A Response – This is War – HOW TO DISMISS THOUSANDS OF FORECLOSURE CASES

A Response – This is War – HOW TO DISMISS THOUSANDS OF FORECLOSURE CASES

As many of you who read this Blog know, I do not use this blog to promote myself or pat myself on the back.  The purpose of this blog is to get information out to the people regarding the fraud that is so blatant and rampant in Florida.  Consequently, I do not post my pleadings or memorandums of law as it distracts from the purpose set forth above.  That is about to change because I often find the analysis of the law lacking in many of the discussions that are posted on other blogs.

I have attached to this posting my analysis of the “effective date” of the Florida Supreme Court’s rule change requiring the verification of complaints.  I have already won over  one of the most entrenched judges today in West Palm Beach utilizing my Talking Points.  So I say, go forth and get thousands of foreclosure cases dismissed — but please use my talking points.

In case any reader has missed the point, the biggest offenders of the failure to provide due process and equal protection of the laws of the State of Florida are the Judges now sitting on Rocket Dockets throughout the State of Florida.  Many of these Judges are retired judges that have been brought out of moth balls, propped up in the courtroom, and told to get rid of the cases — even if it means ignoring the law, the rule of civil procedure, the evidentiary rules and due process.  How much more arrogant can you get when even the Florida Supreme Court is ignored.

On February 11, 2010 the Florida Supreme Court amended Rule 1.110(b) of the Florida Rules of Procedure to require verification of these foreclosure complaints in the mistaken believe that an officer of the Plaintiff would actually make a good faith effort to determine if the plaintiff really is the owner and holder of the note which is the subject matter of the foreclosure.  With all the fraudulent documents, assignments, and false affidavits presently being manufactured by plaintiff law firms; such as, the Florida Default Law Group, David Sterns Law Office, Shapiro & Fishman, LLP and Marshal Watson’s Law firm, why are any of us surprised that the spirit and intent behind the Florida Supreme Court’s amendment of the rules of civil procedure should be so flagrantly ignored by these same law firms; as well as, all the other plaintiff law firms.

What is surprising is the judges in the State of Florida who give these practices a nod of approval in order to accomplish the more despicable practice of throwing people out of their homes (Sorry, I mean, getting rid of the foreclosure backlog) without due process and equal protection.  Criminals now have more rights in Florida than law abiding citizens whose jobs, livelihood, hopes, dreams and HOMES are deliberately being taken by these self-same plaintiffs (banks, lenders, servicers) who sold the notes for three times the value of the notes, received bail out money to shore up their sagging portfolio balances (who wouldn’t love that!), sold the really bad loans to these same law abiding citizens (read Fannie Mae and Freddie Mac) and continue to devise ever more devious and evil ways, with the aid of their attorneys, to “screw” the American people — including my favorite Americans, the Citizens of Florida BECA– USE the self same Plaintiff’s cannot prove that they own, paid for, or otherwise acquired these Notes.

Recently, a kindred blog posted a its response to the judges who continue to deny motions to dismiss for failure to verify the complaints, which verification is a joke, but that is another issue.  With all due respect to my fellow Warrior Lawyer, the analysis found in the “Defendant’s Supplemental Memorandum of Law in Support of Motion to Dismiss Action” is not well reasoned; therefore, will not win the judge over.  The reason is set forth in the attached Informal Memorandum of Law which includes “Talking Points” .    Again these Talking Points were successfully used  (September 20, 2010) to change the mind of a judge who has routinely denied our motions to dismiss in the past.  (BTW, the judge was smiling as he granted the motion to dismiss).

Why were these Talking Points successful.  Simply because it correctly analyzed how an emergency amendment to the rules are promulgated by the Florida Supreme Court.  Read Rule 2.140(d).  It entitles the Florida Supreme Court to amend a procedural rule — any procedural rule — “effective immediately”, even though the Florida Supreme Court may receive and consider comments on the rule change for some period after the “effective date”, without changing the “effective date” of the rule change.

The attached also includes a little discussion I had with my paralegal which is included because it illustrates why the use of the Rules of Civil Procedure and the Florida Appellate Rules cannot be used to analysis the issue regarding the “effective date” of the Rule Change promulgated by the Florida Supreme Court under Rule 2.140(d), Florida Rules of Judicial Administration.

