HUGE- A Brand Spankin New Federal Statute To Attack Foreclosure Assignment Fraud: MATT WEIDNER

Via: Matt Weidner Blog

Buried in The Helping Families Save Their Homes Act of 2009, which the President signed into law yesterday, is an amendment to the Truth in Lending Act (TILA) that calls for a notice to the consumer when a ‘mortgage loan’ is transferred or assigned.  The provision appears to be effective immediately, and violations are subject to TILA liability.

The text of the provision follows:
SEC. 404. NOTIFICATION OF SALE OR TRANSFER OF MORTGAGE LOANS. (a) IN GENERAL.—Section 131 of the Truth in Lending Act (15 U.S.C. 1641) is amended by adding at the end the following: ‘‘(g) NOTICE OF NEW CREDITOR.— ‘‘(1) IN GENERAL.—In addition to other disclosures required by this title, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including— ‘‘(A) the identity, address, telephone number of the new creditor; ‘‘(B) the date of transfer; ‘‘(C) how to reach an agent or party having authority to act on behalf of the new creditor; ‘‘(D) the location of the place where transfer of ownership of the debt is recorded; and ‘‘(E) any other relevant information regarding the new creditor. ‘‘(2) DEFINITION.—As used in this subsection, the term ‘mortgage loan’ means any consumer credit transaction that is secured by the principal dwelling of a consumer.’’. (b) PRIVATE RIGHT OF ACTION.—Section 130(a) of the Truth in Lending Act (15 U.S.C. 1640(a)) is amended by inserting ‘‘subsection (f) or (g) of section 131,’’ after ‘‘section 125,’’.



Attorney general investigating Tampa foreclosure firm:

Florida Default Law Group, a huge foreclosure law firm has angered judges with its practices.
Florida Default Law Group, a huge foreclosure law firm has angered judges with its practices.

By MICHAEL SASSO | The Tampa Tribune

Published: April 30, 2010

TAMPA – The Florida Attorney General’s Office is investigating a Tampa-based foreclosure law firm that has become one of the state’s largest foreclosure mills.

On the agency’s Web site, the attorney general showed it has an “active public consumer-related investigation” into Florida Default Law Group. The agency notes that it is a civil investigation, rather than a criminal one, and the fact that is has an investigation isn’t proof of any violation of law.

Without going into much detail, the attorney general’s Web site says Florida Default Law Group, “Appears to be fabricating and/or presenting false and misleading documents in foreclosure cases.

“These documents have been presented in court before judges as actual assignments of mortgages and have later been shown to be legally inadequate and/or insufficient. Presenting faulty bank paperwork due to the mortgage crisis and thousands of foreclosures per month.”

Attempts to reach the Attorney General’s Office and Michael Echevarria, the head of Florida Default Law Group, were unsuccessful Thursday.

Based in a business park just off the Veteran’s Expressway, Florida Default Law Group files hundreds of foreclosure lawsuits alone in Hillsborough County on behalf of banks and mortgage servicing companies. The Tribune profiled Florida Default Law Group in January.

According to the Tribune’s review of 1,994 circuit court records, the firm filed initial legal documents for 323 foreclosure lawsuits in October. That was second only to the Law Offices of David J. Stern, a Broward County-based foreclosure firm that filed 352 foreclosure cases in October.

Florida Default Law Group operates in numerous counties in Florida, but it’s not clear how many lawsuits it files outside of Hillsborough County.

Reporter Michael Sasso can be reached at (813) 259-7865.

!BAM! Foreclosure Lawyers Face New Heat In Florida: Wall Street Journal AMIR EFRATI


April 29, 2010, 12:46 PM ET

By Amir Efrati The Wall Street Journal

Foreclosure DrThese are precarious times for lawyers in the business of filing foreclosure cases for banks. This is particularly true in one of the epicenters of the foreclosure crisis, Florida.

As we’ve noted before, the feds in Jacksonville recently started a criminal investigation of a company that is a top provider of the documentation used by banks in the foreclosure process. And a state-court judge ruled that a bank submitted a “fraudulent” document in support of its foreclosure case. That document was prepared by a local law firm.

For more Law Blog background on the foreclosure mess in our nation’s courts, this post will help.

The news today: the Florida Attorney General’s office said it has launched a civil investigation of Florida Default Law Group, based in Tampa, which is one of the largest so-called foreclosure-mill law firms in the state.

According to the AG’s website, it’s looking at whether the firm is “fabricating and/or presenting false and misleading documents in foreclosure cases.” It added: “These documents have been presented in court before judges as actual assignments of mortgages and have later been shown to be legally inadequate and/or insufficient.”

