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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Here some ideas to beat the Motion Summary Judgment . Please post your ideas, they will be greatly appreciated.
 Dillion Graham Esq. - Thanks for sharing .
 
A.   Attached are 2 case laws from 2nd DCA and 4th DCA : SJ reversed and remanded
   
    1.  2nd DCA - David Verizzo Appellant v. Bank of New York :  March 3, 2010 - Failure by purported assignee of promissory note to file with the trial court at least 20 days before hearing on its motion for SJ the original promissory note or the original recorded assignments of mortgage precluded summary judgment on purposed assignee's foreclosure claim.
 
    2.  4th DCA -  Frost v. Regions Bank - Summary Jugment reversed due the Bank's failure the factualy refute mortgagor's affirmative Defense that Bank did not provide requiste notice and opportunity to cure.
 
B.  Make 3 copies of each case law, underline/colo the Judge's copies and bring them to the Hearing. as a surprise. 
 
I also found this detailed 1st  DCA Opinion - No Assignment - No Foreclosure could be helpful:

Kontos v. American Home Mortgage Servicing, Inc., Case No. 1D09-2803, 2010 Fla. App. LEXIS 11698 (Fl. App. 1st Dist., 2010)

http://opinions.1dca.org/written/opinions2010/08-10-2010/09-2803.pdf


Reading the decision, without benefit of reading the briefs, it appears that the appellee must have conceded that the record before the trial court was devoid of any evidence of an assignment of the alleged mortgage indebtedness from the named Lender on the alleged instruments in favor of AHMSI.

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Digger
Thanks Ann.  Hopefully many will reciprocate with ideas on how to defeat summary judgments, because it is a favorite tool of the pretender lenders, who more often than not, grossly violate the provisions of this rule.

I am not sure if the following is helpful, but I found it on the MSfraud Legal Articles page:

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An attorney sent me this idea to kill the Motion for Summary Judgment
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Often times the note filed with the Complaint does not contain an endorsement, and the original note filed later on in the case contains an endorsement.  This creates an argument that there is a disputed issue of material fact precluding summary judgment.  The argument would be the Plaintiff has to have standing at the time the lawsuit is filed, and can’t create standing during the case by creating an endorsement.  This also opens the door to discovery in good faith about the endorsement. 

 

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Brindy
In your response to a motion for summary judgment, do not forget that you are creating a record for appeal.  The most often case cited in the United States, on appeals of motions for summary judgment, is, Anderson v. Liberty Lobby, 277 US 242,255 (1986)

Be SURE to cite Anderson in your memorandum of points and authorities.  Anderson is a US Supreme Court case which set ground rules on when a Judge should grant or not grant summary judgment.  The most important part of the holding are the instructions to a Judge to use caution.  What follows below is verbiage from a recent Maricopa County Superior Court decision.

You can Google Anderson.  There is a very good Wikipedia page on the case.

Of course, this is just my opinion.

Summary judgment is appropriate if the moving party demonstrates that there is no
genuine issue as to any material facts and that the party is entitled to judgment as a matter of law.  Ariz. R. Civ. P. 56(c)(1). The Arizona Supreme Court in Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1009 (1990), quoting the United States Supreme Court in Anderson v. Liberty Lobby, 477 U.S.242, 255 (1986), advises trial judges to act with caution in granting summary judgment and suggests that the trial judge may “deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial.” Orme
School, 166 Ariz. at 310, 802 P.2d at 1010. As the Anderson Court emphasizes, “at the summary judgment stage, the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.


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William A. Roper, Jr.
In general, lex fori -- the law of the forum -- is applied to procedural issues, such as the circumstances under which summary judgment should be granted.  While in may states, state court rules are modeled after federal court rules and the state courts in such states may look heavily to federal court decisions interpreting the rules, this is not universally the case.

In those places where the state rules are modeled after the federal rules, a case such as Anderson v. Liberty Lobby, 277 US 242,255 (1986) might be a very good case to cite.  But in jurisdicitons where the rules differ from the federal model, this case law may not be binding.

In general, in a state court suit, it would be best to cite authoritative rulings of that state's highest appellate court.  Supreme Court decisions relating to rules may not actually be binding, but certainly might carry some weight as instructive.

The summary judgment standard is pretty rigorous in most places.  The challenge facing most litigants isn't so much identifying precedant relating to summary judgment.  The courts know this pretty well.  The KEY is getting facts into evidence to dispute the critical aspects of the plaintiff's case.
 
Brindy DOES raise an interesting point that perhaps should be separately explored and elaborated in another topical discussion thread and that is the question as to WHICH principles, cases and authorities might be cited by a defendant in a summary judgment setting in various states.  Perhaps those who have researched this matter and have identified cases from within various jurisdictions can share their favorite principles and cases!
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Summary Judgment Reversed - No standing to Foreclose
--------------------------------------------------------

Fresh off the press of the 2nd District Court of Appeals, today the Fla. 2nd DCA issued a stunning shot across the bow of US financial institutions by reversing a trial court’s decision to grant summary judgment in favor of US Bank, NA.

CLICK HERE for a copy of the Final Order issued today, February 12, 2010.

What is absolutely hilarious about this case is that the homeowners were NOT involved in the case. Rather, BAC Funding Consortium Inc., who was the 2nd mortgagee in the case, appealed the trial courts decision and alleged that US Bank, NA did not have standing to foreclose. Oh the irony… we knew this would happen but it is certainly fun to watch it start to happen. Banks suing Lenders; Lenders suing Trustees; Investors suing Servicers. Much more to come… that’s a promise.

The essence of BAC’s argument? Summary judgment for the plaintiff in mortgage foreclosure action was premature where plaintiff had failed to establish standing to foreclose — Plaintiff moving for summary judgment before an answer is filed must establish that defendant could not raise any genuine issues of material fact if defendant were permitted to answer complaint — Because exhibit to plaintiff’s complaint conflicts with allegations concerning standing and exhibit does not show that plaintiff has standing to foreclose mortgage, plaintiff did not establish entitlement to foreclose mortgage — Incomplete, unsigned, and unauthenticated assignment attached as exhibit to plaintiff’s response to defendant’s motion to dismiss did not constitute admissible evidence establishing standing to foreclose note and mortgage.

The appellate court agreed and said,
“Despite the lack of any admissible evidence that U.S. Bank validly held the note and mortgage, the trial court granted summary judgment of foreclosure in favor of U.S. Bank. BAC now appeals, contending that the summary judgment was improper because U.S. Bank never established its standing to foreclose.

The summary judgment standard is well-established. “A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). When a plaintiff moves for summary judgment before the defendant has filed an answer, “the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.” Settecasi v. Bd. of Pub. Instruction of Pinellas County, 156 So. 2d 652, 654 (Fla. 2d DCA 1963); see also W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So. 2d 979, 980 (Fla. 2d DCA 1988) (holding that when plaintiffs move for summary judgment before the defendant files an answer, “it [is] incumbent upon them to establish that no answer that [the defendant] could properly serve or affirmative defense it might raise” could present an issue of material fact); E.J. Assocs., Inc. v. John E. & Aliese Price Found., Inc., 515 So. 2d 763, 764 (Fla. 2d DCA 1987) (holding that when a plaintiff moves for summary judgment before the defendant files an answer, “the plaintiff must conclusively show that the defendant cannot plead a genuine issue of material fact”). As these cases show, a plaintiff moving for summary judgment before an answer is filed must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.

