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.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us

Standing Before A Florida Judge…

Be Prepared Be Prepared Be Prepared!!! 

Most Pro-Se Homeowners don’t know this and EVERY attorney representing a homeowner in a foreclosure case should.  When you go in front of a Florida Court Judge for any type of hearing, be prepared…be prepare…be prepared!  So what exactly does that mean? I’m going to get into depth on this topic because I’ve been sitting in judges chambers as of late watching homeowners and attorneys go before some really great judges that actually listen yet lose interest and get frustrated because of the terrible presentation before them.

Here is the AMA Best Practices on Foreclosure Defense Tactics in FRONT OF THE JUDGE!!!

1. Print out a copy of all the case-law you’ve cited in your pleadings and highlight the important portions you are relying on.  Judges are people, not super computers that have ever case in history memorized.  When you bring up a point that is supported by case-law the judge is going to want to see it.  Don’t be that person that say’s “oh uh I don’t have it.”  That’s like going back to the 8th grade and telling your teacher you forgot your homework.  No matter what the excuse, you just made yourself look bad.

2. Beware citing cases that have a line or two in your favor but the rest of the case completely disproves or hurts your argument.  Even though you highlighted the portion you want the judge t focus on, if it’s interesting enough, he will continue to read.  Don’t let the additional reading pull him away from the point you are trying to make.

3.  It’s a 5 minute hearing at best so Keep It Simple Sweetheart (K.I.S.S.).  Sales people are trained to close their targets in minutes and can identify if their target is sold on their spiel using K.I.S.S.  You are a sales person and the judge is your target.  Keep it simple and he will love you.  Complicate the issue and you will frustrate him and lose him.  Don’t go into the hearing shooting from the hip.  Know what points you want to focus on, have those cases available and bring it home in 5 minutes or less.

4.  If in your hearing you see opposing counsel has p.. off the judge and his/her honor begin digging into opposing counsel, keep your mouth shut!  You’re work is pretty much done!  Once the judge is done spanking opposing counsel all you need to do is remind the judge why he should rule in your favor and when he does, simply ask if he/she would like you to draft the Order then get out of there!

5.  Pro-Se homeowners, you are in front of the judge whose only objective and desire is to hear the facts in dispute.  The judge does not want to hear Countrywide is a predatory lender.  The judge does not want to hear how you are being abused.  There are ways that I have observed that have helped a homeowners argument.  For example I’ve seen a homeowner before a judge who rather than call it predatory lending stated that their monthly payment went from $1,800.oo a month to $5,300.00 a month.  This caused the judge to take a greater interest in homeowners argument.  When you are speaking with the judge only bring up the facts that are in dispute.  For example Capacity to Sue, Standing to Foreclose, Negotiable Instrument, UCC, Conditions Precedent (i.e. failure to post non-residential bond), Notice of Acceleration etc.  These are all facts in dispute to be raised and have supported case-law to argue.

6.  The “endorsed note” magically has appeared in the file.  I’ve seen defense counsel stumped on this one as opposing counsel now has a ”legal standing” argument.  SO WHAT!  It takes more than a note endorsed in blank to prove standing.  Remember Florida requires you to be the OWNER and HOLDER of the Note.  If the complaint alleged OWNER and HOLDER and the note is endorsed in blank the OWNER element has not been met. BEWARE the MERS assignment to support the transfer of the beneficial interest in the NOTE.  I’m seeing attorney after attorney walk into court and have their Motion to Dismiss denied because they fail at this juncture of the hearing.  These MERS assignments should be scrutinized in their entirety but there is no need to try to cry conspiracy.  Judges don’t want to hear that.  Instead approach the document on its face.  MERS is cited as nominee on MORTGAGE and is NOT mentioned ANYWHERE on the Note.  The Mortgage follows the Note and not vice versa.  Although opposing counsel can argue MERS granted its interest in the Mortgage, the Note does not mention MERS anywhere on the document.  Hence a MERS Assignment that transfers beneficial interest in the Note when MERS is not mentioned anywhere on the NOTE is a fact in dispute that will cause a judge t ask opposing counsel… “How is MERS able to issue and assignment transferring a beneficial interest that the Note clearly does not give them to transfer?”  This will cause a judge to dismiss.

