Foreclosure Mills Don’t Know Their Client

If a lawyer goes into court claiming he represents X when in fact he never had any contact with X, was never retained by X and is not being paid by X, he is misrepresenting his status and that of X. The fundamental problem is that the lawyer has shown up without a client and X is not present. In judicial states this is simply a matter of jurisdiction or lack thereof. With X not there as Plaintiff there is no case to be decided.

When a lawyer files a notice of appearance but does not appear, it has its own consequences on the lawyer (Sometimes) and certainly on the party designated as the Plaintiff (A designation that is in most cases FALSE.)

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THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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So here is “the thing.” In the thousands of cases I have reviewed or been counsel or lead counsel I have yet to encounter a foreclosure mill who actually represents the foreclosing party. They represent the Servicer only. This has slipped out in admissions of counsel on several different occasions so this isn’t some fringe conspiracy theory; it is a fact.
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In one case I appeared for mediation with US Bank. An attorney showed up and when we got to announcing our appearances she said she was representing Ocwen. Because I really did want to settle the case without coming back I asked her three times to include US Bank, the Plaintiff as trustee etc. NO! She insisted she represented Ocwen and not US Bank. So I asked the mediator what he suggested with one fo the parties to litigation not being present. He and I agreed that there was only one thing to do — terminate the mediation because the Plaintiff never showed. All kinds of things happened after that and we (Patrick Giunta and I) won the case handily. As usual there was no complete signed copy of the PSA, no valid MLS, no possession of the note even claimed before suit was filed etc.
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In another case I was stymied by not being able to get counsel to admit that they were even associated with the case. In many cases, the law firm refers to their client as the servicer, not the trust or whoever they are claiming owns the debt, note and mortgage. This is because they get assignments electronically generated apparently by an LPS IT platform. Without that the attorney has no knowledge of whether he/she is retained to represent anyone in a foreclosure case.
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But here is a case that shows what happens when even the servicer and the lawyers are mixed up about who is or is not represented — with identification removed. This is quoted from the Judge’s decision to dismiss the case.
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THIS CAUSE came on to be heard by the Court on Wednesday, August 27, 2014 before me Honorable Sandra Taylor presiding, upon the Defendant’s MOTION FOR SANCTIONS, attorney David D. Sharpe appearing for Defendant, there being no other appearances, and the Court having reviewed the Motion and the pleadings, and having heard argument of counsel and having sworn counsel to the truthfulness of his statements and representations to the Court, and being otherwise advised in the premises, the Court makes the following findings of fact:

1. Following a hearing on February 21, 2014, which was coordinated between
Plaintiffs counsel and Defendant’s counsel, on March 21, 2014 the Court entered an Order which vacated the final judgment and permitted Defendant thirty (30) days to file an Answer and Affirmative Defendants. In the Court’s detailed ORDER GRANTING DEFENDANT’S MOTION TO VACATE FINAL JUDGMENT, in addition to finding that there appears to be an issue of fraud in this matter concerning the Assignment of Mortgage, the Court was just as troubled that the Plaintiff filed no response to the Motion to Vacate Judgment and that the Plaintiff failed to appear at the hearing to offer any objection to the motion whatsoever.

2. On or about March 11, 2014 Defendant’s counsel was contacted by a paralegal at the office of Plaintiffs counsel who wanted to know the outcome of the February 21, 2014 hearing, and Defendant’s counsel advised Plaintiff’s counsel as to the status; that the court had not yet entered its ruling at that time, the decision was still pending.

3. On April 9, 2014, Defendant timely filed her Answer and Affirmative Defenses.
Additionally, on April 9, 2014, Defendant filed DEFENDANT’S FIRST REQUEST FOR PRODUCTION TO PLAINTIFF (“First Request for Production”).

4. As Plaintiff failed to timely respond to the First Request for Production,
Defendant contacted the attorney for the Plaintiff by letter dated May 18, 2014, in an attempt to resolve the lack of response, without success.

5. Thereafter, on May 31, 2014, Defendant filed a MOTION TO COMPEL.

6. On June 27, 2014 (docketed on July 1, 2014), the Court entered an ORDER
GRANTING DEFENDANT’S MOTION TO COMPEL (“June 27, 2014 Order”).

7. The June 27, 2014 Order provides that Plaintiff shall file and serve responses to the First Request for Production within thirty (30) days of the date of the Order. Accordingly, the responses were to be filed and served on or before July 27, 2014, a Sunday, making the response due the following day, by Monday, July 28, 2014.

8. Defendant received a copy of the June 27, 2014 Order on July 2, 2014.

9. Prior to receiving a copy of the June 27, 2014 Order, Defendant’s counsel
contacted Plaintiffs counsel on June 30, 2014 in an effort to set a hearing on the MOTION TO COMPEL. Plaintiffs counsel advised Defendant’s counsel on June 30, 2014 that the file was being transferred to Aldridge Connors and that Aldridge Connors was to be contacted to coordinate a hearing. On June 30, 2014 Defendant’s counsel contacted Aldridge Connors and spoke to a representative of that law firm, and followed up with e-mail to that office.

10. As Defendant did not receive any responses from Plaintiff to the First Request for Production, on July 29, 2014 Defendant filed and served a MOTION FOR SANCTIONS.

11. On July 31, 2014 (docketed August 1, 2014), the Court issued an ORDER ON
MOTION FOR SANCTIONS (“July 31, 2014 Order”) conformed copies of which were mailed by the Court’s Case Manager to the Parties of record. Defendant received a conformed copy of the July 31, 2014 Order on August 4, 2014 in the mail. The July 31, 2014 Order set a hearing on the MOTION FOR SANCTIONS at 11:00 a.m. on August 27, 2014.

