Some stories don’t end well in this battle for justice — A Smiling Judge Refuses to Get it
WHY WE ARE PLANNING 2-3 DAY BOOT-CAMPS AND MANUALS FOR LAWYERS, BOOT-CAMPS FOR FORENSIC ANALYSTS, AND BOOT-CAMPS FOR LAYMEN. IT’S JUST NOT AS SIMPLE AS YOU MAY WANT IT TO BE.
NOT EVERYTHING ENDS WELL. THE BATTLE IS ON. THIS JUDGE SAID THE ASSIGNMENT DOESN’T NEED TO BE RECORDED TO PROVE OWNERSHIP. HE’S TECHNICALLY RIGHT, BUT HIS CONCLUSION WAS WRONG. THIS IS WHY I KEEP SAYING THERE IS NO SILVER BULLET. The fact that an assignment is not recorded does not mean that it can’t be recorded — unless it is not executed in recordable form. If it isn’t executed in recordable form and it isn’t recorded then it violates the terms of the pooling and service agreement and the prospectus/indentures for the mortgage backed bond sold investors.
If the purported document violates the enabling documents then the assignment has not been accepted. If the assignment has not been accepted then there is no assignment. At best there is a conditional assignment which is clearly in violation of the the express terms of the enabling documents. The existence of the condition creates an issue of fact as to who really has the right to own, enforce and collect on the obligation, note and mortgage.
If there was no consideration for the “transfer? then there isn’t even an equitable argument for why the pretender lender should be allowed to foreclose. They have nothing to lose by the alleged default and obviously don’t even know if there is a default in the OBLIGATION that was FUNDED with ADVANCED MONEY by INVESTORS.
But you see, this Judge was already predisposed to not giving the “borrower” a free house. He/She needs to be coddled and led along the path of education so he/she understands that the “borrower” is actually an investor who purchased a financial loan product subject to terms and duties which were breached by all the people in the securitization chain. The “lender” is the investor who advanced the money and is not in court.
The pretender lender is using bluff and fraud to get their share of the great American pie at the homeowner’s expense, depriving the homeowner of the knowledge of the identity of the true lender, the ability to settle out of court with the true lender, the ability to comply with federal law in seeking modification, short-sale, refinance or even payoff because the pretender lender in Court in Florida doesn’t even have the right, power, authority or justification to execute a satisfaction of mortgage.
If they don’t have the power to execute a satisfaction of mortgage then how could they have the power to foreclose?
The problem with this case is that the homeowners should be aggressive but not to try to convince the Judge why he/she should get a free house. You must align yourself with the Judge’s basic sense of fairness and basic mistrust of legal maneuvering to get out of a legally owed debt. By focusing your aggression on discovery, enforcement of the QWR and/or DVL, asking for the name of the true lender and the production of documents and names, addresses and phone numbers of people who can testify under oath, you present the Judge with something he cannot or should not refuse and that any appellate court would reverse him on. You are asking for discovery to test the merits of the pretender lender’s allegation or position that they have the right to enforce the note, that they are the party to whom the obligation is owed, that they are a creditor in the sense that they advanced money which they will lose if they don’t get to enforce the note and obligation, and that therefore they are the beneficiary of the terms of the the mortgage that secures the alleged debt.
If you go into court spouting securitization theories it is very easy to say you haven’t convinced the Judge. If you go in demanding an evidentiary hearing based upon the rules of evidence and founded on common discovery and enforcement in obtaining relevant information about your loan, and seeking an accounting from those people, entities or parties that were participants in the securitization chain, then you are only asking for a COMPLETE accounting so that you discover what undisclosed fees were paid under TILA and RESPA, and the true identities of the people involved in your table-funded loan.
I’m sorry for your result Mr Fitzgerald, but perhaps with the aid of competent, licensed, local counsel you can move for rehearing, file a bankruptcy that will stay the proceedings, and/or appeal.
Author : L.Fitzgerald
Comment:
” Happy Thanksgiving …give thanks to all the Blessings you have……he said,
and don’t complaint of the things you don’t have..”
“I’ll be eating turkey with my ” kids ” tomorrow “…he happily remarked .
With a smile on his face ..this Orlando 9 th Judicial Circuit
Court .. Judge…denied my motion to vacate judgment , and
allowed my house to be sold on Jan. 2010.
