“It was with a very heavy heart and hand that we decided to oppose the very organization that we are members of,” said South Florida foreclosure defense attorney Roy Oppenheim, who signed the letter opposing the bills with other local lawyers including Royal Palm Beach-based Tom Ice. “But if they think we’re going to stand by and let this happen, they’re crazy.”
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Rare dispute within Florida Bar over quickie foreclosures
A rare public brawl is escalating between members of the Florida Bar and one of the organization’s most powerful sections over legislation aimed at speeding the state’s lengthy foreclosure process.
The dispute, which heated up this week in letters published in the online version of The Florida Bar News, has even drawn super lobbyist Ron Book into the fray.
Book, whose clients include Florida Power & Light, AutoNation and Sun Life Stadium, was hired by Florida Consumer Justice Advocates, a group of attorneys opposing the legislation, which they believe favors banks.
On the other side is the Florida Bar’s Real Property, Probate and Trust Law Section, represented by another prominent lobbyist, Peter Dunbar. The section says the legislation balances the rights of homeowners with the need to reduce the backlog of foreclosures in Florida’s courts.
In the sometimes surly letters, opponents accuse supporters of sacrificing due process for the sake of expediency, and protecting the title insurance industry over consumers. Supporters lob back the accusation that “some groups oppose foreclosure reform and support inaction for the sole purpose of delaying foreclosure.”
More from the PB Post here…
Copy of the letter to the BAR below…
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4closureFraud.org
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Foreclosure Legislation
We write as members of The Florida Bar and in some cases as members of the Real Property, Probate and Trust Law Section to express our deep concern with the section’s support of Senate Bill 1666 and House Bill 87, which propose to materially change the rules governing foreclosures in Florida.
The proposed amendments are in complete derogation to fundamental tenets of due process and property rights. The passing of this legislation would completely disregard the evidence code, allowing courts to presume liability with only a prima facie showing by the plaintiff, and without opportunity of homeowners to conduct discovery into possible abuses by the banking industry that often result in out-of-court settlements between lenders and homeowners, or a rash of voluntary dismissals by the banks.
This proposed legislation would effectively undo 250 years of American jurisprudence, returning us to a legal dark age. Furthermore, certain proposed amendments would apply retroactively, creating ex post facto provisions which violate both our state and federal constitutions.
The proposed legislation favors banks, retired judges, homeowners’ associations and title insurance companies, and disfavors homeowners and newspapers. While banks support the bills because they provide them with an expedited procedure of foreclosure, many of these procedures will effectively reduce the financial incentive for lenders to participate in short sales and negotiated settlements that are helping restabilize the Florida real estate economy.
SB 1666 proposes to dramatically increase the use of retired senior judges, an issue that has profound constitutional implications. Article V of Florida’s Constitution requires that judges who reach the age of 70 retire and cease to maintain full case loads. The Florida Constitution also requires judges who preside over cases reside in the communities in which they serve and face the will of the voting public through retention votes. The proposed legislation completely ignores these fundamental protections. Foreclosure judgments entered by these senior judges will perpetually be attacked as unconstitutional, which will create unsettled cases for potentially decades, making matters ultimately worse. Overburdening of the district courts of appeal that are already struggling to keep up is not sound policy.
These bills are more interested in protecting the banking and the title insurance industries than protecting the larger interests of the Constitution, the judicial system as a whole, and the rights of homeowners. The “Finality of Foreclosure” provisions in these bills prevent homeowners from ever getting their home back even after a fraudulent foreclosure is overturned; rather, the homeowner would be entitled to economic damages only. No matter how blatant the fraud, no matter how obvious the forgery, no matter what errors are committed, once a judgment is entered, the wronged homeowner could never get that property back again.
We see no reason why there should be a special legislative exemption for an industry that has collected billions from policy premiums paid by homeowners over the years to protect them from defective title. Effectively, the Legislature would be giving the industry a huge subsidy by providing this unnecessary protection.
