Mortgage Servicing Fraud
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John Lewis

How would a prose handle this situation?

 

Plaintiff as Servicer? I Think Not.

Posted on February 15th, 2012 by Mark Stopa

I observed a foreclosure trial today, and one aspect of it in particular really bothered me. The plaintiff prosecuting the case was not the owner of the Note, but merely the servicer. Many judges and, of course, plaintiffs’ attorneys, seem to think this is fine, arguing the servicer can foreclose because it’s the “holder” of the Note, even though, by its own admission, it’s not the owner. In other words, the plaintiff/servicer concedes it does not “own” the Note, i.e. it’s not the plaintiff’s Note, but because it has the Note in its possession, and the Note is indorsed in blank, it can foreclose.

I’ve thought about this argument a lot, read a lot of case law, and see some fatal problems. Frankly, I’m frustrated these problems are largely being ignored and hope that everyone starts arguing and adjudicating this issue appropriately.

First off, taking the plaintiff’s argument to its logical extreme, anyone can steal a Note with a blank indorsement – literally, be a thief – but because he possesses the Note, and the Note is indorsed in blank, he could foreclose simply because he’s the holder. That sounds insane, but once you accept the argument that the plaintiff need only be the “holder,” and that ownership is irrelevant, that’s what you’re allowing – a thief can foreclose. Anyone can foreclose. Come to court with a Note with a blank indorsement, and how you obtained that Note is irrelevant – you can foreclose.

Respectfully, that’s just not the law. It can’t be the law. There’s no way the law can allow or would allow a thief to foreclose. Undoubtedly, this is why Rule 1.944 requires the plaintiff be the “owner and holder.”

I can hear the plaintiffs’ attorneys now. “But many Florida cases say being a holder is sufficient; they don’t have an ownership requirement.” To a limited extent, I suppose that is true, but read those cases. For example, Riggs v. Aurora Loan Services, 36 So. 3d 942 (Fla. 4th DCA 2010), talks at length about whether the plaintiff was the holder, and plaintiffs’ lawyers love to cite Riggs for the proposition that being the “holder” is all that matters. However, the issue of ownership wasn’t a question in Riggs – in that case, the plaintiff showed it was the “owner and holder.” Respectfully, it is totally misguided to take a case where ownership was not in question and use that case for the proposition that ownership is immaterial. It may have been immaterial in that case because ownership wasn’t disputed, but that certainly doesn’t mean ownership is immaterial in all cases.

Consider, again, my thief example. Once you accept that a thief cannot foreclose, you necessarily accept that the plaintiff who forecloses must own the Note.

Again, I can hear the plaintiffs’ lawyers. “But a servicer can foreclose because the servicer is the holder and has a servicing agreement with the owner, so it’s foreclosing with the consent of the owner of the Note.” This was the argument being espoused at the trial I observed today – the servicer doesn’t own the Note, but is foreclosing with the consent of the owner.

This argument may sound unique or complicated, but it’s one the Florida courts have adjudicated for many years in a number of contexts – that of principal and agent. Here, the plaintiff is saying that it, the servicer, is acting as the agent of the owner, the principal, by prosecuting the foreclosure case. This is the dynamic we see in thousands of foreclosure cases – the servicer alleges it can prosecute the case for the owner under a theory of agency.

In my view, this begs the question of when can an agent bind the principal? Let’s say that again:

Under what circumstances can an agent bind a principal?

There are zero Florida cases that discuss this concept in the context of foreclosure cases, so let’s look to case law in other contexts.

In Fla. State Oriental Med. Ass’n v. Slepin, the First District ruled an attorney was not entitled to collect attorneys’ fees incurred representing a corporation because the attorney (the alleged agent) did not have the authority to act on behalf of the corporation (the alleged principal). 971 So. 2d 141 (Fla. 1st DCA 2007). The attorney said he was acting on the corporation’s behalf, and he purported to act on its behalf, but the First District ruled he wasn’t, in fact, an agent and didn’t have the authority to bind the corporation. In so ruling, the court explained:

A finding of actual authority would require evidence that a principal acknowledged an agent’s power, that the agent accepted the responsibility of representing the principal, and that the principal retained control over the agent’s actions.

Similarly, the Florida Supreme Court has explained:

Essential to the existence of an actual agency relationship is (1) acknowledgment by the principal that the agent will act for him, (2) the agent’s acceptance of the undertaking, and (3) control by the principal over the actions of the agent.

Villazon v. Prudential Health Care Plan, 843 So. 2d 842 (Fla. 2003).

Let’s read those requirements closely, and break them down, one by one.

1. The principal acknowledged the agent’s power.

2. The agent accepted the responsibility of representing the principal.

3. The principal retained control over the agent’s actions.

In the trial I observed today, the plaintiff/servicer admitted it did not even know who the owner of the Note was. Think about that for a minute. The servicer was supposed to be acting on behalf of the owner, with the owner’s consent, but it didn’t even know who the owner was. On these facts, how on earth could the servicer possibly prove the owner/principal “acknowledged the agent’s power”? Clearly, it couldn’t, and it didn’t. The servicer couldn’t even identify the owner, much less prove the owner authorized the servicer’s actions.

This argument is so simple it’s ridiculous.

“I have authority to foreclose.”

“Who gave you authority?”

“I don’t know, but I have authority.”

I can just see my kids making this argument to me and my wife.

“I have permission to stay up until 10:00. That’s my new bedtime.”

“Who gave you that permission?”

“I don’t know, but it’s allowed.”

These arguments don’t even begin to make sense, but that’s what the servicer was arguing today. “I don’t know who gave me authority, but I have authority.”