In this case, U.S. Bank failed to meet this burden because the record before the trial court reflected a genuine issue of material fact as to U.S. Bank’s standing to foreclose the mortgage at issue. The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative. See Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So. 2d 394, 395-96 (Fla. 2d DCA 1995); see also Philogene v. ABN Amro Mortgage Group, Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006) (“[W]e conclude that ABN had standing to bring and maintain a mortgage foreclosure action since it demonstrated that it held the note and mortgage in question.”). While U.S. Bank alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the mortgage attached to the complaint lists “Fremont Investment & Loan” as the “lender” and “MERS” as the “mortgagee.” When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000) (“Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss.”); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations “have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable”). Because the exhibit to U.S. Bank’s complaint conflicts with its allegations concerning standing and the exhibit does not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not establish its entitlement to foreclose the mortgage as a matter of law.

Moreover, while U.S. Bank subsequently filed the original note, the note did not identify U.S. Bank as the lender or holder. U.S. Bank also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage. Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage. Accordingly, the documents before the trial court at the summary judgment hearing did not establish U.S. Bank’s standing to foreclose the note and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor.”
[END]

The part that I underlined is especially important to note… US Bank actually filed the original note in the record but the Note apparently lacked any endorsement in favor of US Bank, and, presumably did not have a blank endorsement either. The appellate court also did NOT accept the bogus assignment that US Bank filed – and we have certainly seen ALOT of highly questionable assignments flying off the desks of document production factories like LPS (Lender Processing Services), the Law Office of David J. Stern PA and FIS Foreclosure Solutions. 

This is a fantastic case for attorneys and homeowners in Florida. There is a tremendous amount of legal ammunition in this case if you read the decision carefully and parse it out paragraph by paragraph

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Summary Judgment Reversed - No standing to Foreclose
---------------------------------------------------------

Fresh off the press of the 2nd District Court of Appeals, today the Fla. 2nd DCA issued a stunning shot across the bow of US financial institutions by reversing a trial court’s decision to grant summary judgment in favor of US Bank, NA.

CLICK HERE for a copy of the Final Order issued today, February 12, 2010.

What is absolutely hilarious about this case is that the homeowners were NOT involved in the case. Rather, BAC Funding Consortium Inc., who was the 2nd mortgagee in the case, appealed the trial courts decision and alleged that US Bank, NA did not have standing to foreclose. Oh the irony… we knew this would happen but it is certainly fun to watch it start to happen. Banks suing Lenders; Lenders suing Trustees; Investors suing Servicers. Much more to come… that’s a promise.

The essence of BAC’s argument? Summary judgment for the plaintiff in mortgage foreclosure action was premature where plaintiff had failed to establish standing to foreclose — Plaintiff moving for summary judgment before an answer is filed must establish that defendant could not raise any genuine issues of material fact if defendant were permitted to answer complaint — Because exhibit to plaintiff’s complaint conflicts with allegations concerning standing and exhibit does not show that plaintiff has standing to foreclose mortgage, plaintiff did not establish entitlement to foreclose mortgage — Incomplete, unsigned, and unauthenticated assignment attached as exhibit to plaintiff’s response to defendant’s motion to dismiss did not constitute admissible evidence establishing standing to foreclose note and mortgage.

The appellate court agreed and said,
“Despite the lack of any admissible evidence that U.S. Bank validly held the note and mortgage, the trial court granted summary judgment of foreclosure in favor of U.S. Bank. BAC now appeals, contending that the summary judgment was improper because U.S. Bank never established its standing to foreclose.

The summary judgment standard is well-established. “A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). When a plaintiff moves for summary judgment before the defendant has filed an answer, “the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.” Settecasi v. Bd. of Pub. Instruction of Pinellas County, 156 So. 2d 652, 654 (Fla. 2d DCA 1963); see also W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So. 2d 979, 980 (Fla. 2d DCA 1988) (holding that when plaintiffs move for summary judgment before the defendant files an answer, “it [is] incumbent upon them to establish that no answer that [the defendant] could properly serve or affirmative defense it might raise” could present an issue of material fact); E.J. Assocs., Inc. v. John E. & Aliese Price Found., Inc., 515 So. 2d 763, 764 (Fla. 2d DCA 1987) (holding that when a plaintiff moves for summary judgment before the defendant files an answer, “the plaintiff must conclusively show that the defendant cannot plead a genuine issue of material fact”). As these cases show, a plaintiff moving for summary judgment before an answer is filed must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.

In this case, U.S. Bank failed to meet this burden because the record before the trial court reflected a genuine issue of material fact as to U.S. Bank’s standing to foreclose the mortgage at issue. The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative. See Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007); Troupe v. Redner, 652 So. 2d 394, 395-96 (Fla. 2d DCA 1995); see also Philogene v. ABN Amro Mortgage Group, Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006) (“[W]e conclude that ABN had standing to bring and maintain a mortgage foreclosure action since it demonstrated that it held the note and mortgage in question.”). While U.S. Bank alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the mortgage attached to the complaint lists “Fremont Investment & Loan” as the “lender” and “MERS” as the “mortgagee.” When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000) (“Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss.”); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations “have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable”). Because the exhibit to U.S. Bank’s complaint conflicts with its allegations concerning standing and the exhibit does not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not establish its entitlement to foreclose the mortgage as a matter of law.

Moreover, while U.S. Bank subsequently filed the original note, the note did not identify U.S. Bank as the lender or holder. U.S. Bank also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage. Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage. Accordingly, the documents before the trial court at the summary judgment hearing did not establish U.S. Bank’s standing to foreclose the note and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor.”
[END]

The part that I underlined is especially important to note… US Bank actually filed the original note in the record but the Note apparently lacked any endorsement in favor of US Bank, and, presumably did not have a blank endorsement either. The appellate court also did NOT accept the bogus assignment that US Bank filed – and we have certainly seen ALOT of highly questionable assignments flying off the desks of document production factories like LPS (Lender Processing Services), the Law Office of David J. Stern PA and FIS Foreclosure Solutions.

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From http://www.msfraud.org

 

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

 

 

 

Defense lawyers across the state 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, 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’ due process rights aren’t violated — namely that the lender has to prove it is entitled to press its claim.

 

In a foreclosure suit, the plaintiff’s affidavit outlines how much the homeowner owes, asserts that there are no unresolved disputes between the lender and borrower and that the home is legally ready to be sold.

 

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.

 

When a summary judgment is denied — because an affidavit is flawed, among other reasons — the homeowner can face the lender at trial.

 

A deficient affidavit can be the difference between homeowners losing their properties through a summary judgment or going to trial, Zacks said. “These affidavits are the linchpin of cases when they are trying to win a house at summary judgment,” he said.  "A summary judgment cuts short [a homeowner’s] right to a full trial.”

 

Several judges and lawyers say deficient affidavits are rare in most other civil cases, but are rampant in foreclosure cases. “Our entire judicial system is under attack as a result of this foreclosure process,” said St. Petersburg lawyer Matthew Weidner, who blogs about foreclosures. “Judges, just like us, have just sort of overlooked this in the midst of this crisis.”

 

AG’s Investigation

 

Foreclosure firms are increasingly under scrutiny for questionable practices, including the alleged falsification of documents. Earlier this month, Florida Attorney General Bill McCollum launched a probe into the Law Offices of David J. Stern in Plantation; the Law Offices of Marshall C. Watson in Fort Lauderdale; and Shapiro & Fishman, with offices in Boca Raton and Tampa.

 

McCollum’s office is investigating whether the three law firms submitted false affidavits or fabricated court documents to obtain final judgments against homeowners.

 

The Law Offices of David J. Stern and Shapiro & Fishman deny wrongdoing and have filed motions to quash or modify the

subpoenas issued by the AG office.

 

Defense lawyers, who have been filing civil lawsuits against the foreclosure law firms, welcomed the investigation. They claim some plaintiff lawyers are rushing through large volumes of foreclosures on behalf of lenders, often improperly serving notice on homeowners or filing false pleadings.