7.  Your place on the docket – whether hearings are being held in chambers on in the courtroom, once you are in there, make it a point to listen to the other foreclosure cases being heard before you.  They are critical to determining the mood of the judge and if lawyers are making the same arguments as you and the judge is denying them.  Be smart and ready to adapt your strategy to the color of the day. Paying attention to this is crucial to success in front of the judge.  If you see the judge is playful in his commentary don’t change his mood against you.  If you see he’s not favoring opposing counsel today, come out straight to the point and force opposing counsel to respond.  Use insight of what you are seeing in court to your advantage.

I will begin posting more comments like these to help attorneys and pro-se homeowners alike. The point of this post is to get you all to be prepared.  Most judges want to help but you have to do your part, be right on point and raise the important issues. Feel free to reach out to me if you have any questions at anthony@amartinezlaw.com or http://www.amartinezlaw.com.

Quote 0 0

Appearing Before The Judge At A Hearing & Bringing It Home!

 I am going to do is dedicate this page to strengthening Attorneys or Pro se ability to LITIGATE!  Some of you are great at Motions & Pleadings but when it comes to stepping out the office and making the argument and impression there is much room for improvement.  Why listen to me?  Let me tell you why!

Qualifications: Since 1998 I’ve secured nearly half of the top 100 AMLAW firms as clients.  You don’t achieve this without the gift of gab or wearing multi-color suits.  You don’t put clients like Skadden Arps or White & Case on your roster by flying by the seat of your pants.  You get them by going in there armed with knowledge of the case at hand, the issues and the answers to them.  You make sure your presence is felt in the room as the expert of the topic whose opinion can be trusted.  You leave there with everyone in the room knowing exactly who you are (and not because you handed everyone your business card).

Rule No 1. Look Sharp…Feel Sharp…Be Sharp!
When I first joined the military to become a Military Police Officer I when through what is called OSUT (One Station Unit Training).  This means you go through Basic Training & Advanced Individual Training (AIT) at the same time.  On every mirror in every room there were words across them that read: Look Sharp…Feel Sharp…Be Sharp!  Wearing the uniform meant playing the part and taking pride in it.  When everyone had to get up at 4am I was up at 3:30 starching and ironing my uniform to be the sharpest looking soldier in formation.

Foreclosure Defense is not just a strategy it’s quickly become a new practice of law in its own right.  Foreclosure Defense Attorneys are much different from those prosecuting a foreclosure action.  First, the attorney prosecuting has nothing to lose.  If you lose, your client will lose their home, investment in their future and suffer family devastation.  You stand (psychologically) a greater defeat than your opponent. 

Don’t walk into court looking like a used car salesman.  Play your position correctly and dress the part.  Take pride in yourself which will reflect to the court and opposing counsel you take pride in your work and your client. Look Sharp…Feel Sharp…Be Sharp!!!

Rule No. 2: Emulate Confidence!
Some of you younger attorneys confuse this with being cocky.  DON”T BE COCKY!  No one likes a jerk.  But the way you walk, the way you talk and most importantly the way you look people in the eye when you speak says much more than your words.  I’m trained to detect when someone is lying through their eyes and body movements.  One of the first things growing up as boys (good boys) is give a firm hand shake and look em dead in the eyes when you speak.  This doesn’t change.  It tells the judge if they can trust what you’re saying or not. 

When you speak, speak with confidence.  Make it a point to remove the following words out of your vocabulary – UM, UH & YEAH.  Make it a point to eliminate pauses in your sentences.  Watch the expression on your face (I promise you opposing counsel is reading you & you should be doing the same).  Don’t show through facial expressions what your response is going to be to what is being said.

