Thank You Judge Blanc RE Foreclosure Court Administrative Order on Fla.R.Civ.Pro 1.510(e)

Thank you Judge Blanc

On December 2, 2010, Judge Blanc posted a change in the foreclosure procedures effective January 3, 2010 which left me with some questions.

“Motions for summary judgment, effective January 3, 2011, all affidavits, including amended affidavits, filed in support of Summary Judgment in the foreclosure divisions shall include as an attachment copies of payment records upon which the affiant relies to support the motion.”

What “payment records”?

Why January 3, 2010 and not immediately?

What about the Life of the Loan Accounting?

What about authenticationCertified Copies?

What happened to Rule 1.510(e)?

What is the purpose of this Administrative Rule change?

Why is this Administrative Rule addressed only to the Foreclosure Divisions?

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.

So what is so different about Foreclosure?  Why is there even an Administrative Rule singling out the administrative procedures utilized in the Foreclosure Division?  The reason is simple.  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.

Judge Blanc’s Administrative Order is a tacit admission that the Rules of Civil Procedure have not been followed in the Palm Beach Foreclosure Division as 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 this Site – www.4closureFraud.org – has dedicated itself to eliminated.

Rule 1.510(e) does not just require the “payment records” but all records, documents, and/or papers that the Affiant relies upon to make the statements in the Affidavit be attached and these papers, documents; “payment records” need to be certified or  authenticated by a person who is “competent” to testify to these attachments.

Judge Blanc’s Administrative Order should read that ALL Affidavits in Support of Summary Judgment must comply with Rule 1.510(e).  That Order should be effective immediately as the Rules of Civil Procedure have been around a longer than most people who read this blog.

If the Courts and Judges would only follow the Florida Rules of Civil Procedure there should be no need to have special administrative rules posted for the Foreclosure Division Judges.  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?

This is outrageous! Now a Judge is flat out saying that the Florida Rules of Civil Procedure do not apply! 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, … Read more

Order from Judge “Lee County is NOT Requiring that Plaintiff’s Comply with Fla.R.Civ.Pro 1.510(e)”

 

Ultimately, the District Courts of Appeal are going to have to decide if the Florida Laws apply equally to everyone or that Homeowners in Foreclosure are not entitled to equal protection under the law, due process, or fair and equal treatment of the Rules of Civil Procedure and the Rules of Evidence.  Furthermore, there will have to be a determination as to whether judges who operate outside the parameters of the Constitutional Right of Due Process, Equal Protection, and the impartial administration of the Florida Rules of Civil Procedure and Rules of Evidence are qualified to be judges.

~

4closureFraud.org

 

 

Comments
6 Responses to “Thank You Judge Blanc RE Foreclosure Court Administrative Order on Fla.R.Civ.Pro 1.510(e)”
  1. yvonne says:

    Another delay tactic to give the fraudsters more time to fix their paperwork in house…so they have new revised docs to continue the deception…what happen to the judges Oath of office? Are judges appointed or elected?

  2. lisamarie says:

    This Judge needs to be investigated and brought up on crimimal charges at the very least. Why on earth does he still have a seat?????