 

Some judges say they don’t have the resources nor it is their job to make sure every affidavit is proper, but at least two said they are interested in hearing the argument.

 

“It is a genuine question that should be raised,” said Miami-Dade Circuit Judge Jennifer Bailey. “The question is, where should each judge draw the line about the degree of investigation they are going to do on these affidavits? There is no clear answer.”

 

In June, Zacks persuaded Palm Beach Circuit Judge Howard Harrison Jr. to deny a motion for summary judgment because of a flawed affidavit.

 

Harrison told a representative of the Bank of New York, the loan’s trustee, that it needed to produce the loan records rather than having an employee of the plaintiff attorney or the loan servicer attest that documents are in order before signing the affidavits.

 

“It basically just says he looked at and plugged some numbers in,” Harrison said, according to a transcript of a June 29 hearing. “If they are not contested, that’s fine. But where somebody just basically says, ‘I looked at the records,’ this is it. That’s not enough for me to agree.”

 

Harrison’s ruling gave Elizabeth and David Mosquera a temporary break. The couple owes $1 million on a six-bedroom Wellington home they bought for $1.4 million in 2007, according to Palm Beach County property records. The couple fell behind on their mortgage payments last year.

 

In May, Zacks got Palm Beach Circuit Judge Jack Cook to strike an affidavit that did not include records. Now it will be up to Wells Fargo Bank, as trustee, to file a new affidavit.

 

Challenging Rule

 

In addition to requiring a copy of the records, Rule 1.510 also says that the person signing the affidavit must have personal knowledge of the facts of the case. That can be a challenge since most loans have been sold several times since they were originated and have been processed by different servicers. Many notes and mortgages are not available for review. Since the foreclosure crisis started in 2008, it has become common for plaintiff lawyers and servicers to assign an employee to sign hundreds of affidavits, even though they usually are not familiar with the cases.

 

“I’d like to see in one of these cases where a defense lawyer cross examines, takes a deposition of these people [so] we can see whether they ought to be charged with perjury for all of these affidavits,” Pinellas Circuit Judge Anthony Rondolino said during an April 7 hearing.

 

At that hearing, he vacated a summary judgment he granted in January in favor of GMAC Mortgage.

 

Rondolino reconsidered his decision after defense lawyer Michael Wasylik of Dade City asked for a rehearing to challenge GMAC’s affidavit, which did not include any sworn or certified documents.

 

Rondolino said he hasn’t seen many defense lawyers use flawed-affidavit arguments as a defense, “but when they do raise these issues, I listen to the argument carefully.”

 

Wasylik said summary judgments that were granted based on insufficient affidavits can be appealed and set aside.  “If courts are fooled into granting judgments … it could be disastrous for Florida’s real estate,” he said.

 

Attorney Mark Romance, with Richman Greer in Miami, said people who lost their homes to foreclosure can appeal a judgment that was the result of an insufficient affidavit or on a mistake.

 

“That doesn’t help necessarily the person whose home has been foreclosed upon and sold … but they can still get some relieve from the court,” he said.

 

Nonjudicial process?

 

The Florida Bankers Association is pushing state lawmakers to make the foreclosure process nonjudicial so lenders can repossess properties faster.

 

It can take more than a year for uncontested cases to move through the overworked court system and several years if a homeowner defends the case.

 

A bill proposed by the FBA to make foreclosures nonjudicial failed earlier this year during the legislative session in Tallahassee. The industry group is considering re-introducing the bill in the 2011 session, said Anthony DiMarco, the FBA’s executive vice president and director of government affairs.

 

“Everybody has the right to a defense, but if they do it just to slow down the process, they are just going to slow down the [recovery of the housing market,]” DiMarco said. “And the faster we get through all this, the faster we are going to get to the end of the crisis and we can move on.”

 

Paola Iuspa-Abbott can be reached at (305) 347-6657.

 

Source: http://www.dailybusinessreview.com/news.html?news_id=64829&stripTemplate=1 8/26/2010

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To beat Plaintiff Motion to Summary Judgment. Defendants can file Motion to Strike Plaintiff's Affidavits. Judge should denied MSJ if there are issues to be decided by Trial court. Here is sample of Motion to Strike Aff. for Att. Fees
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IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,
IN AND FOR PINELLAS COUNTY, FLORIDA
CIVIL DIVISION
 
HSBC BANK, USA, NATIONAL ASSOCATION,         CASE NO.
AS TRUSTEE FOR THE ACE SECURITIES
CORPORATION HOME EQUITY LOAN TRUST,
SERIES 2005-AG1, ASSET BACKED PASS-
THROUGH CERTIFICATES
 
                            Plaintiff,
 
v.                                             
                                                                                         
