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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HungarianProse
I think this case is very important read ( for Floridians) because it clearly spells out that in Florida possession of the Note is sufficient to foreclose even without a valid assignment of the mortgage. Therefore we need to focus on the Note, endorsements, when the endorsement accrued etc....

From the Ruling:
" These recent Florida appellate court cases all support Nietzsche Bank’s position that proof of ownership of the debt underlying a mortgage is sufficient under Florida law to equitably convey the mortgage to the debt holder. Moreover, these cases suggest a note specifically endorsed to a foreclosure plaintiff is sufficient proof of purchase of the debt underlying a mortgage to equitably convey such mortgage. Indeed,
Riggs indicates the holder of a note endorsed in blank may hold an equitable interest in the mortgage securing the note"
 
More from the ruling:
" The Court largely agrees with Nietzsche Bank’s legal argument. Under applicable Florida law,15 a mortgage, even without a written assignment, may travel equitably to the holder of the underlying debt, i.e., to the entity holding the original, properly executed and endorsed promissory note. Thus, if Nietzsche Bank establishes it is the holder of a validly endorsed note, it, in turn, will establish its equitable ownership of the mortgage securing the note. This general rule of Florida law (the "General Rule") was stated best in 1938 by the Florida Supreme Court in the seminal case Johns v. Gillian, as follows:"

This part is most important to us:
"

"  Deutsche Bank, however, still has not proven to either the trustee or the Court that it holds a validly endorsed promissory note evidencing its purchase of the debt on the disputed property. Therefore, Deutsche Bank cannot rely on the General Rule to avoid responding to the trustee’s discovery requests pertaining to the authenticity of the note. The trustee has raised in her complaint doubts concerning the authenticity and effectiveness of the endorsements on the allonge to the note. The copies of the note and mortgage attached as an exhibit to its response therefore are insufficient to establish Deutsche Bank’s status as holder of the note. "

 


 
 
 
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John Lewis

please provide the case no for the above citations. thanks

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HungarianProse
John Lewis wrote:

please provide the case no for the above citations. thanks


http://mattweidnerlaw.com/blog/2011/06/balderrama-a-huge-bankruptcy-case-from-middle-district-of-florida/

UNITED STATES BANKRUPTCY COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

Case No. 6:10-bk-07828-KSJ

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John Lewis
Much has taken place since the June 2011 date.  To update, this case was schedule for Hearing on 1/26/12 but has been reset for a hearing date of 03/22/12 at 11am.

If your interested in this case and want to review/download all pleadings I would suggest  setting up an account with Pacer, http://www.pacer.gov, the cost in minimal 8 cents a page and no charge if document exceeds 30 pages.

If you decide to do this I would suggest printing out the complete Docket Entry and then use this as your reference point.
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f
Decisions of a U.S. Bankruptcy Court are not binding authority on state courts as to the law of that state.  In fact, the corollary is true.  The U.S. Bankruptcy Courts will follow and enforce state appellate court decisions as to a state's commercial laws (UCC) and mortgage laws.

Decisions of one U.S. Bankruptcy Court are also not binding on another bankruptcy court, but may be influential.  By contrast, a decision of a U.S. Bankruptcy Appellate Panel or a U.S. District Court (on appeal) may have some binding authority.

This is not to dismiss the decision in Balderamma or to deny its holdings or significance.  Rather this is merely a cautionary word that citing U.S. Bankruptcy cases is less likely to be given weight or authority in Florida state courts than citing the state appellate decisions mentioned in the U.S. Bankruptcy case.

If you are litigating in U.S. Bankruptcy Court, this would be a useful case to use as authority.

Whether or not authoritative, this decisions is exactly consistent with what Mr. Roper has been telling us all along.  Forum participant Bill also often refocuses our attention on the note rather than the mortgage.   It is all about indorsement and delivery, but each needs to be proven by the plaintiff! 
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John Lewis
This should be every homeowner fighting a foreclosures Mantra:

f+++++++++++++++++++
"It is all about indorsement and delivery, but each needs to be proven by the plaintiff! "

I would also suggest the you all read the recent post by HungarianProse:

Robert McLean v JP Morgan



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John Lewis
Sorry I meant to include this part of the decision:

"On remand, in order for Chase to be entitled to summary judgment, it must show, without genuine issue of material fact, that it was the holder of the note on the date the complaint was filed (i.e., that the note was endorsed to Chase on or before the date the lawsuit was filed). By contrast, if the evidence shows that the note was endorsed to Chase after the lawsuit was filed, then Chase had no standing at the time the complaint was filed, in which case the trial court should dismiss the instant lawsuit and Chase must file a new complaint. See Jeff-Ray Corp., 566 So. 2d at 886. An evidentiary hearing may also be required if there is disputed evidence on an issue, such as to the date the note was endorsed to Chase."
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Bill
John Lewis wrote:
Sorry I meant to include this part of the decision:

"On remand, in order for Chase to be entitled to summary judgment, it must show, without genuine issue of material fact, that it was the holder of the note on the date the complaint was filed (i.e., that the note was endorsed to Chase on or before the date the lawsuit was filed). By contrast, if the evidence shows that the note was endorsed to Chase after the lawsuit was filed, then Chase had no standing at the time the complaint was filed, in which case the trial court should dismiss the instant lawsuit and Chase must file a new complaint. See Jeff-Ray Corp., 566 So. 2d at 886. An evidentiary hearing may also be required if there is disputed evidence on an issue, such as to the date the note was endorsed to Chase."

This is pretty main stream.  The UCC requires endorsement and delivery.  Because endorsements are NOT dated, if you can find any way to question "when" the bank became the holder (ie. post commencement assignment, unendorsed note attached to the complaint, ect...) you can really muddy things up.  


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John Lewis
Bill, if you can "find any way to question "when" the bank became the holder..........you can really muddy things up." 

Bill [& others Mr. Roper, t, ka, f, Texas, Angelo] ? Based on your extensive knowledge base what avenues do you suggest to "really muddy things up."
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John Lewis

Plez excuse me as i forgot to mention one other contributor to this forum that i respect their input - sorry - George Burns -- /jl

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Bill
John Lewis wrote:
Bill, if you can "find any way to question "when" the bank became the holder..........you can really muddy things up." 

Bill [& others Mr. Roper, t, ka, f, Texas, Angelo] ? Based on your extensive knowledge base what avenues do you suggest to "really muddy things up."

My thoughts are this:  

WHEN the plaintiff became the holder of the note by delivery is a question of FACT.  If you can make an argument based on admissible SJ evidence (see other threads and the rules) which should be decided in favor of the non-movement, this argument, if properly supported should prevent the entry of SJ.  

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 In order to determine the propriety of a summary judgment, this court must resolve whether there is any "genuine issue as to any material 492*492 fact" and whether "the moving party is entitled to a judgment as a matter of law." Fla.R.Civ.P. 1.510(c). Generally, "[t]he party moving for summary judgment has the burden to prove conclusively the nonexistence of any genuine issue of material fact." City of Cocoa v. Leffler, 762 So.2d 1052, 1055 (Fla. 5th DCA 2000) (citing Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)). We must consider the evidence contained in the record, including any supporting affidavits, in the light most favorable to the non-moving party, the Appellants, and if the slightest doubt exists, the summary judgment must be reversedSee Sierra. We will apply this standard of review to each issue, beginning with the issue relating to sovereign immunity.

IF the Plaintiff has NOT SHOWN with evidence admissible in SJ that they are the holder of the note at commencement should also prevent SJ because the Plaintiff is NOT entitled to judgment as a matter of law.  

The PROOF problems of the Plaintiff spawns MANY different arguments.  You need to read the cases and find the arguments that are supported the best.

 I'm sure that others can put it more eloquently.
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Bill
I would also add:

While I would make the arguments that they are NOT entitled to judgment as a matter of law, this will NOT prevent SJ.  The judge can decide if they are entitled to judgment as a matter of law.  The judge cannot weigh the evidence in SJ, any doubts must be decided in your favor. 

You need to CLEARLY, WITH OUT A DOUBT, put questions of fact squarely before the court, along with questions of law.  
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John Lewis

Bill --- perrrrrrrrrfect - ur input helps confirm that which I perceive to be the correct approach too ~  a BIG thanks!

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f

Quote:
Bill --- perrrrrrrrrfect - ur input helps confirm that which I perceive to
be the correct approach too ~  a BIG thanks!

 

John, I think Bill has stated this well.  You do not need to WIN the various evidentiary arguments by a preponderance of evidence, overwhelming evidence or beyond the shadow of a doubt.