As I see it, to prove the requisite authority, the servicer must either (a) introduce a servicing agreement into evidence; or (b) provide testimony from the owner as to the servicer’s authority. Without one of those two things, I just don’t see how the servicer can possibly show the owner of the note authorized the servicer to foreclose. Do you disagree? You tell me … without a servicing agreement or testimony from the owner as to the servicer’s authority, how can the servicer prove the owner “acknowledged the servicer’s power”? Once you conclude there is no such answer, then you necessarily agree that a servicer cannot foreclose without such proof.

Similarly, in the trial I observed, the plaintiff/servicer failed to show the owner of the Note “retained control over the agent’s actions.” After all, how could the servicer possibly show the owner of the Note “retained control over the servicer’s actions” when the servicer couldn’t even identify the owner? Clearly, the servicer was acting as its own boss here, answering to nobody.

I realize that some of the arguments being espoused by servicers in foreclosure cases seem unique, and there appears to be an absence of case law setting forth these issues. However, once you realize a servicer purports to act on behalf of the owner, and is hence just another fancy word for an agent, it should become clear that basic principles of law regarding agents and principals must apply, as quoted above. This requires proof in foreclosure cases that, many times, is simply not forthcoming.

Mark Stopa

http://www.stayinmyhome.com

Quote 0 0
HungarianProse
So true! Next question, if the Servicer can't tell the Court who the owner is, what happens with the Money after the proper tie is sold? The Servicer keeps it???
BTW, i put a very similar argument in my affirmative defense 2 years ago. It went like this:  "Plaintiff claims that it is a servicer for the loan and has authority to act for  behalf of the owner, but failed to identify who the owner is and failed to attach any document to prove that it has authority"
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John Lewis

42 F.3d 1421 (1994)

AMERICAN TELEPHONE AND TELEGRAPH COMPANY
v.
WINBACK AND CONSERVE PROGRAM, INC., a New Jersey corporation; Alfonse G. Inga, an individual,
American Telephone and Telegraph Company ("AT & T"), Appellant.

No. 94-5305.

United States Court of Appeals, Third Circuit.

Argued November 1, 1994.

Decided December 9, 1994.

 

If the principal [plaintiff]  is responsible for the third person [homeowner] believing that the person [servicer] with whom [homeowner] she deals is an agent, or if the principal [plaintiff] should realize that his conduct is likely to induce such belief, then there is an agency created by apparent authority and the principal [plaintiff] will be held responsible for the torts of his agent [servicer].”

http://scholar.google.com/scholar_case?case=5860936969239220772&q=actual+agency+relationship&hl=en&as_sdt=40003

How then is it possible for the homeowner to ever be able to hold the ‘prinicpal’ or plaintiff “responsible for the torts of his agent [servicer]”? when, the Florida courts except:

“…. the plaintiffs’ lawyers. “But a servicer can foreclose because the servicer is the holder and has a servicing agreement with the owner, so it’s foreclosing with the consent of the owner of the Note.” This was the argument being espoused at the trial I observed today – the servicer doesn’t own the Note, but is foreclosing with the consent of the owner.” Plaintiff as Servicer? I Think Not. Posted on February 15th, 2012 by Mark Stopa

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John Lewis

“…. the plaintiffs’ lawyers. “But a servicer can foreclose because the servicer is the holder and has a servicing agreement with the owner, so it’s foreclosing with the consent of the owner of the Note.” This was the argument being espoused at the trial I observed today – the servicer doesn’t own the Note, but is foreclosing with the consent of the owner.” Plaintiff as Servicer? I Think Not. Posted on February 15th, 2012 by Mark Stopa

Does the following Florida Circuit Court ‘Order’ in BAC Home Loans v Bill R Stentz, 51-2009-CA-7656-ES; Division J4 provide a response:

 

“3. The copy of the note filed by Plaintiff shows upon it that it has been indorsed in blank. Thus, though the Plaintiff may be a ‘holder’ it is not by virtue of such an open indorsement, an owner of it. See FS sect 673.2031, Comment 1: “a thief who steals a check payable to bearer becomes the holder of the check…but does not become the owner of it.”

 

“5. The Plaintiff failed to plead that it is the owner of the note nor did it plead who is the owner. Indeed, Plaintiff seem to identify itself as a ‘loan servicer’ in the caption and introductory paragraph of the complaint.’

 

And, the Court’s footnote:

 

FN2”Furthermore, the Supreme Court of Florida in its recent Administrative Order AOSC09-54 recognizes that Plaintiff must document that they are the owner in due course of the note and mortgage.”

 

“Defendant’s motion to dismiss is granted.”

 

Again my ?: Does the following Florida Circuit Court ‘Order’ in BAC Home Loans v Bill R Stentz, 51-2009-CA-7656-ES; Division J4 provide a response, or not?

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John Lewis
also Judge Lynn Tepper, required the following:

B: Plaintiff shall be granted 30 days to amend its complaint and in doing so MUST:

  • Allege ultimate facts, not conclusions of law, that specifically set
    forth the and identify the present owner of the note and mortgage and
    the present holder of the note and mortgage and in so doing
    deraign the
    chain of ownership/holdership since the loan’s inception.
  • Allege ultimate facts why the note is indorsed in blank and
    specifically deny, if that be the case, that it or an interest has been
    pledged to another…
  • Plaintiff must specifically plead and identify both the owner and
    the holder of the note and mortgage
    . it is not enough for Plaintiff to
    only plead that it holds the note and mortgage
    Plaintiff must
    ultimatley prove ownership as well
  • If Plaintiff is not the owner it must specifically plead ultimate
    facts identifying the owner and Plaintiff’s authority
    whether to act as a
    representative for the same attaching such proof of said
    representation authority whether it be by power of attorney or other
    written agency agreement.
  • Allege and identify all documents, by attachment, upon which
    plaintiff relies to establish the ownership of the note and mortgage.
  • Plaintiff shall have 30 days to amended and file a new complaint.
    That said complaint must be verified and that any allegation in the
    verification containing “best knowledge and belief” language
    is
    insufficient
    .