XXXXX,
 
                            Defendant(s).
_________________________________________/
 
DEFENDANT’S MOTION TO STRIKE AFFIDAVIT OF CHRISTOPHER SPRADLING AND FOR ATTORNEY’S FEES AND COSTS
 
COMES NOW, the Defendant XXXXX (hereinafter “Defendant”), by and through the undersigned counsel MATTHEW D. WEIDNER, and respectfully MOTIONS THIS COURT TO STRIKE AFFIDAVIT OF CHRISTOPHER SPADLING AND FOR ATTORNEY’S FEES AND COSTS, pursuant to Fla. R. Civ. Pro. 1.510, and in support thereof states as follows:
FACTS
1. This is an action for foreclosure of real property owned by the Defendant.
2. The named plaintiff in this case is HSBC BANK, USA, NATIONAL ASSOCATION, AS TRUSTEE FOR THE ACE SECURITIES CORPORATION HOME EQUITY TRUST, SERIES 2005-AG1, ASSET BACKED PASS-THROUGH CERTIFICATE (hereinafter “Plaintiff”).
3. On February 2, 2010 Plaintiff, by and through its counsel Florida Default Law Group, P.L. (hereinafter “Florida Default Law Group”), gave Notice of Filing of Affidavit as to Amounts Due and Owing and the accompanying Affidavit (hereinafter “Affidavit”).
4. The Affiant of the above-mention Affidavit was identified as CHRISTOPHER SPRADLING (hereinafter “Spradling”).  Spradling identified himself as a “Foreclosure Manager” for LITTON LOAN SERVICING, LP (hereinafter “Litton”).  Litton, in turn, was identified as “the servicer of the loan…[Litton] is responsible for the collection of this loan transaction and pursuit of any delinquency in payments.”#
5. Spradling, based upon his personal knowledge, averred in the Affidavit that: (1) the Plaintiff or its assigns was owed a total of $408,809.30; (2) the Plaintiff was entitled to enforce the Note and Mortgage; and (3) Plaintiff was entitled to a judgment as a matter of law.#  The Affidavit does not contain any mention as to who owes the Plaintiff the sum alleged save for one sentences line which cryptically state “[s]pecifically, I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit” and a second which states “I am familiar with the books of account…concerning the transactions alleged in the Complaint.”#  Emphasis added.
6. Nowhere in the Affidavit was either Litton or Spradling identified as either the Plaintiff or the Plaintiff’s authorized agent. 
7. Upon information and belief, Litton is simply a “middleman” of sorts who is responsible for the transfer of funds between the various assignees of the underlying Mortgage and Note and has no knowledge of the underlying transactions between the Plaintiff and Defendant.
8. Upon information and belief, Spradling, as employee of Litton and not the Plaintiff, has no knowledge of the underlying transactions between the Plaintiff and Defendant.
LEGAL REASONING IN SUPPORT OF MOTION
I. Plaintiff Failed to Attach Documents Referred to in the Affidavit
a. Failure to Attach Documents Violates Fla. Stat. §90.901 (1989)
 Florida Statue §90.901 (1989) states, in pertinent part, that “[a]uthentication or identification of evidence is required as a condition precedent to its admissibility.”  The failure to authenticate documents referred to in affidavits renders the affiant incompetent to testify as to the matters referred to in the affidavit.  See Fla. R. Civ. Pro. 1.510(e) (which reads, in pertinent part, that “affidavits…shall show affirmatively that the affiant is competent to testify to the matters stated therein”); Zoda v. Hedden, 596 So. 2d 1225, 1226 (Fla. 2d DCA 1992) (holding, in part, that failure to attach certified copies of public records rendered affiant, who was not a custodian of said records, incompetent to testify to the matters stated in his affidavit as affiant was unable to authenticate the documents referred to therein.)
 Here, Spradling affirmatively states in the Affidavit that he is “familiar with the books of account and have examined all books, records, and documents kept by LITTON LOAN SERVICING, LP concerning the transactions alleged in the Complaint.”#  Furthermore, Spradling averred that the “Plaintiff or its assigns, is owed…$408,809.30.”#  Nevertheless, Spradling has failed to attach any of the books, records or documents referred to in the Affidavit.  In addition, Spradling does not meet the definition of “custodian,” which is “a person or institution that has charge or custody (of…papers).”  See Black’s Law Dictionary, 8th ed. 2004, custodian.  By Spradling’s own admission “[t]he books, records, and documents which [Spradling] has examined are managed by employees or agents whose duty it is to keep the books accurately and completely.”#  Emphasis added.  Thus, Spradling has only examined the books, records, and documents which he refers to in the Affidavit while the true custodians of these documents are the employees or agents whose duty it is to keep the books accurately and completely.  In essence, Spradling averred to records which he did not submit nor could he testify for the authenticity of just as the affiant in Zoda did.
 Spradling’s failure to attach the documents referred to in the Affidavit without being custodian of same is a violation of the authentication rule promulgated in Fla. Stat. §90.901 (1989), which renders him incompetent to testify to the matters stated therein as the Second District in Zoda held.  Therefore, the Affidavit should be struck in whole.
b. Failure to Attach Documents Violates Fla. R. Civ. Pro. 1.510(e)
 Fla. R. Civ. Pro. 1.510(e) provides, in part, that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”  Failure to attach such papers is grounds for reversal of summary judgment decisions.  See CSX Transp., Inc. v. Pasco County, 660 So. 2d 757 (Fla. 2d DCA 1995) (reversing summary judgment granted below where the affiant based statements on reports but failed to attach same to the affidavit.)
 As previously demonstrated, Spradling referred to books, records, and documents kept by Litton which allegedly concerned the transaction referred to in the Complaint against the Defendant.  Nevertheless, as previously demonstrated, Spradling has not attached any of these books, records or documents.  This failure to do so is a violation of Fla. R. Civ. Pro. 1.510(e) and is grounds for a reversal of a summary judgment decision in favor of the Plaintiff.  Therefore, the Affidavit should be struck in whole.
II. Affidavit Was Not Based Upon Spradling’s Personal Knowledge
As a threshold matter, the admissibility of an affidavit rests upon the affiant having personal knowledge as to the matters stated therein.  See Fla. R. Civ. Pro. 1.510(e) (reading, in pertinent part, that “affidavits shall be made on personal knowledge”); Enterprise Leasing Co. v. Demartino, 15 So. 3d 711 (Fla. 2d DCA 2009); West Edge II v. Kunderas, 910 So. 2d 953 (Fla. 2d DCA 2005); In re Forefeiture of 1998 Ford Pickup, Identification No. 1FTZX1767WNA34547, 779 So. 2d 450 (Fla. 2d DCA 2000).  Additionally, a corporate officer’s affidavit which merely states conclusions or opinion is not sufficient, even if it is based on personal knowledge.  Nour v. All State Supply Co., So. 2d 1204, 1205 (Fla. 1st DCA 1986).
The Third District, in Alvarez v. Florida Ins. Guaranty Association, 661 So. 2d 1230 (Fla. 3d DCA 1995), noted that “the purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief.”  Id at 1232 (quoting Pawlik v. Barnett Bank of Columbia County, 528 So. 2d 965, 966 (Fla. 1st DCA 1988)).  This opposition to hearsay evidence has deep roots in Florida common law.  In Capello v. Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993), the Third District affirmed an order of summary judgment in favor of Flea Market U.S.A as Capello’s affidavit in opposition was not based upon personal knowledge and therefore contained inadmissible hearsay evidence.  See also Doss v. Steger & Steger, P.A., 613 So. 2d 136 (Fla. 4th DCA 1993); Mullan v. Bishop of Diocese of Orlando, 540 So. 2d 174 (Fla. 5th DCA 1989); Crosby v. Paxson Electric Company, 534 So. 2d 787 (Fla. 1st DCA 1988); Page v. Stanley, 226 So. 2d 129 (Fla. 4th DCA 1969).  Thus, there is ample precedent for striking affidavits in full which are not based upon the affiant’s personal knowledge.
Here, the entire Affidavit is hearsay evidence as Spradling has absolutely no personal knowledge of the facts stated therein.  As an employee of Litton, which purports to be the servicer of the loan, he has no knowledge of the underlying transaction between the Plaintiff and the Defendant.  Neither Spradling nor Litton: (1) were engaged by the Plaintiff for the purpose of executing the underlying mortgage transaction with the Defendant; or (2) had any contact with the Defendant with respect to the underlying transaction between the Plaintiff and Defendant.  In addition, the Affidavit fails to set forth with any degree of specificity what duties Litton performs for the Plaintiff, save for one line which states that Litton “is responsible for the collection of this loan transaction and pursuit of any delinquency in payments.”#  At best, Litton acted as a middleman of sorts, whose primary function was to transfer of funds between the various assignees of the underlying Mortgage and Note.  Litton is not the named Plaintiff in this case, nor does the Affidavit aver that either Spradling or Litton is the agent of the Plaintiff.
Because Spradling has no personal knowledge of the underlying transaction between the Plaintiff and Defendant, any statement he gives which references this underlying transaction (such as the fact that the Plaintiff is allegedly owed sums of monies in excess of $400,000) is, by its very nature, hearsay.  The Florida Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Fla. Stat. §90.801(1)(c) (2007).  Here Spradling is averring to a statement (that the Plaintiff is allegedly owed sums of money) which was made by someone other than himself (namely, the Plaintiff) and is offering this as proof of the matter asserted (that Plaintiff is entitled to enforce the Note and Mortgage and that Plaintiff is entitled to a judgment as a matter of law.)  At best, the only statements which Spradling can aver to are those which regard the transfer of funds between the various assignees of the Mortgage and Note.
The Plaintiff may argue that while Spradling’s statements may be hearsay, they should nevertheless be admitted under the “Records of Regularly Conducted Business Activity” exception.  Fla. Stat. §90.803(6) (2007).  This rule provides that notwithstanding the provision of §90.802 (which renders hearsay statements inadmissible), hearsay statements are not inadmissible, even though the declarant is available as a witness, if the statement is
 [a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness.  Emphasis added.
 
