Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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William A. Roper, Jr.
Woody Allen has suggested that 80% of success is just showing up.  The reciprocal to that is that one LOSES about 99% of the time when one FAILS TO SHOW UP.  This is a key reason that it is imperative to ANSWER any foreclosure suit in which the defendant is properly named and served.

The purported mortgage investors acting as plaintiffs routinely WIN cases when borrowers fail to answer and default.

But an interesting thing has been taking place in an increasing percentage of appellate cases over the last year.  The mortgage investors have been defaulting in a seemingly growing number of instances by either failing to file an appellee's brief or otherwise confessing error in the appellate courts.

The decision in Augenstein v. Deutsche Bank was one such case in Kentucky.  There the Kentucky Court of Appeals not only overturned the summary judgment, but also dismissed the case.

The Court of Appeals for the Fifth District in Florida overturned two foreclosure judgments this week by confession of error:
Gillen v. Federal National, No. 5D09-4194 (May 27, 2011)
http://www.5dca.org/Opinions/Opin2011/052311/5D09-4194.op.pdf

Blumenfeld v. Fifth Third, No. 5D10-3638 (May 27, 2011)
http://www.5dca.org/Opinions/Opin2011/052311/5D10-3638.op.pdf
There is not any useful case law to cite from these decisions, though the Appellant's Brief in each case might be worth a look.  But the decisions are reflective of the increasing tendency for the foreclosure mills to abandon appeals.

I am going to begin to collect in this thread the cases where a foreclosure judgment is set aside by confession of error or where the appellee fails to file an appellate brief.

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William A. Roper, Jr.
Here are two earlier examples of foreclosures overturned by confession of error in Florida:
Frost v. LaSalle Bank, No. 4D09-2668, 46 So. 3d 173, 2010 Fla. App. LEXIS 16269, 35 Fla. L. Weekly D 2370 (Fl. App. 4th Dist. 2010)
http://www.4dca.org/opinions/Oct%202010/10-27-10/4D09-2668.op.pdf

Mera v. EMC Mortg. Corp., Case No. 2D09-1826, 21 So. 3d 921; 2009 Fla. App. LEXIS 18391; 34 Fla. L. Weekly D 2494 (Fl. App. 2nd Dist. 2009)
http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2009/December/December%2002,%202009/2D09-1826.pdf

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William A. Roper, Jr.
And a few more cases involving a failure to file a brief and/or a confession of error:
Alejandre v. Deutsche Bank Trust Co. Ams., No. 4D09-2280, 44 So. 3d 1288, 2010 Fla. App. LEXIS 15544, 35 Fla. L. Weekly D 2254 (Fl. App. 4th Dist. 2010)
http://www.4dca.org/opinions/Oct%202010/10-13-10/4D09-2280.op.pdf

Benoit v. Bank of New York, No. 4D09-898, 18 So.3d 731 (Fl. App. 4th Dist. 2009)
http://scholar.google.com/scholar_case?case=3924095567885385496

Challenger Investment Group, LC v. Ebony & Ivory, LLC, No. 3D07-1113, 958 So.2d 1011 (Fl. App. 3rd Dist. 2007)
http://scholar.google.com/scholar_case?case=2714368737097287550
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I have posted this before on the hamlet and posting it here again because I feel the practice of Plaintiff's confessing error is just a way to avoid appellate decisions favorable to home owners.

It is a small victory in each case in question , but NOT in the overall foreclosure war. The enemy has run away to fight again another day.

By admitting the lower court made an error, the Appellee/Plaintiff (foreclosure mill) is attempting to avoid, at all cost, filing an Answer Brief and having the Appellate court issue a RULING that would be published, favorable to the home owner and

The Appellee/Plaintiff is attempting, at all cost, to prevent the DCA from entering a written opinion which delves into the very pertinent issues before the court.

This is an issue that affects most of us. The current illegal tactics employed every five minutes in the rocket docket courts: The Plaintiff pleading standing by way of an assignment of mortgage, often with a lost note count - Then moving for a summary judgement on the record - and then during the summary judgement hearing magically producing the note with a sparkling fresh "endorsement" - while simultaneously switching, on the fly from the plead standing (by assignment) - to a new standing by way of an endorsed negotiable instrument, never been seen in the case before that instant.