DONE AND ORDERED

Lynn Tepper
CIRCUIT JUDGE

 

 

 
Quote 0 0
Bill
Every State has different nuances in the rules.  This is another example of WHY you need to know and understand the rules.
Quote:

FORM 1.944. MORTGAGE FORECLOSURE
COMPLAINT
Plaintiff, A. B., sues defendant, C. D., and alleges:
1. This is an action to foreclose a mortgage on
real property in .................. County, Florida.
2. On .....(date)....., defendant executed and
delivered a promissory note and a mortgage securing
payment of the note to plaintiff. The mortgage was
recorded on .....(date)....., in Official Records Book
.......... at page .......... of the public records of
.................... County, Florida, and mortgaged the
property described in the mortgage then owned by
and in possession of the mortgagor, a copy of the
mortgage containing a copy of the note being
attached.
3. Plaintiff owns and holds the note and
mortgage.
4. The property is now owned by defendant who
holds possession.

I'm NOT sure how much MERIT Mr. Stopa's arguments have.  The UCC does allow for enforcement of the note even if the "holder" is in wrongful possession.   Just because it's a good supported argument does NOT mean he's correct and because it hasn't been decided I think a pro se is going to have a difficult time prevailing on this argument until it is.  

I do think there are a couple ways this argument is useful to pro se homeowners.

Robbins v. Hess, 659 So. 2d 424 - Fla: Dist. Court of Appeals, 1st Dist. 1995

Quote:
Generally, the issue of agency or apparent agency is a question of fact to be determined by a jury. The question can be resolved by summary judgment in only those cases where the evidence is capable of but one determinationKobel v. Schlosser, 614 So.2d 6, 7 (Fla. 4th DCA 1993). The party alleging the agency relationship bears the burden to prove it, just as the party moving for summary judgment has the burden to prove the absence of material fact issuesId.

Most jurisdictions follow this logic.  You will notice that Mr. Stopa attended this "trial".  The homeowner SURVIVED summary judgment.  In order to survive SJ you need to raise questions of FACT.  It is really important to understand what a question of fact is vs. what is a question of law.  

Questions like WHEN an entity became the holder, IS MERS an agent for the originator, IS the Servicer an agent for the Trust, if properly researched and well written CAN preclude SJ, they are questions of fact.  Things like IS the Servicer the holder or owner of the note is a question of LAW.  The judge can decide these issues and SJ is appropriate.  There is a clear distinction and you must CLEARLY understand the difference.  
  
I'm not sure if a homeowner can prevail on this kind of argument, but well researched and written agency arguments would be a very robust question of FACT that should preclude SJ.  

This is another example of why Mr. Roper was always adamant about homeowners to KEEP THE PSA OUT of evidence.  You do NOT want any documents that SHOW agency and the powers of the agent.  Let them PROVE their case.


Quote 0 0
John Lewis
Bill +10
"Questions like WHEN an entity became the holder, IS MERS an agent for the originator, IS the Servicer an agent for the Trust, if properly researched and well written CAN preclude SJ, they are questions of fact. Things like IS the Servicer the holder or owner of the note is a question of LAW. The judge can decide these issues and SJ is appropriate. There is a clear distinction and you must CLEARLY understand the difference."

Focus John Lewis Focus.....
Thanks JL
Quote 0 0
Bill
John Lewis wrote:
Bill +10
"Questions like WHEN an entity became the holder, IS MERS an agent for the originator, IS the Servicer an agent for the Trust, if properly researched and well written CAN preclude SJ, they are questions of fact. Things like IS the Servicer the holder or owner of the note is a question of LAW. The judge can decide these issues and SJ is appropriate. There is a clear distinction and you must CLEARLY understand the difference."

Focus John Lewis Focus.....
Thanks JL

I think Mr. Stopa makes an interesting argument.  I would not hesitate to make the same argument if the facts in my case were the same.  I just still have a lot of doubt that a homeowner is going to PREVAIL on this argument at trial.  Just because you are not going to prevail at trial on an argument does not mean it has no value. 

Until an appellate court decides this issue, I think the real value is that an agency argument can preclude SJ.  I would be raising as many questions of "fact" as I could.  While it takes only one to preclude SJ, there are other things to keep in mind.  The Plaintiff can get PARTIAL SJ.  If you raised a question of fact in regards to the amount due, the Plaintiff could "win" on all the other issues and just have the amount due decided at trial.  This is BAD for the homeowner.  You should be looking for questions of fact in EVERY PART of the Plaintiff's case.  
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John Lewis
Bill ~ understood ~ ? after reviewing the Stentz ruling, I think that the  Stentz Court's 'thinking' should be used as a framework to develop the 'standing issue'. eg: under "B" ~ I think (?) that this, not only, addresses the Stopa 'issue' but adds support to it. ur thoughts?

Quote 0 0
Bill
John Lewis wrote:
Bill ~ understood ~ ? after reviewing the Stentz ruling, I think that the  Stentz Court's 'thinking' should be used as a framework to develop the 'standing issue'. eg: under "B" ~ I think (?) that this, not only, addresses the Stopa 'issue' but adds support to it. ur thoughts?