We became a ” potential homelessness couple.”… .the day
before Thanksgiving..
He was very kind to a Wall Street Bankster [ plaintiff ]..he gave away my only home ….
During this hearing ..one of my main arguments ..
was the Plaintiff’s lack of recorded Assignments ..and chain of
Title .. [ The Bankster is not my original lender..].
The smiling Judge made this comment ..that shocked us …
” Florida law does not require Assignments to be recorded…
…to prove the Plaintiff’s ownership…!!.
Mike H ,
Negotiable or not negotiable , that is the question.
I ( LF ) promise to pay to the holder $1,000.00 by Dec.25th 2009 . a I.O.U.
That’s a promissory note , and a negotiable instrument ..right .?
It’s for a fixed amount ,and due on a certain date.
If you Mike need the $ 1000.00 earlier like on Dec.10,2009 ..you can negotiate it to John …by signing on your note.
You got your $ 1000.00 cash or products ..from John.
.who now has a negotiable instrument due on Dec.25th 2009 from Me. ( LF)
John can request I pay him 1,000.00 on Dec.25th /09.
My promissory note ( mortgage note ) was made on 07-04-2003 for $ 138,000.00 with a 6.25 % per year …payable in monthly payments for 30 years.
Is this promissary note negotiable ? Whats the balance on a certain day , a certain year..?
Is it easy to sell or cash in. Whats the note’s collateral value .
Is the home now worth $ 115,000.00 instead of $ 138,000.00.
To recover the Home ..I’ll have to incur in a Civil suit with all the legal expenses that ….creates and On and on ….
This is what I meant in my earlier comment.
LF
to Fitz,
That’s a new one on me! It sounds like a hybrid Note
and Mortgage all rolled into one. I have never seen such an “animal” and did not know they existed.
At this point all I can say is good luck with your case, I’ll be curious to see how it turns out!
To Mike H
Thank you very much for your comments :
Please research this further In a earlier comment you made this statement : .” Unfortunately for your case, the opposite is true, a PROMISSORY NOTE IS A NEGOTIABLE INSTRUMENT ”
I ve researched into this .. What you stated is true in most cases , if the promissory note is simple, and for an exact amount of money .Easy to liquidate, and not setting conditions that must be made before the note is transferable .
The ability to negotiate the note immediately ..and transferable ..similar to a check makes it negotiable in business and personal transactions.
A Mortgage Promissory Note is another story , it has complicated additional undertakings in addition to the principal and interest , that bring into play ..attorney fees that are not ascertainable calculations , and usually requires testimony from witnesses ,and attorneys to arrive at a sum certain .
What about having to sue and file foreclosure in Court to collect.
A Mortgage promissory has additional luggage , that makes it a legal hassle to collect the money due.
You cannot determine what’s the cash value of the note until you contact the Mortgage server… and ask for the recent balance.Plus all the other
LF,
How far are you from Jacksonville? Do you know anyone there who could get to the courthouse this week and copy some of April Charney’s Motions to Vacate Summary Judgment (not sure if the word Emergency is appropriately placed in front of Motion). You could probably do a docket search under her name for her cases.
Alternatively, spend some time looking at the online dockets for well-contested cases by local foreclosure defense attorneys. Then high-tail it to your local courthouse and find as many of these: (Emergency?) Motion to Vacate Summary Judgment and use it as a guide.
I think Marcus has a sample on his http://www.ForeclosureProSe.com website.
Please feel free to email me as I’d like to send you some copies of documents I’ve made during my frequent trips to my local courthouse. Also, I posted a few links on the Homeowners Tab about a case that went up to the FL Supreme Court. There might be a few citations or quotes you could use in your own pleading.
I’m not an attorney but I do know that public documents filed in court cases can provide a wealth of incredibly helpful information!
Lisa E.
http://www.ForeclosureHamlet.org
ForeclosureHamlet @ gmail . com
I think this language was enacted to favor the securities game around MBS.
Fannie and Freddie and other agencies share and ownership with the certificate holders of the bonds in the trust, according to general PSA language. However, they purport that the Servicer can temporarily be the “Holder” of the Note for the intentions to pursue foreclosure action.
