Proposed Foreclosure Law Designed to Accelerate the Foreclosure Process

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Proposed Foreclosure Law Designed to Accelerate the Foreclosure Process

Proposed Foreclosure Law Designed to Accelerate the Foreclosure Process

by Parker & DuFresne

Earlier this month, the House Civil Justice Subcommittee approved a bill designed to accelerate the foreclosure process in Florida. Republican, Kathleen Passidomo, sponsor of HB 87, frames the bill as a way to speed up the foreclosure process while ensuring due process. But, lenders and borrowers alike are fearful of some of the Bill’s provisions.

The current Bill, which is a revision of a bill that died last year in the Senate, provides liability for entities that wrongfully claim to be holders of or entitled to enforce lost notes. Thus, the Bill might provide an incentive for the “foreclosure mills” to have their paperwork in order before filing suit. However, this penalty of perjury is not a new concept to the judicial system. The problem has not been whether there is a penalty for perjury, but rather whether a judge will deem evidence to be fraudulent. Discovery requests that attempt to uncover facts and evidence related to the validity of a lender’s evidence are almost always objected to on grounds of relevance. And these objections are rarely overruled when challenged in court. The borrower’s only hope is that the evidence (usually related to transfer of a loan) is defective on its face. In which case, the evidence is usually just disregarded as flawed–rather than deemed fraudulent.

[Parker & DuFresne]

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2 Responses to “Proposed Foreclosure Law Designed to Accelerate the Foreclosure Process”

  1. nydeemarie says:

    HMMM..

    Certified – DULY recorded Assignments.

    are considered..

    Prima facia evidence without something further…

    The party claiming the benefit of the Recording Act has the burden of proof (see Nethaway v Bosch, 199 AD2d 654 [1993]). In the case at bar, defendants Lewis and Mackall sufficiently carried their burden.

    “[A] a conveyance made for a valuable consideration is presumed to be bona fide within the Recording Acts” (Covey v Niagara, Lockport & Ontario Power Co., 286 AD 341, 345 [1955]; see 92 NY Jur 2d, Records and Recording § 121; see also Ochenkowski v Dunaj, 232 AD 441 [1931]).

    In the case at bar, documentary evidence in the record shows that real estate transfer taxes were paid on the conveyances to Unlimited Homes, Inc., Roy H. Thomas, REO Management 2004, Inc., JFB Properties, LLC, Rachel Rush, and the defendants, which is proof that the transfers were not gratuitous, but were made for valuable consideration (see Furlong v Storch, 132 AD2d 866 [1987]). The presumption of good faith arises from the payment of valuable consideration (see Covey v Niagara, Lockport & Ontario Power Co., supra), and the plaintiff submitted no proof to the contrary raising a triable issue of fact.

    Something further….???

    Certificate of search for transfer tax filing fee form?

    Clerk and/or Department of Taxation and finance..

    Either it exists or it doesn’t.

    If it exists does it confirm what was submitted or does it refute it?

    Do the dates match..?

    Do the amounts match?

    Do the parties match? etc.. etc…

    Download RP-5217-PDF Form

    How curious….

    NYS form RP-5217-PDF is submitted with criminal penalties attached…

    I Certify that all of the items of information entered on this form are true and correct (to the best of my knowledge and belief) and I understand that the making of any willful
    false statement of material fact herein subject me to the provisions of the penal law relative to the making and filing of false instruments.

    http://www.tax.ny.gov/research/property/assess/rp5217/index.htm

    So.. what’s the deal about Corporate gifting? ;)..

    How does the IRS treat gratuitous transfers???

  2. nydeemarie says:

    Come on people…

    Help the Judges, help you…. 🙂

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