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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Floyd

The Florida Court of Appeals for the Second District handed down an opinion on re-hearing in the case Feltus v. U.S. Bank, N.A.:

 

Feltus v. U.S. Bank, N.A., No. 2D10-3727 (Fla. App. 2nd Dist. 2012)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/January/January%2027,%202012/2D10-3727%20rh.pdf

 

This needs to be laid side by side with the prior opinion reported in October:

 

Feltus v. U.S. Bank, N.A., No. 2D10-3727, 2011 Fla. App. LEXIS 16532; 36 Fla. L. Weekly D 2287 (Fla. App. 2nd Dist. 2011)

http://scholar.google.com/scholar_case?case=5453672723220626877 

 

I do not immediately see the differences.

 

It still seems to show that Mr. Roper is right, as usual.

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Floyd

This case was also the subject of this prior thread:

 

"BOOM - SUMMARY JUDGMENT REVERSED – US BANK HAS NO STANDING TO FORECLOSE – LOST NOTES"

 

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f

WOW!

 

Take a look at:

"The reply could not serve as an amended complaint because U.S. Bank had not secured leave of court or Feltus's written consent to amend its complaint after Feltus filed her answer and affirmative defenses. See Fla. R. Civ. P. 1.190(a).  A pleading filed in violation of rule 1.190(a) is a nullity, and the controversy should be determined based on the properly filed pleadings.  Warner-Lambert Co. v. Patrick, 428 So. 2d 718 (Fla. 4th DCA 1983)."

 

Then add a dash of Mr. Roper's argument:

 

"Judicial Admissions -- Exhibits Control Over Allegations In Pleadings: Khan v. Bank of America"

http://ssgoldstar.websitetoolbox.com/post/Judicial-Admissions-Exhibits-Control-Over-Allegations-In-Pleadings-Khan-v.-Bank-of-America-5179188

 

Let the argument simmer for about 12 to 24 months and then file a motion for defensive summary judgment whenever the plaintiff actually seeks adjudication of its own motion for summary judgment.  This should get a dismissal whenever the original pleadings (including exhibits) have not been properly amended.  Nice!

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John Lewis

Floyd:

“I do not immediately see the differences.”

 

The major difference is that Judge Casanueva statement “..{I] write only to point out further failings in the affidavit of indebtedness.” is removed from the originial Opinion. 

 

From the first Opinion:

 

CASANUEVA, Judge, Concurring.

I fully concur with the majority opinion and write only to point out further

failings in the affidavit of indebtedness.

 

The affidavit of indebtedness was the sole affidavit offered in support of

U.S. Bank's motion for summary judgment. The affiant was an assistant secretary

employed by the Bank's loan servicing agent. She set forth, under oath, that her direct

personal knowledge was restricted to that learned in maintaining the loan payment

records of the servicing agent. And, as the majority opinion points out, she did not

assert any personal knowledge of how U.S. Bank had come to own or hold the note.

Beyond this deficiency noted in the majority opinion, the affiant also stated that U.S.

Bank had accelerated the entire principal balance due and had "retained Smith, Hiatt &

Diaz, P.A. to represent it in this matter." Because the affiant's competency was based

only on her review of the loan payment records, she was not competent to aver as to

actions of the Bank in accelerating the loan or hiring counsel, and her averments are

hearsay and inadmissible at trial. The Bank could have easily established the facts of

acceleration of the note and hiring of counsel with affidavits from the Bank's official in

charge of foreclosing this loan and/or the Bank's counsel to establish the fact of hiring

and of the fee arrangement. Such bank official or counsel would have direct personal

knowledge, would be competent, and would have presented evidence admissible at

trial.

 

The affidavit the Bank submitted fell woefully short of these requirements

and could not aid the Bank in any way to support its motion for summary judgment of

foreclosure. [Quote]

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John Lewis
clarification: "is removed from the originial Opinion."
 
should be: has been removed from the final opinion dated: "January 27, 2012" 
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John Lewis

In rereading the “January 27, 2012” redo, I think the following observaton by Judge Casanueva is the real reason and purpose for the requested rehearing - the banks had to get this removed from the original “October 19, 2011” decision:

 

“The Bank could have easily established the facts of acceleration of the note and hiring of counsel with affidavits from the Bank's official in charge of foreclosing this loan and/or the Bank's counsel to establish the fact of hiring and of the fee arrangement. Such bank official or counsel would have direct personal knowledge, would be competent, and would have presented evidence admissible at trial.”

 

 

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