Is this lawful? Not according to the Holder in Due Course Doctrine, however, it appears that some may still be a Holder of the Note, while not “owning” the Note. This is good enough to repo property for Fannie and the GSEs. But this is up to debate if the Note has been seperated from the Mortgage. Without the Mortgage the Note is unsecured debt, as said below, not subject to Sherrif Sale in some states. However, the Note separated from the Mortgage creates is a nullity, as the mortgage is an incident to the Debt. Not vice versa, and the Mortgage does not follow the debt, as most Attorneys claiming the Bearer paper argument, or the back dated Note allonge tactic.
You cannot waive your defenses by failing to file Answers and Discovery from the get-go, as it appears L Fitz may have done in the beginning of his case. Its seems difficult to get your defenses back once you fall behind the 8-ball.
But dont stop trying, and keep appealing as long as you have merits in your argument. Cite the case law on this blog, a Judge will not hear any argument without a Memo of Law.
* not legal advice!
This is where the argument gets interesting.
673.3011 Person entitled to enforce instrument.–The term “person entitled to enforce” an instrument means:
(1) The holder of the instrument;
(2) A nonholder in possession of the instrument who has the rights of a holder; or
(3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to s. 673.3091 or s. 673.4181(4).
A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.
Now this is confusing to me, (2) is ” A nonholder in possession of the instrument who has the rights of a holder” . I just do not get this, anybody can offer some help here?
It would not hurt to Request an Evidentiary Hearing on the merits of your argument, that:
1) The Note endorsements are not dated, not Notarized, therefor cannot be authenticated and may not be admitted into evidence per the Federal Rules of Evidence 901(a). See Mers vs Vargas.
If you did not object to the documents, then the Court accepts them as Prima Facie evidence.
I could be wrong. This is not legal advice, I am not an attorney.
Mr. Fitzgerald, I am sorry to hear about the circumstances you are enduring. I, too, am in Limbo as I wait for another hearing in which the Judge will take the Banksters word over mine, when I have all the proof and they have none. It is a sorry world that our children are inheriting. The rule of law is indeed a double-edged sword. Fitz, don’t give up yet! I know how trying this can be, I’m two years into it myself. Keep your eye on the “prize”. I know this is easier to say than to do, but can you get an attorney to help you? At the appellate level, you will certainly need representation. Just remember that your family is behind you. Don’t let this loss set the tone for the rest of your life. Life will go on, just at a different address. Peace be with you.
zurenarrh,
Mike H,
maine loan modifications ,
Martin,
John,
and Lisa,
Thank you all for submitting your great ideas to me ..it has been helpful and opened windows for a possible solution.
I will request a re hearing .( before 10 days after the ruling )
I’ll submit addition documents and attempt to convince the Court that the ruling should be reviewed with the added documents and arguments .
Our next approach should the re-hearing fail ..would be Appeals.and that has to requested in 30 days after the recent hearing decision.
This foreclosure nightmare began in Feb.2008 , and its almost 2 years old.
We are exhausted emotionally and financially ,,
I let the public know this ..because we will fight on, and we want to encourage others to keep fighting even under the worst odds…until we all win.
England’s Churchill in WW 2 stated. while London was burning, and being bombed by the Nazis every night ..He told his countryman ….
In no time in history have so many depended on so few..
[ in reference to the outnumbered British pilots who fought the Nazis against overwhelming odds.]
…” .We will Never Surrender “. ” Victory..Victory ” He shouted.. as He made his famous V sign with his hand .
LF.
LF,
I do not understand what I am about to post to you. I am not an attorney. I have not yet tried this and do not recommend it beyond a springboard for entertaining discussion on this blog.
I can not ascertain the wording following the item on the scanned third page of your alleged note. I do see the words DOCUMENTARY STAMPS.
Perhaps a call might be in order, you know, just to ask some hypothetical questions regarding unrecorded mortgage assignments?
Doc Stamps Florida
I’d be interested in reviewing your docket for learning purposes. If you are so inclined, would you email me with the link to your docket?
Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.org
ForeclosureHamlet@gmail.com
Dear Fitz,
I see the “misconception” which sunk your case.
You said, “We stated that this document is a promissory note, and was not a negotiable instrument”
Unfortunately for your case, the opposite is true, a PROMISSORY NOTE IS A NEGOTIABLE INSTRUMENT
which is why they needed the “blue ink original copy”
to win their case as per Fl.Stat. 90.953 (the evidence code).
Since they were able to produce the original Note,
all the “lost note” stuff does not apply to your case.
