The
Florida bill was clearly meant to speed up the "inevitable" foreclosure
process, which is the wrong assumption right off the bat. If the
foreclosures are wrongful we are not talking about some "i" that wasn't
dotted or some "t" that wasn't crossed. We are talking about
foreclosures that (a) didn't need to happen and (b) couldn't happen
legally if the party bringing the foreclosure had no right to do so.
The
fundamental paradigm shift that is coming is that the banks are the
deadbeats, not the borrowers. The borrowers are seeking to enforce a
fair deal; the banks are seeking to steal and lie their way through the
PONZI scheme we called "Securitization."
Verification
of the complaint has taken another bizarre turn. In reading the
testimony and affidavits of those who "verified" the complaint, it turns
out they signed the verification but knew nothing about the case. The
only thing they verified was that the complaint contained information
that was given to her or him by unknown parties through computer via a
computer monitor.
Banks
are using the verification aspect to bolster their false claims to the
business records exception of hearsay. They are wrong and any judge who
rules that is wrong if the verifier or affiant (a) is not the records
custodian and (b) had no basis for personally knowing the truth. Pressed
to give an accounting for how they know what they know, the verifier
will answer "it's in the complaint." They often express confidence that
it wouldn't be in the complaint if it wasn't true. Talk about circular
logic!
The
recent revelations about Bank of America are the tip of the iceberg of
lying and deception that started when the first mortgage bond was sold
and the first loan application was taken within the scope of the PONZI
scheme that required bonds to be sold in order to make payments to the
investors.
The
fact that BOA told its employees to lie to customers in order to get
them into foreclosure is enough to infer the truth, to wit: the goal was
foreclosures and not financial recovery. How is that possible? What
bank would not want the most it could get in mitigation of a "loss" it
supposedly incurred as a result of a "default" by a "borrower" on a
"debt" that was owed to the bank because the bank funded the origination
or acquisition of the loan?
The
questions answer themselves. If the Bank had a real loss they would
want to mitigate the loss as quickly as possible. In the past that has
always meant some sort of workout when that possible. Now we find out
that BOA was paying its employees to lie and deceive the "borrowers" for
the express purpose of getting the property into foreclosure even
though that means getting a lot less money for the "creditor" than any
modification, settlement or workout. So the answer is that they had no
real loss and they must want the foreclosure for some other reason.
The
"other reason" is simply that foreclosure is the cover-up for the PONZI
scheme. And the government feels stuck by assurances it gave the large
banks (see statements of future whistle blowers) when they forced the
banks to acquire the investment banks, the aggregators and other players
in this scheme, before the government knew that the scheme existed. So
the government is buying up worthless mortgage bonds with no loans
backing them and pretending that the bonds are really worth something.
This is supposed to shore up the financial system by avoiding massive
failures of the largest banks --- something that is eventually going to
happen anyway because the $ trillions that were siphoned off from from
investors were then siphoned off from the banks and management now
controls that money.
If
you look at the merger and bond activity you can see the banks
acquiring other institutions in order to provide a safety valve through
which part of the ill-gotten gains from the PONZI scheme can be
repatriated and the "earnings" of the bank can be seen as stable or
increasing even while the rest of the world goes to hell in a hand
basket. (see below). The rest of the money is being controlled by a
handful of people (see future whistle blowers) who are actually
controlling world events by controlling the purse strings of all world
economies.
Sounds
like a conspiracy theory, doesn't it. Maybe a little less crazy now
that we know that BOA was rewarding employees for lying to customers.
And maybe a little less so now that we know the bonus was paid with a
Target gift card. If it was a legitimate bonus, why use Target as the
intermediary? Answer: the auditors of the bank probably would not like
seeing bonuses paid to people who were supposedly working with borrowers
on modification or settlement of the loan --- especially when the
record shows that the bonus was for getting the case into foreclosure
rather than settlement.
As
you can read for yourself below, the pace of foreclosures is picking up
and is going to accelerate under the new Florida law. They are in a
rush to hush up any further whistle blowers who might blow the whole
thing wide open. But the carrot they held out to homeowners might be the
bank's undoing if the borrower moves promptly and fights the
foreclosure on the basis of ownership of the loan. There is only one way
to really own a loan and that is by paying for it. The argument has
been rejected by many judges, but now it is right in the statute that
the proof of ownership must be present as a condition precedent which
means that the real burden of proof is switching back to the banks,
where it belongs.
