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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FlaProSe
PHILIPPOU v. J.P. MORGAN MORTGAGE 
Release on 03/01/13

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/March/March%2001,%202013/2D10-4771.pdf

Roper groupies need not respond.
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tw
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PHILIPPOU v. J.P. MORGAN MORTGAGE
Release on 03/01/13

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/March/March%2001,%202013/2D10-4771.pdf
Although there was minimal elaboration due to the appellee's confession of error, there is an important principle illustrated by the Philippou decision that is closely related to a topic more frequently visited by several Forum commentators. The more common theme is that a judgment is typically binding only upon those who are expressly made parties to a case (most commonly by naming and serving those parties). If A sues B, C, a non-party to such suit is not typically bound by any judgment or final order determining A's and B's rights.

The related nuance, less frequently discussed is that judgment cannot be granted in favor of a non-party to an action. If A sues B, the court cannot enter a judgment in favor of C unless C either intervenes in the case and requests relief or C is properly substituted as plaintiff by motion and order.

This latter problem arises far more often than many folks realize. Sometimes a suit will be filed in the name of one corporate entity (sometimes a servicer), but the foreclosure mill will prepare a judgment in the name of either another related entity or the judgment will be in favor of a GSE or an institutional bank serving as trustee for a mortgage trust.

As with so many issues, it is usually important that the issue be raised and preserved for appellate review, though in some jurisdictions a judgment in favor of or against a non-party may even be fundamental error that can be raised for the very first time on appeal. Be sure to carefully check both the rules and the cases on this topic to determine the error preservation requirements for your jurisdiction if you are faced with such a situation.
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LoneStar
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Although there was minimal elaboration due to the appellee's confession of error, there is an important principle illustrated by the Philippou decision that is closely related to a topic more frequently visited by several Forum commentators. The more common theme is that a judgment is typically binding only upon those who are expressly made parties to a case (most commonly by naming and serving those parties). If A sues B, C, a non-party to such suit is not typically bound by any judgment or final order determining A's and B's rights.

That is definitely the rule in Texas!

See Tex. R. Civ. P. 124:

"RULE 124. NO JUDGMENT WITHOUT SERVICE
In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules."

See also:

[i]Mapco, Inc. v. Carter, 817 S.W.2d 686 (Tex. 1991)[/b]
http://scholar.google.com/scholar_case?case=17397794272689432769
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Adam
This FlaProSe is really a piece of work. He lacks the thought processes and creative ability to even conceive of a useful subject for new threads. Here we have a thread with subject "New Opinion from Fla. 2nd DCA". Duh!

No thought was put into the subject and no useful commentary accompanied the link. Apparently, he thinks that he has somehow contributed merely by visiting the Florida appellate site and posting a link to a decision that he doesn't understand.

Then he has the rudeness to criticize others of far greater intelligence who post useful material.

If everyone put as little thought into new threads as this moron, the Forum would be cluttered with hundreds of threads all bearing the same useless subjects.
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Cal
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PHILIPPOU v. J.P. MORGAN MORTGAGE
Release on 03/01/13

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/March/March%2001,%202013/2D10-4771.pdf

Roper groupies need not respond.

This fool FlaProSe includes no discussion of the case and as pointed out the subject of the thread tells us almost nothing. The 2nd DCA announces new decisions every week. Instead, he uses the occasion of his post only to attack those thoughtful Forum participants who respect Mr. Roper's well reasoned posts. FlaProSe is a vile, ungrateful fool.
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It must benefit JP Morgan Chase in some way.  Perhaps they are eating each other now; it's all that is left. Most property is now either owned by the vile step children of our government Fannie and Freddie or the banks that never irrevocably transferred the notes to the REMIC.  Who knows but it's not going to be straight forward and we will likely spend months dissecting the real reason they did this. 

Adam and Cal is it?  Oh most holy on high, your greatness is only surpassed by your small brains and un-America rants. Do trolls come out only at night or do they let you out during the day? Is the color of your skin slim green?  Do you have big noses?  Are your ears waxy and hairy?   

How many Roper groupies will attach me now?  I'm taking bets.
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Adam
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It must benefit JP Morgan Chase in some way. Perhaps they are eating each other now; it's all that is left. Most property is now either owned by the vile step children of our government Fannie and Freddie or the banks that never irrevocably transferred the notes to the REMIC. Who knows but it's not going to be straight forward and we will likely spend months dissecting the real reason they did this.

Sharon is really a piece of work! As I recall she has been exposed as a shill for the scam artists in prior threads.

For anyone who is actually in doubt about the reason that JPMorgan Chase would confess error in such a case, the reason is rooted in ethical canons which bind lawyers everywhere. It is a violation of ethical canons for a licensed attorney to make a legal argument which he knows is contrary to valid, binding legal authority.