Should this legislation pass, the negative consequences to homeowners would far outweigh any alleged benefits to lenders, the title insurance industry, and the court system. The quantum of harm to consumers and to our legal system as a whole should shock any attorney. For example, one provision allows the retroactive application of the law to existing cases. As attorneys, even the thought of ex post facto laws should cause grave concern, creating a very dangerous slippery slope in the future in other areas of the law. If passed, these bills will change the standard in the middle of a case and subject the litigants to a new legal standard that did not exist when the case was filed. Next, the bills propose to shift the burden of proof to defendant homeowners. The plaintiff in all suits has the burden of proof to substantiate its allegations. The bills usurp the role of appellate courts by providing safe harbor for lender mortgage fraud by making foreclosure judgments final. The bills also overturn a long-standing law that only requires depositing of payments into a court’s registry where agreed upon, by the parties, in the mortgage to instead now require that any homeowner who is not occupying his or her home pay his or her mortgage in full or immediately lose possession.
Homeowners, who are already fighting an uphill battle in defending foreclosures, would effectively have little chance at defending their rights at a preliminary hearing where the banks need only show a prima facie case to foreclose. Bank fraud and robo-signing, which have primarily been exposed through discovery during the foreclosure process, will likely remain buried should the proposed summary procedures be permitted, and would not have been uncovered in the first place had these laws been in place at the time. These fast and loose procedures build a house of cards that could eventually collapse without the proper procedural and substantive safeguards in place. The more than 30,000 dismissals (in 2012 alone) for incomplete or fraudulent documentation is indicative of the banks’ own acknowledgment of their legal shortfalls.
This unfortunate track record is well documented and required the Florida Supreme Court to take unprecedented action. Never before in the history of Florida jurisprudence has the Supreme Court amended a Rule of Civil Procedure, as they did with Rule 1.110(b), in order to try to protect the courts and the public from the financial industry’s rampant use of false documents in courts across this state.
We realize that proponents of the bills are willing to sacrifice due process rights for the sake of expediency. The unfortunate, even awful, irony here is that these bills will not achieve the intended result. A major impetus for the bills is that associations should be able to schedule a “show cause” hearing so they can accelerate foreclosure cases that the banks are slow to prosecute. This would, in theory, get nonpaying homeowners out of these homes, replacing them with homeowners who will pay the associations. The fatal problem with this concept is that associations can schedule “show cause” hearings, but they can’t file the requisite bank documents for the bank to obtain a foreclosure judgment, nor can the associations force the banks to file said documents. Banks won’t prosecute their own foreclosure cases to judgment, and no amount of legislation, certainly not these bills, can force them to do so.
While we all agree that Florida’s courts are struggling to cope with thousands of pending foreclosure cases, this proposed legislation is not the solution. We must not undermine due process and fairness in our legal system in a foolhardy rush to clear the backlog of foreclosures at the expense of the integrity of our judicial system. We deserve better. Florida’s homeowners deserve better. We call on the section leadership to withdraw their support of the bills and stop lobbying for the bills’ passage.
Roy Oppenheim
Mark P. Stopa
Evan M. Rosen
Jacquelyn Trask
Thomas Ice
Matthew D. Weidner
Christopher D. Forrest
Charles R. Gallagher III
Chip Parker
Geoffrey Sherman
Lynn Szymoniak
Margery Golant
Ellen Pilelsky
Marc Marra
Matthew Bavaro
Darin Lentner
Jon Coats
Carmen Dellutri
Jonathan Kline
Stephanie Taylor
Joshua Strudwick
J. Wil Morris
Chae duPont
Dominick Salfi
C. Michael Duncan
Manny Singh
Jaitegh Singh
Sergio Cabanas
To see the BAR’s response to the above ‘misperceptions,’ click here…
Scroll down to RPPTL Section Responds.
