Showing posts with label Foreclosure Fraud. Show all posts
Showing posts with label Foreclosure Fraud. Show all posts

Foreclosure Fraud - Is Lee County Foreclosure Court Above the Law?




The Florida Rules of Civil Procedure are the Procedure Rules that all judges and courts in Florida must follow in order to insure the orderly administration of Justice and Due Process.
Florida Rules of Civil Procedure, Rule 1.510, is the Rule that covers Summary Judgment.  According to Rule 1.510(e), Affidavits filed in Support of Summary Judgment require the following:

Florida Rules of Civil Procedure

1.510 Summary Judgment

e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

“SWORN OR CERTIFIED COPIES OF ALL PAPERS OR PARTS OF PAPERS REFERRED TO IN AN AFFIDAVIT SHALL BE ATTACHED TO THE AFFIDAVIT”

This Rule of Civil Procedure cannot be abrogated or modified by a Judicial Administrative Rule.  It has been around a long time and has served the Florida Courts well in all areas and divisions of the law.  Rule 1.510(e) favors no one and is applied to all parties in a law suit whether it involves divorce, contract law, probate, real estate, etc.
Florida Courts have routinely singled out Homeowners in Foreclosure for special (negative) treatment.  Florida Judges, who administer foreclosure cases, have been ignoring this Rule of Civil Procedure in favor of granting fast and expedient summary judgments.

The fact that these Affidavits in Support of Summary Judgment lack the necessary attachments to meet the requirements of Rule 1.510(e) has been a constant battle fought by every attorney who fights on behalf of the homeowner; and, who seeks to have the Rules of Civil Procedure applied in a fair and just manner.
This Order is a tacit admission that the Rules of Civil Procedure are not being followed in the same manner as these same rules have been followed in other areas of the law or judicial divisions in the court system.  This is the travesty to which – www.4closureFraud.org – has dedicated itself to eliminated.
The Florida Rules of Procedure was promulgated to be followed by the judges in all divisions, in all areas of the law, and equally among all parties. NO EXCEPTIONS!

When administrating the Florida Rules of Procedure, or the Florida Rules of Evidence or applying the Florida Statutes,  Judges should not look first to whether or not the defendant is in foreclosure and adjust the rules and laws to fit a perception of guilt or expediency.  Rather the judges and court should first look to see if the plaintiff even has standing to appear before the Court; and, second, if the plaintiff has proved its case through admissible evidence – not manufactured evidence. The rules of discovery should be followed and a proper chain of title, through admissible evidence, must be proven.  Everything that happens to that Note is a proper focus of discovery according to the Florida Rules of Evidence.

Based on what www.4closureFraud.org has seen, the fight for equal justice under the law and under the Rules of Civil Procedure is still an ongoing battle.  Homeowners are still not being given due process under the law.
Here is a stark example of how the courts ignore the Rules of Civil Procedure and treat Homeowners differently than all other parties in any other area of the law:

On December 2, 2010, a Lee County Judge issued an order holding that Lee County is not requiring the Plaintiff’s in a Foreclosure law suit file affidavits that comply with Rule 1.510(e). This is judicial tyranny.

WOW – Is Lee County Foreclosure Court Above the Law?

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Foreclosure Fraud - BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, L.P. Plaintiff, vs. BILL R. STENTZ AKA WILLIAM R. STENTZ, et al


“A thief who steals a check payable to bearer becomes the holder of the check… but does not become the owner of it.”

Below is an order from a Florida court that speaks to a major issue we have been screaming about for well over a year now, if not two. Just because you hold the note, does not necessarily make you the owner of the note with the right to enforce.
The way I see it, as a non attorney, is the laws are very clear on this issue but are being ignored to further marginalize the "deadbeats" and prop up the "banks."
Now, don't just take my word on this, there are others with similar opinions as well...
If the courts would just let us get to the documents requested in discovery, it would show that in the majority of the cases, even if they produce the original note, they do not have the right to enforce.
For example...

BofA Mortgage Morass Deepens on Promissory Notes Issues

Investor Impact
The Kemp case is also being examined by lawyers for investors in mortgage-backed securities. Owners of the bonds have been cooperating in an effort to force sellers to take back loans, saying they were misled about their quality. The Wizmur ruling may give investors an additional opportunity to push for mortgage buybacks on grounds that the bonds weren’t created in keeping with securitization contracts.
“It may mean investors who think they bought mortgage- backed securities bought securities that aren’t backed by anything,” said Kurt Eggert, a professor at Chapman University School of Law in Orange, California.
Countrywide Deals
The securitization contracts related to the Kemp loan, and at least two other Countrywide mortgage-bond transactions, didn’t assign the company the additional role of document custodian for the trust. Countrywide, as the servicer, can take back the notes from the trustee when needed to manage foreclosure actions and mortgage payoffs, according to the contracts.
One risk to investors when notes remain with sellers acting as custodian is that an acquirer or creditor of those companies could walk in and take the notes, the banks that disclosed the practice in mortgage-bond prospectuses warned.
Let's repeat. "An acquirer or creditor of those companies could walk in and take the notes."
Notes they do not own or have otherwise been satisfied or sold etc...
Now, in how many instances can this have happened in the last 4 years, in where an institution that held onto the notes, has been "acquired" or taken over by a "creditor"?
I ran out of fingers to count on...
One example that comes to mind with somewhat of a twist is the JPMorgan FDIC WAMU deal...
Did you all know as of August 31st of 2010 that deal was not finalized and it still may be pending?