This is, as the Appellant/Defendant's Initial Brief points out in one of these cases, completly against the rules.
Notice of all EVIDENCE in support of the pleadings must be filed in the record 20 days before the hearing, as required under Fl.R.Civ.Pro.1.510(c).  The endorsed version of the note should have been filed 20 days before hearing, along with a notice of finding he original note and dropping the lost note count if plead, and probably a motion to amend pleadings to incorporate the endorsed version of the note or a motion for substitution of the same. This is how it should be done.

Magic tricks that involve popping live rabbits or new notes out of top hats belong in the circus, not he court room.

This is so so so wrong, so so so unfair, so so so against the rules that the Appellate court, if forced to decide between the parties would probably have issued a very strongly worded opinion, carefully thought out and supported, spanking the Appellee/Plaintiff (foreclosure mill).

The foreclosure mill is making a tactical retreat to prevent a strong written opinion on this issue. They don't mind being send back to lower court for trial, or even losing this action entirely and having to pay the defendant's attorney fees.

Why? Because even if the case against Plaintiff A is dismissed, with prejudice, they can re-execute a "good" assignment to Plaintiff B and re-file.

Their entire loss, in the worst case is the other sides attorney fees and cost to re-file, plus time. Their best is to be remanded back to the lower court for prep and trial.

By confession of error it allows the Appellate court be lazy, which on the whole they are. If an appellate court can find a way not to create new law, not to rule on the issues it will. This confession of error allows the Appellate Court to enter a ruling simply stating that Appellee admits error, therefore vacating the summary judgement and returning the case to the lower court for further proceedings.

The court gets to avoid ruling on the issues and the Appellee/Plaintiff gets to doge the bullet. The Appellate court gets to be lazy, and the rest of us are left without a written opinion on these fundamental materiel issues that is so inportant to the rest of us.

What Appellee is trying to avoid, AT ALL COSTS, is to have the Appellate Court delve into their is tactics, spank them and outlaw such practices in strong language.

An admission of error at a summary judgement hearing is not a win for the Defendant, because the SJ is vacated and the parties are now back in Circuit Court again.  They attempted an illegal move, got caught, admitted error, and in most cases are not ejected from the game, but are back in Circuit Court exactly at the point they left off. 
This is NOT a victory for the rest of us, or even the foreclosure lawyer in the lower court for the following reasons:

(a) The ruling may be very simple: Appellee confesses error, summery judgement voided, remanded to lower court for further proceeding. (Probably in about as many words.)

(b) The lower court lawyer does not get a dispositive ruling which means he has exhausted time and effort on an appeal only to be back in lower court arguing the same case. Against a confused theory about how Plaintiff gained standing, and having to re-argue if the standing the Plaintiff is proceeding on has to be plead or can be switched mid stream without amending the pleadings.

(c) Probably left without a strong ruling if plaintiffs falure to prove standing when commencing the action is cured by the magic trick note from the hat act, and if that means plaintiffs pleadings have to be re plead.

(d) If the written opinion does not delve into the issues of law he argued, he cannot use the opinion in his other foreclosure cases. (And neither can we.)

This is what is really going on. The Confession of Error is an attempt to prevent the Appellate court from going to the trouble of issuing a written opinion that would gladden the harts of pro se and foreclosure attorneys throughout the state.

This is a deliberate tactic to AVOID decisions that are favorable to the Foreclosure Defendants.  We are being deprived of the case law we need. 