Though each foreclosure case may be slightly different, most are pretty black and white. A contract is entered into and the terms are either upheld or they’re not. The lender either abides by contract, real estate, consumer protection, and securities laws, or it does not; and the loan is either paid timely or its not.
Instead of burdening the court system with millions of foreclosure cases, why not create ATMs for justice? They could be called AJMs. Feed all real estate, UCC and consumer protection laws into a computer program (not court decisions–I’m not fond of judges writing laws), making sure that all laws comport themselves with the US Constitution.
Require that those who want to challenge a foreclosure get a forensic audit of their loan and its path, mindful that this would not be necessary if transparency were available, as it was when proper records were recorded in the county where the property is located.
Feed the particulars into the computer program. Let the program decide whether the title is clouded, whether securitization and/or bifurcation have taken place, whether proper and timely assignments have been attested to and recorded, whether the consumer protection and contract laws have been followed, whether the loan has been paid (sometimes many times over), the bank or servicer instituting the foreclosure action has standing to do so. Let the program decide on damages relative to the extent of the bankers’ malfeasance. Currently, the law allows for a “free” home, plus treble damages, plus attorney fees and costs.
Such an impartial computer program would take pressure off those overworked, and dare I say compromised, judges.
It would be technology put to its highest use.This sort of computer application would also work well with discovering fraud in foreclosure actions that have already taken place.
Further, another like application could be written for Title 26, subsection A, income tax, considering that the liability for income tax is rather limited to say the least.
Of course, these computer programs would be moot if money, or actually, federal reserve notes (notes are debt instruments) were simply eradicated, which is probably the best idea of all. Eliminating federal reserve notes entirely would certainly pull the rug out from under those who have been in control.
For more on that, see http://www.gaiamtv.com/video/michael-tellinger-utopia
This is just the start. This bill will not pass this time because its just to out there, but in time it will look normal and ok. They will surely but slowly get everyone use to the ideas these changes. Laws that are made for the sheeple to loose their rights. We already have corrupt judges in our state courts that dont even want to hear defense attorneys for foreclosures. Rather they ignore them and side with the banksters. These judges are criminals who work for the banks and the
elite that own us. Their are still a few who still follow the law. Very Few! This will surely change as time goes by for the worst.
UNITED STATES DISTRICT COURT-MIDDLE DISTRICT-FORT MYERS DIVISION
PATRICK LORNE FARRELL©,Plaintiff, vs.STATE OF FLORIDA REPUBLICANSRICK SCOTT, PAM BONDI;JOHN STUMPF, BRIAN MOYNIHAN,THOMAS MARANO,COUNTRYWIDE HOME LOANS,COUNTRYWIDE FINANCIAL,RICHARD JOHNSON,JOSEPH TOMKINSON,WILLIAM ERBEY, OCWEN LOAN SERVICING,BANK OF AMERICA,IMPAC SECURED ASSETS,IMPAC FUNDING CORP.,GMACM, WELLS FARGO BANK,LEE COUNTY SHERIFF,STATE ATTORNEY and CIRCUITJUDGES OF THE 20TH CIRCUIT,Defendants CASE NO. 2:13-cv-140-FTm-29DNF
COMPLAINT FOR FRAUD,QUI TAM, QUIET TITLE AND SUBSEQUENT DAMAGES
1. SUMMARILY, Plaintiff PATRICK FARRELL a Democrat, states defendant [SOF] STATE OF FLORIDA REPUBLICANS falsely arrested and maliciously prosecuted him [case 94-2430CF] for 3 felonies, to “make money” by a fraudulent PROBABLE CA– USE AFFIDAVIT, made by the Lee Co. Sheriff, who procured an Arrest Warrant, which caused the 20th Circuit STATE ATTORNEY to fabricate a criminal charge, stealing $20,000 from Plaintiff, under color of law.