Washington Mutual JPMorgan Chase FDIC Deal NOT Finalized? So how can JPMorgan Foreclose on WAMU Loans?

Posted by Foreclosure Fraud on August 17, 2010 · 
This is very intriguing… Check out the the excerpts from the report below…
Game Changer?

WaMu sale hasn’t closed, document suggests

Next month will mark two years since federal regulators seized Washington Mutual and sold it to JPMorgan Chase for $1.9 billion. Now a document that appears to be from the Federal Deposit Insurance Corporation suggests the deal still hasn’t closed.

“Everyone is saying the sale is finalized,” said the shareholder, Farokh Lam, of Woburn, Mass. “It is not.”
Lam noticed that on pages 7 and 9, the original WaMu purchase and sale agreement allows the FDIC to extend the settlement date. He says he asked about it, and the FDIC confirmed in phone calls and emails that the settlement date was set for Aug. 30, 2010, and could be extended further.

“Settlement Date” means the first Business Day immediately prior to the day which is one hundred eighty (180) days after Ban Closing, or such other date prior thereto as may be agreed upon by the Receiver and the Assuming Bank. The Receiver, in its discretion, may extend the Settlement Date.
It says: “The purpose of this amendment is to extend the time period for Final Settlement to August. 30, 2010.”
WaMu’s final days were chronicled in depth by Puget Sound Business Journal Staff Writer Kirsten Grind in an award-winning series.

Does this mean that all the WAMU foreclosures being pushed through the courts by JPMorgan Chase using the FDIC Purchase and Sale Agreement are invalid?
Does it mean if they haven’t closed the deal THEY DO NOT OWN THE LOANS OR THEIR SERVICING RIGHTS?
Where are the windfall profits going after the foreclosure sale?
What if the agreement changes before it is finalized?
So many questions…

Regardless of the closing of the deal above, the question still remains if a holder of a note endorsed in blank actually has the authority to enforce it without other "evidence" other than the fact that they possess the note.
For example, if the note had to be transferred by courier to be delivered to another location for whatever reason, and the courier decided to keep the note, should he be able to enforce it?
I would think not. (Unless it was in a Florida Rocket Docket Court)
It is no different than the foreclosing entity showing up with a note without the proper chain of title and endorsements...
And that is why this order from the Honorable Judge Tepper was handed down in the case below.
An order, in my opinion, that can not be cured by BAC and their attorneys, but only time will tell...
BAC HOME LOANS SERVICING, LP F/K/A
COUNTRYWIDE HOME LOANS SERVICING, L.P.
Plaintiff,
vs.
BILL R. STENTZ AKA WILLIAM R. STENTZ, et al.
CASE NO 51-2009-CA-7656-ES
From the Order…
The copy of the note filed by plaintiff shows upon it that it has been endorsed in blank. Thus, though Plaintiff may be a “holder” it is not by virtue of such an open indorsement, an owner of it. See F.S. 673.2031, Comment 1: “a thief who steals a check payable to bearer becomes the holder of the check… but does not become the owner of it.”
ACCORDINGLY, IT IS HEREBY ADJUDGED:
A: Defendant’s motion to dimiss is GRANTED.
B: Plaintiff shall be granted 30 days to amend its complaint and in doing so MUST:
  • Allege ultimate facts, not conclusions of law, that specifically set forth the and identify the present owner of the note and mortgage and the present holder of the note and mortgage and in so doing deraign the chain of ownership/holdership since the loan’s inception.
  • Allege ultimate facts why the note is indorsed in blank and specifically deny, if that be the case, that it or an interest has been pledged to another…
  • Plaintiff must specifically plead and identify both the owner and the holder of the note and mortgage. it is not enough for Plaintiff to only plead that it holds the note and mortgage… Plaintiff must ultimatley prove ownership as well…
  • If Plaintiff is not the owner it must specifically plead ultimate facts identifying the owner and Plaintiff’s authority whether to act as a representative for the same attaching such proof of said representation authority whether it be by power of attorney or other written agency agreement.
  • Allege and identify all documents, by attachment, upon which plaintiff relies to establish the ownership of the note and mortgage.
  • Plaintiff shall have 30 days to amended and file a new complaint. That said complaint must be verified and that any allegation in the verification containing “best knowledge and belief” language is insufficient.
DONE AND ORDERED
Lynn Tepper
CIRCUIT JUDGE
Good luck on all that BAC!
Remeber...

“A thief who steals a check payable to bearer becomes the holder of the check… but does not become the owner of it.”


READ MORE - Foreclosure Fraud - BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, L.P. Plaintiff, vs. BILL R. STENTZ AKA WILLIAM R. STENTZ, et al
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