There are, however, several problems with this argument.  To begin, and as previously demonstrated, no memorandums, reports, records, or data compilation have been offered by the Plaintiff.  Furthermore, the books, records, and documents referred to by Spradling in the Affidavit (which, of course, were not attached) were kept by Litton, who cannot be a person with knowledge as Litton does not have any personal knowledge of underlying transaction between the Plaintiff and the Defendant.  Finally, Litton, as the source of this information, shows a lack of trustworthiness because Spradling failed to attach the books, records, and documents to the Affidavit and because neither Litton nor Spradling have knowledge of the underlying transaction between the Plaintiff and the Defendant.
 Because Spradling’s statements in the Affidavit are not based upon personal knowledge, they are inadmissible hearsay evidence.  As no hearsay exception applies to these statements, the Affidavit should be struck in whole.
III. Affidavit Included Impermissible Conclusions of Law Not Supported by Facts
 An affidavit in support of a motion for summary judgment may not be based upon factual conclusions or opinions of law.  Jones Constr. Co. of Cent. Fla., Inc. v. Fla. Workers' Comp. JUA, Inc., 793 So. 2d 978, 979 (Fla. 2d DCA 2001).  Furthermore, an affidavit which states a legal conclusion should not be relied upon unless the affidavit also recites the facts which justify the conclusion.  Acquadro v. Bergeron, 851 So. 2d 665, 672 (Fla. 2003); Rever v. Lapidus, 151 So. 2d 61, 62 (Fla. 3d DCA 1963).
 Here, the Affidavit contained conclusions of law which were not supported by facts stated therein.  Specifically, Spradling averred that the Plaintiff was entitled to enforce the Note and Mortgage and that the Plaintiff was entitled to a judgment as a matter of law, two legal conclusions, but did not support this conclusion with statements which referenced exactly who the Plaintiff was entitled to enforce the Note and Mortgage against.  In fact there is no mention of any of the parties in question save for one cryptic line in where Spradling states that “[s]pecifically, I have personal knowledge of the facts regarding the sums which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject matter of the lawsuit” and another which states “I am familiar with the books of account…concerning the transactions alleged in the Complaint.”#  Nowhere in the Affidavit does Spradling state that the Plaintiff is entitled to enforce the Note and Mortgage against the Defendant nor does Spradling state that the Plaintiff is entitled to a judgment as a matter of law because the Defendant owes the Plaintiff money.  At best the Affidavit accuses someone of owing the Plaintiff $408,809.30 and that the Plaintiff should be able to enforce some Note and Mortgage against that particular someone.  By not clearly identifying the parties in question, Spradling has not adequately supported his two legal conclusions.
 Because the Affidavit contained impermissible conclusions of law which were not supported by facts stated therein, the Affidavit should be struck in whole.
IV. Sanction of Attorney’s Fees is Appropriate
 Fla. R. Civ. Pro. 1.510(g) reads, in full, that
[i]f it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorneys' fees, and any offending party or attorney may be adjudged guilty of contempt.  Emphasis added.
 
The undersigned counsel has expended considerable time and resources preparing to defend against an affidavit which has, on its face, no basis in law.  Both Florida Default Law Group and the Plaintiff both knew that Spradling’s affidavit lacked authenticity and reliability yet still chose to file it with the Court.  In addition, this is not Florida Default Law Group’s first time filing affidavits in bad faith.  Recently, the Bankruptcy Court for the Southern District of Florida sanctioned both Florida Default Law Group and its client, WELLS FARGO, $95,130.45 for false representations made in affidavits in that court as well as other bankruptcy courts in Florida.  See In re: Fazul Haque, Case No. 08-14257-BKR-JKO (Order Granting Wells Fargo, N.A.’s Motion for Relief from Stay and Imposing Sanctions for Negligent Practice and False Representations, Oct. 28, 2008).  This is indicia of a modus operandi on Florida Default Law Group’s part to present misrepresentations and false affidavits to the Court which make an award of attorney’s fees and costs an appropriate sanction.
 WHEREFORE, Defendant asks this Court to GRANT its MOTION TO STRIKE AFFIDAVIT OF CHRISTOPHER SPRADLING and enter an ORDER granting ATTORNEY’S FEES AND COSTS and any other relief the Court deems just and proper.
CERTIFICATE OF SERVICE
 I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail on this ____ day of February, 2010 to KATHERINE RENNINGER, KATHERINE E. TILKA, and CHRISTINA N. RILEY, Florida Default Law Group, P.L., P.O. Box 25018, Tampa, FL 33622-5018.
        
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DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S

"ORIGINAL NOTE" AND ALLONGES

COMES NOW the Defendant, xxxxxx, and pursuant to Rule 1.140(f) moves

this honorable Court to strike the documents placed into the court file on October 17, 2009

referred to by the Plaintiff as the "original note," and in support thereof states as follows:

1. When the Plaintiff initially filed its Complaint On July 25, 2008 it failed to

support the Complaint with any original documentation, negotiable instrument, note or mortgage.

Attached to the Complaint was a photocopy of the May 21, 1999 promissory note obligating the

Defendant to the "original lender" APPROVED, and a photocopy of an alleged allonge assigning

the note from "Approved Residential Mortgage Inc." (hereinafter "APPROVED") to "Norwest

Bank Minnesota N.A. As Trustee For Provident Bank Home Equity Loan Trust 1999-3"

(hereinafter "NORWEST"). There was no documentation filed with the complaint connecting

the note or mortgage to the named Plaintiff WELLS FARGO BANK, N.A. (hereinafter "WELLS

FARGO"). The Plaintiff at that time sought reestablishment of the original note which it claimed

was "lost, destroyed or stolen."

2. On October 17, 2008 the Plaintiff filed a document into the case file purported to

be the "Original Note" along with two allonges, one allonge being identical to the allonge filed

with the Complaint, purportedly assigning the note to NORWEST, and the other allonge titled

Defendant's Motion to Strike Note and Allonges - page 2 of 6

NOTE ALLONGE, which was not initially filed with the complaint, allegedly assigning an

attached note from the Plaintiff WELLS FARGO to itself as trustee (hereinafter "WELLS

FARGO allonge"). Copies of the note and allonges are attached as Exhibit B.

3. On February 10, 2009 the Plaintiff filed into the case file a copy of an Assignment

of Mortgage which assignment was executed on August 20, 2004 and filed into the Hernando

County official records on September 9, 2004, a copy of which is attached herewith as Exhibit A.

4. Regardless of the document's title, the said Assignment of Mortgage assigned

both the note and mortgage constituting the subject or res of this action to The Provident Bank,

Inc., reading as follows in pertinent part:

"...APPROVED RESIDENTIAL MORTGAGE,...does convey, grant, bargain, sell,

assign, transfer and set over to: THE PROVIDENT BANK, INC., ...The described

Mortgage, together with the certain note(s) described therein with all interest, all

liens, and any rights due or to become due thereon..."

5. On February 16, 2010 the Defendant inspected the alleged "Original Note" placed

in the file and denies its authenticity and that of the purported signature thereon (see "Affidavit

of Defendant, xxxxxxxx In Opposition to Plaintiff's Motion for Summary Judgment"

filed concurrently herewith and incorporated herein by reference thereto.

6. On the same date the Defendant observed that while there is generous room on the

Note itself for indorsement, there is no indorsement on the Note, and the allonges filed with the

note were not attached affixed to the note prior to filing.

7. Further the indorsements on the allonges were never verified by affidavit or

testimony, were undated and unauthenticated by any corporate seal or stamp. Even if the alleged

"original note" filed by the Plaintiff on October 17, 2008 is ruled to be authentic, it remains

unenforceable because the alleged allonges are rendered invalid for violation of the rule of

affixation to the note and authentication pursuant to F.S. § 673.2041(1) and Booker v. Sarasota

Inc., 707 So.2d 886 (Fla.App. Dist.1 03/06/1998):

"The allonge, ultimately filed with the court had never previously been verified by

affidavit or testimony, nor had it been provided to the court or to Booker in the

form of an amended complaint. A Florida court may not consider an

unauthenticated document in ruling on a motion for summary judgment,

even where it appears that the such document, if properly authenticated, may have

been dispositive. See Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA

1991)."