However, the lack of a proper and lawful “assignment
of mortgage” should have only allowed them to get a
money judgement and not necessarily evict you from the house. With a money judgement, they could only
place a lein against the property and try to do a sheriff
sale. If your property was homesteaded, no forced sale
would be possible, at least in Florida or Texas. They
would have to wait for you to voluntarily sell your house
to collect the judgement.
If is wasn’t homesteaded, than you are S.O.L. because the Sheriff could do a forced sale.
The Smiling Judge continues :
To clear up this case and explain.so every one can learn something from my mistakes or the mistakes of the Judge.
I refinanced in 2003 with ” Pinnacle..”..A mortgage lien was recorded at the Public Property Records.
Its still there ..2009. No assignments ..nothing.
My Original 3 page Note and the 16 page mortgage papers were sent to my new server ” HomeComings ”
I fell into default in Nov.2007. I was foreclosed with a summons on Feb.2008.
My Plaintiff was JP Morgan Chase, not ” Pinnacle”
JPMorgan Chase were granted a judgment .
I filed a motion to vacate judgment….
1. My defenses were their Lack of Standing , The Plaintiff submitted that ” Orig. Note & Mortgage” with my alleged blue signature .
2. Plaintiff violated several HUD laws about failure to mitigate damages. [ I had a pre approved loan to pay them off , but they ignored it ]
What they presented to the Court as evidence that they had ownership of my home was that document I posted in my blog.
They show a endorsement of a transfer from “Pinnacle” to ” Residential ” Pay with no recourse .
not dated !
and from ” Residential ” to JPMorgan Chase ” Pay with no recourse…not dated..!
That’s their proof, a endorsed “negotiable instrument.”
..no assignment was presented .
We stated that this document is a promissory note , and was not a Negotiable instrument .
Negotiable instruments are for a exact amount and unconditional promise to pay.
A Promissory note is more complicated , the amounts to be paid are changing every day , and they also need an assignment to prove the transfer of the note.
The plaintiff’s claims that they don’t need any assignments, nor any recorded assignments ..because they have a negotiable instrument. that was endorsed to them.
I hope this will clarify the basic issues …
and I hope this helps other people who are heading to the Courts..
LF.
to finish:
The original lender could not lawfully transfer the
Note because it had never lawfully reestablished it
according to Fl. Stat. 673.3091. The ‘assignment” of
the “mortgage” was null and void, whether recorded
or not.
I believe you should file a motion for a rehearing and bring along a Court Reporter next time. You have a very good case, but you need to present it much better than you have in this blog! Your presentation was “confusing” to us, so it must have been confusing
to the Judge as well! They are not rocket scientists and
“pro se’s” don’t get the respect attorneys do. The Judge
probably ran out of patience with you and wrote you off.
to Fitz: continued
Sorry I cut my blog short.
The issue of WHEN the “note” was lost is very important in relation to WHEN the “mortgage” was assigned.
If the Note was lost BEFORE the Mortgage was
assigned, then only the original Note holder could
reestablish the “Lost Note” not the current “pretender lender” who was only assigned the “mortgage”,
whether the assignment was recorded or not.
This happened to me. The original Note was lost
before the mortgage got assigned, as proved by the
“lost note affidavit”. Unless the original lender took the
time to reestablish the Note as per Fl.St. 673.3091,
the original lender
Hello Everybody,
Since the “proof of purchasing of debt” is very important to our cases, what kind of specific document should we ask for in the request for documents motion?
L. Fitzgerald,
After looking at your note, it seems to me that an assignment WOULD be necessary, as there are two separate parties to whom the note is endorsed. The endorsements are not dated. It seems that if Chase takes your house, Residential Funding could still sue you for the proceeds of the note since the note is endorsed to them.
There is no way to tell from only the info on the note which of the entities is the owner. Isn’t that why an assignment would be necessary? I guess another factor would be which of the two entities HOLDS the note…
Dear Fitz,
After looking at the document you produced, it is
clear that it is a “Note”, not a mortgage.
As Neil has pointed out, “notes” in Florida are negotiable instruments, therefore they don’t need to be recorded like a “mortgage”. They only need to be properly endorsed to the current “note holder”. On the note you reproduced, it appears the “endorsement” is not to the foreclosing lender, it is to a different entity.
The chain of title is not there! So it appears that your
argument is correct and the Judge is wrong. This is
an appealable issue.