The issue: judges are increasingly running into situations in which banks are claiming ownership of properties they actually don’t own. Some of them end up chewing out the lawyers representing the banks.

The AG’s office said Florida Default Law Group appears to work closely with Lender Processing Services — the company we referenced earlier that is being investigated by the Justice Department.

LPS processes and sometimes produces documents needed by banks to prove they own the mortgages. LPS often works with local lawyers who litigate the foreclosure cases in court. Sometimes those same law firms produce documents that are required to prove ownership.

We’ve reached out to Florida Default Law Group and LPS and will let you know if we hear back.


UPDATE: Cannot confirm YET but others might be as well! Stay Tuned!

FDLG, LPS’ DocX is being investigated…lets see who’s next!

If you have evidence of Fraud make sure you contact them.

Active Public Consumer-Related Investigation

The case file cited below relates to a civil — not a criminal — investigation. The existence of an investigation does not constitute proof of any violation of law.
Case Number: L10-3-1095
Subject of investigation: Florida Default Law Group, PL
Subject’s address: 9119 Corporate Lake Drive, Suite 300, Tampa, Florida 33634
Subject’s business: Law Firm, Foreclosures
Allegation or issue being investigated:
Appears to be fabricating and/or presenting false and misleading documents in foreclosure cases. These documents have been presented in court before judges as actual assignments of mortgages and have later been shown to be legally inadequate and/or insufficient. Presenting faulty bank paperwork due to the mortgage crisis and thousands of foreclosures per month. This firm is one of the largest foreclosure firms in the State. This firm appears to be one of Docx, LLC a/k/a Lender Processing Services’ clients, who this office is also investigating.
AG unit handling case: Economic Crimes Division in Ft. Lauderdale, Florida
View contact information for Ft. Lauderdale.
Related Stories:

MISSION: VOID Lender Processing Services “Assignments” (LPS)

Small Foreclosure Firm’s Big Bucks: Back Office Grossed $260M in 2009: ABAJOURNAL

Posted Apr 20, 2010 11:59 AM CDT
By Martha Neil

The Law Offices of David J. Stern has only about 15 attorneys, according to legal directories.

However, it’s the biggest filer of mortgage foreclosure suits in Florida, reports the Tampa Tribune. Aided by a back office that dwarfs the law firm, with a staff of nearly 1,000, the Miami area firm files some 5,800 foreclosure actions monthly.

The back-office operation, DJSP Enterprises, is publicly traded and hence must file financial reports with the Securities and Exchange Commission. It netted almost $45 million in 2009 on a little over $260 million in gross revenue that year. The mortgage meltdown of recent years apparently has been good to the company: In 2006, it earned a profit of $8.6 million on $40.4 million in revenue.

Stern, who is the company’s chairman and chief executive officer, could not be reached for comment, the newspaper says.

His law firm has been in the news lately, after one Florida judge dismissed a foreclosure case due to what he described as a “fraudulently backdated” mortgage document, and another said, in a hearing earlier this month concerning another of the Stern firm’s foreclosure cases, “I don’t have any confidence that any of the documents the court’s receiving on these mass foreclosures are valid.”

Earlier coverage: “Judge Dismisses Mortgage Foreclosure Over ‘Fraudulently Backdated’ Doc”

WTF!!! DJSP Enterprises, Inc. Announces Agreement to Acquire Timios, Inc., Expand Presence Into 38 States

DJSP Enterprises, Inc. Announces Agreement to Acquire Timios, Inc., Expand Presence Into 38 States

Adds Established National Title Insurance Agency with Multiple Locations Across the US for Expansion of Cyclical Products and Services to the Real Estate and Mortgage Industries

By DJSP Enterprises, Inc.

PLANTATION, Fla., April 19 — /PRNewswire-FirstCall/ — DJSP Enterprises, Inc. (Nasdaq: DJSP, DJSPW, DJSPU), one of the largest providers of processing services for the mortgage and real estate industries in the United States, today announced it has signed a definitive agreement to acquire Timios, Inc., a national title insurance and settlement services company. Timios is a licensed title insurance and escrow agent operating in 38 States. Headquartered in Westlake Village, CA, with additional offices in Houston and Plano, Texas, Timios will provide DJSP Enterprises the capability to provide its customers a balanced portfolio of services including new loan origination, refinance and national REO closing and title.  Additionally, Timios handles national loss mitigation services and pre-foreclosure title products from its multiple locations strategically placed for time-zone sensitive fulfillment.

