We find this submission from Mark Stopa very interesting. Last week Lisa, myself and Lynn met with our clerk of court Sharon Bock and two of her attorneys after she found out Lisa was running against her for the job. What was discussed, as one of our requests, is that they stop filing the “notice of filing originals” when an original note is not attached. The mills figured out the judges just look at the screen and not the file so there is no way to tell if it is actually an “original” note or not. Her attorneys spoke up and said they noticed “missing” notes from the filings and thought they were misplaced. We told them they most likely never receive them. They said they would be marking the files going forward with a note that the original was not filed so the judges would know. They also said they would provide an affidavit to anyone who requested one if the note was not filed as stated in the notice of filing. We will see if it actually happens.
If this is happening in two circuits, it is fair to assume it is happening in ALL circuits.
Posted on March 27th, 2012 by Mark Stopa
As a foreclosure defense attorney, I regularly ask my clients to go to the courthouse and inspect the “original” note in their case (whenever the bank files it). My intent? To ascertain if the “original” note is actually an original? Often, the “original” note is nothing more than a copy, creating a valid defense to foreclosure. See e.g. Downing v. First Nat’l Bank, 81 So. 2d 486 (Fla. 1955) (reversing a final judgment of foreclosure because the bank did not introduce the original note into evidence); Servidio v. U.S. Bank Nat’l Assn., 46 So. 3d 1105 (Fla. 4th DCA 2010) (reversing summary judgment of foreclosure where “the record on appeal does not contain the original note”).
Unfortunately, the clerks in Manatee County have recently begun preventing my clients (and, apparently, the public at large) from accessing their own court files, preventing these homeowners from inspecting the “original” notes. As such, I just wrote this letter to the Chief Judge of Florida’s Twelfth Judicial Circuit, Honorable Andy Owens, requesting that he take whatever steps necessary to ensure homeowners can access these “original” notes in their own court files.
If you’ve encountered this problem, don’t give up. Any homeowner facing foreclosure should absolutely have the right to inspect that “original” note. Whether it’s truly an “original” is at the heart of any foreclosure case, so every homeowner absolutely has the right to look at that note and say “that’s not the original note” or “that’s not my signature.” Hopefully, Chief Judge Owens agrees. I’ll keep you updated.
Copy of letter below…