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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 The Best Foreclosure Court Order yet  Published in Florida

Fraudclosuregate continues to spin out of control.  Absurd statements from Bank of America and the other institutions and law firms that fostered the festering crisis to the contrary, things are only going to get worse.  Title claims and will soil our public records for decades and litigation will choke our already bogged down court systems.

When the autopsies are completed, there will be dramatic distinctions and differences in the problems that will be faced by each of this state’s court circuits.  It is no secret at all that the judges in the Sixth and Twelfth Judicial Circuits are among the toughest in this state.  If you practice here, you are prepared to be put through your paces….no matter what side of the argument you are on.  That’s the real business of judging.

For a variety of technical reasons, there are not a great deal of reported court opinions that address many of the substantive issues we face in foreclosure.  The primary problem is Orders on Motions to Dismiss are not typically appeal-able orders so there are not many reported decisions that can be cited.  The opinion below however, provides much needed answers to many of the questions concerning the practices and procedures that govern foreclosures in this state.

If you’re a homeowner wondering whether there are still judges out there that apply the law fairly and correctly….READ THIS OPINION….IT WILL RESTORE YOUR FAITH.

If you’re an attorney who feels beaten down and abused by the system…..READ THIS OPINION…IT WILL INSPIRE YOU TO KEEP UP THE FIGHT!

If you’re a reporter who is struggling to understand the depth of the Fraudclosuregate crisis….READ THIS OPINION…IT WILL DETAIL BOTH THE PROBLEMS AND THE SOLUTION.

Finally, consumers, judges, attorneys and reporters owe a debt of gratitude to the homeowner’s attorney in this case, Mark Stopa.  Mark is among the most tenacious, committed and dedicated attorneys out there sticking his neck out and fighting the fight…FIGHTING THE FIGHT FOR ALL OF US.

Please do the world a favor… this opinion, savor this opinion, but most importantly make sure everyone in the world reads this opinion.
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This judge is clearly on the right track, although I only wish he had dismissed  the amended complaint with prejudice and slammed them with sanctions rather then letting them try for a third time.    

Someone should track this one to see if they do come back for a third bite.

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Good is Ocwen's Scott Anderson again. VP of EVERYTHING!

Why doesn't he get deposed? We were talking about his robo-signing ways at this forum long before it was fashionable. Heck, it didn't even have a name then.

Maybe Florida has a "three strikes" law. Three attempts to defraud the court and you go straight to jail without passing GO.

One can hope.....

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Explaining Judge Rondolino’s Order – a case study on the issues we face

If you’ve ever wondered what “foreclosure fraud” is all about or how a homeowner could possibly have legitimate defenses to a foreclosure lawsuit, take a close look at the Order of Dismissal from Judge Rondolino. 

The Plaintiff in this case is Deutsche Bank National Trust Company, as Trustee Under the Pooling and Servicing Agreement Dated as of May 1, 2001.  However, the Note and Mortgage attached to the Complaint are in the name of Maxwell Mortgage, Inc.  The Note contains no indorsement, and there is no allonge, no assignment of mortgage, and no other documentary evidence reflecting a transfer of the Note/Mortgage from Maxwell to Deutsche.  Hence, on the face of the Complaint, Deutsche has no basis to obtain a foreclosure.

After Judge Rondolino dismissed the case the first time, Deutsche filed an assignment of mortgage.  However, the assignment was not created until after the lawsuit was filed, and Florida law does not enable a plaintiff to acquire standing after filing suit.  See Progress Exp. Ins. v. McGrath Community Chiro., 913 So. 2d 1281 (Fla. 2d DCA 2005).  To circumvent this deficiency, Deutsche contends the Note was transferred to it before the suit was filed (even though the written assignment was done after) by some sort of “equitable assignment.”  However, as Florida law requires the pleading of facts, alleging an “equitable assignment” is insufficient without specifying the time, place, and manner of transfer.  In other words, where the written assignment post-dates the filing of the lawsuit, how could the “equitable transfer” have taken place beforehand? 

If this sounds like a lot of legal jargon, it is.  So here’s what’s really going on, both in this case and many others.

Banks don’t have their paperwork in order.  Banks, in this case Deutsche, file foreclosure lawsuits on a regular basis without the requisite paperwork.  When foreclosure cases go unchallenged, these deficiencies go unchallenged, so the banks generally get away with the deficient paperwork.  When foreclosure lawsuits are contested, by attorneys such as myself, banks and their lawyers often try to fix the problem after the fact.  That’s why I routinely see allegations like those in this case alleging an “equitable transfer,” without any factual basis, before the suit was filed even though the written assignment is dated after suit was filed.  Again, how could an “equitable transfer” have taken place before the suit was filed when the written assignment is dated months after?

Whether these types of allegations are permitted is the issue in thousands of Motions to Dismiss (and, ultimately, motions for summary judgment) in foreclosure cases throughout Florida.  Many judges, particularly senior judges, in their ongoing attempt to “push through” foreclosure cases, have denied Motions to Dismiss by homeowners, enabling Plaintiffs such as Deutsche to get away with conclusory allegations of “equitable transfer” without any factual basis. 

As you can see, Judge Rondolino is not one of these judges.  He believes Plaintiffs, even in foreclosure cases, should have to plead some facts in support of an alleged “equitable transfer” of the Note/Mortgage, particularly when the filing of suit precedes the date of the written assignment.  Obviously, I agree … but there’s more to it than that. 

The issue isn’t just whether Plaintiffs such as Deutsche should have to plead facts in support of the alleged equitable transfer … the issue is whether such facts exist.  Again, how could an “equitable transfer” have taken place before the suit was filed when the written assignment is dated months after?

Given his reference to “incacerative sanctions” (if Deutsche’s allegations are proven untrue), it seems Judge Rondolino shares the same belief that I do – in many of these cases, the requisite facts don’t exist.  In other words, it seems there was no “equitable transfer” before the suit was filed, yet Deutsche alleges otherwise to try to “push through” the foreclosure. 

This sounds complicated, but this is the issue in foreclosure cases throughout Florida.  Is the Plaintiff entitled to foreclose?  Can it establish standing as of the date it filed suit?  Is the bank’s paperwork in order?  Many times, the answer is “no,” and it’s good to see a judge call out the banks on these deficient filings.

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