Management expects that Timios, which uses advanced technology to produce a paperless environment, will aid DJSP Enterprises in its commitment to provide its customers with enhanced customer service in all lines of its business as it expands nationally. Timios presently services purchase money, refinance, reverse mortgage, REO and Deed-In-Lieu transactions for some of the largest lenders and servicers nationwide.  Last year, Timios closed in excess of $500 million in residential real estate mortgage transactions, and as forecasted, is expected to more than double the volume in 2010.  In addition, Timios has the capability to complete title searches for DJSP Enterprises’ growing REO liquidation business and loss mitigation business outside of Florida.

DJSP Enterprises will maintain Timios’ three offices while consolidating operations and back-office functions to streamline and reduce expenses.

David J. Stern, Chairman and Chief Executive Officer of DJSP Enterprises commented, “This acquisition significantly expands our capacity to effectively handle national services for our current client base.  In addition it will support our cyclical expansion into other lines of the mortgage services business. In particular, our capacity to process national REO closings, refinance transactions, short-sale transactions, Deed in Lieu transactions, property reports, resale transactions, and multiple valuation products will be meaningfully expanded. Timios provides licenses for full settlement services in 38 states and we expect to obtain licenses in at least two additional states before the end of this year.

This acquisition further demonstrates our commitment to becoming the leading cyclical provider of products and services to the real estate and mortgage industries.”

“This transaction represents a great marriage of strengths and assets,” said Trevor Stoffer, president and CEO of Timios, Inc. “Our management teams could not ignore the obvious benefits to both organizations. DJSP Enterprises’ growth in the foreclosure space and our best in class technology and servicing of originations will create a very balanced portfolio. In addition, the financial support from DJSP Enterprises will allow Timios to grow from a boutique services company to a major player in settlement services with a complete offering for lenders.”

DJSP Enterprises will acquire Timios for $1.5 million in cash, 200,000 ordinary shares of DJSP Enterprises, and up to 100,000 ordinary shares of DJSP Enterprises to be earned upon achievement of defined performance metrics. Timios had revenue of $5.05 million for the last 12 months and DJSP Enterprises expects this acquisition to be accretive to earnings by the 3rd Quarter 2010.

The closing of the acquisition is subject to customary due diligence, closing conditions and regulatory approvals.

About DJSP Enterprises, Inc.

DJSP Enterprises is the largest provider of processing services for the mortgage and real estate industries in Florida and one of the largest in the United States. The Company provides a wide range of processing services in connection with mortgages, mortgage defaults, title searches and abstracts, REO (bank-owned) properties, loan modifications, title insurance, loss mitigation, bankruptcy, related litigation and other services. The Company’s principal customer is the Law Offices of David J. Stern, P.A. whose clients include all of the top 10 and 17 of the top 20 mortgage servicers in the United States, many of which have been customers for more than 10 years. The Company has approximately 1,000 employees and contractors and is headquartered in Plantation, Florida, with additional operations in Louisville, Kentucky and San Juan, Puerto Rico. The Company’s U.S. operations are supported by a scalable, low-cost back office operation in Manila, the Philippines that provides data entry and document preparation support for the U.S. operation.

Forward Looking Statements

This press release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, about DJSP Enterprises, Inc. and Timios, Inc. Forward looking statements are statements that are not historical facts. Such forward-looking statements, based upon the current beliefs and expectations of the Company’s management, are subject to risks and uncertainties, which could cause actual results to differ from the forward looking statements. The following factors, among others, could cause actual results to differ from those set forth in the forward-looking statements: business conditions; changing interpretations of generally accepted accounting principles; outcomes of government or other regulatory reviews, particularly those relating to the regulation of the practice of law; the impact of inquiries, investigations, litigation or other legal proceedings involving the Company or its affiliates, which, because of the nature of the Company’s business, have happened in the past to the Company and the Law Offices of David J. Stern, P.A.; the impact and cost of continued compliance with government or state bar regulations or requirements; legislation or other changes in the regulatory environment, particularly those impacting the mortgage default industry; unexpected changes adversely affecting the businesses in which the Company is engaged; fluctuations in customer demand; the Company’s ability to manage rapid growth; intensity of competition from other providers in the industry; general economic conditions, including improvements in the economic environment that slows or reverses the growth in the number of mortgage defaults, particularly in the State of Florida; the ability to efficiently expand its operations to other states or to provide services not currently provided by the Company; the impact and cost of complying with applicable SEC rules and regulation, many of which the Company will have to comply with for the first time after the closing of the business combination; geopolitical events and changes, as well as other relevant risks detailed in the Company’s filings with the U.S. Securities and Exchange Commission, (the “SEC”), including its report on Form 20-F for the period ended December 31, 2009, in particular, those listed under “Item 3. Key Information – Risk Factors.” The information set forth herein should be read in light of such risks. The Company does not assume any obligation to update the information contained in this press release.