  3. Larry says:

    Published on Thursday, December 2, 2010 by McClatchy Newspapers
    Fed Wants to Strip a Key Protection for Homeowners
    by Tony Pugh
    WASHINGTON — As Americans continue to lose their homes in record numbers, the Federal Reserve is considering making it much harder for homeowners to stop foreclosures and escape predatory home loans with onerous terms. The Fed’s proposal to amend a 42-year-old provision of the federal Truth in Lending Act has angered labor, civil rights and consumer advocacy groups along with a slew of foreclosure defense attorneys. The Fed’s proposal to amend a 42-year-old provision of the federal Truth in Lending Act has angered labor, civil rights and consumer advocacy groups along with a slew of foreclosure defense attorneys.
    They’re not only asking the Fed to withdraw the proposal, they also want any future changes to the law to be handled by the new Consumer Financial Protection Bureau, which begins its work next year.
    In a letter to the Fed’s Board of Governors, dozens of groups that oppose the measure, including the National Consumer Law Center, the NAACP and the Service Employees International Union, say the proposal is bad medicine at the wrong time.
    “At the depths of the worst foreclosure crisis since the Great Depression, we are surprised that the Fed has proposed rules that would eviscerate the primary protection homeowners currently have to escape abusive loans and avoid foreclosure: the extended right of rescission.”
    Because the public comment period on the Fed’s proposal is still open until Dec. 23, a spokesman declined comment on the matter.
    But in a September passage in the Federal Register, the Fed said the proposal was designed to “ensure a clearer and more equitable process for resolving rescission claims raised in court proceedings” and reflects what most courts already require.
    Since 1968, the Truth in Lending Act has given homeowners the right to cancel, or rescind illegal loans for up to three years after the transaction was completed if the buyer wasn’t provided with proper disclosures at the time of closing.
    Attorneys at AARP have used the rescission clause for decades to protect older homeowners stuck in predatory loans with costly terms. The provision is also helping struggling homeowners to fight a wave of foreclosure cases in which faulty and sometimes-fraudulent disclosures were used.
    The violations must be of a material nature to invalidate a loan under the extended-rescission clause. To do so, homeowners — usually those facing financial problems or foreclosure — hire an attorney to scour their mortgage documents for possible violations regarding the actual cost of the loan or payment terms.
    If problems are found, a notice of rescission is sent to the creditor, which can either admit to the alleged violation or contest it in court.
    Creditors that end up rescinding a loan are then required to cancel their “security interest,” or lien, on the property.
    Once that occurs, the homeowner must then pay the outstanding loan balance back to the lender — minus the finance charges, fees and payments already made.
    Dropping the lien provides homeowners with a defense against foreclosure and allows them to refinance to pay the outstanding loan amount.
    Critics say the proposed change by the Fed would render the rescission clause useless. The Fed proposal would require homeowners who seek a loan rescission through the courts, to pay off the entire loan balance before the lender cancels the lien.
    “This, of course, would be almost impossible for most consumers to do because they can’t come up with the money until they get out of the loan. And they can’t get out of the loan until the lien is released,” said Barry Zigas, director of housing and credit policy at the Consumer Federation of America. “None of us are quite sure what purpose is being served by this proposal or what prompted it.”
    The Fed’s proposal is part of an ongoing effort begun in 2005 to review and update rules and guidelines for disclosure in the rescission process, said Kathleen Keest, the senior policy counsel for the Center for Responsible Lending. That effort, which includes a review and update of the forms used for rescission, pre-dates the housing-market meltdown and the recession, she said.
    The Fed “believes this adjustment would facilitate compliance with the Truth in Lending Act,” adding that the “majority of courts that have considered this issue” condition the release of a lien on a homeowner’s ability to repay the balance.
    The Mortgage Bankers Association, the main trade group for the real estate finance industry, hasn’t taken a position on the issue or submitted public comment to the Fed. But “we are inclined to support the direction the Fed is headed,” said John Mechem, the MBA’s vice president for public affairs.
    Requiring homeowners to pay what remains of the original loan before a rescission can proceed is tantamount to a “verdict first, trial later” philosophy, Keest said.
    “It basically puts the cart before the horse,” she said, adding that securing the “right to rescind determines how much you have to (pay).”
    David Certner, the legislative policy director at AARP, which also has criticized the proposal, said rescission is an effective tool to make sure creditors follow the rules and are transparent about the true cost of loans.
    “It can help put off a foreclosure and give one the leverage in negotiating some other type of appropriate payment or settlement. It’s a very powerful tool to help people stay in their homes,” Certner said. He called the proposal “egregious.”
    ON THE WEB
    Letter to Federal Reserve opposing the rescission proposal
    Federal Register notice explaining its proposed changes on rescission (begins on pg. 58541)

    • RAMONA says:

      They are changing the face of america..next they will be working children , slaves, etc. again. they are stripping our nation of all the good works it had taken over a hundred yrs. to achieve. congress has sold our country to the highest bidder. they will strike from us our homes, our freedom of speech, our religion, what next? our social security, our schools, our libraries..I hope we move together tosave our homes,OUR COUNTRY!

      • Larry says:

        Ramona,

        I agree with you, My hope is that our fellow Americans wake up in time to join the resistence. We need to keep educating everyone we know about the fact that our country has been taken hostage by an elite banking scheme.

  4. BU victim says:

    Good stuff. . .same story with a judge Watson in 7th dist. who seems to be ignorant of the FRCP particularly when it pertains to ProSe victims.

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