Last Call – Homeowner Relief and Housing Recovery Act – ie The Nonjudicial Foreclosure Act for Nonhomestead Properties

Rehash

GENERAL BILL   by Civil Justice & Courts Policy Committee and Grady (CO-SPONSORS) Domino; Eisnaugle; O’Toole

Homeowner Relief: Creates “Homeowner Relief & Housing Recovery Act”; provides general provisions for nonjudicial foreclosures; provides criteria for notice & knowledge; provides for transactions creating security interest; provides for time of foreclosure; provides procedures, requirements, & limitations before foreclosure; specifies right to foreclose; requires notice of default; provides right to cure; provides requirements for notice of foreclosure; provides for meeting & meeting requirements to object to foreclosure; provides period of limitation for foreclosure; provides for judicial supervision of foreclosure; provides for right to redeem collateral; provides authority, requirements, procedures, & limitations on foreclosures by auction, negotiated sale, & appraisal; provides for rights after foreclosure; provides for application of proceeds, transfer of title, actions for damages or to set aside foreclosure, possession after foreclosure, judgments for deficiencies, & determinations of amounts of deficiency; provides for effect of good faith by debtor; provides authority, requirements, procedures, & limitations on discontinuation of foreclosure; provides for uniformity of application & construction; specifies relation to Electronic Signatures in Global & National Commerce Act.

–  Insurance, Business & Financial Affairs Policy Committee

Favorable With Committee Substitute (final action) See Votes

Staff Analysis:

Chamber Committee
House Insurance, Business & Financial Affairs Policy Committee 3/24/2010 10:18:53 AM
House Civil Justice & Courts Policy Committee 3/23/2010 12:21:35 PM
House Civil Justice & Courts Policy Committee 3/15/2010 10:16:48 AM

Effective Date: July 1, 2010

I urge you to read this entire article and all of the links within. Millions of people could potentially be affected by this in one way or another if this bill passes…

The Florida Bankers Association, like a coven of evil banking wizards, hopes to commit an act of sorcery by conjuring up three letters “NON” to be placed in front of the word “Judicial” in Regards to Florida’s Foreclosure Process.

In this bill they propose changing the Florida law which currently requires foreclosures to be adjudicated through the courts to a new law which would allow foreclosures to bypass the judicial system altogether to become a NON Judicial foreclosure state.

Why? Perhaps the gravy train has foreseen a few obstacles on the track ahead (legally strong foreclosure defenses, educated judges, wiser populace, state mandated mediation requirements). These Florida Bankers may be trying to ease their way on the path of least resistance to confiscate more homes and more wealth from both the homeowners and the investors who funded these loans.

The Florida Bankers Associations’ Comments to the Florida Supreme Court Task Force on Foreclosures may shed some light on the situation.

“It is a reality of commerce that virtually all paper documents related to a note and mortgage are converted to electronic files almost immediately after the loan is closed. Individual loans, as electronic data, are compiled into portfolios which are transferred to the secondary market, frequently as mortgage-backed securities.”

“The reason “many firms file lost note counts as a standard alternative pleading in the complaint” is because the physical document was deliberately eliminated to avoid confusion immediately upon its conversion to an electronic file.”

Perhaps Freddie Macs’ comments to the Florida Supreme Court Task Force on Foreclosures may enlighten us as well.

“Typically, the plaintiff in a foreclosure action does not own the underlying note or loan that is secured by the property subject to the foreclosure proceeding.”

“Freddie Mac’s servicers initiate foreclosure actions in their names, even though they are not the owners of the notes or loans in question, because they are the mortgagees as shown on the land records” (by fraudulent, fabricated assignments? Or perhaps you were referring to these BOGUS assignments recorded in the land records?)

“To require investors who do not service the loan to be a party in the foreclosure action and attend mediation would be costly and unduly burdensome”

Or could it be the Florida Supreme Courts new Rules?

First, rule 1.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded “lost note” counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.

Whoa, some pretty strong language there coming from the Florida Supreme Court. Makes you wonder on how bad it really is.

As you could imagine, some of the foreclosure mills are not too happy with this amended rule change. Kind of makes it a little harder to LIE.

Actually, lets not imagine how unhappy they are, lets read their comments to the Florida Supreme Court on the matter…

This one comes from SHAPIRO & FISHMAN, LLP (“the Shapiro Firm”),

Mortgage foreclosure cases are unique in that the holders of the notes are often unfamiliar with the status of the loans and rely upon loan servicers to manage the loans, payments on the loans, and the foreclosure proceedings.

Therefore, while the holder of the note may have some limited knowledge in order to verify portions of the complaint, it may not have the necessary knowledge to verify the remainder of the complaint. For example, while the holder of the note may verify that it is the holder of the note, it may not have personal knowledge when the last payment on the note was made or if a default notice was mailed to the client. While the holder of the note may not have that requisite knowledge, the loan servicer would, presumably, have that knowledge and be in a position to verify factual allegations of that nature, but likely will not have personal or direct knowledge of other factual allegations.

Furthermore, mortgage notes are frequently assigned between lenders and other investors. Thus, subsequent holders of a note will not have personal knowledge as to the mortgagor’s execution of the original note or assignments that occurred prior to its acceptance of the current assignment and consequently will not be in a position to verify those alleged facts in a mortgage foreclosure complaint.It is also unclear whether an attorney or law firm representing a lender can verify a mortgage foreclosure complaint based upon information he/she/it obtained from the client or other parties, including the holder of the note and the loan servicer. The question remains whether an attorney or law firm representing a lender can verify the complaint after diligent review and inquiry into the matter with the various parties holding the necessary knowledge.

