Florida Court of Appeals Reverses Foreclosure Based on Standing

This issue has been at the very heart of all the foreclosures happening around the country.  The issue of Standing or having the right to bring the action of foreclosure.  Only a handful of judges around the country have ruled against the banks as they claim to “own the note” but most often have lost it, destroyed it or it was stolen.  A sham we all can see but most judges do not want to admit.

I have long said that even possession of the note does not prove ownership.  This is where I have always had a problem with the “Produce the Note” defense.  In simple to understand terms, if you give me the title to your car to hold it does not mean I own your car and can sell it.  I am simply holding your title.  to own your car you must sign the title over to me and I must have the title with your signature evidencing the transfer.

So too with a mortgage note.  The note has to be sold or assigned (transferred) by a document that has a signature and gives the terms of the sale or assignment.  You can’t simply “hand” the note over to someone and give them full ownership rights – including the right to foreclose – which in some cases is what is happening.

In other cases – probably the majority – the holder just tells the court, “your Honor, believe me, I am a bank and I did have the note and I did own it”.   Because I am a bank, you should believe me and let me take this house away from these people”.  “I don’t have to prove how I got ownership because I AM A BANK”.

Judge Shack in N.Y. didn’t buy that story nor did Judge Boyko, a Federal Judge in Ohio when he dismissed 17 foreclosure cases in one day.  But unfortunately, most judges – especially here in Florida – just don’t care to uphold the law that very specifically says you must prove ownership.

I know of one judge who only cares to see what may appear to be an original mortgage note and he rules in favor of the plaintiff (the bank) even if that note is a forgery, has no assignment, no bill of sale or no paper trail whatsoever.   This is not justice and makes a mockery of the judicial system.  It actuallly does more then that, it takes away our Constitutional right to defend an action in a court of law.

Plain and simple I have always maintained and will continue to do so, that most foreclosures are ILLEGAL and that judges are guilty of not performing their sworn duties.

BUT, THINGS MAY BE CHANGING AND A NEW PRECEDENT SET.

One of our readers, L. Fitzgerald, a successful Pro Se Litigant in his foreclosure action and who I have featured here in the past,  brings Attorney Weidner’s information to us.

I wish to openly also thank Mr. Weidner for publishing his blog and standing up for what is right.  I have always said, “The law is the law for everyone” and this is one attorney who seems willing to stand up for our legal and Constitutional rights.

Editor’s Note: I do not know Mr. Weidner nor am I endorsing his services.  He is however, in my opinion,  a good source of information for those willing to fight their foreclosure.  I do, however, look forward to meeting him someday.

IT IS AN IMPORTANT PIECE OF INFORMATION THAT HE GOT FROM AN ATTORNEY’S BLOG.  You can do directly to the blog by clicking on this link:

MATT WEIDNER BLOG
I would bookmark this one!

BAC FUNDING- The End of Summary Judgment For Foreclosures In Florida?  by Matt Weidner, Esq.

Now to Mr. Fitzgeralds comment as published in TFD:

Comment Reprint:
BAC FUNDING- The End of Summary Judgment For  Foreclosures In Florida?

February 15th, 2010 ·

Every so often, the appellate courts issue opinions that dramatically change the legal landscape.  BAC Funding v. US Bank is just such an opinion, because no longer will banks and lenders get a free shot at foreclosure on concocted evidence and mere possession, even of original documents.  The full text of the opinion can be found here, but it should be brought to the attention of every judge in every foreclosure case across the state.

The opinion is full of great direction, but the bottom line is the appeals court has made it clear that it is no longer permissible for Plaintiffs attorneys to come marching into court with documents alone….even if they are original documents.  Throughout the foreclosure crisis, Plaintiffs attorneys have been permitted to ignore the basic rules of evidence and just enter in documents without any explanation of how they came into possession….this will now change and Plaintiffs will be required to have both the original documents and some evidence to support how they came into possession of the  documents–something they will have a difficult time doing in many cases.

Here is language taken directly from the opinion:

■U.S. Bank filed a written response to BAC’s motion to dismiss.  Attached as Exhibit A to this response was an “Assignment of Mortgage.”  However, the space for the name of the assignee on this “assignment” was blank, and the “assignment” was neither signed nor notarized.  Further, U.S. Bank did not attach or file any document that would authenticate this “assignment” or otherwise render it admissible into evidence. (That last sentence is key because it now requires Plaintiffs to “authenticate” their filings.)