2. S.O.F. took bribes and statements from ISKCON child molesters, who had IRS 501C3 status.
3. SECONDLY, Plaintiff filed case 07-CA-14942, a case of Mortgage Fraud into the [R] 20th Circuit, against [R] parties of the MBS; IMPAC SECURED ASSETS-2005-2, who also had bogus IRS tax exempt status, only to have the Republican judges refuse to grant Plaintiff relief of any kind, despite Federal Court Orders to do so, and allow WELLS FARGO to file case 07-CA-16767, based upon a false AFFIDAVIT, and sustain said case, based entirely on false pretenses.
4. All [R] lawyers and judges are merely Corporate Franchise Court, Revenue Collection Agents, working for the REPUBLICAN C.E.O.’s JOHN STUMPF-WFB; THOMAS MARANO-GMACM BRIAN MOYNIHAN- B.O.A., who are agencies of the private FEDERAL RESERVE BANK.
5. In both and all cases, [R] lawyers and judges violate the UCC, Constitution and statutes to facilitate the taking of equity, property, credit and money by bias, prejudice and phony AFFIDAVITS.
ALL YOU SHEEP NEED TO RECLAIM YOUR SOVEREIGNTY AND DESTROY THE THIEVES
Oh, and Mr. Belcher and the Florida Bar is looking out for the interests of “the lender.” Now that’s a laugh. How about the Florida Bar sticks to worrying allowing the actual parties to mortgage contracts – once upon a time called MORTGAGORS and MORTGAGEES – get a fair adjudication of their disputes in Court while weighing the rights of actual property OWNERS. I’d bet there are very few foreclosures initiated in Florida by “lenders” whoever Mr. Belcher thinks they are…
Triumphant ,
You know very well that the bar has only the purest intentions and is working for the greater profits of all lawyers … the bill will fail not because it is illegal and immoral but because by giving the banks all the ammunition it will REDUCE the money received by the bars members when people and banks no longer have an incentive to hire lawyers to fight for or against what will become a pre-ordained outcome.
Mr. Belcher sez:
“The section has remained keenly aware that foreclosure reform must fairly balance the competing interests of the property owner, the lender, and the good faith purchaser of foreclosed property. Consistent with that goal, the section has vigorously opposed any amendments to existing Florida law governing real property foreclosures unless they preserve and protect the property and due process rights of those parties in a fundamentally fair way.”
Say what!?! Wellll, if that was actually true, then why are all the bill provisions that are blatently bankster-friendly – i.e., 702.036 (“finality” of foreclosures), 702.10 (“show cause,” requirement for payments to “plaintiff,” etc. b.s.) proposed to apply to all PENDING actions effective IMMEDIATELY, while the pro-homeower provisions, such as the so-called “pleading” requirements of 702.015 (which actually are already law and mandated by Florida Rules, and yet are routinely ignored by the courts) proposed to ONLY apply to actions brought AFTER July 1, 2013?
WAKE UP PEOPLE! Take note that the bankster-owned politicians are selling you out!
People ASK yourself,
“WHERE IS THERE A LAW THAT SAYS YOU CAN’T HAVE YOUR HOME BACK FROM A FRAUDULENT FORECLOSURE that was conspired by these DOUBLE DIPPING 2008 TARP NON-LENDER BANKS that NEVER HAD NO STANDING?”
NOW the PEOPLE should tell them to BAILOUT them selves and NOT TO FALL INTO their DECEPTIONS anyMORE or EVER AGAIN of giving your hard earn tax dollars for their DEBT.
DID YOU KNOW THAT THE BANKS are FORBIDDEN under their CHARTERS and TITLE 12 to loan YOU MONEY?
A loan may be defined as the delivery by one party to, and the receipt by another of a sum of money. See: Kirkland v. Bailes, 155 S.E. 2d 701. (Yet the Federal Reserve Bank of Chicago says in Modern Money Mechanics that banks make loans by promising to lend.) (However a promise to lend cannot be enforced. In order to constitute a loan, money must be loaned, but banks make loans by promising to lend, and promises to lend cannot be enforced.) 5 MRSA.
