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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John Lewis

My question is:

 

 ” Since these ex parte motion are entered .. “without notice and without hearing.”  What legal strategy is available for the pro se litigant [homeowner]?”

 

Example:

 

From an article written by Florida Attorney Mark Sopa: “Ex Parte Motions to Substitute Party Plaintiff” re: Florida’s Third District Court of Appeal in the case:

 

No. 3D10-1852

Lower Tribunal No. 05-426

________________

The Bank of New York Trust Company, N.A., as successor to

JPMorgan Chase Bank, N.A., as trustee,

Appellant,

vs.

George H. Rodgers and Caroline J. Rodgers,

Appellees.

 

Quote in part:

Oddly, the majority began its analysis of whether the plaintiff proved its case at trial by discussing an interlocutory Order which permitted the plaintiff to substitute as the plaintiff in the lawsuit. That Order provided:

The Bank of New York Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., as trustee, is the real party in interest and proper Plaintiff in this action, and;

The Bank of New York Trust Company, N.A., as successor to JPMorgan Chase Bank, N.A., as trustee, is hereby substituted for JPMorgan Chase Bank, formerly known as Chase Manhattan, as trustee, residential funding corporation, as attorney in fact, as the proper Plaintiff in this action and the style is amended as reflected on this Order.

In the view of the majority, “because there was no denial or defense raised in defendants’ pleadings concerning this finding, the judgment under review cannot be permitted to stand for that reason alone.”

Con’t

In Florida…”Orders substituting a party plaintiff are routinely entered by Florida judges ex parte, without notice and without hearing.”

 

Since these ex parte motion are entered .. “without notice and without hearing.”  What legal strategy is available for the pro se litigant [homeowner]?

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George Burns
I do not think that there is much that a pro se litigant can do when you consider that, in this instant case, a team of lawyers could not get it corrected.

Usually the correction is done by the Appeals Court, but this time the Appeals Court failed to uphold the law and precedent. I guess we probably will have to wait until some case gets it adderssed by the Supreme Court. But even then it would be state by state.

In the mean time all litigants will have to be very diligent and make sure that they file objects on the record in order to preserve the issue for Appeal. This will probably escape the majority or pro se litigants since most can hardly do much more than to find the courthouse.
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ka

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Since these ex parte motion are entered .. “without notice and without hearing.” What legal strategy is available for the pro se litigant [homeowner]? 

 

John,

 

I am surely "shooting from the hip" in answering and cannot speak to Florida Rules, but generally a motion to substitute and an order on that motion would be an interlocutory order.  That is, the order is not final nor appealable.  But the order is also subject to being set aside by the trial court upon motion and hearing.

 

Most pro se litigants fail to appreciate that most intermediate orders entered by a court throughout a case, particularly scheduling orders and orders relating to discovery, disputes have this interlocutory character.

 

This also means that many matters decided by interlocutory order can and should be re-urged at trial and could even be raised a second time by motion (subject to the possible wrath and hostility of the judge, who doesn't want to spend time to revisit matters already argued and decided).

 

I would think that in most places, what would be required would be for a defendant to raise the issue of this substitution by such motion and to set the motion for hearing so that it might be determined.  The trial court can always simply deny a defendant's motion by order. 

 

But this would still tend to preserve the issue for appeal.

 

This is the kind of nuance that a sharp attorney with litigation experience knows and understands, but which a pro se defendant totally fails to appreciate.  A mediocre lawyer with little litigation experience also overlooks this avenue.

 

The precise procedure and the form of such a motion will probably vary from place to place.  But the precise form and even the persuasiveness of the argument may matter less than the fact that the argument is properly and timely presented to the trial court.

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George Burns
After I posted, a thought ocurred to me. Maybe judges would get the message if the public treated them with disdain in social settings. When you meet or are introduced to a judge or his staff members give no deference, treat them with cynicism, scorn, irritation etc.