Company Contact:  
David J. Stern  
Chairman and CEO  
DJSP Enterprises, Inc.  
Phone: 954-233-8000, ext. 1113  
Kumar Gursahaney  
Executive Vice President and CFO  
DJSP Enterprises, Inc.  
Phone: 954-233-8000, ext. 2024  
Investor Contact:  
Hayden IR  
Cameron Donahue  
Phone: 651-653-1854  

SOURCE DJSP Enterprises, Inc.

Read more:

Homeowner Road Trip: Rally in Tallahassee WAY TO GO!!! Huffington Post


Richard Zombeck Richard Zombeck
HuffPost’s Eyes & Ears Mortgage Specialist
Posted: April 17, 2010 12:30 PM

Homeowner Road Trip: Rally in Tallahassee

In a time when you can stroll over to the computer and rattle off an e-mail to your elected official because you think your taxes are too high or leave an anonymous comment on a blog or article voicing your disapproval with a particular reporter, it would seem that the days of face-to-face action and rallies are unfortunately a thing of the past.Not for a group of activists in Florida heading to the Capitol in Tallahassee on Wednesday, April 21.

Michael Redman (4closureFraud), and Lisa Epstein (Foreclosure Hamlet), in an effort to convince Florida legislators to listen to their constituents, are organizing a transport to the capital. An old fashion road trip of attorneys, advocates, and homeowners. Transportation is being organized and buses will be available from key areas throughout Florida and along major roadways. Redman and Epstein had initially dipped into their own pockets to charter buses for the event.

As of April 16th, according to Redman’s blog, in a Friday post,

“Team Ice in West Palm has sponsored their bus and now one of Pinellas County’s toughest foreclosure fighters has generously agreed to sponsor a bus to make sure any attorney and homeowner who wants to go to Tallahassee and make his or her voice heard has the opportunity to get up there and meet face to face.”
“One of the most inspiring things about all of this is seeing how the defense attorneys are all throwing their time, talent and treasure into this fight.  We all share our ideas, insight and experience because doing so serves the interests of not just our clients but those folks out there who cannot afford an attorney and it especially serves the Constitution we took an oath to protect and the judiciary we respect,”

The most important piece of legislation the group was trying to stop was a push by bankers to change the way Florida handles foreclosures. Florida currently, and always has had Judicial foreclosures. The bank’s proposed legislation would have allowed banks to foreclose on Florida homes without going to court. According to Matt Weidner, a Florida attorney, the bill for now appears to have been stopped in the House, but the Senate will meet next week and according to an old Florida saying, “No one’s safe while the legislature is in session.”

A non-judicial foreclosure would mean that, “you the homeowner won’t automatically get your day in court if your lender tries to take your house away. The way it works right now is the lender is required by law to file a civil lawsuit against you in order to foreclose. You then have to answer it. If you don’t answer it or don’t show up to court, the judge issues a summary judgment against you. In a non-judicial foreclosure everything is done administratively and your right to due process is compromised and you have to beg for your day in court,” as explained by Steve Dibert of MFI-Miami.

Although the bill appears to have died, and the bankers appear to have conceded, this motivated band of advocates doesn’t want to leave anything to chance.

An e-mail from Weidner reads:

As Mark Twain said, ‘News of My death was greatly exaggerated.’ Although the legislation appears to have died, the passion and concern that its introduction incited has only increased with word of its demise.  Tapping into broad based anxiety and concern felt by homeowners all across Florida, the group has turned its focus from defeating this legislation to demanding legislation that will increase protections for Florida homeowners. Talk about turning the tables.  They are meeting with Senator Mark Aronberg and Rep. Darren Soto who introduced a “Homeowner’s Bill of Rights“. They’re asking that this legislation be resurrected… at the very least they want to make sure their legislators are fully aware of their concerns and the problems they’re facing.

According to Weidner’s press release,

“The response from legislators to this movement has been awe-inspiring. Our leaders in Washington may have trouble hearing the voices of their people, but the leaders who represent us in Tallahassee hear the voice of the people loud and clear! Already leaders from both houses have graciously agreed to meet with their voters, we’re confident many more will agree to meet with us when we arrive.”

Michael Moore spoke of the apathy and lack of action he witnessed despite his tireless work drawing attention to key issues affecting millions of Americans.