 

ALL you have to do is persuade the court that there exist genuine issues of material fact as to essential elements of the plaintiff's cause of action.

 

Now where there exists some real possibility of actually having the unrefuted prevailing argument, you might also benefit from filing a cross-motion for defensive summary judgment and scheduling it for hearing at the same time as the plaintiff's motion.

 

You could then not only persuade the court to deny the plaintiff's motion but could also actually prevail by getting your own defensive motion for summary judgment granted. 

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John Lewis
Bill, how did you find the case:

Theresa KROL, et al., Appellants,
v.
CITY OF ORLANDO, Appellee.

No. 5D00-209.

District Court of Appeal of Florida, Fifth District.

February 23, 2001.

http://scholar.google.com/scholar_case?case=14867213963781644142&q=KROL+v.+CITY+OF+ORLANDO&hl=en&as_sdt=2,10
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John Lewis
f
you might also benefit from filing a cross-motion for defensive summary judgment and scheduling it for hearing at the same time as the plaintiff's motion."

you have been a strong proponent of the use of the 'defensive summary judgment' and I understand the benefit -- going to add it to the JL Play Book - just need to get up to speed on the structure/presentation.

thanks
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Bill
John Lewis wrote:
Bill, how did you find the case:

Theresa KROL, et al., Appellants,
v.
CITY OF ORLANDO, Appellee.

No. 5D00-209.

District Court of Appeal of Florida, Fifth District.

February 23, 2001.

http://scholar.google.com/scholar_case?case=14867213963781644142&q=KROL+v.+CITY+OF+ORLANDO&hl=en&as_sdt=2,10

This case is NOT related to foreclosure.  I KNEW what the SJ standard was so I just did a quick search in google scholar to lift the proper language for FL where it appears you are located from prior posts.

GOOGLE SCHOLAR IS YOUR FRIEND!!!!!!!!!!!!!!!!!!
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Bill
It is becoming increasingly more difficult for me to search and find the old threads I want, but if you search you should be able to find a thread from Mr. Roper that explains many different ways to look up cases for FREE or at little cost on line.  

This is NOT a substitute for going to a law library, but you can find quite a bit of cases you will need on line.
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Bill
A good place to start is:

Go to google

Go to the "more" link

Click on "Scholar"

Next to the search button click on "advanced search"

Go to the bottom of the page and select the state you are in from the drop down box.

Go back to the top and you will be able to search for any terms you like and it will pull up all the cases with those words.

Try searching for                           foreclosure no standing

It will pull a bunch of foreclosure cases with those words in the decision.


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John Lewis
thanks Bill ~ took your advice did a search and found this:

William A. Roper, Jr. wrote:
Quote:
culpa lata said:
So, in order to "lookup case laws" I will go to the local law library, and ask
about the "transcript of the rulings" (*I don't know what I'm talking about*) of
foreclosure cases, or ask the clerk that I want to see samples of how to object
in a possible trial...something like that right?


Going to a good law library is a TERRIFIC IDEA. But there is a LOT that can be learned from online sources.

There are two prior threads that offer some specific research suggestions.

"Some Online Legal Resources for Those on a Tight Budget (or Not)" [08/01/07 at 06:43 PM]

http://ssgoldstar.websitetoolbox.com/post?id=2060046

"Online Sources of Law" [11/17/10 at 01:36 AM]

http://ssgoldstar.websitetoolbox.com/post?id=4974639


Frankly, I FORGOT that I had posted the first thread and started a new thread on roughly the same topic.

*

Other excellent research suggestions can be found throughout other threads.

*

Finding and reading a good book on legal research or legal writing would also be a good idea. But you will need to balance various approachs depending upon time, resources and ability. IF YOU HAVE AN URGENT ISSUE, IT IS ALWAYS A GOOD IDEA TO CONSULT A QUALIFIED ATTORNEY. This is a good idea even if you do NOT think that the matter is urgent.

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John Lewis
"It is becoming increasingly more difficult for me to search and find the old threads I want.."
 
I have indexed and sorted allot of the 'old threads' by topic.  If at any time you want just give me the topic ie 'standing'; sj etc  and I'll be more than happy to check for you ~ no problem.  (its in excel so its real easy and a time saver)
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