Also, whenever there is a election for a judge, vote out the incumbent. If solicted for a vote, emphatically say NO. If you ever get a hance to speak with any politician, legislator or otherwise, make a point of asking if they were as yet affected by the movement to vote against politicians who support incumbent judges.

I bet that after a few years we will notice much better behaviour by judges. Currently they answer to no one, have no accountibility and suffer no consequences for their actions, but instead, are treated as if special.
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ka

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Usually the correction is done by the Appeals Court, but this time the Appeals Court failed to uphold the law and precedent.

 

George,

 

As discussed above, I do not believe that it was error for the appellate court to find for the appellee on the substitution issue, if the matter wasn't preserved for review below.

 

I think that it clearly was error for the trial court to enter such an order without a hearing, but this sort of thing is common and routinely upheld when no objection is raised and no effort made to correct the erroneous ruling in the trial court.  When the matter isn't presented at the trial court level, the issue is almost always waived.

 

Absent a look at the appellate briefs and the record, I am less clear on the issues associated with the negotiability of the lost note.  There is a very strong and well written dissenting opinion that addresses the lost note and evidentiary issues.

 

The appellant persuaded one appellate judge, but failed to win over the other two.  Whether there was some other defect in the presentation of the argument, either within the trial court record or on appeal, is unclear to me.

 

If the appellant's focus in its appellant brief was on the erroneous substitution, this focus would seem to me to have been misplaced.  Perhaps if all of the energy was directed at the lost note issue, the court might have decided otherwise.  One needs to pick one's fights!

 

I wouldn't be as quick to condemn the appellate court as to this decision.  When there is a strong dissent, this decision might still be altered on re-hearing.  If the focus is on the substitution, I doubt the result would change.  But if the focus was solely directed to the lost note issue, a reversal on re-hearing might be possible!

 

While I have seen some really horrid trial court decisions, particularly out of Florida, generally, I have found appellate decisions to be much fairer.

 

I absolutely reject the swindlers' focus on asserted judicial corruption to explain the rejection and failure of arguments on appeal.  This is the swindlers' alibi.  The swindlers mislead distressed borrowers and sell them on false arguments and false assurances.  The swindlers take their money and then when the defendant LOSES, which loss was assured, the swindlers assert that the judges were corrupt, bought off, etc.  The distressed borrowers all too often buy this complete b.s.  I think that we should avoid painting the courts with this broad brush and thereby facilitating additional swindles by criminals like Mike H. and his confederates!

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John Lewis
First, thanks to all for taking their time and in insight: 
 
"In the view of the majority, “because there was no denial or defense raised in defendants’ pleadings concerning this finding, the judgment under review cannot be permitted to stand for that reason alone.” "

 

Thus,

 

?1 When a substitution is granted is it retroactive to all previous filed pleadings/motions etc, or, for example does a new Complaint have to be filed by the ‘substituted’ Plaintiff?

 

?2:  if JP, the original Plaintiff, responded to discovery requests ~ can the defendant use their responses in their case? Or is the defendant barred from doing so?  And/Or,

 

?3:  would the defendant have to re-serve, or, serve new discovery on the ‘substituted’ Plaintiff?  Does the meter for the number of discovery request get reset to zero?

 

to combat the Court's reasoning "...because there was no denial or defense raised in defendants’ pleadings ..."

 


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Bill
Quote:
As discussed above, I do not believe that it was error for the appellate court to find for the appellee on the substitution issue, if the matter wasn't preserved for review

I agree, you have to properly preserve the error.  I really think the issue was that SIMILAR (maybe not the same wording) orders are routine.  Rather than closely reading the order, considering the implications, the defense just threw it in the file and went about their usual business.  While I'm sure it won't happen again (because the lawyers NOW will challenge these orders), it is unfortunate for these homeowners.  

While the court of appeals reversed for a new trial, this decision is pretty much "death" to the defendant's case.  I think they will NOT be able to use most of the defenses usually available because of the "law of the case" doctrine.  