We, Floridians, are facing a Constitutional crisis wherein law abiding citizens are given less rights than the worst criminal.  What is amazing is that the more fraud, lies, deceit, robo-signers, and other illegal activities are exposed, the more the circuit judges rule against the common, law abiding Floridian.  Our job as Warrior Lawyers is to present good, cogent, well-reasoned legal analysis to the circuit court judges and the appellate courts.  Then we need to PRAY that the appellate courts and the Florida Supreme Court will uphold the most basic due process and equal protection rights by giving the homeowners the same rights as the most common criminal – i.e. make the Banksters provide evidence (real evidence) of the ownership of these notes.

Homeowners need to contact their State Senators and State Congressman to stop the bill presently being pushed through the State Legislature to make this State a non-judicial State  — thus, accomplishing the theft of Floridian Homes without any court process — none whatsoever.

~

FAILURE TO VERIFY THE COMPLAINT RULE CHANGE TO RULE 1.110

Comments
4 Responses to “A Response – This is War – HOW TO DISMISS THOUSANDS OF FORECLOSURE CASES”
  1. h.allan says:

    Psa agreement free
    It is very hard to find representation and most lawyers get 25k just to get started on a foreclosure case and theres no guarantee that they will win.so its taking a chance and according to what judge you get its like rolling the dice ,you can say all the right things and still loose. i found a way to get around the expense of paying for a Pooling and Servicing Agreement (P.S.A.) is the CONTRACT which is filed with the Securities and Exchange Commission (SEC) when the Trust containing a loan was formed. It lists all the Transaction Parties that were involved in the formation of the Trust.

    Securitization is done when the note is converted into a stock and traded on the S.E.C. and they sell a certified copy of the trust and supplemental prospectus for four dollars even if its three hundred pages its still four dollars total . The supplemental prospectus are MORTGAGE PASS-THROUGH CERTIFICATES that also proves that the Lender has not paid double taxes according to i.R.C. 860 (internal revenue Code 860 )and has no right to foreclose on your home according to GAAP(Generally acceptable accounting principles) and according to FAS 140 (Financial Accounting Standards) which was created to govern the sale and Securitization of a negotiable instrument states once an asset is sold the lender looses control over the asset if the asset is sold to a REMIC (Real Estate mortgage Investment Conduit).

    This means that the REMIC is structured as SPV’s (SPECIAL PURPOSE VEHICLES)due to the IRC 860 governing tax pass through., banks decided to avoid paying taxes on the promissory Note when they decided to pass the real party of interest/ownership to the shareholders to save them from being dougle taxed.The Lender gave up being the Lender and became the servicer when they did this and only act as the servicer to the shareholders. all this is explained in detail at: http://www.ohiomortgagereview.com/history.html

    Remember, the REMIC holds all the loans together in a pooling and servicing agreement.
    i found a way to get the supplemental prospectus and Trust agreement if you don’t know the name of your trust and if you do have it they will help you find it on the S.E.C. website (www.sec.gov) so when you go to court you can have a certified copy of the report when the Servicer or Pretender Lender says your loan was not securitized. or never assigned.

    Instructions how to get your PSA (below)
    (Longer >30 days, FREE Method)
    Send the above data points directly to Certified@SEC.gov and request a certified copy of the pooling and servicing agreement (PSA). Note: Expect over a 30 day delay if they have to find it.
    If you do not receive a confirmation email from the SEC within a day or two, they advise that you send a follow up email.
    – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

    As information, the address from which records will originate is:
    Office of FOIA, Records Management, and Security-
    Certification Unit
    100 F. Street, N.E.
    Room 1110
    Washington, DC 20549
    202-551-7230

  2. h.allan says:

    On February 11, 2010, the Florida Supreme Court Amended Rule 1.110(b) as well as Form 1.996(FinalJudgment of Foreclosure Form).The Amended rule 1.110(b) was amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purpose of the Rule change was as follows:

    (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;

    Michael said this second comment was his favorite from
    the Florida Bankers Associations Comments to the Florida Supreme Court Task Force on Foreclosures.

    “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.”

    In this statement from the Florida Bar reveals where the “lost Note and Mortgage disappeared to when a Loan is sold to investors it is converted into mortgage backed securities on the S.E.C. into a Supplemental PROSPECTUS CALLED Mortgage Pass-through Certificates .
    Deliberately eliminated after its conversion from a Note to a stock.
    Once a loan is securitized it is a stock forever.