As Foreclosure Hamlet puts it…

TRANSLATION OF SHAPIRO FISHMAN’S Motion for rehearing: “Your Honors, all we know, “after diligent review and inquiry into the matter”, is that someone, at some point, owed something to someone else.”

Amazing.

Oh, and additionally for that matter: “Your Honors, we also know, that the proceeds to the foreclosure sale will go to someone, that at some point had a right, maybe, to receive the windfall profits, probably, we think.

OR MAYBE ASSET BACKED SECURITIZATION MEANS NO NOTE?

Regardless of the statements above, this bill could be devastating to the millions of Floridians facing foreclosures caused by banks selling loans connived to a well planned default, bundling the bad debt, and betting against it to ensure a win for the banks and foreclosure for homeowners.

As it stands now, these aggressive, unprofessional foreclosure mills and their Plaintiff clients are still filing fabricated documents by the millions without any respect for the integrity of our official public records or the laws of evidence set by the judiciary system even after they were sanctioned by Judge Olson for these same issues. If this is how foreclosures are rammed through when we have a glimmer of hope of judicial protection, imagine the steamroller effect which will potentially ensue if this bill is passed, the flood gates thrown open, and the judicial dike washed away.

Once again the arrogance of these bankers amazes me as reflected in the statements below. They crush the entire world economy with their rigged financial gambles which they shrewdly secured by the homes of American families and then craftily shifted the moral hazard blame to the hapless, defaulted homeowner who “should have known what they were signing”.  Yes.  Silly us, we everyday Americans, who go to the real estate closing on our homes assuming we will be presented with a fair and legal promissory note instead of having the awareness and knowledge of the massive pernicious frauds perpetrated by those profit takers in collusion with each other all the way up the multi-level marketing scheme of securitization.

Why is it when a homeowner “defaults”, decides to “walk away” or “strategically defaults” on a mortgage obligation it is some kind of moral sin, but when a corporation decides to do an Orderly Transfer it is considered business as usual?

So we ask the following, shall Florida:

  • Join the 37 states which allow non-judicial foreclosures to proceed without any protections whatsoever for the homeowner?
  • Allow the Bankers to smother the judicial branch as they have the executive and legislative branches?
  • Disrespect the serious efforts of the Florida Supreme Court Task Force on Foreclosures and the Honorable Chief Justice Peggy Quince’s order mandating mediation for all homesteaded properties in foreclosure?
  • Ignore the contagion of Stockholm Syndrome that has infected most of our local, state, and national politician sycophants who bow with obeisance as the bankers confiscate millions of constituents’ homes?
  • Cost shift the $1,900 foreclosure lawsuit filing fee from the foreclosing entity to the financially stressed, perhaps newly unemployed Floridian family trying to defend their home?
  • Transfer the burden of proof in a foreclosure action from the foreclosing bank which has great difficulty producing authentic, genuine evidence showing its right to foreclose, to the homeowner who has subsistence survival worries?
  • Banish pro se litigants and clients of foreclosure defense attorneys from the halls of justice, allowing entry to only those who have the funds to pay the “cover charge”?
  • Allow to go unopposed the fabricated mortgage assignments, dubious indorsed notes, unauthorized property transfers, and deeply clouded property titles?
  • Trust as altruistic the professed motives of the same bankers who charge egregious credit card interest rates, overdraft and late fees, place holds on deposits, and reward themselves with billions in bonuses while crushing their customers under the weight of usurious loans?
  • Eradicate the right of due process granted by the U.S. Constitution:
    • Right to a fair and public trial conducted in a competent manner
    • Right to be present at the trial
    • Right to an impartial jury
    • Right to be heard in one’s own defense

The Bankers have taken our jobs, our savings, our 401Ks, our education funds, our public safety nets, the equity in our property, our municipality revenue source, our access to credit, and our credit scores. Florida being a deficiency state, we may lose our home to foreclosure and end up with a garnished paycheck for the deficiency.  Second mortgage holders are freezing bank accounts to get their piece of the action. Now that we have almost nothing left, will we also abdicate to these Florida Bankers our Constitutional rights?

I urge all Floridians to sharpen up your finest skills of reading comprehension and critical thinking by giving this bill a good solid read.  We must cipher the wide ranging consequences for ourselves, our children, our neighbors, our colleagues, our schools, our jobs, our municipalities, our judicial system, our safety net social programs, our future rights as consumers of financial products, our ability to transfer property, our access to the courts, and our pride as Americans living in a land where certain rights are indisputably the foundation of our country.  And then, armed with knowledge and disgust, call your Florida congressmen and senators and strongly urge them to soundly defeat this bill.  Election season is coming up.   We are watching.

If not we can end up with more situations like this…

Together, we have the power of our collective voices and votes. The Bankers have thrown down the gauntlet. Let’s accept their declaration of war and fight back.

Again, enough is enough.

Contact your representatives today…

4closureFraud

Definition of Fraud from one common online resource:

Fraud is generally defined in the law as an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage. Fraud may also be made by an omission or purposeful failure to state material facts, which nondisclosure makes other statements misleading.

Leave a Reply

Your email address will not be published. Required fields are marked *