I think this does support PART of his argument.  It doesn't develop the "Agency" part of the argument.  The agency part of the argument would most likely have to be argued AFTER the Plaintiff amended it's complaint to comply with the rules.

Just like standing, this order shows that this is a single "shot argument".  It will either buy some more time while the Plaintiff amends or it will be a dismissal without prejudice.   

An interesting avenue of attack might be to FIRST attack these deficiencies with a motion to dismiss/motion for a more definitive statement THEN conduct discovery and at SJ have a case "kicked" for a lack of standing.  When they refile AGAIN then attack the MERS assignment as being void and make them prove standing a 2nd time.  

I'm just pointing out that you need to have a PLAN and you need to keep some arguments as "dry powder" as Mr. Roper use to put it.    It would NOT be in your best interest to COMBINE this argument with standing.  You would want them to be decided separately if possible.  

I imagine that this is a more common deficiency than people think.  By submitting a verified complaint stating who is the owner and some kind of agency so the Servicer can bring the action, they are starting to box themselves in.  Usually the Servicers try to be as general as possible so they can change their story.  
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John Lewis

Clarification:  Bill: “Just because it's a good supported argument does NOT mean he's correct and because it hasn't been decided I think a pro se is going to have a difficult time prevailing on this argument until it is.”

I should note that the Stentz decision has no direct relationship to Stopa’s post: “Plaintiff as Servicer? I Think Not.” Posted on February 15th, 2012 by Mark Stopa

 Stopa’s post referenced an article written by Matt Weidner titled: I Lost A Trial Today, The Law In Florida- A Thief Can Steal Your Homeand his [Stopa’s] observation at the Weidner hearing ~ which he lost.

http://mattweidnerlaw.com/blog/2012/02/i-lost-a-trial-today-the-law-in-florida-a-thief-can-steal-your-home/

Thus, it would seem that the ‘new law’ in the State of Florida is “A Thief Can Steal Your Home”:

        “It bothered me most to hear an attorney argue (successfully)

         that my arguments didn’t matter. They argued that a thief can

        steal a promissory note, I could prove that the note was stolen

        but that wouldn’t even matter. As long as they came to court

        with a promissory note, no matter how they got it or where it

        came from, Judgment for Plaintiff, nothing for homeowners.

 

        Oh, and another most disturbing thing. The plaintiff need not

        even know who owns the note or even disclose this to the court.

        A plaintiff can admit they are not the owner, that someone else

        owns it (they don’t know who), but they’re entitled to judgment

          of foreclosure, throwing yet another Floridian out into the street

        on behalf of an undisclosed owner.”

 

Thus, my concern is how to prepare, to defend/answer the fraudsters ‘accepted’ argument that “A thief Can Steal Your Home”.

sorry for any confusion.

Quote 0 0
Chuck

Quote:
Thus, my concern is how to prepare, to defend/answer the fraudsters ‘accepted’ argument that “A thief Can Steal Your Home”.

 

sorry for any confusion. 

 

Weidner has let his emotions get the better of him.  There is nothing new in a Florida court holding that a holder is entitled to foreclose.  That is what Mr. Roper has been telling us all along.  Mr. Roper has also shown indorsement in blank discussed in published U.S. cases from the early 1800s.

 

I noticed that Mr. Roper posted some interesting comments to Matt Weidner's recent status post on Facebook:

 

http://www.facebook.com/weidnerlaw 

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John Lewis

Let me make sure I get this: So then, as long as the named ‘Plaintiff’ in the heading of the complaint, ie the servicer, has the original note, indorsed in blank, none of this below matters???

“In the trial I observed today, the plaintiff/servicer admitted it did not even know who the owner of the Note was. Think about that for a minute. The servicer was supposed to be acting on behalf of the owner, with the owner’s consent, but it didn’t even know who the owner was. On these facts, how on earth could the servicer possibly prove the owner/principal “acknowledged the agent’s power”? Clearly, it couldn’t, and it didn’t. The servicer couldn’t even identify the owner, much less prove the owner authorized the servicer’s actions.” Stopa.

If the answer is Yes, then what about the following:

FN2: ”Furthermore, the Supreme Court of Florida in its recent Administrative Order AOSC09-54 recognizes that Plaintiff must document that they are the owner in due course of the note and mortgage.”

And this:

“3. The copy of the note filed by Plaintiff shows upon it that it has been indorsed in blank. Thus, though the Plaintiff may be a ‘holder’ it is not by virtue of such an open indorsement, an owner of it. See FS sect 673.2031, Comment 1: “a thief who steals a check payable to bearer becomes the holder of the check…but does not become the owner of it.”

 

Ps. Chuck, thank you for the heads up on Mr. Roper’s post on Weidners facebook page.

Quote 0 0
Bill
John Lewis wrote:

Let me make sure I get this: So then, as long as the named ‘Plaintiff’ in the heading of the complaint, ie the servicer, has the original note, indorsed in blank, none of this below matters???

“In the trial I observed today, the plaintiff/servicer admitted it did not even know who the owner of the Note was. Think about that for a minute. The servicer was supposed to be acting on behalf of the owner, with the owner’s consent, but it didn’t even know who the owner was. On these facts, how on earth could the servicer possibly prove the owner/principal “acknowledged the agent’s power”? Clearly, it couldn’t, and it didn’t. The servicer couldn’t even identify the owner, much less prove the owner authorized the servicer’s actions.” Stopa.

If the answer is Yes, then what about the following:

FN2: ”Furthermore, the Supreme Court of Florida in its recent Administrative Order AOSC09-54 recognizes that Plaintiff must document that they are the owner in due course of the note and mortgage.”