Defendant's Motion to Strike Note and Allonges - page 3 of 6

8. Furthermore, even if the alleged "original note" filed by the Plaintiff on October

17, 2008 is ruled to be authentic, it remains unenforceable because the alleged allonges are

contradicted and invalidated by competing evidence entered by the Plaintiff in the recorded

Assignment of Mortgage (Exhibit A), showing another named signatory assigning both the note

and mortgage to Provident Bank on August 20, 2004. This fact is corroborated by the

aforementioned affidavit of title attorney Gregory D. Clark, Esq., filed concurrently herewith and

fully incorporated herein by reference thereto. The allonges filed on October 17, 2008 are

therefore not valid and must be stricken.

9. Furthermore the WELLS FARGO allonge filed on October 17, 2008 is a sham on

its face as it allegedly assigned the res to itself, was not filed with the Complaint, and the

Plaintiff can not be allowed to amend the record with exhibits that did not exist when the action

was filed.

WHEREFORE, the Defendant, xxxxx, respectfully moves this court to

strike the alleged "original note" along with the allonges filed therewith on October 17, 2008.

Respectfully submitted on this day of March, 2010.

MEMORANDUM OF LAW

Regarding the note and allonges in this instant case: while there is generous room on the Note itself for indorsement, there is no indorsement on the Note, and the allonges were not previously affixed to the note. Further the indorsements on the allonges were never verified by affidavit or testimony, were undated and unauthenticated by any corporate seal or stamp. Even if the alleged "original note" filed by the Plaintiff on October 17, 2008 is ruled to be authentic, it remains unenforceable because the alleged allonges are rendered invalid for violation of the rule of affixation to the note and authentication pursuant to F.S. § 673.2041(1) and Booker v.Sarasota Inc., 707 So.2d 886 (Fla.App. Dist.1 03/06/1998):

[17] Contrary to other arguments now advanced by Sarasota, Inc., the trial court

could not simply assume that Sarasota, Inc. held the note, or that the photocopy of an

allonge, filed after the hearing on the motion for summary judgment, was of

appropriate evidentiary value. Booker has correctly pointed out that in order to be the

real party in interest on a promissory note, the plaintiff must be the holder of the

note. See Troupe v. Redner, 652 So. 2d 394, 395-396 (Fla. 2d DCA 1995). Here, the allonge, attached to the complaint, and referred to by Sarasota Inc.'s affidavit in

support of its motion for summary judgment, showed an assignment of the note from

an institution other than Citizens and Builders. The allonge, ultimately filed with the

court had never previously been verified by affidavit or testimony, nor had it been

provided to the court or to Booker in the form of an amended complaint. A Florida

court may not consider an unauthenticated document in ruling on a motion for

summary judgment, even where it appears that the such document, if properly

authenticated, may have been dispositive. See Tunnell v. Hicks, 574 So. 2d 264, 266

(Fla. 1st DCA 1991).

[19] "An allonge is a piece of paper annexed to a negotiable instrument or

promissory note, on which to write endorsements for which there is no room on the

instrument itself. Such must be so firmly affixed thereto as to become a part thereof."

Black's Law Dictionary 76 (6th ed. 1990). Florida's Uniform Commercial Code does

not specifically mention an allonge, but notes that "for the purpose of determining

whether a signature is made on an instrument, a paper affixed to the instrument is

part of the instrument. § 673.2041(1), Fla. Stat. (1995)."

Federal rulings on the Uniform Commercial Code (UCC) in regard to the negotiation and

enforcement of negotiable instruments are applicable to this issue in that the UCC is in effect

enacted into the Florida statutes. In Adams v. Madison Realty & Development Inc., 853 F.2d 163

(3rd Cir. 07/22/1988) the 3rd Circuit ruled as follows, with emphasis added:

[32] Article 3 of the Uniform Commercial Code incorporated many portions of

its predecessor, the Uniform Negotiable Instruments Law (NIL), drafted in 1896

by the National Conference of Commissioners on Uniform State Laws. By 1924,

the NIL had been adopted in every state. See 2 F. Hart & W. WiIlier, Commercial

Paper Under the Uniform Commercial Code § 1.06, at 1-25 to -26 (1988). When

it was transplanted into the 1956 draft of the Uniform Commercial Code, the

indorsements provision was altered in only a minor respect. Section 31 of the NIL

had specified that a proper indorsement "must be written on the instrument itself

or upon a paper attached thereto." The Code substituted the words "so firmly

affixed as to become a part thereof" for the phrase "upon a paper attached

thereto."...

 

[34] A holder in due course must take the instrument for value, in good faith,

and without notice that it is overdue, that it has been dishonored, or that a claim or

defense to it exists on the part of any person. See U.C.C. § 3-302(1). But

preliminarily, a person seeking to become a holder in due course must satisfy the

threshold requirements for becoming a "holder," the critical issue on this appeal.

[35] The Code defines a holder as one 'who is in possession of . . . an

instrument . . . drawn, issued or indorsed to him or to his order." U.C.C. § 1-

Defendant's Motion to Strike Note and Allonges - page 5 of 6

201(20). Mere ownership or possession of a note is insufficient to qualify an

individual as a "holder." The instrument must be obtained through a process the

Code terms "negotiation," defined as "the transfer of an instrument in such form

that the transferee becomes a holder." U.C.C. § 3-202(1). If the instrument is

payable to order -- as is the case with the notes here -- negotiation is

accomplished "by delivery with any necessary indorsement." Id.

[36] In explaining the requirement that the indorsement be on or firmly affixed

to the instrument, the Official Comment states that the Code "follows decisions

holding that a purported indorsement on a mortgage or other separate paper

pinned or clipped to an instrument is not sufficient for negotiation. The

indorsement must be on the instrument itself or on a paper intended for the

purpose which is so firmly affixed to the instrument as to become an extension or

part of it. Such a paper is called an allonge." U.C.C. § 3-202 Official Code

Comment (3)...

[38] The Code's requirement that an indorsement be "firmly affixed" to its

instrument is a settled feature of commercial law, adopted verbatim by every

American state, the District of Columbia, and the Virgin Islands. See 5 R.

Anderson, Uniform Commercial Code § 3-202:2, at 416 (3d ed. 1984) (citing

codifications). With a unanimity unusual in decisional law, the directive has been

faithfully observed.

[39] The historical origins of the provision have been chronicled to the days of

the Law Merchant. See Pribus v. Bush, 118 Cal. App. 3d 1003, 173 Cal. Rptr. 747

749 (1981). The practice of multiple indorsements which accompanied the growth

in commerce eventually led to acceptance of the use of allonges. See id.; Estrada

v. River Oaks Bank & Trust Co., 550 S.W.2d 719, 725 (Tex. Ct. App. - Houston

[14th Dist.] 1977, writ ref'd n.r.e.). Even today, however, numerous jurisdictions

permit allonges only where, because of multiple indorsements, no additional

space for signatures remains on the negotiable instrument. See, e.g., Pribus, 173

Cal. Rptr. at 751; Tallahassee Bank & Trust Co. v. Raines, 125 Ga. App. 263, 187

S.E.2d 320, 321 (1972). But see Crosby v. Roub, 16 Wis. 616, 723-24 (1863)

(allonge permitted even where space remains on note).