In this case, there is no fact dispute that the judgment is in favor of a non-party. Florida case law is chrystal clear about this. There is no possible legal argument to oppose or resist reversal of the judgment, thus confession of error is the only legally valid strategy for the appellee. The confession may be explicit by confession in writing in a responsive brief or implicit (by simply not filing an opposing brief).

The matter gets remanded to the trial court and the case continues rather than being dismissed, so it is still somewhat of a Pyrrhic victory, especially if the house was already sold at judicial sale, leaving the borrower homeless.

The plaintiff may still succeed in getting a judgment in the name of the original plaintiff OR, by motion substituting the new plaintiff, and then getting the judgment in the name of the new plaintiff. JPMorgan and the foreclosure mill left out a critical step. This is still a mindly better outcome for the homeowner if the house wasn't actually sold.

JPMorgan probably also benefits somewhat more from an explicit confession of error, because it probably sped the disposition of appeal. If the appellee simply failed to file a brief, the court could have treated this failure as a confession of error, but is not required to do so. The court probably would have proceeded with the appeal more deliberately, taking addition weeks or months to reach the same decision if the plaintiff hadn't confessed error. The explicit confession, quickly disposes of the appeal, putting the case back to the trial court where the plaintiff will either present a judgment in favor of the original party or a motion to substitute. The outcome is probably still much the same, but the borrower has probably bought a little time, though less than if the plaintiff-appellee had resisted.

JPMorgan gets a better outcome with LESS risk to the law license of the appellee's attorney.

The case is an interesting read and has instructional value, but this seems to have been lost on a numbnuts like FlaProSe. It is clearly lost on Sharon, whose sole function seems to be to act as a cheerleader for swindlers.
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Texas
FlaProSe, appears people read and read not what they want. As for writing, not yet formed an opinion.
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Bruce
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In this case, there is no fact dispute that the judgment is in favor of a non-party. Florida case law is chrystal clear about this. There is no possible legal argument to oppose or resist reversal of the judgment, thus confession of error is the only legally valid strategy for the appellee. The confession may be explicit by confession in writing in a responsive brief or implicit (by simply not filing an opposing brief).

Adam is unquestionably correct about this.

"The final summary judgment in this case was entered in favor of Novastar Home Mortgage, Inc. ("Novastar"), a nonparty to the suit because of its prior withdrawal from the case. It is fundamental error to enter judgment in favor of a nonparty. Beseau v. Bhalani, 904 So.2d 641 (Fla. 5th DCA 2005); Rustom v. Sparling, 685 So.2d 90 (Fla. 4th DCA 1997). The defect, which is jurisdictional, can be raised by this Court sua sponte. Dep't of Envtl. Prot. v. Garcia, ___ So.3d ___, 2011 WL 3300540 (Fla. 3d DCA 2011)."
Beaumont v. BANK OF NEW YORK MELLON, 81 So. 3d 553 (Fla. 5th DCA 2012)
http://scholar.google.com/scholar_case?case=1933338619351060809

Adam also makes another exceptionally insightful point, which I think shows that the client's interest is closely aligned with the ethics issue:

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JPMorgan probably also benefits somewhat more from an explicit confession of error, because it probably sped the disposition of appeal. If the appellee simply failed to file a brief, the court could have treated this failure as a confession of error, but is not required to do so. The court probably would have proceeded with the appeal more deliberately, taking addition weeks or months to reach the same decision if the plaintiff hadn't confessed error. The explicit confession, quickly disposes of the appeal, putting the case back to the trial court where the plaintiff will either present a judgment in favor of the original party or a motion to substitute. The outcome is probably still much the same, but the borrower has probably bought a little time, though less than if the plaintiff-appellee had resisted.


I think Adam is dead on that the appellate court acted upon and disposed of this appellate case much more quickly as a result of the explicit confession of error. This is an appellate functional equivalent of presenting an agreed order to a trial court. When there is no controvery and nothing to weigh and adjudicate, there is no reason not to simply enter an order reversing the judgment. The opinion required minimal work and might very well have been completed in fifteen minutes.

I haven't seen any metrics on appellate case clearance rates and timetables in Florida, but this feels like the correct answer. I am very sure that this would be the case in my state.

As far as the merits of other various posts in this thread, I would agree with the comments that neither FlaProSe nor Sharon have contributed anything useful to the discussion other than making vile and unsupported attacks on others.
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Salty
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Although there was minimal elaboration due to the appellee's confession of error, there is an important principle illustrated by the Philippou decision that is closely related to a topic more frequently visited by several Forum commentators. The more common theme is that a judgment is typically binding only upon those who are expressly made parties to a case (most commonly by naming and serving those parties). If A sues B, C, a non-party to such suit is not typically bound by any judgment or final order determining A's and B's rights.

The related nuance, less frequently discussed is that judgment cannot be granted in favor of a non-party to an action. If A sues B, the court cannot enter a judgment in favor of C unless C either intervenes in the case and requests relief or C is properly substituted as plaintiff by motion and order.