And this:

“3. The copy of the note filed by Plaintiff shows upon it that it has been indorsed in blank. Thus, though the Plaintiff may be a ‘holder’ it is not by virtue of such an open indorsement, an owner of it. See FS sect 673.2031, Comment 1: “a thief who steals a check payable to bearer becomes the holder of the check…but does not become the owner of it.”

 

Ps. Chuck, thank you for the heads up on Mr. Roper’s post on Weidners facebook page.


John you are starting to blur a very clear line

1.  You have the Stentz order.

2.  You have the Agency argument.

In the Stentz order was in response to a Motion to Dismiss/Motion for a more definitive statement.  Making this argument points out deficiencies in the PLEADINGS because they failed to follow the rules.  The Servicer must plead that they are the owner and holder OR plead who is the owner and that they are an agent with authority to act on behalf of the owner.

In Stopa's argument he is arguing they need to PROVE the requirements of the Stentz order at trial.  They need to PROVE the AGENCY with the authority to act..

Quote:
In the trial I observed today, the plaintiff/servicer admitted it did not even know who the owner of the Note was. Think about that for a minute. The servicer was supposed to be acting on behalf of the owner, with the owner’s consent, but it didn’t even know who the owner was. On these facts, how on earth could the servicer possibly prove the owner/principal “acknowledged the agent’s power”? Clearly, it couldn’t, and it didn’t. The servicer couldn’t even identify the owner, much less prove the owner authorized the servicer’s actions.

Compare this quote with the Stentz order you posted and it might be more clear.  

Quote:

Plaintiff shall be granted 30 days to amend its complaint and in doing so MUST:

  • Allege ultimate facts, not conclusions of law, that specifically set
    forth the and identify the present owner of the note and mortgage and the present holder of the note and mortgage and in so doing 
    deraign the chain of ownership/holdership since the loan’s inception.
  • Allege ultimate facts why the note is indorsed in blank and
    specifically deny, if that be the case, that it or an interest has been
    pledged to another…
  • Plaintiff must specifically plead and identify both the owner and
    the holder of the note and mortgage
    . it is not enough for Plaintiff to
    only plead that it holds the note and mortgage… 
    Plaintiff must
    ultimatley prove ownership as well
  • If Plaintiff is not the owner it must specifically plead ultimate
    facts identifying the owner and Plaintiff’s authority
     whether to act as a
    representative for the same attaching such proof of said
    representation authority whether it be by power of attorney or other
    written agency agreement.
  • Allege and identify all documents, by attachment, upon which
    plaintiff relies to establish the ownership of the note and mortgage.
  • Plaintiff shall have 30 days to amended and file a new complaint.
    That said complaint must be verified and that any allegation in the
    verification containing “best knowledge and belief” language 
    is
    insufficient
    .

DONE AND ORDERED

Lynn Tepper
CIRCUIT JUDGE


I think to really pull this argument together, you need to go to the Court House and get a copy of the Stentz Motion to Dismiss and read what cases the attorney cited.  I have no idea what the authority was.

Quote:
Just because it's a good supported argument does NOT mean he's correct and because it hasn't been decided I think a pro se is going to have a difficult time prevailing on this argument until it is.”

You will find that an attorney preparing an argument knows he needs to cite some kind of authority for his arguments.  Many times they can get "creative" with the cases they use.  This is why there is an appellate court.  To decide IF the cases really support an argument or not.  You will see many cases where they say the appellant/appeallee's arguments are wrong and the disagree with the way they are using the decisions.    
Quote 0 0
Bill
Chuck wrote:

Quote:
Thus, my concern is how to prepare, to defend/answer the fraudsters ‘accepted’ argument that “A thief Can Steal Your Home”.

 

sorry for any confusion. 

 

Weidner has let his emotions get the better of him.  There is nothing new in a Florida court holding that a holder is entitled to foreclose.  That is what Mr. Roper has been telling us all along.  Mr. Roper has also shown indorsement in blank discussed in published U.S. cases from the early 1800s.

 

I noticed that Mr. Roper posted some interesting comments to Matt Weidner's recent status post on Facebook:

 

http://www.facebook.com/weidnerlaw 


I totally agree with Chuck and this is my main problem with Stopa's argument.  The case law and statutes allow the "holder" to enforce the note.  If there really is some nuances in FL that the "holder" must follow, there may be some kind of argument, a tuff road for a pro se at trial.
Quote 0 0
StuckinFL

John you are starting to blur a very clear line


1.  You have the Stentz order.

2.  You have the Agency argument.

In the Stentz order was in response to a Motion to Dismiss/Motion for a more definitive statement.  Making this argument points out deficiencies in the PLEADINGS because they failed to follow the rules.  The Servicer must plead that they are the owner and holder OR plead who is the owner and that they are an agent with authority to act on behalf of the owner.

In Stopa's argument he is arguing they need to PROVE the requirements of the Stentz order at trial.  They need to PROVE the AGENCY with the authority to act..




On Mark Stopa's website he says the same thing that bill said he ment, some of you guys understand this better than me.  how did bill know this is what he ment?

george trado says:

WHAT IF THE TRUSTEE GAVE THE SERVICER THE POWER

  • Mark StopaMark Stopa says:

    George,
    I don’t think our courts will ever have a blanket prohibition on servicers foreclosing.
    But I absolutely think the servicers should have to prove they’re acting with the authority of the actual owner.
    To me, there’s a big difference.
    Mark

Quote 0 0
Chuck

There has been a real disconnect throughout this thread about the significance and authority of an order from the case BAC Home Loans v Bill R Stentz, 51-2009-CA-7656-ES.  In Florida, the circuit court is the trial court.