[40] When the drafters of the Uniform Commercial Code replaced the term

"attached" in the NIL with the phrase "firmly affixed," they intended to make the

use of allonges more difficult. See Hills v. Gardiner Savings Institution, 309 A.2d

877, 880-81 (Me. 1973); Estrada, 550 S.W.2d at 728; 5 Anderson, supra, § 3-

202:05. Courts have advanced two justifications for the firmly-affixed

requirement. The California Court of Appeals reasoned that the provision serves

to prevent fraud, remarking that a signature innocently placed upon an innocuous

sheet of paper could be fraudulently attached to a negotiable instrument in order

to simulate an indorsement. Pribus, 173 Cal. Rptr. at 750. But cf. Lamson v.

Commercial Credit Corp., 187 Colo. 382, 531 P.2d 966, 968 (1975) (allonge

consisting of two legal sheets stapled to two small checks held valid because

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(cont)

signing on checks valid themselves would have been impossible; "stapling is the

modern equivalent of gluing or pasting").

[41] The affixation requirement has also been cited for its utility in preserving a

traceable chain of title, thus furthering the Code's goal of free and unimpeded

negotiability of instruments. Nearly a century ago, the Supreme Court of Georgia

declared it "indispensably necessary" that negotiable instruments "should carry

within them the indicia by which their ownership is to be determined; otherwise,

their value as a circulating medium would be largely curtailed, if not entirely

destroyed." Haug v. Riley, 101 Ga. 372, 29 S.E. 44, 46 (1897). See also Crosby,

16 Wis. at 724 (permanently attached indorsements to instrument "travel with it

wherever it might go"). Chancellor Hawkland writes that it would be

"unreasonable to impose upon the indorsee the risk that the present holder or a

prior holder had negotiated the instrument to someone not in the apparent chain of

title by virtue of a separate document." 4 W. Hawkland & L. Lawrence, Uniform

Commercial Code Series § 3-202:05 (1984).

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The best way to beat a Plaintiff Summary Judgment is to delay it a long as possible. File a strong Motion to Oppose MSJ and Motions to Strike Affidavits couple days before the Hearing may cause Plaintiff to cancel the hearing as they have to prepare the reply to all these pleading. Also additional Discovery can delay the hearing. A sample of Motion for Reconsideration and Vacate Summary Judgment can be download here just in case. It may buy Defendants some more time

http://mattweidnerlaw.com/blog/wp-content/uploads/2010/08/MotionforReconsideration.pdf

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Download the Objection to Summary Judgment at :

http://mattweidnerlaw.com/blog/wp-content/uploads/2010/06/Calvin-Johnson-Affidavit-Obj-to-Hearing-Req-for-Contin-Ds-Obj-to-Ps-Mot-for-SJ-1.pdf

Download it and keep in your computer file as the link may not last forever. If you don't need it, keep it to help someone in need in the future.
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Transcripts of Hearings for Motion to Oppose Summary Judgments. Notice how the Attorneys attacked the invalidity of Bank's Affidavits
------------------------------------------------------------------
http://www.mattweidnerlaw.com/blog

There very much is a way out of the foreclosure mess that we’re all in and it’s all very simple.  Lenders participate in mediations in good faith. Borrowers accurately and timely disclose financial information.  Borrower and lender enter into long term settlement agreements that allow the borrower to stay in and maintain a home based upon the resources available to them.  That’s the best deal a bank’s ever going to get, but they’re not yet prepared to accept that deal.  Until they come to understand this, we must continue to press the very real issues that are detailed in the motions and transcripts below:

Rondolino Transcript

transcripthsbcvjohnson

Calvin Johnson Affidavit, Obj to Hearing, Req for Contin, D’s Obj to P’s Mot for SJ-1

And finally, the touchstone case on admissibility of affidavits:

IN RE FORFEITURE OF 1998 FO..

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Download Opposition of Motion for Summary Judgment here and read the winning Hearing Transcripts from Matt Weidner Esq.

Rondolino Transcript

transcripthsbcvjohnson

Calvin Johnson Affidavit, Obj to Hearing, Req for Contin, D’s Obj to P’s Mot for SJ-1

And finally, the touchstone case on admissibility of affidavits:

IN RE FORFEITURE OF 1998 FO..

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Full Hearing Transcript  . Courtesy of T. Ice Esq. Palm Beach Florida
 
 Florida - June 2010 - MSJ denied. Affidavits Hearsay Insufficient

What we are starting to see here is a pattern of Judges not excepting these affidavits from these robo-signers.

I can tell you that, if properly challenged, they will pull the affidavits across the board.Don't let that stop you from deposing these people, because once you do it will clearly show that they DO NOT have the authority to produce them. It will also show you they know absolutely nothing about the documents that they are signing even though they state it is of their personal knowledge.

Below is a transcript of how one Judge, in Palm Beach County, DENIED a motion for summary judgment on pending issues, including the insufficient affidavit.

Another key issue was an affidavit presented by the defense from Expert Witness Lynn Szymoniak regarding the fraudulent assignment presented in the case.

Lynn’s expert testimony has stopped many foreclosures in its tracks.

If you are interested in talking to Lynn about her services she can be reached at szymoniak@mac.com and just tell her 4closureFraud sent ya…

Some excerpts from the transcript…

THE BANK OF NEW YORK TRUST
COMPANY, N.A., AS TRUSTEE FOR
CHASEFLEX TRUST SERIES 2007-3,
Plaintiff,
-vs-
DAVID J. MOSQUERA; ELIZABETH

~

THE COURT: Okay. Without going into
anything else, I’m not about to enter a motion –
granting a motion for summary judgement based on
an affidavit of Mr. Reardon.

~

MR. CHANE: Your Honor, there is simply no — there’s no basis to –

~

THE COURT: I’m sorry. It’s just — it
basically just says he looked at some records. I
don’t know what he looked at and he plugged some
numbers in.

~

MR. CHANE: Your Honor, it’s based on his
personal knowledge. That’s all he needs to do
according to the Rule.

~

THE COURT: Well, motion denied.

~

MR CHANE: On what basis, Judge?

~

THE COURT: On the basis that the Court
fears that there are many issues of fact to be
determined. This is not a matter in which
everything is undisputed.

~

MR. CHANE: What issues of fact?

~

THE DEPUTY: Sir, the Judge ruled. The
hearing is over.

~

4closureFraud.org

~

 

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From a Lawyer:

Critical Courtroom Objections ...

Putting the Brakes on Crooked Judges & Lawyers!

The most important thing to learn about winning lawsuits is the easiest to learn!

Timely objections!

You cannot win without controlling the court.

Many people (from watching courtroom battles on TV or at the movies) believe we make objections to control "the other lawyer". In fact, that is the smallest part of it.

We object to threaten the judge with appeal!

If a judge didn't have to worry about appeal, he could rule any way he wishes -- knowing absolutely nothing you cControl Judges with Jurisdictionary!an do will reverse his decisions.

I'll bet many of you didn't know that.

If an issue is not raised during lower court proceedings, appellate courts will not consider the issue after you lose.

That is a hard-and-fast rule of appellate courts!

If the other side crosses the line, you must object. If the judge sustains your objection, you stop the tricks.

If the judge overrules your objection, you object again and state your reasons ... even if the judge threatens you with contempt!

At the close of the other side's argument, you renew your objections once again.

At the close of all deliberation, you renew once more, to make crystal clear to the judge that you are not playing!

If you don't object, you cannot win on appeal.

And, of course, you must arrange in advance of every hearing and trial for the proceedings to be recorded by an official court reporter ... or you cannot win on appeal.

If the judge knows you cannot win on appeal, you've given him a free hand to do as he pleases. Not good!

The judge is not the authority!

You must make it crystal clear on the court's record that the judge will be reversed on appeal if he rules against you, and you do this by making timely objections and renewing them if you are overruled.

