Are Affidavits Valid

Florida foreclosure defense lawyers may have found another area of the law that courts and foreclosure mills have either deliberately overlooked or were themselves not fully aware of.  I think the former not the latter applies.

New Strategy in Foreclosure Battles Attacks Validity of Affidavits By Paola Iuspa-Abbott Daily Business Review

When it comes to fighting foreclosures, homeowners and their lawyers may have found a new strategy to score courtroom victories.

Defense lawyers across Florida are increasingly attacking the validity of affidavits that owners of notes must file with the courts as part of the foreclosure process. Attorneys like Dustin Zacks, of the firm Ice Legal in West Palm Beach, Fla., are successfully arguing that plaintiffs — usually a trust that owns the note or the servicer of the note — are violating court rules by filing affidavits with no records attached to support their foreclosure suits. The records include details of the loan, borrower fees and payment history.

The Florida Rules of Civil Procedure, Rule 1.510, states that “sworn or certified copies” of all records referred to in the affidavit must be attached as evidence in the foreclosure case.

The rule helps ensure that homeowners’s due process rights aren’t violated — namely that the lender has to prove it is entitled to press its claim.

There is so much that violates the statutes and laws in foreclosure filings, this is just  one more.  How the courts will respond will be seen when this part of the defense is used.  It most probably will have to go to the Court of Appeals to be ruled on as our Circuit Courts don’t seem to care about the proper dispensation of the laws.  To them, the “banks are always right”.  Of course, the place you put all your money into wouldn’t lie.  Of course, these banks who have admitted to committing fraud would not violate any laws especially in a court of law.  These banks who robbed the world of its wealth would do nothing dishonest, immoral or unethical.  Nor would the law firms who represent them in these matters.  That’s why several of these “mills” are being investigated by the Attorney General for committing fraudulent acts, creating fraudulent documents and assignments and more.  Oh, how this fraternity of lawyers and judges seems to grow closer all the time.  But watch out judges and “mills” – there is a new fraternity in town.  Lawyers who get it.  Lawyers who pride themselves by standing up to the law and enforcing it.  They know right is right and wroing is wroing no matter how much money you have.

Judges rely on the affidavits as critical evidence when they hand down a summary judgment in favor of the lenders, which paves the way for the sale of a property at a foreclosure auction. Since most foreclosure cases are unopposed, the validity of the affidavits and compliance to the rules have rarely been questioned.

Obviously not since so many Summary Judgments have been issued with Affidavits that by inspection were not valid.  As a matter of fact, as a layperson, I have seen many such Affidavits and none have had the proper documentation attached and some I have seen were signed by people not working for the entity claiming to have first hand knowledge of the mortgage.

Eventually the courts – judges – will HAVE to listen and uphold the law.  Otherwise we have precedence that could destroy our entire legal system. 

A new fighter is coming on the scene soon.  Martin Andelman who writes a colum Mandelman Matters in The Niche Report and also for Lender Implode is preparing to join and lead the fight against illegal foreclosures.  Stay tuned.  We will let you know when he begins and give you the link.
read the full story in Law.com…click here

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