“Two years ago, I tried to get the health-care debate going, and it did eventually, and now where are we? We may not even have it. What am I supposed to do at a certain point?, ” Moore said in an 2009 Toronto press conference.

I wrote about that similar frustration with apathy in “Where are the Screaming Liberals?,” back in September 2009.

It’s refreshing and inspiring to think that may be changing.

Denise Richardson ( posted the following from Lisa Epstein on her blog:

This is not just for homeowners!We are ALL reduced by the actions behind the mortgage frauds and scams. Tenants! Anyone who relies on any public service funded by our now shrunken tax revenues! Anyone owning any property at all, fully paid off or not. Any business owner! Unemployed family members! Credit card/bank account fees victims! Those with drained 401Ks and college savings accounts!

We will be heard as was the Florida Bankers Association on their own “Capitol Day” on March 10, 2010. Florida Bankers, guess what? You wanted a “Taste of Florida”? You are gonna get one! We are having our own “Capitol Day”! But our collective voices will be a harmony; louder, clearer, unwavering, and with a foundation firmly planted in the historical roots of our country as a nation for WE, THE PEOPLE!

Bankers and other stealth foreclosing entities, listen up! We are NOT boobs, chumps, doormats, dupes, easy marks, fools, goats, gulls, patsies, pigeons, pushovers, saps, scapegoats, schmucks, sitting ducks, stooges, suckers, victims, or weaklings, And we most certainly are not “deadbeats”!

To find out more about the rally and let them know you’ll be along for the ride, see Redman’s site at or Weidner’s blog for more information.

Mortgage Assignment Fraud – Law Offices of David Stern Commits Fraud on The Court – Case Dismissed WITH Prejudice


Via 4Closurefraud:

U.S. Bank National Assoc., as Trustee v. Ernest E. Harpster Sl-2007-CA-6684-ES

Via Matt Weidners Blog

Well well well…

Looks like an Assignment of Mortgage was FRAUDULENTLY created by David Sterns office and signed by Cheryl Samons. Who woulda thunk…

“By now the fact that foreclosure mills, pretender lenders and their document mills across the country are perpetrating widespread and systemic fraud on the courts is not news.  Well sure major questions remain unanswered such as what will be the ultimate price of all this fraud…as reported previously much of this fraud will go unpunished because much of the evidence is apparently being sent back to the law firms that commit the fraud. (In violation of court rules)  But so much is sliding by these days.

We all must do everything we can to bring fraud to the court’s attention and to preserve the evidence when it is found.  Attached here is the brilliant work of a Foreclosure Fraud Fighter, Ralph Fisher of Tampa, Florida who shows us what the courts are willing to do when a good attorney makes AND PROVES a case of fraud…..Case dismissed WITH PREJUDICE”.

From the order

The hearing time was set for March 1, 2010 at 3 p.m.  for a 20-minute hearing but the Plaintiff  failed to appear.

after sounding the halls and after awaiting telephonic communication from  the Plaintiff. The Plaintiff  still failed  to appear. An assistant for Plaintiff  s counsel called at about 3:44 p.m.  to  find out the outcome of  the hearing.

Motion to Compel, the court finds  that the Plaintiff  has failed  to produce answers to  the Interrogatories for a period of  26 months

The Defendant’s Motion in  Limine/Motion to  Strike was based on an allegation that the Assignment of Mortgage was created after the  filing of  this action, but the document date and notarial date were purposely backdated by  the Plaintiff to a date prior the filing of  this foreclosure action.

The Assignment, as an  instrument of  fraud  in  this Court intentionally perpetrated upon this court by the Plaintiff, was made to appear as though it was created and notorized on December 5, 2007. However, that purported creation/notarization date was facially  impossiblethe stamp on the notary was dated May 19,2012. Since Notary commissions only last four years in Florida (see F  .S.  Section 117.01  (l  )), the notary stamp used on this instrument did not even exist until approximately five months after the purported date on the Assignment.

The court specifically finds  that the purported Assignment did not exist at the time of  filing of this action;  that the purported Assignment was subsequently created and the execution date and notarial date were fraudulently backdated, in a purposeful, intentional effort to mislead the Defendant and this Court. The Court rejects the Assignment and finds  that is not entitled to introduction in evidence for any purpose. The Court finds  that the Plaintiff does not have standing to bring its action.


The Motion to Compel is granted. As a sanction for egregious failure to comply with discovery Rules the Plaintiff  shall be prohibited from presenting the alleged Promissory Note to  this Court.