This is their illusion of the SMOKE SCREEN which is CREATED to make you think that they loaned YOU money but they NEVER DID…
SO why ARE they STEALING our HOMES?
Wait a minute, THEY HAVE NO STANDING, NO JURISDICTION, NO VENUE!
GOOGLE IT and ASK yourself that QUESTION.
What is wrong with this picture, and why are they steam rolling over the PEOPLES HOMES that they DID NOT lend a SINGLE PENNY to?
DID YOU EVER SEE THE MONEY?
The PEOPLE that CREATED the money based upon the 1933 Signature Act and THEY always had the POWER ARE the CREDITOR. GOOGLE IT read it for yourself.
WHO ever IS LETTING the TARP BANKS do this to the PEOPLE, and get away with this ACT is AN ENEMY OF WAR and CREATING WAR UPON THE PEOPLE.
“THIS IS TREASON!”
THE COURTS are Obstructing Justice.
“YOU ARE NOW PUT ON NOTICE” to STOP doing HOSTILE takeover of the PEOPLE’S LAND and RESCIND the peoples homes.
You CAN’T steal a HOME and KEEP it just to blame it on ERROR.
THE PRIME BANK NEVER HAD NO STANDING, AND THEY ALL BROKE THE LAWS by ROBOSIGNING on zombie SUBPRIME BANKS that HAD been out of business for over (5) five YEARS that had CREATED and now had CANCELLED your DEFECTIVE INSTRUMENT ASSETS which are UNENFORCEABLE.
“THE COURTS ONLY DEAL WITH CONTRACTS,” and EVERY HOMEOWNER SUBPRIME so called LENDER that went out business has given them A CANCELLED CONTRACT. “YOU CAN only have ONE LENDER.”
THEREFORE THE COURTS, JUDGES, CANNOT ENFORCE A CANCELLED DEED OF TRUST CONTRACT.
NOW THE COURTS HAVE MADE SERIOUS ERRORS!
TO NOT GIVE BACK the PEOPLES HOME is BREAKING the TEN COMMANDMENT LAW, the HIGHEST LAW upon the LAND.
” THOU SHALL NOT STEAL”
THE PEOPLE WILL WAKE UP and NOT be the Sheepie no more.
GOD DOESN’T LIKE EVIL and SOON YOU WILL FEEL his MIGHTY HAND upon YOU for YOU CAN’T NO LONGER HIDE and your days are numbered.
WAKE UP PEOPLE! First they stole the GOLD, SILVER, now your HOMES next will be YOUR hard earned MONEY.
“GET READY BECA– USE THE HO– USE OF CARDS ARE ABOUT TO CRUMBLE.”
http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/d9c272af13597c7585257b470042644a!OpenDocument
And what is the response to Wm. Fletcher Belcher, Chair
Real Property, Probate and Trust Law Section of The Florida Bar?
What say you our Florida defenders?
Roy Oppenheim
Mark P. Stopa
Evan M. Rosen
Jacquelyn Trask
Thomas Ice
Matthew D. Weidner
Christopher D. Forrest
Charles R. Gallagher III
Chip Parker
Geoffrey Sherman
Lynn Szymoniak
Margery Golant
Ellen Pilelsky
Marc Marra
Matthew Bavaro
Darin Lentner
Jon Coats
Carmen Dellutri
Jonathan Kline
Stephanie Taylor
Joshua Strudwick
J. Wil Morris
Chae duPont
Dominick Salfi
C. Michael Duncan
Manny Singh
Jaitegh Singh
Sergio Cabanas
It’s nice to know there are still some honorable attorneys who are interested in the integrity of their profession; most have gone over to the dark side and are unworthy of our respect.
I agree with you on this…they are making a difference….
I can only hope and pray that somehow the TOO BIG TO FAIL banks are made to pay for the damage they have done to consumers whom have suffered from the fraudulent foreclosures. A BIG thank you to all the honest attorneys listed above whom are trying to make a conscious effort to make right a very big WRONG!