The reason we renew our objections is to give the judge one more opportunity to do what's right! Appellate courts want the record to show that the judge was very much aware of your objections, the grounds for your objections, and stubbornly refused to follow the law!

Each time you object (and state the grounds for your objections, unlike TV actors) you put the judge on notice that overruling your objection threatens appeal.

If your objections have solid legal footing and the judge overrules your objections, he is skating on thin ice!

When you renew your objections, he knows you intend to take him up on appeal if his errors harm your cause.

For example, one of the most common errors is letting the lawyer on the other side "testify". The lawyer on the other side is not a witness. He doesn't have first-hand knowledge of the facts. He lacks "competence" to testify to any fact he learned from others. Far too many good people  lose their lawsuits simply because they allow the lawyer on the other side to put facts into the record that are beyond the lawyer's own, personal knowledge.

Failure to object is fatal.

"Objection, your Honor. Counsel is testifying to facts beyond his personal knowledge and lacks competence to act as lawyer and witness at the same time!"

If the judge sustains your objection, you've put a stop to one of the most common outlaw games crooked lawyers play ... and you've strengthened your case.

If the judge overrules your objection, just stand up and say, "Let the record reflect my objection that opposing counsel lacks competence to testify to these matters."

When the other side finishes his presentation, object again!

At the close of all the testimony, object again!

Don't let corrupt judges and crooked lawyers win!

Clever argument is not enough.

Knowing the law is not enough.

Controlling judges is what wins lawsuits!

You control judges by making clear on the record that you intend to appeal if the judge rules against you!

You do this by making timely objections and renewing your objections so the record is crystal clear!

Know how to control the judge - or you will lose!

Learn how to control judges by timely objecting!

As Woody Guthrie used to sing, "This Land is our Land," and that includes every courtroom and every courthouse from San Diego to Bangor, Maine. Why let lawyers control our lives with trickery? Why let judges destroy our lives by letting lawyers get away with their typical trickery?

 

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Check out this interesting website:

 
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Another idea to beat MSJ - Challenge Affidavits
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Case law : Bank of New York v. Verizzo

from http://www.mattweidnerlaw.com/blog
I had my back up against a wall going into a summary judgment hearing yesterday because my client had been convinced by the lender that he should ignore me and stop working with his attorney to try and protect his case.  The lender assured him that they would work things out so he didn’t need to respond to my letters and emails.

He finally came to me just before the hearing and I was scrambling to put together my defense when local Foreclosure Fraud Fighter Mark Stopa sent me an email reminding me that these foreclosure mills cannot rely upon affidavits of attorneys fees to establish those fees, the expert testifying to those fees must be in court in person.  I attach the case law on both that issue and the other issues I was prepared to argue below:

Attorney’s Fees

Thankfully we didn’t even get that far in this hearing because in this circuit, the judges are very serious about devoting adequate time to argue summary judment when the issues are contested.  I hear these horror stories about Rocket Dockets elsewhere and it just blows my mind because I have only had one Summary Judgment hearing where I felt like I was not being given adequate time or my arguments not being seriously considered.  I reported that defeat, but I am most pleased to report that I had that reversed on rehearing.  The care taken by the judges in this circuit shows that highest level of judicial discretion that we should expect in every hearing, in every courtroom across the state.

Anyway, much thanks to Mark Stopa for sharing his good work.  Mark is a tenacious and very good attorney who is not at all willing to back down from a big fight..

Finally, let me again encourage each of you to visit Dan Gelber’s campaign page, and particularly look here at his issues section for detailed information about mortgage fraud and fights.

We can make a difference in this race, but every single one of you needs to sign up, sign on and make your voice heard in this campaign.  When you are frustrated, overwhelmed and feel helpless, channel that energy into something that might actually be useful, like volunteering for his campaign or at least sharing your concerns on his Facebook page here.

 

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PREPARATION TO DEFEAT MOTION FOR SUMMARY JUDGMENT
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http://www.mattweidnerlaw.com/blog

A few weeks ago I posted that I had lost a Summary Judgment hearing.  That loss was most disturbing for me because I have lost very few and I cannot recall losing one where the homeowner wanted to stay in the home and was actively working with me.  This frankly is not so much great lawyering on my part as much as it is the judges in this circuit correctly applying the law of Summary Judgment in these cases.  The law is simple, if a question of material fact exists, Summary Judgment is not appropriate.  The problem for Plaintiffs and the foreclosure mills is they very rarely are able to put together a case where a skilled attorney cannot document several material facts that preclude entry of Summary Judgment.

It’s not just material facts that cannot be in dispute, the Plaintiff must fulfill tricky evidentiary and technical burdens.  I take every single case from the beginning as an effort in exposing and pleading out those deficiencies so that when we do go into a Summary Judgment hearing, I typically have multiple very specific objections filed.  I also make sure I’ve got a court reporter, I go personally inspect the court file days ahead of the hearing  and am prepared to reinforce my objections and make new ones during the hearing.  In addition to all this advance work,  I brief every single case and copy (and highlight) all my case law every single time to refresh my memory and to make sure I am doing my job to make sure the judge has the case law.

Even if all this is done, it’s still possible to lose a Summary Judgment hearing, but if one loses the loss and the error resulting from that loss will be properly preserved for appeal.  Earlier in the week I published a transcript from a Summary Judgment hearing where the Summary Judgment standard was correctly applied and accordingly Summary Judgment was denied.  I post that transcript again here, but I have also posted another transcript which shows how a Summary Judgment was granted despite the existence of multiple legal infirmities that preclude the entry of Summary Judgment.  What follows are my Motions for Rehearing.  Please consider the issues raised in these Motions and most importantly…MAKE SURE YOU HAVE A COURT REPORTER AT EVERY SINGLE HEARING!

Before we get to the pleadings, let’s be very clear about that point.  There are far too many adverse hearings occurring and far too much complaining from our side about improper procedures.  We all owe it to the courts (appellate and trial) and to the future generations to document all that is going wrong during this mad rush to drive the bus off the cliff. MAKE SURE YOU HAVE A COURT REPORTER AT EVERY SINGLE HEARING!

And now for the good stuff!

D’s Supplemental Memorandul of Law in Support of Motion for Rehearing-Motion to Vacate Final Judgment-Emergency Motion to Stop Foreclosure Sale-Motion for Stay Pending Appeal

Motion to Set Aside

Transcript

Taylor_Bean vs Preble_08-24-10_Beach_FullSize



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A peek inside the Court room at a Motion for Summary Judgment. The MSJ was denied but not without a fight from the Homeowner and their attorney.
http://www.scribd.com/MSJ-Denied-Transcript-of-PARADA/d/38603807
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Uncensored version of the PRADA transcript above
http://mattweidnerlaw.com/blog/wp-content/uploads/2010/10/PARADA.pdf

Watch how the Judge questioned the owner.
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Brindy
This is what happens with a well trained, prepared and dedicated defense attorney.  The Judge seemed quite arrogant, particularly when he questioned the homeowner and made snide comments about 'Chanel No. 5' and the usual blather about 'living rent free'. 

The Corpus Juris Secundum (law encyclopedia) remark towards the defense lawyer were unnecessary and indicitive of a Judge who harbors a grudge towards those who are smarter than he.

In the end though the MSJ was denied and given that the decision was in Florida, a bit surprising.  Nevertheless well done to the defense.


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Another Foreclosure Court Hearing transcript. Watch the Judge opinion on Motion to Compel Discovery, Affirmative Defense and how the excellent attorney replied. A learning experience especially for Pro Se litigant

http://mattweidnerlaw.com/blog/wp-content/uploads/2010/10/ROCKETDOCKETTRANSCRIPT1.pdf
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