The first part of this post is from an article I wrote a few months ago but gives the background and leads into what I have to add today. If you already read the first half when I published it the first time, scroll down to Part 2 and be sure to read Nye Lavalle’s and Lisa Epstein’s (Foreclosure Hamlet) COMMENTS & RESPONSE IN OPPOSITION TO SHAPIRO FISHMAN, LLP’s MOTION FOR RE-HEARING OR CLARIFICATION regarding verification of foreclosure complaints.
Florida Supreme Task Force on Residential Mortgage Foreclosure Cases
So the story goes like this…
Administrative Order. The Chief Justice established the task force in March 2009 by Administrative Order in the wake of dramatic increases in residential mortgage foreclosure case filings.
Final Report & Comments. The Final Report was released August 17, 2009. Appendices of the report are below.
|Appendix A||Appendix B||Appendix C|
|Appendix D||Appendix E||Appendix F|
|Appendix G||Appendix H||Appendix I|
|Appendix J||Appendix K||Appendix L|
|Appendix M||Appendix N|
This was where it started to get interesting last year. “Comments to the Final Report are available”
If you have time, I suggest you read all the comments, or at least the comments from the foreclosure mills and opposing entities.
My absolute favorite comment came from Robert E. Bostrom Freddie Mac’s Executive Vice President & General Counsel & Corporate Secretary.
Recommendation regarding verification of “ownership” of the mortgage
“The Task Force has recommended a requirement for a plaintiff in a foreclosure action to verify that it owns and holds the note. 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) and they are the holders (not in due course) or otherwise in possession of the (fabricated) notes. During foreclosure proceedings, our servicers and foreclosure counsel have authority to negotiate and execute loan restructurings (against what the pooling and servicing agreements state?) and other foreclosure alternatives (trial modifications that are ultimately denied) with borrowers as well as attend (pointless) mediation. 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 (because they do not even know it is in default?), which may result in additional costs being passed on to the borrower. The intended purpose of the mediation program could be achieved effectively without this verification requirement.”
Robert E. Bostrom
Executive Vice President
General Counsel & Corporate Secretary
“TYPICALLY……….The Plaintiff in a foreclosure action does not own the underlying note or loan………”
OH THEY SLAY ME!
It IS Typical today!
You know what’s the biggest crack up?
Here we are struggling mightily to PROVE that the Plaintiff doesn’t own the mortgage or note in cases where the Plaintiff is forging documents to PROVE that they DO own the mortgage and note………………and la-de-da in waltzes Freddie Mac’s VP and bumbles his way into the most inane (and shockingly honest) comment in the world!
“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.”
That’s right DELIBERATELY ELIMINATED.
So after the comments were heard, the Chief Justice’s Statewide Model Order is entered. On December 28, 2009, Chief Justice Peggy A. Quince issued her Order implementing a statewide managed mediation program in new Florida foreclosure cases pursuant to the Task Force’s recommendations. Each of the 20 circuit chief judges now must adopt their own orders based on the model.
Next up comes the Recent Rules Amendments. See related Rules Amendments issued by the Court on February 11, 2010.
Here is where the fun begins…
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.”
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.”
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.
Makes you wonder doesn’t it?
So now that the Foreclosure Mills were ignoring the Order of Verifying the Complaints because there was a “motion for rehearing pending”, even though comments to the Florida Supreme Court were not even open on the matter, my two good friends decided to send in a comment to the comment.
Both Nye Lavalle and Lisa Epstein spent days upon days writing their response. Unfortunately, Lisa Epstein and Nye Lavalle’s motion to accept response to motion for rehearing as timely filed was denied and said response was hereby stricken as untimely.
So, if the Supreme Court refuses to publish their response, I will.
Take the time to read it. It is very well written and allot of time and effort was put into this. They did this for EVERY Floridian, EVERY American.
Thank you Lisa and Nye…
Exhibits 1 – 5
Exhibits 6 – 10