    FAS 140 states once an asset (Promissory Note) has been sold to a REMIC (RealEstate Mortgage Investment Conduit) the Lender forever loses control over that asset.
    The Lender becomes the servicer If it is sold into a REMIC how can the bank (who is no longer the real party in interest foreclose?

    They can’t
    They get away with it every single day because they rely on :

    1-our collective ignorance.
    2-the judges ignorance,
    3-the attorney’s ignorance
    4-the foreclosure and mortgage industry personnel’s ignorance

    Due to IRS CODE 860 governing Tax Pass Through for special purpose Vehicles ,(the real parties of interest are the shareholders who pay the pass-through tax )

    ACCESS ANY TRUST IN THE S.E.C.
    TO ACCESS the Supplemental Prospectus of (Lehman XS TRUST SERIES 2006-GP4) reports as a pass through GO TO:

    1- http://www.sec.gov

    2- in the right side of the page under LATEST NEWS click on search Edgar

    3-Type in your trust under Company Name.

    4- CLICK ON DOCUMENTS on 424B5- –Prospectus (RULE 424(b)(5)-2006-07-31-333-129480-24

    5- Click on P414214_424B5.txt

    6- here is the page that comes up showing mortgage pass through certificate ,series 2006-gp4

    MORTGAGE PASS-THROUGH CERTIFICATES
    SERIES 2006~GP4
    LEHMAN BROTHERS HOLDINGS INC.SPONSORAND SELLER
    STRUCTURED ASSET SECURITIES CORPORATION
    DEPOSITOR
    LEHMAN XS TRUST, SERIES 2006-GP4
    ISSUING ENTITY
    [AURORA LOG0]
    AURORA LOAN SERVICESLLC
    MASTER SERVICER
    PROSPECTUS SUPPLEMENT
    JULY 28, 2006
    LEHMAN BROTHERS

    (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded “lost note” counts and inconsistent allegations;

    Where did the promissory note disappear to?

    As Michael said this second comment was his favorite from
    the Florida Bankers Associations Comments to the Florida Supreme Court Task Force on Foreclosures.

    “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.”

    (3)To prevent the wasting of Judicial resourses and harm to defendants resulting from LAWSIUTS brought by Plaintiffs not entitled to enforce the note.

    They confuse the issue of the Lost Note by saying the Promissory Note and Mortgage got lost between the transferring between servicers. But here it shows that the Lender has sold the Promissory Note under Mortgage backed securities instrument to investors under a pooling of interest.

    Which means they sold to investors of the REMIC and got paid 1.5 times the value of the loan , the Note was converted into a stock and is forever gone since the REMIC was structured as a SPV (Special purpose Vehicle) so they don’t get taxed on them, covered under internal revenue code 860.this way only the shareholders are taxed. This means only the shareholders are the real parties of interest.
    Lets look at the cast and crew of this scam
    1-The Lender
    2-The Investor
    3-The Shareholder
    4-REMIC
    5- The Trustee Of The REMIC
    6-The Servicer

    A-The Original Lender cannot Foreclose
    As I discussed under FAS 140 The Original Lender sold to the REMIC and forever lost the right to foreclose and becomes the servicer

    B-The REMIC holds the loans together in a pooling and servicing agreement . However because they chose to avoid the IRS tax rules (IRC 860) for double taxing, they pass on the real party in interest/ownership of the asset to the individual shareholders. So neither the REMIC NOR THE TRUSTEE MAY FORECLOSE.

    C- The Servicer is not a Real Party in interest.
    The Servicer can only collect the money and pass it to the REMIC.
    D-Who can foreclose? The answer is nobody.

    (4)To give Trial Courts greater authority to sanction plaintiffs who make false allegations.

    7-The Debt Collector

    The only way a bank can foreclose is if they buy your loan back from the REMIC as a written off debt. Like a debt collector would.
    Tax credit has been given to the shareholders and the REMIC BY the FDIC for 80% of the loan. So the debt collector picks up the dead non performing toxic note for pennies on the dollar and through deceit , they try to reattach the converted note to the dead mortgage. Then they take these documents and represent them to the world as if they are the real parties of interest

    The bank originates the loan and sells to the REMIC FOR 1.05 TIMES THE FACE VALUE of the loan. Then
    They got paid in full ,then when the loan goes into default ,it picks up the note for pennies on the dollar, and tries to negotiate a loan modification.