The Plaintiff  shall be prohibited from introducing into evidence the alleged Promissory Note.

The Plaintiff’s recording and filing regarding the fraudulent Assignment of Mortgage is  stricken, and the Plaintiff  is prohibited from entering the Assignment of Mortgage into evidence.

The Motion for Rehearing of Defendant’s Motion to Dismiss is granted and the Motion to Dismiss is granted. The Plaintiff’s complaint is dismissed with prejudice, based on the fraud intentionally perpetrated upon the Court by the Plaintiff.

Moral to the story… ALL assignments are FRAUDULENT.


What if the Florida Supreme Court Issued Mandatory Foreclosure Rules And The Foreclosure Mills Just Ignored Them?


Source: Matthew Weidner Blog

As most of you are aware, the Florida Supreme Court issued a new rule, effective February 11, 2010 that requires all homestead foreclosure complaints to be verified.  Amazingly, it appears that many of the mills are just ignoring the new rule and continuing to file, business as usual.

In the Answer attached here, I attack the complaint and I also attack another component of most foreclosure complaint….the lost note count.  As the research in the motion establishes, there is pretty good case law to support the proposition that most mortgage notes are not negotiable instruments.

If this case law gets correctly applied….more big trouble for the mills…happy hunting~

Foreclosure Fraud Fighters Weapon- Motion to Disqualify Counsel!

From Matt Weidner Blog

Foreclosure Fraud Fighters Weapon- Motion to Disqualify Counsel!

March 29th, 2010 ·

As more and more depositions are being taken of robo signers and other witnesses who appear in foreclosure cases by signing documents, a troubling issue has emerged….conflict of interest by the foreclosure mills that are staying up day and night to push their garbage foreclosure cases through.

There are only two or three documents that must be filed by the Plaintiff in order to be granted foreclosure. These documents must be trustworthy if a court is to rely upon them to grant foreclosure and deprive a homeowner of possession of the home.  What we’ve found through deposition and discovery is that attorneys who work in the foreclosure mills are signing the key documents that allow their firms to prevail in their cases. This is a staggering violation of the rules of professional ethics, but this practice is apparently quite widespread with groups of attorneys in the mills routinely signing documents, especially assignments of mortgages, allegedly on behalf of MERS in particular.  Any document signed by an attorney working for the Plaintiff is ethically improper, but very serious conflict of interest questions are raised when an assignment transfers the first mortgage to the Plaintiff while at the same time, there is any sort of second mortgage and certainly when the Plaintiff lists MERS as a Defendant.

An Absolute Conflict of Interest Anytime A Second Mortgage Exists

MERS is listed as the “mortgagee” or “nominee” on virtually every mortgage that is currently subject to foreclosure.  As we know from depositions, whenever the Plaintiff’s law firm needs to show evidence that the named plaintiff has the right to foreclose a mortgage, either an attorney in the office creates this false assignment or they send instructions to a document mill where the false assignment is signed by a robo signer.  Title attorneys and attorneys with a real estate background dispute the validity of any assignment from MERS (see Kessler v. Landmark) because MERS simply does not have the authority to issue assignments.  Setting this argument aside for just a moment however, the problem with any party acting on instructions from the Plaintiff’s firm is that this party is an agent of the Plaintiff law firm…I cannot conceive of any litigation where it would be permissible for a law firm to instruct his client, “Here’s the evidence I need”, and that client would produce the “evidence” according to instruction and return to the attorney who submits this “evidence” to the court. And yet this happens in virtually every foreclosure across the country….but wait, I got sidetracked down one ethical minefield, when I started in another direction.

When MERS executes one questionable assignment of mortgage (all MERS assignments are questionable) for the first mortgage and there is also a second mortgage that must be foreclosed, Plaintiff’s firms are often not bothering to serve the holder of the second mortgage…all they’re bothering to do is get “service” for that second mortgage on MERS…problematic in any case, but especially problematic when the agent for MERs on either the first or the second mortgage are either an attorney working for the Plaintiff or an agent of the attorney.  What follows here is a discussion of some of the ethical issues posed by such practices, and then posted here is a Motion to Disqualify Counsel which Foreclosure Fraud Fighter Mark Stopa has recently been using with great results…bottom line is the Motion to Disqualify must be heard before any substantive issues are addressed, and the foreclosure mills never want these Motions to Disqualify to be heard by a judge…..if judges started hearing these arguments on a regular basis they may never get around to granting foreclosure…and now, directly from the Florida Bar Journal:

Under the Florida Rules of Professional Conduct,  an attorney generally must not act as advocate at a trial in which the  attorney is likely to be a necessary witness on behalf of the  client. 1 The purpose of the  rule is to prevent evils that arise when a lawyer dons the hat of both  advocate and witness for his own client, as such dual role can  prejudice the opposing side or create a conflict of interest. 2
“At  a trial,” as used in the rule, does not encompass pre-trial or   post-trial proceedings, and thus, does not preclude the attorney from  conducting a pre-trial deposition, even if it were likely that the  attorney would be called as a witness at a trial. 3 Generally, where an attorney is a necessary  witness for a client, the trial of the case should be left to other  counsel; the dual capacity of counsel
and witness in the trial of a  cause should be avoided if possible. 4 If, from the outset, an attorney knows or can  reasonably anticipate that his or her testimony will be essential to  the prosecution of his or her client’s case, the attorney should  decline the representation altogether. 5 To avoid jeopardizing a client’s cause of action,  the better practice is for counsel who must decline or withdraw from  representation to arrange to have other counsel conduct the trial when  it is apparent that either he or a member of his firm will be required  to testify on behalf of his client. 6

The  mere possibility that the attorney would or might be a necessary   witness is insufficient. 7  Furthermore, unsubstantiated claims that plaintiff’s attorney is a  material witness will not disqualify the attorney from representing  his client. 8 Likewise, a  defendant’s motion for disqualification of a plaintiff’s attorney will  not be granted on the ground that the attorney “should be” a witness  for the plaintiffs where the plaintiffs testify that they prefer to  have their attorney act as their counsel rather than have him testify  in their behalf, and where it appears that any information the attorney possess is not crucial and could be presented through the   testimony of others. 9The  rule requiring a lawyer to withdraw when he expects to be a necessary   witness in a case is not designed to permit a lawyer to call opposing   counsel as a witness and thereby disqualify him as counsel. 10 Indeed, the District Court of Appeal  views with some skepticism motions to disqualify an attorney on the  grounds that the attorney will be a material witness in the case,  since such motions are sometimes filed for tactical or harassing   reasons, rather than the proper reason. 11 Opposing counsel should not be permitted to force  disassociation between counsel and client just by calling counsel as  an adverse witness, and a lawyer need not withdraw from a case where   the mere possibility exists that he or she might be called to testify  by the adversary party, as this would create the situation in which  the adversary could disassociate the client’s chosen  counsel. 12

However, although disqualification of an attorney  is an extraordinary remedy to be resorted to only sparingly, 13 when it is shown that the attorney will  be an indispensable witness or when the attorney becomes a “central   figure” in the case, disqualification is appropriate. Thus,  disqualification of an attorney from representation of defendants at  the trial was warranted in a defamation action where the attorney was  likely to be the featured witness at the trial, adducing evidence as  to plaintiff’s activities. 14  Likewise, an attorney was properly disqualified from representing the  personal
representative in a will contest, where the attorney had  prepared and witnessed the contested will, and, therefore, would be a  witness on matters of substance at the trial. 15 Also, both an attorney and the attorney’s firm   should have been disqualified from representation, where an attorney  brought an action against a partnership for his wife in a  slip-and-fall case and for himself on a claim for loss of consortium,  and the attorney’s partner had represented the partnership and still  served as its resident agent for service of process, because the  attorney could well be called to testify, resulting in a violation of  a rule of professional conduct, and the firm, through its  representation, may have had access to privileged information of the  partnership. 16

¨ Observation: A  litigant’s action in causing the disqualification of its opponent’s  trial counsel enjoyed absolute immunity from a later claim of tortious  interference with a business relationship, where the litigant   certified to the trial court an intent to call opposing counsel as a  witness at trial, thereby causing opposing counsel to be disqualified,  but later failed to subpoena and call counsel as a witness at trial,  and when a judgment was entered against the litigant, disqualified  counsel brought an action against the litigant for tortious  interference with a business relationship. 17

FOOTNOTE 1. Rules  Regulating the Florida Bar, Rule 4-3.7(a).

Annotation References

Attorney as witness for client in civil  proceedings—modern state cases, 35
A.L.R. 4th 810.

Trial Strategy References

Attorney Malpractice in Real Estate Transactions,  27 Am. Jur. Proof of
Facts 3d 353.

Existence of attorney–client Relationship, 48 Am.  Jur. Proof of Facts 2d

FOOTNOTE 2. Scott v.  State, 717 So. 2d 908, 23 Fla. L. Weekly S175 (Fla.
1998), reh’g  denied, (June 15, 1998).

FOOTNOTE 3. Columbo v.  Puig, 745 So. 2d 1106, 24 Fla. L. Weekly D2705
(Fla. Dist. Ct. App. 3d  Dist. 1999).

FOOTNOTE 4. Dudley v.  Wilson, 152 Fla. 752, 13 So. 2d 145 (1943).

FOOTNOTE 5. Hubbard v.  Hubbard, 233 So. 2d 150 (Fla. Dist. Ct. App. 4th
Dist. 1970) (decided  under predecessor law governing the Bar).

FOOTNOTE 6. Beavers v.  Conner, 258 So. 2d 330 (Fla. Dist. Ct. App. 3d
Dist. 1972), appeal  after remand, 289 So. 2d 462 (Fla. Dist. Ct. App. 3d Dist.
1974)  (decided under predecessor law governing the Bar).

FOOTNOTE 7. Srour v.  Srour, 733 So. 2d 593, 24 Fla. L. Weekly D1329 (Fla.
Dist. Ct. App.  5th Dist. 1999).

Singer Island Ltd., Inc. v. Budget Const. Co.,  Inc., 714 So. 2d 651, 23
Fla. L. Weekly D1773 (Fla. Dist. Ct. App. 4th  Dist. 1998).

A franchiser’s attorney was not required to be  disqualified for conflict
of interest based on the attorney’s previous  representation of a franchisee,
where the attorney previously had  written two letters and had sat in on
meetings with the franchisee in  connection with the franchisee’s claim that
its assignor was in breach  of its noncompetition agreement and, when the
franchisee brought an  action against the franchiser alleging a breach of the
franchise  agreement, contended that the attorney should be disqualified,
even  though there was no evidence that the attorney’s testimony would be
necessary or that his testimony would be averse to the franchiser’s  position.

Swensen’s Ice Cream Co. v. Voto, Inc., 652 So. 2d  961, 20 Fla. L. Weekly
D811 (Fla. Dist. Ct. App. 4th Dist.  1995).

FOOTNOTE 8. Pascucci v.  Pascucci, 679 So. 2d 1311, 21 Fla. L. Weekly D2142
(Fla. Dist. Ct.  App. 4th Dist. 1996).

FOOTNOTE 9. Cazares v.  Church of Scientology of California, Inc., 429 So.
2d 348 (Fla. Dist.  Ct. App. 5th Dist. 1983), petition for review denied,
438 So. 2d 831  (Fla. 1983) and related reference, 444 So. 2d 442 (Fla. Dist.
Ct. App.  5th Dist. 1983).

FOOTNOTE 10. Allstate Ins.  Co. v. English, 588 So. 2d 294, 16 Fla. L.
Weekly D2774 (Fla. Dist.  Ct. App. 2d Dist. 1991).

Arcara v. Philip M. Warren, P.A., 574 So. 2d 325,  16 Fla. L. Weekly 530
(Fla. Dist. Ct. App. 4th Dist. 1991).

Ray v. Stuckey, 491 So. 2d 1211, 11 Fla. L.  Weekly 1569 (Fla. Dist. Ct.
App. 1st Dist. 1986).

FOOTNOTE 11. Singer Island  Ltd., Inc. v. Budget Const. Co., Inc., 714 So.
2d 651, 23 Fla. L.  Weekly D1773 (Fla. Dist. Ct. App. 4th Dist. 1998).

FOOTNOTE 12. Allstate Ins.  Co. v. English, 588 So. 2d 294, 16 Fla. L.
Weekly D2774 (Fla. Dist.  Ct. App. 2d Dist. 1991).

FOOTNOTE 13. § 329.

FOOTNOTE 14. Fleitman v.  McPherson, 691 So. 2d 37, 22 Fla. L. Weekly D884
(Fla. Dist. Ct. App.  1st Dist. 1997), related reference, 704 So. 2d 587, 22
Fla. L. Weekly  D2091 (Fla. Dist. Ct. App. 1st Dist. 1997).

FOOTNOTE 15. Larkin v.  Pirthauer, 700 So. 2d 182, 22 Fla. L. Weekly D2387
(Fla. Dist. Ct.  App. 4th Dist. 1997).

FOOTNOTE 16. Springtree  Country Club Plaza, Ltd. v. Blaut, 642 So. 2d 27,
19 Fla. L. Weekly  D1704 (Fla. Dist. Ct. App. 4th Dist. 1994).

FOOTNOTE 17. Levin,  Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v.
U.S. Fire  Ins. Co., 639 So. 2d 606, 19 Fla. L. Weekly S347 (Fla. 1994).