Quote:
In addition, the record adequately independently demonstrates the 
capacity of the appellant  to maintain the action (a) as the owner of the note as established by an uncontradicted chain of self-authenticating assignments

I think the only real hope would be a rehearing.
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t

An interesting question is whether the defendant can now still challenge the interlocutory order granting substitution on remand.  This case bears watching:

 

http://www.3dca.flcourts.org/Opinions/3D10-1852.pdf

 

It seems to me that in asserting that the issue wasn't preserved for appellate review there can be little reason to believe that there is some law of the case establishing this substitution.

 

Since the judge in the trial court ruled for the defense and would therefore appear less hostile than most, I would surely at least attempt this!

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Bill
But wouldn't be a law of the case in regards to being the owner of the note?
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t

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But wouldn't be a law of the case in regards to being the owner of the note? 

 

Bill -

 

I think that there are definitely some law of the case problems.  And I am a little unclear on what the law would be as to interlocutory orders entered prior to the entry of a final order which is reversed.  I haven't studied the cases on this or otherwise briefed the law, nor will I since I am not involved in this case.

 

My gut feeling is that one can make arguments either way.  On the one hand, one could assert that ALL interlocutory orders became final with the entry of the final order of judgment and that any matters not previously raised are thereby waived.

 

On the other hand, one could also argue that with the reversal and remand that the final order had been vacated and that other interlocutory orders where still just that, interlocutory.

 

My guess is that there exists some appellate law on this question somewhere, if not in Florida.  These cases would more likely relate to other types of interlocutory orders, such as docketing/scheduling orders or discovery disputes.

 

Even law of the case doctrine has its limits, particularly as to dicta, words which appear in the decision, but which are unnecessary to the decision itself.

 

Also, bear in mind that as with so many issues, an argument not presented in the trial court is waived.

 

Law of the case doctrine might support certain findings by the court and these might be either suggested by the plaintiff or even noted sua sponte by the court.  But if the plaintiff fails to make the law of the case argument, it might be deemed to be waived.

 

The defendant needs to at least assert various viable arguments and then see whether the plaintiff presents a good reply/rebuttal.

 

Bear in mind that the foreclosure mills really have relatively little experience litigating case remanded from appeal and the skill of the foreclosure mill lawyers is often questionable.  The foreclosure mill is usually litigating each and every case for a fixed price and cutting corners.  This is as true of a case on remand as it is in respect of the original matter before the trial court.

 

As is so often the case, pro se litigants have a tendency to try to both impress the plaintiff and to coach the plaintiff by prematurely identifying issues that might have otherwise been overlooked.  A better strategy is almost always to play dumb, be sparing in volunteering details and to hope that a complacent plaintiff overlooks the flaws and inadequacy of its arguments.

 

Most of the appellate decisions favoring borrowers are less based upon superior and winning arguments by the defendant than upon the errors of the plaintiff.

 

One regular and recurring theme that emerges from Mr. Roper's posts and a thoughtful reading of various cases is the fixation of distressed borrowers in wanting to prove that the lender isn't entitled to foreclosure.

 

This is also a distinguishing theme of the swindlers.  The swindlers tell the borrowers what they want to hear.  They use vocabulary like "pretender lender" and tell the borrower that the plaintiff doesn't own the loan and isn't entitled to foreclosure.

 

By contrast, Mr. Roper points out that it is the plaintiff's burden to prove its case, he refrains from the dogma that there is some systemic defect that would allow borrowers to prevail and shows how to beat the plaintiffs based upon viable defenses and evidentiary issues.

 

Of course, since this doesn't require any "forensic loan audits", "securitization audits", REST Reports or other similar magic bullet strategies peddled by the swindlers, the scam artists attack Mr. Roper and seek to discredit him.

 

But ALL of the appellate decisions support Mr. ROPER and NONE support the swindlers.  In fact, the swindlers cannot even point to a single trial court decision that would vindicate their wingnut theories.

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