    1-once they get you to sign the loan mod agreement , they have successfully renegotiated re-contracted and re-acquired the loan .,this is 60 days after you went into default that they can do a loan mod that is why it takes so long for you to qualify.
    2-if you have ever received a notice of default or anything else from a bank , you will see the language “this is an attempt to collect a debt”this is required by law under the Fair Debt Collections Practices Act. Once a debt has been written off for tax purposes ,it is discharged.

    3-if the debt collector decides not to give you the loan mod they foreclose on your house and sell it to the next sucker for full price.

    4-to convince the court that they have the right to foreclose ,banks have taken to:
    a) Forging documents.
    b) Creating arbitrary loan assignments to suit their needs
    c) Bringing fraudulent documents before the court
    d) Recording fraudulent documents at The county.

    They go under oath to testify that they have first hand knowledge of the fact that these loan documents are legitimate.
    If a loan has been securitized ,any supposed original promissory note is nothing more than counterfeit at best not to mention securities fraud.
    Ocwen informed me of an affidavit was signed by an officer of GMAC who said my Promissory Note was never assigned, satisfied
    Pledged, or hypothecated. Then they swore to it with a notary from GMAC. Then how do they explain LEHMAN XS TRUST 2006-GP4 MORTGAGE PASS THROUGH and ocwens account executive who swore under oath that the loan was securitized and it was transcribed

    these are people purgering themselves with notary stamps forged documents in county records are committing fraud on the court extortion and racketeering that are All federal Felonies punishable with prison time . This has gone too far without people being found guilty and put in jail with their assets frozen and dispersed to the people they defrauded to give them their lives back and not just a couple of hundred dollars each that is a joke give them back their 401k’s their homes and that would be only a start. they should get three times the value of their homes in cash back.

    This is the Nature of the scam that has been waged against the American homeowner and the world.

    thank you Michael for your dedication in keeping us informed and up to date

  3. Robert Chaney says:

    Thank you for all your postings. My daughter is in a Florida foreclosure case. The Plaintiff filed its case in 2008.
    The case was dismissed for failure to state a cause of action because no “assignment” was attached.
    The first amended complaint attached an assignment that was executed two days AFTER the complaint was filed.
    Plaintiff requested permission to file a 2nd amended complaint to remove count 2 for Lost Note. The 2nd amended complaint was filed AFTER the NEW Rule. My daughter objected that the amended complaint was not “verified,” but the court has, so far, ignored her objection.
    As we understand it, a complaint (even an amended one) that is filed today, must abide by the rules that are in place today. AND… “relation back” does not apply if it affects defendants’ rights. If the court does not follow the current rules, then that is prejudicial to defendants.

    We believe the Plaintiff is only a “servicer” because it does no allege that it “owns” the note.

    Once again, thank you for your very helpful postings.

  4. James M says:

    Thank You very much.
    While it does not apply to my case because it was filed prior to the new rule, it will directly help the newer defendants.

    I especially like the way you have taken the case law cited and reduced it to a series of direct talking points. The bullet points of the argument. One simple paragraph each, which can be argued standing up in court.

    All the long learned memorandums of law are likely unread and ignored by a court when the litigant can’t articulate the essence of the argument in the hearing. People need to be able to explain the argument, in a step by step oral outline, as you have done here.

    Folks, well prepared counsel goes to court with more than just a fist full of motions and case law, they go with a script of talking points. They are well prepared.

    On TV you see lawyers make brilliant argument standing on their feet: But that is TV. They are just actors. Actors who read from cue cards or have memorized their lines.

    To prevail in court, before a judge, under pressure in the court room, you must be able to explain your argument in simple, logical, legal talking points. That are BRIEF. – And like actors on TV it does not hurt to rehearse them –

    Be prepared to defend each one of the talking points. The judge is likely to test you on at lest one or two of them.

    If you don’t have the whole supporting case law memorized, is to simply say something like, “That issue is addressed in paragraphs xx to yy of – my Reply to their motion” – So it helps to put the numbers of the relevant supporting paragraphs after each taking point or bullet point.

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