 

Circuit court decisions are not binding authority for any other court in the state.  In fact, the law set forth in one decision of a circuit court is not even binding upon the same judge sitting in another matter, though we would hope that a judge would generally be consistent and would continue to follow sound, well thought out reasoning set forth with clarity in one decision.

 

So the holding in Stentz is not even binding on Judge Lynn Tepper, who signed the cited order, as to other cases.

 

The reliance on this holding is further misplaced by what appears to be a misapprehension about how most orders come to be written and signed.

 

In many places, a judge ruling from the bench invites the prevailing party to draft a proposed order and circulate it to the other parties for review.  This is also often dispensed with when parties furnish proposed orders with their motions.

Most often, judges sign proposed orders with only a very cursory review.

 

In Stentz, the plaintiff failed to show up for a hearing and the defendant's attorney showed up and persuaded the court to dismiss the caseIn all likelihood, the author of this order was Stentz's attorney Gregory Clark rather than Judge Lynn Tepper. 

 

There is certainly nothing wrong with advancing arguments found to be successful in other cases.  But the order is Stentz is no binding authority whatsoever for the propositions set forth therein.  Pro se litigants need to take special care not to ascribe significance and authority to rulings that are likely to be given little weight by other courts.

 

If you find a really good argument or line of analysis, USE IT.  But if the case is unlikely to be authoritative of persuasive, be more guarded in the presentation of the case itself, particularly as authority in support of such argument.

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John Lewis

Below is an update since the Motion to Dismiss was entered:

12/02/2010: Order Granting Defs motion to dismiss

01/03/2011: Motion to Stay Proceedings Pending Certiorari Review

            The Order is Contrary to law because it dismisses a legally sufficient complaint and mandates that any amended complaint include allegations that are not required under establish Florida law.

            The order is contrary to law because it prohibits verification of the amended complaint on “Best Knowledge and Belief”.

 

Also, a Motion to Take Judicial Notice, was filed, in part:

            “The attached orders show that the trial judge in the instant case, and other trial judges within this district, are improperly prohibiting verification of foreclosure complaints on “best information and belief” when this language is required by the Florida Supreme Court rule. ……”

01/06/2011: The second district court of Appeal;

            By order of the Court:

                        Petitioner’s petition for writ of certiorari is dismissed.

                        Petitioner’s motion to take judicial notice is denied as moot.

HOWEVER,

09/19/2011: Notice of Appeal Filed

02/13/2012: Motion for extension of time to file Reply Brief Granted

Note:

I will try to get a copy of both the Initial Brief and the Answer Brief and then update on the issue(s) raised.

Chuck, your caution thatCircuit court decisions are not binding authority for any other court in the state.” Should be well heeded, as should the other point “If you find a really good argument or line of analysis, USE IT.  Thanks.  

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John Lewis
Update:

The "Initial Brief of Appellant, Bac..." on Appeal relates only to the issue of "Verifying the foreclosure Complaint on 'Knowledge and Belief'.

Note: under B. of the trial courts order, in part item 7:

"...The verification cannot be signed by the attorney of record but must be signed by a duly authorized corporate representative officer for the Plaintiff, BAC Home....."
 
I think in Florida this is the case to watch re Mark Stopa's "Plaintiff as Servicer? I Think Not."
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Chuck

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Chuck, your caution that “Circuit court decisions are not binding authority for any other court in the state.” Should be well heeded, as should the other point “If you find a really good argument or line of analysis, USE IT.” Thanks. 

 

On occasion, I find some really terrific language in a trial court decision, a U.S. Bankruptcy Court decision or an appellate decision from a foreign jurisdiction (another state).

 

While the decision might have no authority whatsoever and might not even be influential, the well articulated language can sometimes be persuasive.  Using really great language from decisions which lack authority can still be a compelling way of advancing an argument.

 

There is another instance when this may be the better route.  Suppose that there is some terrific language from a holding that also includes other language and holdings going the other way.  If you cite the case, then you can really get caught in the switches when your adversary calls attention to the contrary holdings within the same decision OR the Judge may find these on his own if he reads the decision.

 

Very often, I have seen instances where poor researchers will cite a case without actually reading the entire decision.  (I have also seen lazy foreclosure mills do this.)  You want to AVOID the situation where your cited cases can be used against you and stuff the case down your adversaries throat when they make this mistake!

 

My overall point, though, is that there may be instances where there is some terrific language in a decision, but it might be unhelpful or even undesirable to cite the case.  Just pluck out the helpful language and omit the case reference. 

 

*

 

Mr. Roper has previously posted a suggestion as to a specific circumstance where a case lacking authority might still be cited to advantage.  And I believe that his suggestion makes a LOT of sense.

 

He pointed out that IF you can find an out of jurisdiction case where the fact pattern is IDENTICAL, particularly as to parties, etc., that the case then affords some cover that the defendant's arguments are not merely whimsical.  That is, if under the exact same facts, a court elsewhere denied summary judgment and dismissed, etc., it shows that another court SOMEWHERE found the defensive argument to be meritworthy.

 

For example, suppose that you have a mortgage originated by Option One Mortgage Corp., where AHMSI is now the servicer and Deutsche Bank is the trustee.  Further suppose that you have a copy of a note lacking indorsement and a post commencement assignment of the mortgage, maybe by DOCX.  If you have one or more cases from other jurisdictions showing a dismissal on precisely these facts, this might be more persuasive than an out of jurisdiction case that involves similar, but different facts.  The presence of identical facts makes the out of jurisdiction cases more persuasive, despite the absence of any actual binding authority. 