This latter problem arises far more often than many folks realize. Sometimes a suit will be filed in the name of one corporate entity (sometimes a servicer), but the foreclosure mill will prepare a judgment in the name of either another related entity or the judgment will be in favor of a GSE or an institutional bank serving as trustee for a mortgage trust.

As with so many issues, it is usually important that the issue be raised and preserved for appellate review, though in some jurisdictions a judgment in favor of or against a non-party may even be fundamental error that can be raised for the very first time on appeal. Be sure to carefully check both the rules and the cases on this topic to determine the error preservation requirements for your jurisdiction if you are faced with such a situation.

This would appear to be a correct statement of law in Utah:

"Defendants contends that the trial court erred by declaring a constructive trust in favor of Etta Wood's estate on the proceeds of the $30,000 received by decedent from Etta Wood's New Mexico bank account. Utah Rule of Civil Procedure 54(c)(1) provides in pertinent part:

[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. It may be given for or against one or more of several claimants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between or among themselves.[1]

This rule is consistent with the general principle that a trial court may not render judgment in favor of a nonparty. Courts can generally make a legally binding adjudication only between the parties actually joined in the action.[2] The record fails to indicate that the estate of Etta Wood was a party to this lawsuit below. In accordance with the above principles, we hold that the trial court erred by rendering judgment in favor of the estate of Etta Wood."
[i]Hiltsley v. Ryder, 738 P. 2d 1024 (Utah 1987)[/b]
http://scholar.google.com/scholar_case?case=334243670062460575
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$&?!
tw gives some terrific analysis in the second post above:

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The related nuance, less frequently discussed is that judgment cannot be granted in favor of a non-party to an action. If A sues B, the court cannot enter a judgment in favor of C unless C either intervenes in the case and requests relief or C is properly substituted as plaintiff by motion and order.

This latter problem arises far more often than many folks realize. Sometimes a suit will be filed in the name of one corporate entity (sometimes a servicer), but the foreclosure mill will prepare a judgment in the name of either another related entity or the judgment will be in favor of a GSE or an institutional bank serving as trustee for a mortgage trust.

As with so many issues, it is usually important that the issue be raised and preserved for appellate review, though in some jurisdictions a judgment in favor of or against a non-party may even be fundamental error that can be raised for the very first time on appeal. Be sure to carefully check both the rules and the cases on this topic to determine the error preservation requirements for your jurisdiction if you are faced with such a situation.


Posts of several others, except for FlaProSe and Sharon, are also thoughtful.

Although I haven't read a lot of case law on this particular topic, intuition suggests that properly argued this issue is jurisdictional and therefore probably reflects fundamental error almost everywhere.

Leaving aside the remarkable and sloppy practice of the foreclosure mills, filing various pleadings purporting to represent an alphabet soup of various parties, intuition and common sense suggests that there are two basic ways that an entity becomes a party, subject to a court's personal jurisdiction.  First, a plaintiff voluntarily becomes a party by filing a pleading.  Second, a defendant becomes a party by being named and properly served.  A named defendant can also become a party after being named by appearing in writing or in person after be named in pleadings by other parties as a defendant or cross-defendant.

Without being either a plaintiff or defendant or otherwise being expressly named in a pleading, a person is not a party, even if the person participates in some way.  For example, witnesses in a case, attorneys, or spectators in a courtroom are not parties.

Thus, when A sues B and B is properly served, A and B are parties.  If C is not named or served and C doesn't otherwise intervene in the case, then C is not a party.

The distinction as to the rights and privileges and the responsiblities of being a party are quite important.  Suppose that B has injured both A and C.  Further suppose that A sues B in respect of A's injury.  Now if, after hearing or trial the court enters a judgment in favor of both A and C or just in favor of C, this is almost certainly going to foreclosure upon C seeking any further relief.  That is, the priniciple of res judicata can be invoked by B should C seek any additional recovery.

A court really lacks personal jurisdiction over any person or entity not properly made a party.  And it is always improper for a court to grant judgment in favor of an entity not expressly invoking the court's authority to grant relief.  Only by filing a pleading, claiming injury, can a person typically invoke a court's subject matter jurisdiction.  That is, state courts are usually open only to adjudicate the rights of parties actually claiming injury.  If there is no claimed injury, then the court also lacks subject matter jurisdiction to act.  So a judgment in favor of a non-party seems to always suffer from two jurisdictional elements separate from any express violations of the court rules.

While only the injured person -- the non-party -- can probably complain about the defect in personal jurisdiction, any party can raise the subject matter jurisdiction issue, usually at any stage of a proceeding and, in many places, for the first time on appeal.  Courts can and should also raise the issue sua sponte any time they discover that an order has been entered in favor of a non-party.

I want to complement several of the newer Forum participants on the very high quality of their recent posts and analysis.  While the Forum continues to suffer from the erroneous spam posted by the likes of Mike H., FlaProSe, Sharon and several other scam artists or shills for scam artists, other participants seem to have a very sharp understanding of the law and issues under discussion!  Kudos to all!
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