Also, in Florida, under the evidence code Fl.St. 90.953, only the original, blue ink copy is acceptable
as evidence, not a photocopy. If the original was lost,
then it must be reestablished according to Fl.St. 673.3091. This means they need a “Lost Note” affidavit
showing precisely WHEN
Niel,
Now I understand, they produced the note.
Smiling Judge Case :
Dear Friends ,
I have posted in my blog a photo image of my Note that the plaintiff’s have presented as their proof of holder in due course.
http://mad-as-hell-getting-even.blogspot.com
It just seems incredible , that with one piece of paper ..a house can be taken with the blessings of the Courts.
There has to be an assignment somewhere ?
sealed and signed .
This note is treated like a bank check or commercial paper… IOU …negotiable instrument ..that is endorsed
by unknowns with a stamp ..that can be fabricated easily.
It’s obvious that this note needs more paper work ..like an assignment …but they could be fabricated also.
So the best way to prove that the Notes papers are authentic ..is if its.. properly recorded… and sealed at a Public Property Records.
It does not qualify to be negotiable.[ UCC ] .since negotiable instruments have to an obligation to pay a exact amount .[ plus interest ] so it can be accepted as payment of a fixed value .
Our Note here can’t be a negotiable instrument because the obligation to pay a certain amount is constantly changing ..as the mortgage payments are being paid every month by the homeowner .
For example :If I take accept a note as payment for a debt from my friend for a
$ 100,000.00 negotiable instrument . …and keep it in a safe for a year or months later ..
that $ 100,000.00 note has been reduced by the payments from the homeowner ,
Now a year later it is worth ..96,000.00 . and it will continue to amortized , lowering the value of the instrument each month .
LF [ not a attorney just for the record ]
.
Wow,
I think that this imformation helped me the most. MIKE H.
We have been in court since may of 2008 with Wells Fargo as trustee … blah blah blah…They still have not produced the Orginal Note.
The only mortgage on record was with Greenpoint Mortgage, which was bought in Dec. 06 by Capital One. Capital One closed the devision in Aug. of 2007. The note was never assigned (at least recorded as assigned to anyone else).
Wells Fargo just filed an assignment in Oct. 2009. Can they record an assignment now when Greenpoint was dissolved in 2007? Who can possibly be an autorized Officer for Greenpoint when they don’t exist anymore? And again they should have to take us to a court of LAW not a forclosure court, right? And if they can not produce a original note they have no standing there. But I still wonder about the gap as far as Greenpoint being shut down and no other “lender” was ever recorded as the mortgage holder until now – a year and a half into a battle.
If anyone can help I would greatly appreciate it.
Thank you!
Diana Cirigliano
LF,
I have been thinking and studying non-stop about you.
I have so much more to learn but I do have this so far:
DISCLAIMER: I CAN NOT SPELL AND I AM NOT AN ATTORNEY.
That being said: it appears to me that the case law Plaintiff’s counsel is using to back up their “no assignment necessary” stance is based on the underlying premise that there is undisputed proof of an EFFECTIVE TRANSFER of the underlying note. I am beginning to form some rebuttal ideas.
I posted some interesting links on the HOMEOWNERS page with information that might help us all learn more about what we are up against.
Lisa E (Pro Se, Florida)
ForeclosureHamlet.org
ForeclosureHamlet @ gmail . com
LF
What kind of hearing was this? Summary Judgment?
Did you ask for Discovery or file a Motion to Compel Discovery of the PSA, Power of Attorney for the Endorsing Authority, MERS transfer of Enotes records,etc….?
Did you ever submit to the Court an Affidavit denying your default? Did the Plaintiff prove your default? Did you admit default? Did you admit the Note was signed by you?
Don’t give up.
Niel,
I do not understand the judges assertion that the
” THE ASSIGNMENT DOESN’T NEED TO BE RECORDED TO PROVE OWNERSHIP”.
Then what is the PROOF OF OWNERSHIP?
Lisa,
My case is in Florida and I am interested in the
WM Specialty Mortgage V Salomon (2004); 874 So 4d at 680
Progressive Express Insurance Co v McGrath Community Chiropractic (2005) 913 So. 2d 1281.