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Chuck

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The "Initial Brief of Appellant, Bac..." on Appeal relates only to the issue of "Verifying the foreclosure Complaint on 'Knowledge and Belief'.

Note: under B. of the trial courts order, in part item 7:

"...The verification cannot be signed by the attorney of record but must be signed by a duly authorized corporate representative officer for the Plaintiff, BAC Home....."
 

 

Can you please post the Brief or a link to the Brief?  Alternatively, can you e-mail the Brief to some Forum participant who has a Scribd or other document repository and ask them to post the Brief?

 

In my view, it is instructive to see this sort of document, even that prepared by adversaries (foreclosure mills), so we can better know the arguments they are making. 

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John Lewis

 
Chuck:
"Can you please post the Brief or a link to the Brief?"


http://www.scribd.com/doc/82205999/Initial-Brief-of-Appellant-Bac-Home-Loans-Servicing-v-William-r-Stentz-and-Jacklyn-l-Stentz


http://www.scribd.com/doc/82206234/Answer-Brief-of-Appellee-William-r-Stentz-and-Jacklyn-l-Stentz
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John Lewis
FYI: Note: re Florida Verification:

"On February 11, 2010, the Florida Supreme Court amended Fla R Civ Pro 1.110(b) to read:

"[w]hen filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a doucment is required, the document shall include an oath, affirmation, or the following statement: Under penalty of perjury, I declare that I have read the foregoing and the facts alleged therein are true and correct to the best of my knowledge and belief."
 
On December 9, 2010, the Florida Supreme Court clarified its position in Case No. SC09-1579, "in re: Amendments to the Fl Rules of Civil Procedure-Form (Final Judgment of Foreclosure)" and stated:
 
"Along with the amendments to form 1.996(a), rule 1.110(b) was amended to require verficiation of mortgage foreclosure complaints involving residential property. One of the primary purposes of this amendment was to ensure that the allegations in the complaint are accurate. In light of recent reports of alleged document fraud and forgery in mortgage foreclosure cases, this new requirment is particularly important."
 

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TheEquitableOne
I'm surprised no one here has mentioned this already.  It doesn't surprise me that neither Weidner nor Stopa were familiar enough with the UCC, or Florida's version of such, to have already known this.  Most foreclosure defense attorneys seem to be learning more from the well read pro se litigants, than the other way around.  I actually posted this to Stopa's blog but he seemed to consider it worthy only of censoring.  But I digress. 

"§ 3-301. PERSON ENTITLED TO ENFORCE INSTRUMENT.
'Person entitled to enforce' an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or 3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument. [emphasis added]"

The Official Comments in re UCC 3-301 offer the following.

"Official Comment § 3-301
This section replaces former Section 3-301 that stated the rights of a holder. The rights stated in former Section 3-301 to transfer, negotiate, enforce, or discharge an instrument are stated in other sections of Article 3. In revised Article 3, Section 3-301 defines 'person entitled to enforce' an instrument. The definition recognizes that enforcement is not limited to holders. The quoted phrase includes a person enforcing a lost or stolen instrument. Section 3-309. It also includes a person in possession of an instrument who is not a holder. A nonholder in possession of an instrument includes a person that acquired rights of a holder by subrogation or under Section 3-203(a). It also includes both a remitter that has received an instrument from the issuer but has not yet transferred or negotiated the instrument to another person and also any other person who under applicable law is a successor to the holder or otherwise acquires the holder's rights."

This seems pretty clear to me.  However, if I've missed something feel free to enlighten me. 

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John Lewis

FYI:

After reading the appellate briefs, I was curious as to the outcome of Judge Lynn Tepper, requirement of the following:

 

B: Plaintiff shall be granted 30 days to amend its complaint and in doing so MUST:

 

Allege ultimate facts, not conclusions of law, that specifically set forth the and identify the present owner of the note and mortgage and the present holder of the note and mortgage and in so doing deraign the chain of ownership/holdership since the loan’s inception.

 

Allege ultimate facts why the note is indorsed in blank and specifically deny, if that be the case, that it or an interest has been pledged to another…

 

Plaintiff must specifically plead and identify both the owner and the holder of the note and mortgage. it is not enough for Plaintiff to only plead that it holds the note and mortgagePlaintiff must ultimatley prove ownership as well

 

If Plaintiff is not the owner it must specifically plead ultimate facts identifying the owner and Plaintiff’s authority whether to act as a representative for the same attaching such proof of said representation authority whether it be by power of attorney or other
written agency agreement.

 

Allege and identify all documents, by attachment, upon which plaintiff relies to establish the ownership of the note and mortgage.

 

Plaintiff shall have 30 days to amended and file a new complaint.

That said complaint must be verified and that any allegation in the verification containing “best knowledge and belief” language is insufficient.

 

DONE AND ORDERED

Lynn Tepper
CIRCUIT JUDGE

 

So I ordered the following:

 

1. Verified Amended Mortgage Foreclosure Complaint:

http://www.scribd.com/doc/83010122/BACvStentz-VerifiedAmendedMortComplaint-02042011

2. Motions to Strike Complaint, Dismiss Action Under FLA.R.Civ.P 1.42(b) And For Order To Show Cause:

http://www.scribd.com/doc/83010190/BACvStentz-MotionsToStrikeComplaint-02142011

3. the Courts “Order”:

 

Quote: “3. Other than verification Plaintiff’s Amended Mortgage Foreclosure Complaint of February 4th, 2011 is deemed sufficient to state a cause of action.”