12. At the August 27, 2014 hearing, Defendant’s counsel appeared, and no other parties or counsel appeared.

13. Even though on June 30, 2014 Plaintiff’s counsel had advised Defendant’s counsel that the file was being transferred and that Aldridge Connors would be handling this file, no other counsel filed a Notice of Appearance prior to the August 27, 2014 hearing. Additionally, Plaintiffs counsel did not file a Motion to Withdraw prior to the August 27, 2014 hearing. Accordingly, at the time of the hearing, Elizabeth R. Wellbom, P.A., was counsel of record, and there was no pending motion to withdraw as counsel of record.

14. And the Court, having further considered the matter, including the factors in
Kozel v. Ostendorf, 629 So.2d 817 (Fla. 1993), makes the following findings:

(a) Regarding attorney’s disobedience: this was more than an act of neglect or
inexperience, as no good reason about the failure to appear at the February 21, 2014 hearing was provided, no good reason was provided as to failure to comply with the Court’s June 27, 2014 Order, and no good reason was provided regarding Plaintiffs failure to appear at the August 27, 2014 hearing — the actions of Plaintiff were deliberate.

(b) Regarding previous sanction of the attorney: other than the attorney’s
failure to appear at the February 21, 2014 and August 27, 2014 hearings, the appearance of an issue of fraud in this matter concerning the Assignment of Mortgage, and the failure to comply with the June 27, 2014 Order, there was no previous sanction of the Plaintiffs attorney;

(c) Regarding the client’s involvement in the act of disobedience: the Plaintiff
has failed to provide good reason or justification, or any explanation whatsoever, as to why Plaintiff has failed to comply with the Court’s June 27, 2014 Order, or failed to obtain other counsel to represent it;

(d) Regarding prejudice to the opposing party: Defendant was burdened with
undue expense in pursuing this matter;

(e) Regarding reasonable justification offered by the attorney for the
noncompliance: there was no reasonable justification offered for the failure to appear at the February 21, 2014 and August 27, 2014 hearings, and the failure to comply with the June 27, 2014 Order;

(1) Regarding significant problems of judicial administration: the Court spent
time and resources considering the matters before it, including the motion to vacate the final judgment, the discovery motions, issuance of Orders, and set time aside for hearings in this matter, at which Plaintiff’s counsel failed to appear, wasting the valuable time and resources of the Court and depriving other litigants from using the lost time to air matters in their cases.
WHEREUPON it is ORDERED AND ADJUDGED that the Motion for Sanctions is
GRANTED as follows: This action is dismissed, without prejudice. The Clerk is directed to close the file. The Lis Pendens is hereby discharged.

DONE & ORDERED in Chambers

9 Responses

  1. Reblogged this on Deadly Clear and commented:
    Let’s not forget Fannie is probably concealed and pulling all the strings.

  2. Proof of representation is also my issue. I had a trustee for a securitized pool foreclose (non-judicial) and I sued. The sale proceeded before the trustee answered y complaint so I amended and added wrongful foreclosure to the complaint. We have just completed discovery and interrogatories were answered by, and verified by the servicer (actually a sub-servicer) and nothing in admissions or production of documents that would indicate that the defendant trustee (foreclosing party) actually is involved in the process. My question is, how do I get/request verification of who the attorneys actually represent?

  3. Melissa, there is a much deeper truth to your question;

    Without prejudice, the entire court is engaging in semantic deceit under color of law to garner semblances of consent; their rules are merely law-of-the-sea rules of commerce between legal fictions; their rules only apply to them and t legal fictions; to form, not substance; to “property”, not land; they are arguing about “interest in title”; download a Black’s Law Dictionary, 4th edition; read the definition of every word they mention; for example: “certain” means everything that is not certain;

    In truth, the courts are in breach of code, conduct, duty, ethics, principles by engaging in adhesion, barratry, breach of: convention, due care, duty, oath and or trust; concealment of material fact, conversion, deceit, embezzlement, fault, fraud, inducing fear (metus), intimidation, larceny, misrepresentation, negligence, nondisclosure, peonage, piracy, press-ganging, privateering, secretive change of political status, slavery and many other treasonable acts that are ethically and morally wrong, unlawful and considered serious crimes against we, the people;

    And, such actions result in violations of unalienable rights; and, creates artificial, stressful and un-dignified situation of “lack of” kept in place by duress, force, intimidation and threat in violation of life, liberty and happiness; thereby vitiating all contracts by such actionable frauds;

    The only way is to start challenging the jurisdiction of these sea courts on our land; read the writings of Judge Anna Von Reitz;

    Education is the most powerful weapon we can use to bring about change; in peace; without malice aforethought;

  4. How can one go about contesting the plaintiff if the servicer is bringing the suit under guise of agency to plaintiff, but AS the Plaintiff (unannounced/undocumented substitution)? The agency relationship and POA associated with the PSA is the only thing that can prove the relationship. Yet defendant cannot question the PSA. Seems well wrong to me.

  5. Reblogged this on Mario Kenny.

  6. “Even the CFB sends the complaints to the servicers.”

    A point well taken. Is the CFPB a protector or are they an enabler?

    Only the “mortgagee” should be in court on a mortgage contract dispute. It’s not rocket science—-it’s an age old mortgage contract between the mortgagor and mortgagee—-no one else. How come no one knows who the mortgagee is?

  7. Neil,
    Then why does Bankruptcy courts, attorney general and attorneys allow the servicers to do the talking? I’ve push this issue with all of them and the servicers are still the ones doing the foreclosures. Even the CFB sends the complaints to the servicers.

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