If you could e-mail me those at
jandersonpaper@yahoo.com
I would be very grateful
Hello Mike,
Thanks for all the information you took the time out to write. Very good
That the mortgage assignments have to be recorded every time the mortgage is sold .That would be a perfect world ,and some States are. But in Florida …that’s not the reality
In my case I was using the recorded assignment issue for my defense. . I claimed that my original mortgage was untouched , and no assignments were recorded .
So no new party could come in, and claim they were the new owner.’s
When I asked the Judge ..”What proof do they have that my original mortgage was assigned to them if they don’t have recorded assignments as proof…your Honor “.
The Judge smiled and said “They don’t necessarily have to…”
My mind went numb……..He had shot down one of my main arguments… I could not use that issue ..that way…
LF…
Lisa E said…”"Even demands for discovery are met with an exasperated judicial sigh, eyes narrowed in condemnation of disdainful stall tactics.”"
Because they are stall tactics. Inundating the court’s time with excess paperwork and time consuming red tape just to buy more free time in the house for deadbeats.
“”With another case swept off a Circuit Court Judge’s load, another home is swept into the greedy, yawning maw of an undamaged bank.”"
Huh? That “undamaged” bank that assumed those deadbeat loans are indeed taking part of the risk and the FDIC is taking the rest, meaning you and me and other taxpayers are paying for part of the loss because someone can’t pay their mortgage.
“”What is the end game here; streets of America lined with millions of empty, unkempt homes along which wander millions of homeless families searching for shelter and food?”"
And the other alternative is to suspend the rule of law and abrogate contracts and destroy capitalism? Puleeze! You sound like a communist. Nice attempt at playing the sympathy card though! You are not facing reality. Capitalism entails the business cycle which has booms and busts and some people do lose their homes in busts, sorry to say.
“”What kind of a country is this?”"
It’s a lot better of a country than the one you would project on us where secured debts such as mortgages have little to no enforcement in a court of law and, in essence, contracts have no enforceability.
Dear Fitz,
I think we are dealing with a question of semantics
here.
We use the word “assignment” when referring
to “mortgages” ie the property lein.
We use the term “indorsement” when referring
to the sale and transfer of the “Note”.(ie the IOU).
Foreclosure Court is a court of EQUITY, ie the
lender is trying to prove he/she/it has equity in your
property due to a mortgage loan.
Regular court is a court of LAW, ie they are trying
to get a mere “money judgement’. If they get one, they
can then put a lein against your property and apply for
a “sheriff sale” of the property. At this stage only the
“homestead” exemption could save you .
Mortgagage assignments must be recorded with
the County Clerk each time the mortgage loan is sold.
Notes do not need to be recorded when sold, they
only need to be properly “indorsed” to the new owner.
If a note is transferred without assigning the mortgage, then it becomes an unsecured loan and
can only be enforced in a court of LAW, not a court
of EQUITY, ie foreclosure court. Foreclosure court
is an expedited process for lenders who have EQUITY in the property, ie a properly recorded MORTGAGE.
The term “mort” “gage” comes from French and means “death” “gamble”. If the borrower dies first (which is usually the case), the debt is due on death.
Sometimes, the lender dies (gets dissolved) first without first assigning the “mortgage”. When this happens (lie in the 1930’s) the borrower wins the
“death gamble” and owns his/her/its home FREE AND CLEAR. (unless the Note was assigned before death)
In the latter case, the title is CLEAR but not FREE, because the Note is still out there, unsecured.
In the current environement, most of the Notes were
either lost or destroyed for the reasons given on this
web site, so the property owner may own it “FREE and CLEAR.
The Smiling Judge …Case
.Ok ..I could say….the assignments don’t have to be
recorded , ..at the Public Property Records .
OK …I finally get it..
But doesn’t the assignment has to exist somewhere ?
Inside the PSA. ? or in the Trust or , Master server’s file ?
some body should have it for their records.
Even a copy of an assignment from … MERS…for
instance . should document the transaction ..
LF
I agree with Neil wholeheartedly,
I don’t think the most prudent approach is bringing forth the esoteric securitization argument at any Hearing, without exhausting all discovery requests, addmissions, interrogatories, etc…
Tell the Judge “the story” of securitization by drafting pretrial pleadings and motions for sanctions or counterclaims. You need only some time and effort and you can draft a pleading that a Court will accept. This forces their attention to the facts, not the allegations of a pretender, now that they have a counter claim on the docket…it changes the mood of the matter, if you will.