 

http://www.scribd.com/doc/83010234/BACvStentz-Verified-Order-05132011

 

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t

Chuck, Bill and The Equitable One all got this RIGHT.

 

Mark Stopa and Matt Weidner are both totally incompetent attorneys without even a clue about how the UCC works.

 

That either of them are uncertain about the UCC or how it applies in foreclosure five years into the meltdown is very alarming.  Anyone who uses either of these attorneys, who seem to spend more time posting vacuous self-promotional blog posts than reading the law, should expect to lose their home much more quickly than a thoughtful defendant who reads the statutes, the cases and the excellent analysis posted by Mr. Roper and others (including those named above) over the past five years. 

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HungarianProse
I'm surprised no one here has mentioned this already.  It doesn't surprise me that neither Weidner nor Stopa were familiar enough with the UCC, or Florida's version of such, to have already known this.  Most foreclosure defense attorneys seem to be learning more from the well read pro se litigants, than the other way around.  I actually posted this to Stopa's blog but he seemed to consider it worthy only of censoring.  But I digress. 

"§ 3-301. PERSON ENTITLED TO ENFORCE INSTRUMENT.
'Person entitled to enforce' an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or 3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument. [emphasis added]"

Please explain the above in layman's term. So if someone has a stolen Note, it can be enforced by that person? How would it be play out in court?
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Walt

Quote:
"§ 3-301. PERSON ENTITLED TO ENFORCE INSTRUMENT.
'Person entitled to enforce' an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or 3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument. [emphasis added]"

Please explain the above in layman's term. So if someone has a stolen Note, it can be enforced by that person? How would it be play out in court?
  

 

The statute says precisely what The Equitable One notes that it says.

 

If a person is the owner of a stolen instrument and discovers its loss during the pendency of a judicial action to enforce the instrument, that rightful owner could intervene in the action to enforce the instrument, show the court the owner's superior right and ask the court to order the stolen instrument restored to the rightful owner.

 

But otherwise, the enforcement of the instrument by the thief can proceed to judgment and the maker of the note will be found to be liable to the thief.

 

This will absolve the maker of any further responsibility for payment of the instrument, since the maker of the note will have discharged his or her obligation (in respect of the action by the thief).

 

The rightful owner of the instrument would probably still have a valid cause of action against the thief for the owner's loss as a consequence of the theft, but the owner would not have a separate cause of action against the maker.

 

This is why negotiable instruments are stored in vaults!  Why do you think that John McLain (Bruce Willis) had to perform all of those death defying acts to prevent a band of thieves from stealing hundreds of millions in bearer bonds?

 

While this sounds bizarre, consider the legal consequences of the theft of cash.

 

Usually a person who receives stolen property in a transaction cannot thereby acquire good title thereby.

 

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Mr. Roper has taught us: Nemo dat quod non habet.
 

 

If I steal your Rolex watch and sell it, to The Equitable One, he acquires no title thereby.  I cannot sell that which I do not own.

 

When you discover the loss, if you can find the Rolex in The Equitable One's possession, you are entitled to recover your watch.  The Equitable One will have to come after me for the amount he has paid for the stolen item.

 

But suppose that I steal your cash and then use it to purchase a Rolex watch owned by The Equitable One.  This is a transaction of a somewhat different nature.  The Equitable One has every reason to believe and expect that the tendered cash is good and he is out one valuable watch.

 

Who should bear the loss?  You?  Or the innocent person who has accepted the cash in a transaction in exchange.

 

If every person and merchant could be held liable for the receipt of stolen cash in every transaction, commerce might grind to a halt while every seller made an inquiry into the source of the tendered cash!

 

The UCC puts negotiable instruments on a footing of a bill of exchange: the holder of a note can treat the note essentially as cash.  Thus you have various Hollywood portrayals of heists involving "bear bonds" (which are simply negotiable instruments payable to bearer).

 

Similarly, when British Agent 007 wins a large sum playing Baccarat and accepts a check (or cheque) for his winnings, he wisely states that the check should be made payable to "bearer".  A check payable to bearer cannot be stopped!  And, of course, who could steal a check for $1 million from James Bond?

 

The overall effect of this provision of the UCC is that a question as to the ownership of the instrument is not a matter of legitimate defense as to the maker.  The maker must always pay the holder.  To the maker, the identity of the owner is always irrelevant.  If a person, including a thief, demands payment on the instrument, the maker must pay.  During the pendency of the court action, the rightful owner might still appear and ask the court for relief, but not thereafter.  The rightful owner may assert his right, but the maker may not assert the absent owner's right.

 

Thus, the alleged bogeyman about what happens if the wrong party collects the note is always utter nonsense.

 

Only those who slept through their law school course on commercial transactions would be at all confused by this.  That Mr. Matt Weidner or Mr. Mark Stopa could remain confused and befuddled about this point which is well known to any thoughtful pro se litigant who has read the law is simply dismaying!  Whenever an idiot like Matt Weidner makes another post gnashing his teeth and decrying the injustice of the Florida courts in carrying out the UCC, he simply shows himself for the total fool that he is.

 

The courts are simply carrying out the express terms of the UCC.

 

Nor are the ideas embodied in the UCC novel any any way.  These rules did not emerge as a result of securitization.

 

Commercial law in America has always allowed enforcement of a note by the holder.  That was the rule when Virginia was first colonized in 1607 and still the law when the Pilgrims first landed at Provincetown in 1620.  This is what Mr. Roper has been explaining all along.

 

Most Forum veterans, such as The Equitable One, get it.  Mr. Matt Weidner does not get it and continues to lead his clients down the path to slaughter.

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