■Despite the lack of any admissible evidence that U.S. Bank validly held the note and mortgage, the trial court granted summary judgment of foreclosure in favor of U.S. Bank.  (Although the bank had introduced an assignment, the court is saying that assignment should not have been the basis to grant summary judgment because it was not properly admitted into evidence.)

■When a plaintiff moves for summary judgment before the defendant has filed an answer, “the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.”  Settecasi v. Bd. of Pub. Instruction of Pinellas County 156 So. 2d 652, 654 (Fla. 2d DCA 1963); see also W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So. 2d 979, 980 (Fla. 2d DCA 1988) As these cases show, a plaintiff moving for summary judgment before an answer is filed must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.
■Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage.  Accordingly, the documents before the trial court at the summary judgment hearing did not establish U.S. Bank’s standing to foreclose the note and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor. (This language is key because it directs the courts to demand an evidentiary basis for documents, not just the documents themselves.)

■Regardless of whether BAC answered the complaint, U.S. Bank was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor.  Whether U.S. Bank did so through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer, it was nevertheless required to prove that it validly held the note and mortgage it sought to foreclose.  See Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1st DCA 1998) (The key word here is “validly”.  The Plaintiff cannot just show up in court with the documents, it must validate them and authenticate the documents for the court to consider.)

■The incomplete, unsigned, and unauthenticated assignment attached as an exhibit to U.S. Bank’s response to BAC’s motion to dismiss did not constitute admissible evidence establishing U.S. Bank’s standing to foreclose the note and mortgage, and U.S. Bank submitted no other evidence to establish that it was the proper holder of the note and/or mortgage. (The Plaintiff must introduce authenticated, properly introduced evidence to proceed.)

The Court Recognizes That Insuring Proper Title To Property Will Be a Real Challenge in Years to Come….

Given the vastly increased number of foreclosure filings in Florida’s courts over the past two years, which volume has taxed both litigants and the judicial system and increased the risk of paperwork errors, it is especially important that trial courts abide by the proper standards and apply the proper burdens of proof when considering a summary judgment motion in a foreclosure proceeding. Accordingly, because U.S. Bank failed to establish its status as legal owner and holder of the note and mortgage, the trial court acted prematurely in entering final summary judgment of foreclosure in favor of U.S. Bank.  We therefore reverse the final summary judgment of foreclosure and remand for further proceedings.

And so, in this brand new, and as yet, unpublished opinion, the legal landscape for foreclosures changes forever!

A very important Appeal decision ..opinion of this decision posted from the Matt Weidner Esq.Blog .

Its a wonderful new world !!

Editor’s final note: It will be a wonderful new world when judges nationwide begin putting the “justice” back into the justice system and when we stop the banksters from continuing on their crime spree that caused this entire economic crisis in the first place.  They are stealing our homes (more on that topic in a future post) and continuing the transfer of wealth on the greatest scale ever before seen in this country.

I don’t often promote my other blogsites but for more on the economy, banks and greed and our current administration, please visit my other sites:

TheMortgageCornerFORUM

GoldmanSachs666.com

Barack Obama666.com

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Comments

  • mattweidnerlaw  On February 17, 2010 at 7:50 AM

    Blogs are so important. No longer is law (good law and bad law) being practiced in a vacum….it’s all out there for everyone to see.
    Posting and sharing and raising hell…a requirement for all patriots!

  • Robert Gordano  On December 2, 2010 at 8:09 PM

    We are defendants in a Ny foreclosure. Our answer contains afirmative defenses based,among other things, on the fact that plaintifss assignment of the note was dated and filed after the date of our answer, and on the original lending banks fraudulent concealment of the fact that the mortgage payments reulted in negative amortization.

    Do you have any case law supporting these defenses?

    Bob Giordano

  • James Murphy  On October 10, 2013 at 11:31 AM

    Do you have the address to get the pooling and servicing agreement from Freddie Mac?

    • Larry Rubinoff  On March 6, 2014 at 3:06 PM

      No, I don’t. Often you can “google” the name of the trust and you can pull it up that way.

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