Request Affidavits of work histories, make allegations of fraud and ask them to prove you wrong!
Bring forward a TILA lawsuit (counterclaim) if a MBS entity comes forward as a foreclosing plaintiff. Try to rescind, quiet title, appeal, counterclaim……DO NOT GO GENTLY INTO THE NIGHT!
RAGE AGAINST THE DYING OF THE LIGHT!!!!!
Fight and fight, do not give up!
Not all states require recordation of Security Deeds, Assignments, etc. For instance, Georgia does not require recordation of security instruments (such as deeds, assignments, etc.)
The reason someone WANTS to record these things is becasue of the whoel “whoever gets their deed recorded first is in the FIRST position, meaning the first to get paid, so that’s the reason for recording documents in GA.
Also, GA has a requirement (as of May 2008) that whomever is trying to foreclose MUST be on the record at the Superior Court Clerk’s office PRIOR to the sale (GA is a non-judicial state).
Unfortunately, the law does not specify when “prior” actually is. I have been successful at stopping a couple of sales )one on the day before the scheduled sale, another four days before) date using this law.
If your state has a similar law, you should know several things about the recording process in your county. They are:
1. Is there any lag time between submission of the documents and it appearing on the record? If so, how long? (Typically, in GA, the process has a two week lag time. This is useful in telling the judge in a TRO filed within a week or so of the proposed sale, that they have no complied with the law, which makes them more inclined to either grant the TRO or call the foreclosing attorney’s office and tell them to pull the sale (which is improper, but what happened in my Emergency TRO petition).
2. Any “rush” procedures? If not, and they are not on the record (in GA) then they have no way to comply with the law if they are within the lag time window.
3. What are the requirement for the document to be perfected? How many witnesses? Is a notary required?
I’m sure there’s more but those are a few things (off the top of my head) that we all should check into.
Best of luck with your appeal, L Fitzgerald!
To Continue:
This is where having a lawyer on hand could really help things along.
Conflicting case law that requires further study:
WM Specialty Mortgage V Salomon (2004); 874 So 4d at 680
Progressive Express Insurance Co v McGrath Community Chiropractic (2005) 913 So. 2d 1281.
I hesitate to quote from these two cases because I don’t fully understand the implications of what I’m reading. I am happy to scan and email them to anyone (although it probably only would apply to Floridians).
Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.org
ForeclosureHamlet @ gmail . com
Mike,
I don’t know the pertinent legal issues, but I’ve been told by many different people, including some attorneys, that in Florida mortgage assignments are “ignored” and “not required”.
I have heard it argued that once a fraudulent assignment is recorded with the county clerk’s recorder’s office, then that assignment can be used for one’s case.
I really haven’t figured it out, but what L.F. is saying is not unusual.
I really need to study and work harder to understand this specific issue, including reading all the case law quoted by my Plaintiff’s counsel in my case.
Here’s a quote from my Plaintiff’s filing, “In Johns v. Gillian the Florida Supreme Court noted that the transfer of the note or obligation is the same as the Assignment itself and it is not necessary that the mortgage papers be passed or even that a written Assignment be made. 134 Fla 575; 84 So. 140 (Fla. 1938). In fact, the Florida Supreme Court further supported its conclusion by stating that any form of Assignment of a mortgage, which transfers…the interest to the assignee, will entitle him to maintain an action for foreclosure. Id at 582. In WM Specialty Mortgage, the court concluded based on Johns v. Gillian rationale that a party is entitled to foreclose in equity upon proof of purchase of the debt even if there is no written assignment. 874 So. 2d at 862-863.”
Neil’s point speaks to that exact claim stating discovery demanding that “proof of purchase of the debt” is critical and essential.
Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.org
ForeclosureHamlet @ gmail . com
I would like to see a transcript of the Fitzgerald hearing, something does not make sense.
Was this an action at law or in equity? If it is an action at law for a monetary jugement, then no assignment of mortgage is necessary, because no
mortgage is necessary, period!
Notes do not have to be recorded, so transfers of
Notes don’t have to be recorded. Is it possible you are
mixing up the requirements for a Note with the requirements for a Mortgage?
My reading of Florida law tells me that mortgage assignments have to be recorded and they have to be
done correctly, otherwise no foreclosure is possible.
The note holder, without an assignment of mortgage could still pursue the matter in a court of law as long
as they had the original Note, properly endorsed to the
new Note holder. A judgement on the Note could result
in a sheriff sale instead of a Clerk of Court sale.