Rule No. 3: CONTROL THE ROOM!!!  Yes I know the Judge is in control but your voice and what you are saying should control the hearing itself.  It is imperative that you immediately get the Judge to value your speaking.  How do you do this?  The first time you open your mouth you have to immediately spark and grab the judges attention with what you are saying and make sure that opposing counsels remark do not shadow your efforts.  This means whatever you’re having a hearing on your first point needs to be a grenade not a firecracker!

I once spoke to a Judge in New York when I was contemplating law school years back who said to me, “I’m going to give you some great advice.  I live in Brooklyn and take the train home everyday.  I have lawyers who file 20 to 80 page pleadings.  You think I read them all front to back?  The ones I read are the ones that grab my attention from the start.  In law school they teach you like all writing classes…beginning, middle, end!  Learn to write your pleadings backwards where the end is on the first page.  Those are the pleadings I like reading!”

Don’t build up to the conclusion start out with it!  “Plaintiff has committed a serious fraud upon this court your honor…let me tell you why!”  Not “it appears that my client has always paid the mortgage on time and we have reason to believe that the payments were not being applied correctly to the right account.  I have a copy of the statements that show my client paid…” blah blah blah!  “Plaintiff has committed a serious fraud your honor.  They were accepting payments from my client all this time knowing the loan was paid for in full on January 7, 2007 by ABC Investors and thinking that my client would never find this out, have now filed this foreclosure action in a final attempt to rob the vault! (this is just an example of attention grabbing).  “I have in my possession copies of all payments made by my client before and after January 9, 2007 to present as well as a statement of sale from the original lender showing they loan was paid for in full by ABC Investors.  I have a letter from ABC Investors saying they have no business relationship with Wells Fargo, the Plaintiff in this case and that at no time was Wells Fargo authorized to collect monies on their behalf.”

Rule No. 4: Learn To Read Your Opponent
I mentioned facial expressions before.  They can be a critical factor in determining how to fluster your opponent.  Yesterday I was in 11th Judicial Circuit with a colleague and one of the opposing counsels there was a loud obnoxious female (sorry ladies most of your are great but this one wasn’t).  Before it was her bat at the plate while in chambers she was already talking, took a call on her cell phone (Judges hate both) and was all over the place.  When a defense attorney went up against this woman, she began almost screaming at the guy.  Rather than use this to his advantage and cause her to explode, he sat there quietly and (I assumed) hoped she calmed down on her own.  The Judge was a woman who in her own expressions, was a bit aggravated and ready to tell opposing counsel to calm down but counsel did on her own and so guess who lost the hearing?  Opposing counsel controled the hearing before the hearing began…Judge gave her exactly what she wanted and defense counsel walked out with his head down.

Rule No. 5: Be Prepared!
Don’t fly by the seat of your pants. I mentioned this in another post.  Have your arguments ready and your cases printed.  HIGHLIGHT the portions of the case you want the judge to focus on and don’t use cases that can also hurt your argument.  Judges are not legal encyclopedias.  They want to see the text.  Try to have text from the circuit and appellate division that covers the one you are in.  It is more persuasive to that judge.  If you don’t and have to use cases from another circuit or appellate division be prepared to show the judge WHY they should rule the same.  DON’T JUST SAY IT…SHOW IT!!!

Rule No. 6: You Have To Close!
I can’t stress this point enough.  If you don;t ask for it you won’t get it!  I’ve seen counsel sit there and see what the judge is going to decide.  HELL NO!!!  Don’t you there sit there and wait!  Make sure you close strong and ASK for the relief you seek as if not getting it would be a denial of your constitutional right and a severe miscarriage of justice!  Those little wait and see what happens seconds can push a judge on the fence right over to the other side.  You have 5 minutes to get your point across and agreed on.  You have to end it by asking for a decision in your favor.

These are just a handful of things that I feel can help you come close to winning that hearing.  Feel free to email me a specific question at anthony@amartinezlaw.com.  I’m here to help you help others in need of help!

-Anthony Martinez

Quote 0 0
Write a reply...