Sorry, bit rambling, but you get the gist.
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JamesM,

Even though an omission of Errors is filed, why doesn't the homeowner file for quiet title.  Or, is it too late at this point to file quiet title?  Isn't there other means of restituting their properties? 
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William A. Roper, Jr.
The decisions of Florida Court of Appeals for the 5th District reversing and remanding on confession of error on May 27, 2011 are now up on Lexis and LexisOne:
Gillen v. Fannie Mae, No. 5D09-4194, 2011 Fla. App. LEXIS 7738 (Fl. App. 5th Dist. 2011)

Blumenfeld v. Fifth Third Mortg. Co., No. 5D10-3638, 2011 Fla. App. LEXIS 7747 (Fl. App. 5th Dist. 2011)


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f

There is another case out of the Florida Fifth District in which the appellee confessed that the trial court's rendition of judgment was in error:

 

Baniel v. Fifth Third, No. 5D10-4318 (Fla. App. 5th Dist. 2012)  
http://www.5dca.org/Opinions/Opin2012/012312/5D10-4318.op.pdf

 

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Billa
f wrote:

There is another case out of the Florida Fifth District in which the appellee confessed that the trial court's rendition of judgment was in error:

 

Baniel v. Fifth Third, No. 5D10-4318 (Fla. App. 5th Dist. 2012)  
http://www.5dca.org/Opinions/Opin2012/012312/5D10-4318.op.pdf

 


This does NOT seem to be in the best interest of the homeowners.  If you know you are going to be reversed on appeal, it would seem that a confession of error would expedite the appellate process and get you back in court SOONER to fix your case and finish the foreclosure instead of the case languishing for months waiting for a decision, then having to fix your case.  Homeowners need to keep in mind that they usually are NOT going to prevail upon the merits of the case.  Error is usually a procedure or evidence issue.  These can be fixed.  
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f
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This does NOT seem to be in the best interest of the homeowners.  If you know you are going to be reversed on appeal, it would seem that a confession of error would expedite the appellate process and get you back in court SOONER to fix your case and finish the foreclosure instead of the case languishing for months waiting for a decision, then having to fix your case.  Homeowners need to keep in mind that they usually are NOT going to prevail upon the merits of the case.  Error is usually a procedure or evidence issue.   These can be fixed. 
 
I think that Bill makes a terrific point!  It really probably isn't in the borrower's interest that the appellee confesses error.
 
It certainly speeds the resolution of the appeal and gets the case back to the trial court more quickly in the case of a remand and gets cases refiled faster when dismissed for lack of standing.
 
I think Mr. Roper's point that started this thread is that unless a borrower actually defends in the trial court or files an appeal, the borrower cannot win.  I think these cases illustrate that there are a number of cases where a biased, incompetent or corrupt trial court judge enters a judgment which just will not hold up on appeal.

It is my impression that confession of error is somewhat unusual in appeals generally.  That this is happening more often in foreclosure actions reflects the degree to which trial courts are making egregious mistakes.
 
So I am not seeking to identify these cases as such great borrower victories as to show that there is hope for borrowers who present strong defenses and arguments in the trial court.  Judgments are being reversed and in some instances, the plaintiff doesn't even bother to defend.
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Horace
When I saw the Third District Court of Appeals decision in Daniels v. JP Morgan Chase Bank, N.A., I was reminded of this ancient thread by Mr. Roper:


[i]Daniels v. JP Morgan Chase Bank, N.A., No. 3D11-1237[/b]
http://www.3dca.flcourts.org/Opinions/3D11-1237.rh.pdf

These scam artists keep promoting idiotic arguments, but a borrower who uses the basic arguments proposed by Mr. Roper several years ago can prevail!

Congratulations to Mr. Daniels!
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$&?!
Another case proving Mr. Roper's point:


Burrows v. OneWest Bank, FSB, No. 3D12-352 (Fla. 3rd DCA, Jan. 2, 2013)


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Tim
Here is another case that proves again that Mr. Roper is consistently right:

Coia v. Bank of NY Mellon

If there is a problem with service of process, there are avenues to contest process.  These vary by state.  In some places, contesting service involves filing a motion to dismiss.  In other places, one files a motion to quash service.  Read the Rules!
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Pam
Here is another case where the borrower won on appeal just by appealing:
Steinberg v. BAC Home Loan Servicing, L.P., No. 2D12-3991 (Fla. 2nd DCA June 12, 2013)


Mr. Roper seems to have been correct in predicting this development.
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Pam
Also, the bank confessed error in this case last week:


Hassett v. Wells Fargo Bank, N.A., No. 3D12-1964 (Fla. 3rd DCA June 12, 2013)
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