The thing to look for is where the original mortgagee was dissolved before assigning the mortgage and now MERS is unlawfully assigning the
mortgage to a pretender lender. This combined with a lost note on the part of the pretender lender is pure
unadulterated fraud and I doubt any Judge will allow it
if you call it to his/her attention. Any Judge who would
allow this is either on the take or a complete idiot!
One must always bring a Court Reporter to any
hearing, especially if pro se. That way you will have
the facts of what what said and if the Judge rules
incorrectly, you can appeal his/her decision.
Attn: Lisa ,
Thank you for your advice . Ive been thinking about Appeals , and Quiet Title ..but I’ll check and research ..
…. ” Massive Fraud Foreclosure Class Action Law Suit ” each group and or the state gov. recovering losses for the people….going against the foreclosing mills and the Big Banksters and sue them for all
the Emotional ,and Economic damages…they have caused .
LF.
Neil,
Everyone is forgetting THE BIG ISSUE!! TAXES!!! If you transfer an ASSET for zero dollars that has a VALUE of $500,000.00 someone owes the IRS a “GIFT TAX” on the $500,000.00 “gift.” If your or I gave someone a $500,000 asset we’d owe the gift tax. Next, if they say $10.00 or other valuable consideration, what was the consideration? If, $10.00, then we have a major gain that needs to be recorded for tax purposes. TAXES my friend, TAXES…
This will expose the charade!
L.Fitzgerald,
I am deeply sorry.
This is where it all falls apart. This is where I see hundreds of homes confiscated, families roundly ejected, in cases both uncontested and litigated (with or without counsel).
Securitization schemas? Forgery claims? Fraud upon the court? Servicer bringing action? Plaintiff without standing? Matters not a whit. Matters not a bit.
Even demands for discovery are met with an exasperated judicial sigh, eyes narrowed in condemnation of disdainful stall tactics.
With another case swept off a Circuit Court Judge’s load, another home is swept into the greedy, yawning maw of an undamaged bank.
It sickens me. I cry and rent my clothing.
What is the end game here; streets of America lined with millions of empty, unkempt homes along which wander millions of homeless families searching for shelter and food?
L Fitzgerald, again, I am deeply sorry. The education of the judicary may come too late for any of us.
I do know that appeal options have a very narrow window. Come Monday, contact attorneys for help and get your ball rolling again.
What kind of a country is this?
Lisa E (Pro Se, Florida)
http://www.ForeclosureHamlet.org
ForeclosureHamlet @ gmail . com
Mr. Neil Garfield ,
I greatly appreciate your response and education. I am going to add a few more details , so the public learns from my mistake, or we see a solution in filing a Quiet Title , Appeal, or Accuse them of Fraud .
Free Home : we submitted to the Court evidence of fax letters offering the plaintiff ..full payment .. Early in 2008 we had several serious Mortgage Broker’s pre approved estimates. That would have fully paid the loan balance. But these servers ,and plaintiff’s would not respond ,so they finally got judgment . I wasn’t served notice for that Hearing and defaulted .
The Judge stated that our offer’s were not “official “ or needed something or something to that affect . I said to him ..we needed their involvement , because the mortgage transaction takes 3 people to complete. The seller, the buyer, and the mortgage broker et al.
The judge added that even so …the Plaintiff are not obligated to accept the workout. I felt I made it clear to the judge that I was paying the mortgage ..not looking for a free house. .
I felt like you lose either way ..they don’t have to accept the mortgage pay off. A Catch 22 situation .
Fraud : The Plaintiff’s have the original Note and Mortgage papers.with my blue signature .
On the back of the 3rd page .there are two endorsement signatures . Transferring the note from my originator lender to a second lender ..who transfers to my Plaintiff’s .” without recourse.
Since the two persons who signed are titled AVP, and the other as Vice President.
I checked our Florida State Income Corporate statements for my original company . There was a list of officers in that Statement , but the signer was not on the list.. I checked the second company , and that VP was not there either .
Is there a slight clue of Fraud..?
This ” endorsed ” note is all they have apparently .Since there were no assignments presented yet , and are not needed as per the Judge.
LF
At least In California assignments must be recorded (supposedly!):
Civil Code 2932.5:
2932.5. Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the
money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded.
Charles Cox