-------------------------------------------------
Danielle Kelley, Esq. June, 2013
The
banks wanted this bill - so let's take a look at the "consumer
friendly" portions and get ready. Keep in mind the act is remedial in
nature. All complaints filed after June 7, 2013 will be subject to a motion to dismiss if the plaintiff does not meet the requirements of the new bill:
1)
they must give affirmative allegations that at the time foreclosure is
filed they are the holder of the original note, allege with specificity
the factual basis by which they are entitled to enforce the note under
673.3011 (no more either/or pleading),
3)
a plaintiff given authority to sue (i.e. servicer or someone coming in
with a POA like we've been seeing) - the Complaint shall describe their
authority and identify with specificity the document that gives them
authority to act on behalf of the Plaintiff.
Given
what we know about how they verify complaints, they will have a hard
road showing they can verify the plaintiff actually "has" the original
note. I won't settle for anything less than a declaration that they
have seen it in person - not on a computer screen. The bill states,
"The term "original note" or "original promissory note" means the signed
or executed promissory note rather than a copy thereof." I don't want
to hear about a janitor who was adopted as assistant vice president
through corporate resolution and is verifying they saw the "original
note" on a screen. Keep in mind that they executed the complaints
filed this month months ago - they sign right after they send off for
verification usually.
If they file a lost note count they must attach an affidavit under penalty of perjury to the Complaint that
1) details a clear chain endorsements, transfers, or assignments Note;
2) set forth facts showing the Plaintiff is entitled to enforce the lost instrument (Note); and
3) attach documents to the affidavit such as copies of the Note, allonges, audit reports, or other evidence of acquisition, ownership, and possession.
Relevant portions of the bill below:
(2) A complaint that seeks to foreclose a mortgage or other lien on
residential real property, including individual units of condominiums
and cooperatives, designed principally for occupation by from one to
four families which secures a promissory note must:
(a) Contain affirmative allegations expressly made by the plaintiff
at the time the proceeding is commenced that the plaintiff is the
holder of the original note secured by the mortgage; or
(b) Allege with specificity the factual basis by which the plaintiff is a person entitled to enforce the note under s. 673.3011.
(3) If a plaintiff has been delegated the authority to institute a
mortgage foreclosure action on behalf of the person entitled to enforce
the note, the complaint shall describe the authority of the plaintiff
and identify, with specificity, the document that grants the plaintiff
the authority to act on behalf of the person entitled to enforce the
note. This subsection is intended to require initial disclosure of
status and pertinent facts and not to modify law regarding standing or
real parties in interest. The term "original note" or "original
promissory note" means the signed or executed promissory note rather
than a copy thereof. The term includes any renewal, replacement,
consolidation, or amended and restated note or instrument given in
renewal, replacement, or substitution for a previous promissory note.
The term also includes a transferable record, as defined by the Uniform
Electronic Transaction Act in s. 668.50(16).
(4) If the plaintiff is in possession of the original promissory
note, the plaintiff must file under penalty of perjury a certification
with the court, contemporaneously with the filing of the complaint for
foreclosure, that the plaintiff is in possession of the original
promissory note. The certification must set forth the location of the
note, the name and title of the individual giving the certification, the
name of the person who personally verified such possession, and the
time and date on which the possession was verified. Correct copies of
the note and all allonges to the note must be attached to the
certification. The original note and the allonges must be filed with the
court before the entry of any judgment of foreclosure or judgment on
the note.
(5) If the plaintiff seeks to enforce a lost, destroyed, or stolen
instrument, an affidavit executed under penalty of perjury must be
attached to the complaint. The affidavit must:
(a) Detail a clear chain of all endorsements, transfers, or
assignments of the promissory note that is the subject of the action.
(b) Set forth facts showing that the plaintiff is entitled to
enforce a lost, destroyed, or stolen instrument pursuant to s. 673.3091.
Adequate protection as required under s. 673.3091(2) shall be provided
before the entry of final judgment.
(c) Include as exhibits to the affidavit such copies of the note
and the allonges to the note, audit reports showing receipt of the
original note, or other evidence of the acquisition, ownership, and
possession of the note as may be available to the plaintiff.
(6) The court may sanction the plaintiff for failure to comply with this section.
SEE ALSO
