What can be done about the backlog of foreclosure cases in Palm Beach County (and other Florida counties)? By Lynn Szymoniack ESQ.

BACKLOG

1. Dismiss all cases filed after February 11, 2010, that do not include a verification in accordance with the Florida Supreme Court revised  rules of Civil Procedure.   The big foreclosure firms, particularly the Law Offices of David Stern, are choosing to ignore the rule requiring verifications.  All parties should be required to follow the rules.

2. Dismiss all of the cases where the plaintiff is a bank “as Trustee” but the name of the trust is not disclosed.  Failure to identify the actual trust is one of the newest strategies of the foreclosure mills.  The trust, not the trustee, is the real party in interest.

3. Dismiss all of the cases where the complaint is not signed by the attorney whose name appears on the pleading.  The big foreclosure firms in thousands of cases have someone other than the attorney on the pleading sign “for” the attorney who drafted the pleading.  This is done so that both attorneys can deny responsibility.

4. Dismiss all of the cases that include these boilerplate allegations by the bank or trust: “We own the note. We had possession of the note. We lost the note.”  These allegations appear in over 20,000 cases.  By now it is apparent this is a ruse – no one actually lost 20,000 mortgages and notes. Frauds upon the courts should not be tolerated.

5. Dismiss all of the cases that include a Mortgage Assignment that was signed by an employee of the foreclosure mill law firm signing as a MERS officer.  This would include thousands of cases where Cheryl Samons and Beth Cerni, administrative employees for David Stern, signed as a representative of the GRANTOR when the firm was actually working for the GRANTEE.  This would also include cases where Patricia Arango and Caryn Graham, two associates working for The Law Offices of Marshall C. Watson, signed as MERS officers.  This would also include all cases where Christopher Bossman, an administrative employee in the Daniel Consuegra fiirm, signed as a MERS officer.  This would also include all cases where officers of Florida Default Law Group signed as MERS officers. In all of these cases, no disclosure was made to the Court or to the homeowner/defendants that the Assignments were prepared by law firm employees with no knowledge of the truth of the matters asserted therein.

6. Dismiss all of the cases where a Mortgage Assignment was signed by Jeffrey Stephan of GMAC (notarized in Montgomery County, PA).  Stephan has already admitted in sworn testimony that a notary was NOT present when he signed mortgage assignments, even though the Assignments contained a contrary statement.

7. Dismiss all of the cases where the documents were prepared by employees of Lender Processing Services since this company has already admitted in its Annual Statement with the SEC that investigations, internal and otherwise, revealed problems with the documents that were so significant that the company implemented a “remediation” program (and in January, 2010, laid off most of its employees in Alpharetta, GA. Until this company discloses which documents were determined to be defective, and what corrective actions were taken, no documents from LPS submitted to establish ownership and standing (notarized in Fulton County, GA; Duval County, FL and Dakota County, MN) should be relied upon by the Courts.

8. Dismiss all cases where a Mortgage Assignment has been made by American Brokers Conduit, American Home Mortgage Acceptance or American Home Mortgage Company, or nominees or mortgage servicing companies working for these American Home companies, after August 6, 2007, the day these companies filed for bankruptcy.  The bankruptcy court did not authorizing these actions.

If Palm Beach County judges looked critically at the documents submitted by the foreclosure mills,  they would reach the same conclusion as judges in other Florida Circuits – that the documents submitted by the foreclosure mills are worthless and the attorneys submitting these documents deserve strict sanctions.

LYNN E. SZYMONIAK ESQ.

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Even More Embarrassment for Banks: Foreclosure Fraud

Even More Embarrassment for Banks: Foreclosure Fraud

Oppenheim Law

cartoon_bank_bailoutWhat could be more embarrassing for the already floundering banks than the fact that their foreclosure, loan modification and short sale systems are a complete mess?

Well, a recent court decision in a mortgage foreclosure lawsuit in Pasco County, FL, revealed the banks, besides being disorganized, are apparently not above stooping to commit fraud in order to file foreclosure actions against homeowners.   You can view the Court’s order by clicking here.

Many homeowners probably don’t know the bank has to prove it has standing to bring a foreclosure action.  Standing is the constitutional right for a party to appear to bring a case in court.  Without standing, a party has no right to be in court. But in reality, the bank must prove that they in fact own and hold both the mortgage and promissory note, and thus have the right to foreclose.

This becomes a problem for banks because they are so disorganized that the documents are often lost or misplaced. An even bigger problem occurs when the original mortgage lenders sell the mortgages and notes and convert them into a securitized trust. When these mortgages are assigned to another bank or a securitized trust, the assignment of mortgage must be executed and notarized. Within these assignments, foreclosure defense attorneys are finding all kinds of problems that are leading to foreclosure cases being thrown out of court.

Fraud in the Court

A problem found in an assignment of mortgage that was recently thrown out by the court was especially astounding. The Plaintiff, U.S. Bank, filed a foreclosure action on December 6, 2007, based on an alleged assignment of mortgage dated as of December 5, 2007.

However, during the course of the litigation, the homeowner’s attorney noticed that the Notary’s commission was dated to expire on May 19, 2012. Pursuant to Florida law, notary stamps are only valid for 4 years. So, the notary that signed the assignment back on December 5, 2007 could not have had a notary stamp that expired in May of 2012.

This fact was confirmed by a sworn affidavit by the Notary Bonding Company’s representative, confirming that this Notary’s stamp was not issued until April 2008, five months after the purported date of assignment on the mortgage.

Based on this evidence, the judge found that the assignment was “fraudulently backdated in a purposeful, intentional effort to mislead the defendant and this court.”

On these grounds, the Judge found the defendant homeowner was the prevailing party because the Plaintiff lacked standing to file the lawsuit on December 6, 2007, and granted the Defendant’ attorney’s fees as well.

Defending is Better than Default

This news brings hope to many homeowners and shows defending the foreclosure action is better than doing nothing at all.  Additionally this teaches us we should never accept anything on its face and scrutinize every document produced by the banks to support their foreclosure complaint.

An argument can be made that Judges should be examining the authenticity of the documents produced by the Plaintiff before entering default and granting summary judgment against homeowners. However, in all likelihood, mistakes such as these are slipping through the cracks with the unprecedented number of foreclosure actions each judge has on their docket.

Thus, these kinds of problems truly exemplify why it is in every homeowner’s best interest to defend their foreclosure and not assume the court system will automatically protect their interests.