

    https:/youtu.be/TOHEJYBcs9Y

  18. We need people to spearhead a nationwide movement by honest, transparent law firm, title companies and the lame NAR (National Association of Realtors that should be right smack dab in the middle of this bigtime, but I know they will not- which is also true of the state organizations as they all look out for themselves first. We all know the CFPB is completely useless as are all the inept Congress people who should be heavily involved as well in my humble opine!!!)

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: