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Florida Supreme Court hears landmark Foreclosure Fraud suit

Florida Supreme Court hears landmark Foreclosure Fraud suit


Does the rule of law matter?

Why hasn’t David J. Stern not been disbarred? Suspended?

Is Fraud upon the court 100,000’s of time & to the face of a judge not a crime?

Why would the original judge not sanction anyone?

Will the Supreme Court allow fraud to slap it in its face 2nd time around?

Where has justice gone?

Reuters-

The Florida Supreme Court heard arguments on Thursday in a landmark lawsuit that could undo hundreds of thousands of foreclosures and open up banks to severe financial penalties in the state where they face the bulk of their foreclosure-fraud litigation.

Legal experts say the lawsuit is one of the most important foreclosure fraud cases in the country and could help resolve an issue that has vexed Florida’s foreclosure courts for the past five years: Can banks that file fraudulent documents in foreclosure proceedings voluntarily dismiss the cases only to refile them later with different paperwork?

The decision, which may take up to eight months, could influence judges in the other 26 states that require judicial approval for foreclosures.

The case at issue, known as Roman Pino v. Bank of New York Mellon, stems from the so-called robo-signing scandal that emerged in 2010 when it was revealed that banks and their law firms had hired low-wage workers to sign legal documents without checking their accuracy, as is required by law.

If the state Supreme Court rules against the banks, “a broad universe of mortgages could be rendered unenforceable,” said former U.S. Attorney Kendall Coffey, author of the book, “Foreclosures in Florida.”

[REUTERS]

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Florida foreclosure case could SLAM banks

Florida foreclosure case could SLAM banks


Reuters-

The Florida Supreme Court is set to hear oral arguments Thursday in a lawsuit that could undo hundreds of thousands of foreclosures and open up banks to severe financial liabilities in the state where they face the bulk of their foreclosure-fraud litigation.

The court is deciding whether banks who used fraudulent documents to file foreclosure lawsuits can dismiss the cases and refile them later with different paperwork.

The decision, which may take up to eight months to render, could affect hundreds of thousands of homeowners in Florida, and could also influence judges in the other 26 states that require lawsuits in foreclosures.

Of all the foreclosure filings in those states, sixty three percent, a total of 138,288, are concentrated in five states, according to RealtyTrac, an online foreclosure marketplace. Of those, nearly half are in Florida. In Congressional testimony last year, Bank of America, the U.S.’s largest mortgage servicer, said that 70 percent of its foreclosure-related lawsuits were in Florida.

The case at issue, known as Roman Pino v. Bank of New York Mellon, stems from the so-called robo-signing scandal that emerged in 2010 when it was revealed that banks and their law firms had hired low-wage workers to sign legal documents without checking their accuracy as is required by law.

This was a case of an intentionally fraudulent document fabricated to use in a court proceeding,” says former U.S. Attorney Kendall Coffey, author of the book Foreclosures in Florida.

[REUTERS]

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PINO v. BONY Oral Argument set for Thursday May 10, 2012 at 9:00 am

PINO v. BONY Oral Argument set for Thursday May 10, 2012 at 9:00 am


The Oral Arguments in Roman Pino v. Bank of New York will be heard before the Florida Supreme Court on Thursday, May 10, 2012  at 9:00 AM.  In this case the court will be addressing the circumstances under which a voluntary dismissal (a final judgment or other court action) can be set aside long after the case is over, based on underlying fraud on the court.

The Oral Arguments can be watched live on http://thefloridachannel.org/watch/web3/1336655014.

As reflected above, the Fourth District certified this issue to be one of great public importance, and in doing so, noted that “many, many mortgage foreclosures appear tainted with suspect documents” and that Pino’s requested remedy, if imposed, “may dramatically affect the mortgage foreclosure crisis in this State.” Pino, 57 So. 3d at 954-55.

Supreme Court of Florida

No. SC11-697

ROMAN PINO,
Petitioner,

vs.

THE BANK OF NEW YORK, etc., et al.,
Respondents.

[December 8, 2011]

PER CURIAM.

The issue we address is whether Florida Rule of Appellate Procedure 9.350 requires this Court to dismiss a case after we have accepted jurisdiction based on a question certified to be one of great public importance and after the petitioner has filed his initial brief on the merits.1 This narrow question arose after the parties to this action filed a joint Stipulated Dismissal, which advised that they had settled this matter and stipulated to the dismissal of the review proceeding pending before this Court. It cannot be questioned that our well-established precedent authorizes this Court to exercise its discretion to deny the requested dismissal of a review proceeding, even where both parties to the action agree to the dismissal in light of an agreed-upon settlement. The question certified to us by the Fourth District Court of Appeal in this case transcends the individual parties to this action because it has the potential to impact the mortgage foreclosure crisis throughout this state and is one on which Florida’s trial courts and litigants need guidance. The legal issue also has implications beyond mortgage foreclosure actions. Because we agree with the Fourth District that this issue is indeed one of great public importance and in need of resolution by this Court, we deny the parties’ request to dismiss this proceeding.

[…]

[ipaper docId=75141917 access_key=key-10ukvw841p3aqsqqo53z height=600 width=600 /]

 

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Florida Supreme Court to review dismissed foreclosure lawsuit against Greenacres man

Florida Supreme Court to review dismissed foreclosure lawsuit against Greenacres man


This shouldn’t be so difficult, David J. Stern has TONS of fraudulent documents out there. Pick any County, any documents his firm filed and you’re sure to find fraud. Just read the depositions from his former employees.

“We conclude that this is a question of great public importance, as many, many mortgage foreclosures appear tainted with suspect documents,” the appeals court wrote in certification to the Supreme Court.

PALM BEACH POST-

An unassuming drywall hanger from Greenacres has banks warning of a “widespread financial crisis” if the Florida Supreme Court favors him in a landmark foreclosure case justices will hear this week.

Plucked out of the 4th District Court of Appeal, Roman Pino v. the Bank of New York is the first significant foreclosure complaint to be heard by the high court since the state’s legendary housing collapse.

It’s particularly unusual because the 41-year-old Pino had already settled the case when the Supreme Court decided in December to take up a legal question it said could affect the mortgage foreclosure crisis statewide.

At issue is whether a bank can escape punishment for filing flawed or fraudulent documents in a case by voluntarily dismissing it. (A voluntary dismissal allows the bank to refile at a later date.)

That’s what Royal Palm Beach-based foreclosure defense attorney Tom Ice said happened when he challenged a document created by the Law Offices of David J. Stern and sought to question employees about its veracity. On the eve of those depositions, the bank moved to dismiss the case, blocking the court’s ability to address any sanctions.

“The objective here was to hide from punishment for the wrongdoing,” Ice said.

[PALM BEACH POST]

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PINO vs BONY | BRIEF OF AMICUS CURIAE FLORIDA LAND TITLE ASSOCIATION AND AMERICAN LAND TITLE ASSOCIATION

PINO vs BONY | BRIEF OF AMICUS CURIAE FLORIDA LAND TITLE ASSOCIATION AND AMERICAN LAND TITLE ASSOCIATION


Via MATT WEIDNER

EXCERPT:

INTRODUCTION
The Court retained this case so that it could give needed guidance to trial courts and other litigants by its answer to a certified question arising from a mortgage foreclosure action. As the Court wrote: The question certified . . . transcends the individual parties to this action because it has the potential to impact the mortgage foreclosure crisis throughout this state and is one on which Florida’s trial courts and litigants need guidance. The legal issue also has implications beyond mortgage foreclosure actions.
Pino v. Bank of New York, 36 Fla. L. Weekly S711 (Fla. Dec. 8, 2011). Florida Land Title Association (“FLTA”) and American Land Title Association (“ALTA”) file this brief to address the need for this Court to give guidance to trial courts and litigants on the importance of protecting the rights of third parties that have justifiably relied on the finality of a prior court action when buying, extending financing on, or insuring title to real property.

SUMMARY OF ARGUMENT
The Court can expressly limit its decision in this case to the setting aside of a voluntary dismissal in a case where no third party interest in real estate is implicated. Should it choose to do so, FLTA and ALTA have no issues to address. However, if the Court decides to write more broadly, we respectfully ask the Court to emphasize the need to protect the rights of affected third parties when collateral attacks are brought against otherwise final court judgments, orders, decrees or proceedings. The residential mortgage foreclosure crisis has caused a host of problems for homeowners, lenders, and Florida’s court system. The Court addressed many of these problems by forming the Task Force on Residential Mortgage Foreclosures in 2009 and by adopting its recommended amendments to the Florida Rules of Civil Procedure in 2010. However, unlike some other states, the Court has not adequately addressed the protection of third party interests when otherwise final court proceedings are collaterally attacked, especially the interest of those who have purchased foreclosed real estate.

Respectfully, if the Court is to give guidance to trial courts and litigants regarding collateral attacks against foreclosure actions (whether relief is sought under rule 1.540(b) or the use of inherent judicial powers) beyond the narrow facts of this case, it should give guidance on protecting the interests of third parties that purchase, finance and insure title to foreclosed properties. Recognition and protection of these neglected interests is vital to the integrity of our judicial system and to the ultimate resolution of the mortgage foreclosure crisis.

[…]

Download PDF Below

Down Load PDF of This Case

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Pool guy, landscaper of $18 million foreclosure winner subpoenaed

Pool guy, landscaper of $18 million foreclosure winner subpoenaed


“Hunger Games”

Palm Beach Post-

The pool guy, plumber and lawn man for a Palm Beach Gardens homeowner who recently won an $18 million settlement in a foreclosure-related lawsuit are being sought for questioning by the bank still seeking to repossess her home.

Lynn Szymoniak, a 63-year-old attorney who specializes in white collar crime, shot to national fame last year when she was featured on the CBS news show 60 minutes for her role in uncovering widespread mortgage and foreclosure fraud after finding it in her own 2008 case.

This month, it was announced she would receive $18 million from a whistle-blower lawsuit filed under the federal False Claims Act, which allows the government to bring civil actions against entities that knowingly use or cause the use of false documents to obtain money from the government.

[PALM BEACH POST]

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Mortgage Fraud: Bank of America, Bank of New York Mellon, Countrywide Home Loans Servicing, Law Offices of David Stern, Cheryl Samons

Mortgage Fraud: Bank of America, Bank of New York Mellon, Countrywide Home Loans Servicing, Law Offices of David Stern, Cheryl Samons


Mortgage Fraud

Bank of America
Bank of New York Mellon
Countrywide Home Loans Servicing
Law Offices of David Stern
Cheryl Samons

Action Date: December 10, 2011
Location: West Palm Beach, FL

In a very unusual move, the FL Supreme Court rejected the settlement in the PINO case last week and will issue a decision about fraudulent mortgage documents.

Florida’s Fourth District Court of Appeals had certified a procedural foreclosure question to the Supreme Court, stating: “This is a question of great public importance” since “many, many mortgage foreclosures appear tainted with suspect documents.”

At the trial court level, PINO’s attorneys had asked the court to sanction BNY Mellon by denying it the equitable right to foreclose the mortgage at all. The district court observed that if this sanction were available after a voluntary dismissal, “it may dramatically affect the mortgage crisis in this state.”

The Fourth District Court of Appeals decision seemed to recognize that very frequently, bank lawyers used dismissals when homeowners raised a question regarding the legitimacy of the documents filed by the banks.

Advocates for homeowners were encouraged by the Supreme Court’s action denying the settlement as the final resolution.

So who exactly is NOT happy?

Perhaps the preparers and signers of the two mortgage assignments in the PINO case.

One of the Assignments was prepared by the Law Offices of David J. Stern, Esq. This is signed by Stern’s office manager, Cheryl Samons who signs as an Asst. Sect. of MERS.

This is dated September 19, 2008 – though not filed until February 18, 2009.

The Lis Pendens (beginning of the foreclosure in judicial states) was dated October 8, 2008.

This is an assignment of the Mortgage and the Note to:

The Bank of New York Mellon F/K/A The Bank of New York as Trustee for the Certificateholders CWALT, Inc. Alternative Loan Trust 2006-OC8.

For anyone unfamiliar with Cheryl Samons many acts in the Law Offices of David Stern (a law firm that spent a lot of $$ entertaining officials from FANNIE), the sworn statements from paralegals and notaries from the investigation of then Asst. A.G.s June Clarkson & Theresa Edwards (those overly aggressive FORMER prosecutors) are available for review at StopForeclosureFraud.com.

According to these sworn statements, Samons signed thousands of documents each week, allowed other people to sign her name, did not read what she signed, signed other names, etc. She did these things because her boss, David Stern, was very generous (see the articles by Andy Kroll in Mother Jones for more details on this).

The second assignment was notarized July 14, 2009 and filed July 29, 2009.

It seems they forgot all about the first assignment because once again it is an assignment from MERS to the same trust. This Assignment was also prepared by the Law Offices of David Stern. (If the first assignment was effective, of course, MERS had nothing to convey).

The signer this time was Melissa Viveros in Tarrant County, TX.

While she signs as a MERS officer, Viveros in many other reported cases appears as an officer of Countrywide Home Loans Servicing, N/K/A BAC Home Loans Servicing.

So, once again, Bank of America (then the parent of BAC Home Loans Servicing) and Bank of New York Mellon have the most to lose in the short run – and in the long run, investors in CWALT and CWABS trusts.

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NUCLEAR, NUCLEAR BOMBSHELL!!!!! FLORIDA SUPREME COURT RESURRECTS PINO v. BONY

NUCLEAR, NUCLEAR BOMBSHELL!!!!! FLORIDA SUPREME COURT RESURRECTS PINO v. BONY


H/T Matt Weidner

As reflected above, the Fourth District certified this issue to be one of great public importance, and in doing so, noted that “many, many mortgage foreclosures appear tainted with suspect documents” and that Pino’s requested remedy, if imposed, “may dramatically affect the mortgage foreclosure crisis in this State.” Pino, 57 So. 3d at 954-55.


Supreme Court of Florida

No. SC11-697

ROMAN PINO,
Petitioner,

vs.

THE BANK OF NEW YORK, etc., et al.,
Respondents.

[December 8, 2011]

PER CURIAM.

The issue we address is whether Florida Rule of Appellate Procedure 9.350 requires this Court to dismiss a case after we have accepted jurisdiction based on a question certified to be one of great public importance and after the petitioner has filed his initial brief on the merits.1 This narrow question arose after the parties to this action filed a joint Stipulated Dismissal, which advised that they had settled this matter and stipulated to the dismissal of the review proceeding pending before this Court. It cannot be questioned that our well-established precedent authorizes this Court to exercise its discretion to deny the requested dismissal of a review proceeding, even where both parties to the action agree to the dismissal in light of an agreed-upon settlement. The question certified to us by the Fourth District Court of Appeal in this case transcends the individual parties to this action because it has the potential to impact the mortgage foreclosure crisis throughout this state and is one on which Florida’s trial courts and litigants need guidance. The legal issue also has implications beyond mortgage foreclosure actions. Because we agree with the Fourth District that this issue is indeed one of great public importance and in need of resolution by this Court, we deny the parties’ request to dismiss this proceeding.

[…]

[ipaper docId=75141917 access_key=key-10ukvw841p3aqsqqo53z height=600 width=600 /]

 

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Florida Supreme Court foreclosure case PINO v. BONY settled

Florida Supreme Court foreclosure case PINO v. BONY settled


Although disappointing not to see the final outcome behind the documents, this does not settle well with the FRAUD obviously involved.

“We conclude that this is a question of great public importance, as many, many mortgage foreclosures appear tainted with suspect documents,” the appeals court wrote in certification to the Supreme Court.

according to Miami Herald-

Both sides have agreed to settle a high-profile foreclosure fraud case pending before the Florida Supreme Court.

Details of the settlement were not disclosed in a brief stipulation filed Thursday with the high court.

The 4th District Court of Appeal in West Palm Beach had certified the case as a matter of “great public importance.”

The appeal court ruled Roman Pino couldn’t try to prove the Bank of New York Mellon defrauded him when it foreclosed on his Greenacres home.

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Bank Drops Legal Pressure On Foreclosure Fraud Expert’s Family

Bank Drops Legal Pressure On Foreclosure Fraud Expert’s Family


HuffPO-

Deutsche Bank has dropped the son of high-profile foreclosure fraud investigator Lynn Szymoniak from the foreclosure case against her, according to new court documents.

The bank had added Szymoniak’s son, Mark Cullen, to the foreclosure suit this May, a move that many experts saw as an act of retaliation against Szymoniak, who has publicized banks’ widespread use of forged signatures in the foreclosure process to improperly give borrowers the boot. On June 8, lawyers filed a “Notice of Dropping Party” with the Florida court dismissing its previous claims against Cullen.

Continue reading [HUFFINGTONPOST]

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Deutsche Bank Sues Foreclosure Fraud Expert’s Son With No Financial Interest In Her Case

Deutsche Bank Sues Foreclosure Fraud Expert’s Son With No Financial Interest In Her Case


Disgusting…

HuffPO-

But Deutsche Bank wasn’t just going after her. The bank was also attempting to sue her son, Mark Cullen, who is currently pursuing a graduate degree in poetry at the New School in New York. Cullen hasn’t lived in Szymoniak’s house for seven years and is not a party to any aspect of her mortgagehe has no interest in either the property or the loan, and never has had any such interest, according to Szymoniak.

[…]

And other Florida foreclosure experts say it’s difficult to interpret Deutsche Bank’s move as anything other than retaliation for Szymoniak’s media presence. If it is not, in fact, retaliation, they argue, then Deutsche Bank’s lawyers have demonstrated rank incompetence.


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Florida Supreme Court To Take Up PINO v. Bank Of New York Mellon Case

Florida Supreme Court To Take Up PINO v. Bank Of New York Mellon Case


According to AP,  the court on Monday issued a high profile-case order in the matter of Pino v. Bank of New York Mellon. One of the issues in the case is whether there was a fraud on the trial court.

And we all now the original work behind this was none other than Law Offices of David J. Stern, who has recently shut down as of March 31, 2011.

On February 2, 2011 the Florida 4th DCA said

We conclude that this is a question of great public importance, as many, many mortgage foreclosures appear tainted with suspect documents. The defendant has requested a denial of the equitable right to foreclose the mortgage at all. If this is an available remedy as a sanction after a voluntary dismissal, it may dramatically affect the mortgage foreclosure crisis in this State. Accordingly we certify the following question to the Florida Supreme Court as of great public importance

[ipaper docId=52792589 access_key=key-myy4q2y0u4vihs7pu7x height=600 width=600 /]

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Lynn Szymoniak, Hero Behind 60 Minutes on Foreclosure Fraud Has Her Case Dismissed

Lynn Szymoniak, Hero Behind 60 Minutes on Foreclosure Fraud Has Her Case Dismissed


Special Thanks to Lynn’s attorney Mark Cullen!

Via Palm Beach Post

At a brief hearing Tuesday, Circuit Judge Jack Cook dismissed the case after finding that the note for the loan was not attached to the original foreclosure complaint. Deutsche Bank filed the foreclosure case in 2008, shortly after a dispute with her lender, Option One Mortgage, over her adjustable rate mortgage.

An attorney for Deutche Bank declined to comment on whether the bank would refile the foreclosure case. However, if the bank does so, it will have to comply with new, court-ordered guidelines that require lenders to verify the truthfulness of the documents. Those rules were not in effect in 2008 when Deutsche Bank filed to foreclose on Szymoniak’s home.

Click link below in case you missed 60 Minutes…

EXPLOSIVE VIDEO | CBS 60 MINUTES: Lynn Szymoniak ESQ, LPS, DOCx, FDIC Sheila Bair, Robo-Signing, Linda Green, Tywanna Thomas, Chris Pendley

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BANK FRAUD by Lynn E. Szymoniak, Esq. (FRAUD DIGEST)

BANK FRAUD by Lynn E. Szymoniak, Esq. (FRAUD DIGEST)


Akerman Senterfitt & Eidson, P.A.
American Home Mortgage Servicing
Docx, LLC
Florida Default Law Group
Law Offices of David Stern
Law Offices of Marshall Watson
Lender Processing Services, Inc.
Shapiro & Fishman Law Firm


Action Date: April 4, 2011
Location: West Palm Beach, FL

On April 3, 2011, CBS’ 60 MINUTES aired a segment showing massive fraud by banks and mortgage-backed trusts in foreclosures. The segment focused on one particular document mill, Docx, LLC, owned by Lender Processing Services, Inc., a company that works for over 51 banks. One former employee confessed to forging 4,000 documents each day.

What mortgage servicing companies used the Docx forged documents in hundreds of thousands of cases? The major mortgage servicer involved was American Home Mortgage Servicing, Inc. in Coppell, TX. Other mortgage servicers that used forged documents from LPS include Saxon Mortgage Services in Fort Worth, TX and Select Portfolio Servicing in Salt Lake city, Utah.

What bank/trustees most often used the Docx forged documents in foreclosures? Deutsche Bank National Trust Company, U.S. Bank, Wells Fargo, Citibank and Bank of America were the top five users of these forged documents, but other banks were also involved.

American Home Mortgage Servicing, Inc. knew about the forgeries, but never disclosed to courts or homeowners their widespread use of forged documents.

In thousands of cases across the country, Deutsche Bank National Trust Company continues to push these documents upon the courts as proof that they own mortgages and have the right to foreclose, despite overwhelming evidence and even admissions of forgeries.

These servicing companies and bank need to begin the process of admissions, disclosures and reparations.

What law firms pushed and continue to push these fraudulent documents upon Courts and homeowners? In Florida, the firms that used these documents and continue to use these documents are: Law Offices of David Stern; Florida Default Law Group; Law Offices of Marshall Watson; Shapiro & Fishman Law Firm and Akerman, Senterfitt & Eidson, P.A. Lawyers who used and continue to use these Docx forgeries in court should, at a minimum, lose the right to practice law.

The government focus must be on protecting the rights of homeowners and shareholders and the court system and holding the banks and securities companies accountable.


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DailyFinance | Will Florida Finally Punish Banks and Lawyers for Foreclosure Document Fraud?

DailyFinance | Will Florida Finally Punish Banks and Lawyers for Foreclosure Document Fraud?


Abigail- knocks this OUT THE BALL PARK! Outstanding!!


Posted 11:30 AM 02/08/11

Foreclosure proceedings in courts nationwide have exposed a swamp of fraudulent documents, and in some cases — though perhaps far too few — those bad docs have sunk attempts by banks to take people’s homes.

Some of Florida’s courts, however,particularly courts in Lee County — have come under fire for compounding the documentation problems by ignoring the rule of law in order to rush through foreclosures. And a new rule put in place by the Florida Supreme Court to ensure that documents being used in foreclosures are properly certified hasn’t worked well, thanks to a new type of robo-signing that has sprung up to get around it.

In a reflection of how bad things have gotten, lenders are asking judges to “ratify” foreclosures done with robo-signed documents, the Palm Beach Post reported on Saturday. While such “ratification” would not, as a matter of law, mean much, the Post says, it might discourage people from challenging the foreclosures.

With luck, two recent developments may help really clean up the fraud in the Sunshine State. First, an appeals court has asked the Florida Supreme Court to clarify judges’ power to address the fraud, and second, the Florida Bar Association is finally taking a stand.

Asking for Power to Punish Foreclosure Fraud


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TBO | Court’s stance on foreclosure case could have big impact

TBO | Court’s stance on foreclosure case could have big impact


By William E. Lewis Jr.| Highlands Today

Published: February 6, 2011

A Palm Beach county homeowner fighting alleged foreclosure fraud has ended up before the Florida Supreme Court.

An appeals court last week requested that the high court consider the case of Greenacres homeowner Roman Pino as a matter of “great public importance.” The decision by the 4th District Court of Appeal in West Palm Beach was unusual as neither the bank nor the homeowner requested such a review.

“We conclude that this is a question of great public importance, as many, many mortgage foreclosures appear tainted with suspect documents,” the appeals court wrote in certification to the Supreme Court.

Should the case be accepted by the Florida Supreme Court and a decision rendered in favor of Pino, thousands of cases could be impacted as allegations of document fraud run rampant throughout the state.

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STOP! You Must Read The Florida Appeal Transcript of PINO v. BANK OF NEW YORK

STOP! You Must Read The Florida Appeal Transcript of PINO v. BANK OF NEW YORK


courtesy of IceLegal

excerpts:

JUDGE POLEN: I’m afraid I’m not following
that. David Stern’s client at the time was BNY
Mellon Bank, right?

MR. NIEVES: Yes.

JUDGE POLEN: Okay. And that’s evidence of
what, an assignment to a bank?

MR. NIEVES: Basically, the law firm
manufactured evidence for the client’s case.

JUDGE POLEN: Okay.

MR. NIEVES: It was signed and executed by
Cheryl Samons, who works for David Stern, and
executed the assignment solely for the litigation,
and, in the assignment, posed as an officer of a
different entity.

<SNIP>

MS. GIDDINGS: Well, Your Honor, if you look at
the allegations that they have made, almost all of
those allegations pertain to a different case.
They’re not this particular case. I don’t know what
that document — what occurred in that document. But
I think this court is probably going to have a number
of cases that come up before it where that issue
is — it may be at issue in subsequent proceedings.
And when you reopen — if you’re going to reopen
those cases, you have to make sure that you’re
reopening it for something that is material.

JUDGE FARMER: Fraud on the Court is not
material?

MS. GIDDINGS: Your Honor, fraud on the
Court —

JUDGE FARMER: Publishing false documents is
not material?

<SNIP>

MS. GIDDINGS: Because there was no affirmative
relief obtained in this case, Your Honor. And, in
fact, the relief was that Mr. Pino has been living in
the house for a long time, apparently without making
any payments.
And I understand your concerns, Your Honor.
But I’m urging you to consider this case in the grand
scheme of things. If you allow courts to go back and
open up all of these cases, when it’s clear on the
face that there was no affirmative relief obtained,
or that the affirmative relief would not have been
material, then you’re going to create chaos in the
court system.

JUDGE FARMER: So, are you suggesting that this
fraud has been that widespread that it –

MS. GIDDINGS: Your Honor, I’m not
acknowledging that any fraud occurred. I think that
there is — we all know –

JUDGE FARMER: Why would we shrink — as a
court system, why would we shrink, no matter how many
cases it might involve, from looking out for attempts
to defraud courts to publish and utter and use false
instruments? Why wouldn’t we be most vigilant?

To View Video of The Oral Argument Go HERE

[ipaper docId=48141935 access_key=key-luov0ltst9x6k2vgxi4 height=600 width=600 /]

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EXPLOSIVE | FL 4th DCA Sends Foreclosure Fraud Case To Florida Supreme Court PINO v. BANK OF NEW YORK

EXPLOSIVE | FL 4th DCA Sends Foreclosure Fraud Case To Florida Supreme Court PINO v. BANK OF NEW YORK


FLORIDA IBANEZ??

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

January Term 2011

ROMAN PINO,
Appellant,
v.
THE BANK OF NEW YORK MELLON,
Appellee.

No. 4D10-378

[February 2, 2011]

EN BANC

WARNER, J.

excerpts:

The defendant in a mortgage foreclosure action filed by BNY Mellon appeals
a trial court’s denial of his motion under Florida Rule of Civil Procedure
1.540(b) to vacate a voluntary dismissal. Th e notice was filed after the
defendant moved for sanctions against the plaintiff for filing what he alleged
was a fraudulent assignment of mortgage. Because the notice of voluntary
dismissal was filed prior to the plaintiff obtaining any affirmative relief from the
court, we affirm the trial court’s order.

BNY Mellon commenced an action to foreclose a mortgage against the
defendant. The mortgage attached to the complaint specified another entity,
Silver State Financial Systems, as lender and still another, Mortgage Electronic
Registration Systems, as mortgagee. The complaint alleged that BNY Mellon
owned and held the note and mortgage by assignment, but failed to attach a
copy of any document of assignment. At the same time, it alleged the original
promissory note itself had been “lost, destroyed or stolen.” The complaint was
silent as to whether the note had ever been negotiated and transferred to BNY
Mellon in the manner provided by law.1

<SNIP>

In response to this amendment, defendant moved for sanctions. He alleged
that the newly produced document of assignment was false and had been
fraudulently made, pointing to the fact that the person executing the
assignment was employed by the attorney representing the mortgagee, and the
commission date on notary stamp showed that the document could not have
been notarized on the date in the document. The defendant argued that the
plaintiff was attempting fraud on the court and that the court should consider
appropriate sanctions, s u c h as dismissal of the action with prejudice.
Concurrent with the filing of this motion, the defendant scheduled depositions
of the person who signed the assignment, the notary, and the witnesses named
on the document — all employees of Florida counsel for BNY Mellon — for the
following day. Before the scheduled depositions, BNY Mellon filed a notice of
voluntary dismissal of the action.

We conclude that this is a question of great public importance, as many, many mortgage foreclosures appear tainted with suspect documents.

We conclude that this is a question of great public importance, as many,
many mortgage foreclosures appear tainted with suspect documents. The
defendant has requested a denial of the equitable right to foreclose the
mortgage at all. If this is an available remedy as a sanction after a voluntary
dismissal, it may dramatically affect the mortgage foreclosure crisis in this
State. Accordingly we certify the following question to the Florida Supreme
Court as of great public importance:

Continue below…

[ipaper docId=48075927 access_key=key-s5ds5utqjaldbcvi0k3 height=600 width=600 /]

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (1)

Judge holds bankers in contempt, threatens jail

Judge holds bankers in contempt, threatens jail


Jose Pagliery Daily Business Review January 13, 2011

Representatives from six major banks that skipped a hearing in a Miami condo association receivership case could face the wrath of Miami-Dade Circuit Judge Jennifer Bailey today if they fail to show up a second time.

The judge already has declared lenders that own or are foreclosing on units at Bird Grove Condo are on the hook for $105,999 in expenses for the court-appointed receiver for the association. She also held the six in contempt of court.

Bailey last month granted a request by the receiver, Miami attorney Lisa Lehner, to be paid for pulling the building — an asset for the foreclosing banks — back from the brink of condemnation.

When Lehner was appointed in March, garbage hadn’t been collected for weeks, electricity was about to be cut off, the building had no insurance, and an elevator was broken. She turned it around in months.

“They have property and collateral that if I walk away from turn into nothing,” Lehner said. “Here I am, sitting as their property manager, working for free after practicing law for 28 years. It’s just not fair.”

Lehner’s demand for $5,579 in expenses per unit went uncontested at a Dec. 1 show cause hearing where Bank of America was the only lender to send a representative. Missing were Flagstar Bank, GMAC, PNC Bank, SunTrust Bank, U.S. Bank and Wells Fargo.

In November, banks owned two units and were foreclosing on another 17 units in the 39-unit building at 2734 Bird Ave. between a gas station and a gallery. A one-bedroom, one-bath unit is listed for sale for $50,000. Bank of America filed nine foreclosure cases, followed by GMAC with five.

The six lenders were ordered to send non-attorney representatives to today’s hearing, when Bailey will discuss whether the banks also should be required to pay the receiver’s upcoming maintenance fees. Bailey’s order threatened to have bankers arrested if they didn’t show, and she warned, “You may be held in jail up to 48 hours before a hearing is held.”


© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (7)

FULL DEPOSITION TRANSCRIPT OF AMC, CITI RESIDENTIAL TAMARA PRICE

FULL DEPOSITION TRANSCRIPT OF AMC, CITI RESIDENTIAL TAMARA PRICE


Excerpts:

Q Do you know if Deutsche Bank is owed any
money?

A Yes.

Q How do you know that?

A By what the document says.

Q I know that, but you signed the document
saying that you had done some things. Are you saying
you know it to be true simply because it was presented
to you?

A No.

Q Well, how do you know that Deutsche Bank
National Bank, as trustee is owed a thing?

A Because of the process in the place with the
department that generate the foreclosure figures for
us, and I rely on their integrity and their accuracy.

Q Do you know if Deutsche Bank owned the notes as
of the day this was notarized February, 27, 2007?

A Yes.

Q How do you know that?

A By the transaction of the sale of the loan to
them.

Q By who?

A By investor operations.

Q Who is investor operations?

A They are the department that processed the
reporting to the investors.

[ipaper docId=41550504 access_key=key-2crvm8l5p6is55j5cyo8 height=600 width=600 /]

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (1)

Manatee Clerk of Courts Loses DCA Ruling on Paperless Court Docs

Manatee Clerk of Courts Loses DCA Ruling on Paperless Court Docs


DinSFLA: I do understand this is for criminal but…
Published Sunday, August 1, 2010 2:01 am

MANATEE COUNTY — As state and local budgets continue to shrink, public agencies across Florida strive to find more efficient ways to serve the public. In many cases, technology offers solutions that lower costs and minimize the complexity of previously manual processes. In March 2010, Manatee County Clerk of the Circuit Court, R.B. “Chips” Shore used technology to achieve both of those outcomes and has now been sued by the State of Florida’s Attorney General’s Office and the Public Defender of the Tenth Judicial Circuit.

At issue is Shore’s use of technology to provide all necessary copies of original transcripts for indigent criminal appeals. In March, the Clerk’s office began providing transcripts on CD-Rom to the Attorney General and the Public Defender. The decision to provide transcripts in electronic format is based on Administrative Order 2010-1-2 signed by the Honorable Lee Haworth, Chief Judge of the Twelfth Judicial Circuit, in re: Court Reporting Plan. A portion of the plan calls for the clerk to provide copies of transcripts for indigent criminal appeals. “In all publicly-funded cases the clerk of the lower tribunal, rather than the court reporter, shall prepare all necessary copies of the original transcripts…the court reporter shall furnish electronic copies of all transcripts in Microsoft Word on a CD-Rom to the clerk…

Continue Reading….The Bradenton Times

Below is the case:

STATE v. SHORE

STATE OF FLORIDA, OFFICE OF ATTORNEY GENERAL, and THE PUBLIC DEFENDER, TENTH JUDICIAL CIRCUIT, Petitioners,
v.
HON. R.B. “CHIPS” SHORE, CLERK, MANATEE COUNTY, Respondent.

Case No. 2D10-1932.

District Court of Appeal of Florida, Second District.

Opinion filed July 28, 2010.

Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa; James Marion Moorman, Public Defender, and Robert A. Young, Assistant Public Defender, Bartow, for Petitioners.

Katherine E. Giddings of Akerman Senterfitt, Tallahassee, and Edwin T. Mulock, Bradenton, for Respondent.

WHATLEY, Judge.

The Attorney General for the State of Florida and the Public Defender for the Tenth Judicial Circuit have filed jointly against the Manatee County Clerk of the Circuit Court a petition for writ of mandamus. The petitioners complain that the Clerk, in more than twenty criminal and juvenile appeals since March 2010, has provided the petitioners with only CD-ROMs containing the trial transcripts in Microsoft Word. The petitioners claim that the Clerk’s failure to provide them with paper copies of the transcripts violates certain rules of procedure. They ask this court to direct the Clerk to provide them with paper copies. Because we conclude that the Clerk has not complied with his ministerial duty to provide the petitioners with the trial transcripts in the paper format required by the relevant rules of procedure, we grant the petition.

Facts and procedural history

On January 7, 2010, the chief judge of the Twelfth Judicial Circuit issued an administrative order. In pertinent part, this order directs as follows, with respect to felony appeals:

In all publicly-funded cases the clerk of the lower tribunal, rather than the court reporter, shall prepare all necessary copies of the original transcripts [footnote citation to Florida Rule of Appellate Procedure 9.140(f)(2)(F)]. Pursuant to Rule 9.200(b)(2), AOSC07-41, and AOSC07-28, the court reporter shall furnish electronic copies of all transcripts in Microsoft Word on a CD-Rom to the clerk of the lower tribunal and the parties.[ 1 ]

In response, on March 5, 2010, the Manatee County Clerk of the Circuit Court issued the following memorandum to “All Appeal Attorneys”:

A new Administrative Order in our Circuit makes “the clerk of the lower tribunal, rather than the court reporter, the preparer of all necessary copies of the original transcripts.”

Enclosed is a copy of the transcript(s) on CD-ROM which have been provided to the clerk by the court reporter. Also enclosed is the Record on Appeal and the index.

If you should have any questions, please feel free to contact [employee name] at [phone number].

Thank you in advance for your cooperation in this matter.

Based on the administrative order, the court reporter now sends the Clerk the original paper transcripts and a CD-ROM containing Microsoft Word files of the transcripts. The Clerk apparently duplicates the CD-ROM and forwards a CD-ROM to each of the appellate attorneys, including the petitioners in this proceeding. The Clerk forwards the paper original of the transcripts to this court. The Clerk also forwards the record other than the transcript to all recipients in traditional bound paper format.

The Attorney General and the Public Defender assert that the Clerk is violating the appellate rules by failing to provide them with paper copies of the transcripts. They also argue that their budgets do not cover the costs of printing their own paper copies and that problems with inconsistent pagination among the parties and this court may arise if the petitioners have to rely on the CD-ROM versions of the transcripts. As a result, the Public Defender has been delaying processing the appeals pending resolution of the present petition. The Clerk asserts that he is following the rules correctly while operating under statutory and supreme court mandates to go paperless, that the Clerk’s budget is likewise limited, and that any problems with pagination would be the fault of the court reporter.

Discussion

The resolution of the issue of whether the Clerk may provide the parties with transcripts in CD-ROM format only is grounded in the rules of judicial administration and appellate procedure.[ 2 ] Florida Rule of Judicial Administration 2.535(a)(6) defines “official record” as “the transcript, which is the written record of court proceedings and depositions prepared in accordance with the requirements of subdivision (f).” Rule 2.535(f) reads, in pertinent part:

(f) Transcripts. Transcripts of all judicial proceedings, including depositions, shall be uniform in and for all courts throughout the state. The form, size, spacing, and method of printing transcripts are as follows:

(1) All proceedings shall be printed on paper 8 ½ inches by 11 inches in size and bound on the left.

Fla. R. Jud. Admin. 2.535(f)(1); see also Moorman v. Hatfield, 958 So. 2d 396, 400 (Fla. 2d DCA 2007) (Altenbernd, J., concurring) (discussing rule 2.535 and noting that an audio compact disc does not constitute a transcript). The remainder of rule 2.535(f) delineates further technical specifications for transcripts such as font size and indentation. Individual volumes must be no more than 200 pages in length. Fla. R. Jud. Admin. 2.535(f)(9); see also rule 9.200(b)(2) (providing for the same 200-page limitation).

The core appellate rule concerning the record is Florida Rule of Appellate Procedure 9.200. Rule 9.200(a)(1) defines the record as “the original documents, all exhibits that are not physical evidence, and any transcript(s) of proceedings filed in the lower tribunal,” with the exception of certain documents not at issue here. Rule 9.140 delineates the procedures for criminal appeals. As for the record in criminal appeals, rules 9.140 and 9.200 are to be read together to determine the appropriate procedures. See Fla. R. App. P. 9.140(f)(1) (“The clerk of the lower tribunal shall prepare and serve the record prescribed by rule 9.200 within 50 days of the filing of the notice of appeal.”); see also Fla. R. App. P. 9.140 committee notes, 1977 amend. (“Subdivision [(f)] applies rule 9.200 to criminal appeals and sets forth the time for preparation and service of the record, and additional matters peculiar to criminal cases.”).[ 3 ]

Rule 9.200(b)(2) requires the court reporter or transcriptionist to “transcribe . . . the designated proceedings” “[w]ithin 30 days of service of a designation.”[ 4 ] The routing of transcripts, once prepared by the court reporter, differs between the two rules. The default routing procedure delineated in rule 9.200(b)(2) requires the court reporter to distribute the transcripts by serving copies on the designated parties and filing the originals with the clerk of the lower tribunal. The transcripts must be distributed in paper format and as an “electronic copy”:

Within 30 days of service of a designation, . . . the approved court reporter, civil court reporter, or approved transcriptionist shall transcribe and file with the clerk of the lower tribunal the designated proceedings and shall serve copies as requested in the designation. In addition to the paper copies, the approved court reporter, civil court reporter, or approved transcriptionist shall file with the clerk of the lower tribunal and serve on the designated parties an electronic copy of the designated proceedings in a format approved by the supreme court. If a designating party directs the approved court reporter, civil court reporter, or approved transcriptionist to furnish the transcript(s) to fewer than all parties, that designating party shall serve a copy of the designated transcript(s), in both electronic and paper form, on the parties within 5 days of receipt from the approved court reporter, civil court reporter, or approved transcriptionist. The transcript of the trial shall be securely bound in consecutively numbered volumes not to exceed 200 pages each, and each page shall be numbered consecutively. . . .

Fla. R. App. P. 9.200(b)(2) (emphasis added). The clerk then transmits the record, including the transcripts, to the appeals court. Fla. R. App. P. 9.200(d)(3).

In derogation of this procedure in criminal appeals, the court reporter does not forward copies of the transcripts to the parties. Rather, the court reporter files with the clerk of the lower tribunal the “original transcripts for the [appeals] court” and “sufficient copies for the state and all indigent defendants.” Fla. R. App. P. 9.140(f)(2)(C). The clerk then distributes the record, including the transcripts or the copies, to the appeals court and the parties. Fla. R. App. P. 9.140(f)(4).

However, rule 9.140(f) provides for an exceptional procedure — the cause of the dispute here — whereby the court reporter files only the transcripts with the clerk, who must then make copies for distribution to the parties: “The lower tribunal may by administrative order in publicly-funded cases direct the clerk of the lower tribunal rather than the approved court reporter or approved transcriptionist to prepare the necessary copies of the original transcripts.” Fla. R. App. P. 9.140(f)(2)(F). The chief judge effected this exception by issuing Administrative Order 2010-1.2, as recited above.[ 5 ] The clerk then distributes the record, including the transcripts or the copies, to the appeals court and the parties. Rule 9.140(f)(4).

The petitioners argue that the provision of rule 9.200(b)(2) requiring the court reporter to provide the clerk of the lower tribunal and the parties with both paper and electronic copies of the transcripts mandates that the Clerk provide the petitioners with paper copies. The Clerk argues that rule 9.140(f)(2)(F) says nothing about transcript format and that the format provisions of rule 9.200(b)(2) are not directed to clerks; therefore, the Clerk may provide an electronic copy rather than a paper copy if the Clerk so chooses, consistent with the paperless trend and the authority summarized earlier.[ 6 ]

Conclusion

Although the plain language of rule 9.200(b)(2) is in the Clerk’s favor,[ 7 ] we nevertheless conclude that rules 2.535(f)(1) and 9.140(f)(2)(F), read together, require the Clerk to prepare paper copies of the transcripts for the parties.[ 8 ] Rule 2.535(f)(1) defines the default format of a transcript as the traditional bound paper format. Rule 9.140(f)(2)(F) directs the clerk to prepare copies of the “original transcripts.” As such, the Clerk must copy the paper transcripts, not copy (or, not copy only) the court reporter’s CD-ROM onto additional CD-ROMs for the parties. We further conclude, based on the use in rule 9.140(f)(2)(C) and (F) of the unmodified term “copies,” that the copies of the paper transcripts must also be on paper.[ 9 ] Though not directed to clerks, the language of rule 9.200(b)(2) supports the view that the paper version of the transcripts is the default and that the electronic version is, for the time being at least, an extra: “In addition to the paper copies, the approved court reporter . . . shall file . . . and serve . . . an electronic copy” (emphasis added).[ 10 ]

We conclude also that the requirements for issuance of a writ of mandamus have been met. Pursuant to the rules just discussed, the Clerk has a legal duty to provide copies of transcripts in a specified format and the petitioners have a clear legal right to that performance. See, e.g., Fla. Parole Comm’n v. Criner, 642 So. 2d 51, 52 (Fla. 1st DCA 1994) (noting that “[t]he entitlement to mandamus relief is dependent upon the showing of clear legal right on the part of the petitioner, and an indisputable legal duty of the part of the respondent”). Additionally, the act is ministerial; the Clerk has no discretion to prepare or not prepare the copies. See Lee County v. State Farm Mut. Auto. Ins. Co., 634 So. 2d 250, 251 (Fla. 2d DCA 1994) (“It is fundamental to the writ [of mandamus] that the legal duty of the public agency must be ministerial in nature and not discretionary”). Finally, we conclude that no other adequate remedy exists to ensure that the Clerk performs his duties. See Shevin ex rel. State v. Pub. Serv. Comm’n, 333 So. 2d 9, 12 (Fla. 1976), abrogated on other grounds by In re Emergency Amendments to Rules of Appellate Procedure, 381 So. 2d 1370 (Fla. 1980).

The petition for writ of mandamus is granted with instructions to the Clerk to provide the petitioners with bound paper copies of the transcripts in those criminal appeals in which the Clerk has provided only CD-ROMs or other nonpaper media and, going forward, to provide parties with paper copies of transcripts in all criminal appeals in which copies are required, subject to amendments to the rules of procedure and supreme court orders that may issue in the future. Because the sequence in which the Clerk provides the paper copies of the transcripts in the outstanding appeals is not ministerial, we issue no further instructions but urge the Clerk to prepare and forward the copies in the order in which the originals were received from the court reporter.

As we are confident that the Clerk will promptly comply with this ruling, we withhold formal issuance of the writ. This ruling is effective immediately and its effect will not be delayed by the filing of a motion for rehearing or other postdecision motion.

Petition granted.

NORTHCUTT and BLACK, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

1. Admin. Or. 2010-1.2, Fla. 12th Jud. Cir. Ct., ¶ VII.D. (Jan. 7, 2010) (available at http://www.jud12.flcourts.org/LinkClick.aspx?fileticket=F9qmwaSI59w%3d &tabid=114&mid=546). This administrative order has been superseded by a subsequent order. See Admin. Or. 2010-9.2, Fla. 12th Jud. Cir. Ct. (May 3, 2010) (available at http://www.jud12.flcourts.org/LinkClick.aspx?fileticket= EMqg3BuQrUc%3d&tabid=114&mid=546). The newer order makes certain adjustments to Administrative Order 2010-1.2 that do not affect the analysis here. The AOSC documents referred to in the quoted text are Florida Supreme Court administrative orders. See Admin. Or. AOSC07-28, Fla. Sup. Ct. (May 31, 2007) (available at http://www.floridasupremecourt.org/clerk/adminorders/2007/sc07-28.pdf); Admin. Or. AOSC07-41, Fla. Sup. Ct. (Aug. 17, 2007) (available at http:// www.floridasupremecourt.org/clerk/adminorders/2007/sc07-41.pdf).
2. The Clerk relies on additional authority that does not support his position. Contrary to the Clerk’s assertions, section 28.22205, Florida Statutes (2009), does not provide for an absolute deadline by which the clerks of court must implement an electronic filing process. Likewise, section 668.50, Florida Statutes (2009), the Uniform Electronic Transaction Act, does not help the Clerk. See § 668.50(3)(b)(4) (noting that the statute “does not apply to a transaction to the extent the transaction is governed by. . . [r]ules related to judicial procedure”).The Clerk also asserts that his office is going paperless under the auspices of the Florida Supreme Court, pursuant to two administrative orders. See Admin. Or. AOSC01-4, Fla. Sup. Ct. (Jan. 26, 2001) (available at http://www.floridasupremecourt.org/clerk/adminorders/2001/sc01-4.pdf), and Admin. Or. AOSC05-91 (amended), Fla. Sup. Ct. (Mar. 4, 2009) (available at http://www.floridasupremecourt.org/clerk/adminorders/2005/sc05-91.pdf). These orders permit the Clerk of the Circuit Court for Manatee County to accept electronic filings pursuant to Florida Rule of Judicial Administration 2.525 (formerly rule 2.090). The orders do not specify that the Clerk may use electronic transmission for outgoing documentation, for which the court’s separate permission is required and which is limited to outgoing orders. See Fla. R. Jud. Admin. 2.525(d). And in any event, rule 2.525 concerns “electronic transmission of documents,” which refers to

the transmission by electronic signals, to or from a court or clerk of the court, of information which when received can be transformed and stored or reproduced on paper, microfilm, magnetic storage device, optical imaging system, or other electronic record keeping system authorized by the Supreme Court of Florida . . . .

Fla. R. Jud. Admin. 2.525(a) (emphasis added). This definition does not encompass the forwarding of documents saved on CD-ROM. As such, the Clerk’s argument from rule 2.525 and the supreme court’s administrative orders is unavailing.

3. The Clerk argues, with respect to transcripts at least, that rules 9.200 9.140 are separate, with rule 9.200(b) providing directives for civil appeals and rule 9.140(f)(2) for criminal appeals. This is a misreading of the rules. In addition to the directive of rule 9.140(f)(1) and the committee note just recited, support for the proposition that rule 9.200(b) governs transcripts in criminal appeals to the extent that rule 9.140(f)(2) has not superseded it is found in the fact that certain procedural steps are found only in rule 9.200(b), such as the 30-day deadline by which the court reporter is to prepare the transcripts, Fla. R. App. P. 9.200(b)(2), and the provision for extensions of time, Fla. R. App. P. 9.200(b)(3).
4. We assume that the appellant has either paid for the record or is entitled to the record, not merely the record index, due to indigence. See Fla. R. App. P. 9.140(f)(2)(C), (4).
5. It is not clear from the rule, its commentary, or the opinion promulgating the amendments that included this provision, Amendments to the Florida Rules of Appellate Procedure, 696 So. 2d 1103 (Fla. 1996), why the lower tribunal should be able to shift part of the labor and cost burden from the court reporter to the clerk. Although the cost issue per se is not before us, it would seem possible for the circuit court, the parties, the court reporters, and the Clerk to reach an agreement whereby that portion of the court reporter’s fee devoted to making copies for the parties under the standard procedure, Fla. R. App. P. 9.140(f)(2)(C), could be remitted to the Clerk when the exceptional procedure, Fla. R. App. P. 9.140(f)(2)(F), is invoked.
6. Supra n. 2.
7. The format provisions in rule 9.200(b)(2) were added in 2006. See In re Amendments to The Fla. Rules of Appellate Procedure, 941 So. 2d 352, 361 (Fla. 2006). As seen in the emphasized language in the indented quotation from this rule, above, the wording, whether inadvertent or deliberate, does not take into consideration that entities other than the court reporter or the parties are required to forward the transcript in certain situations, such as criminal appeals.
8. The fact that the Clerk was unable to cite any relevant affirmative authority for its position outside the rules of procedure supports this conclusion.
9. The paper copies must also be bound according to the rules of procedure and reflect the same pagination shown in the original record and transcript. See Fla. R. Jud. Admin. 2.535(f)(9); Fla. R. App. P. 9.200(b)(2), (d)(1)(A), (B).
10. We note also that the chief judge’s administrative order requires “the court reporter [to] furnish electronic copies of all transcripts in Microsoft Word on a CD-Rom to the clerk of the lower tribunal and the parties.” Admin. Or. 2010-1.2, Fla. 12th Jud. Cir. Ct., ¶ VII.D. (emphasis added). To the extent that the court reporter is already providing the parties with a CD-ROM version of the transcripts, the clerk’s doing so is redundant.

This copy provided by Leagle, Inc.

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in foreclosure, foreclosure fraud, foreclosures, mortgage, noteComments (1)

“Cat Out Of the Bag” (Trade Secrets) in CAPITAL ONE, NA v. Forbes, Fla: Dist. Court of Appeal, 2nd Dist. 2010

“Cat Out Of the Bag” (Trade Secrets) in CAPITAL ONE, NA v. Forbes, Fla: Dist. Court of Appeal, 2nd Dist. 2010


CAPITAL ONE, N.A., as successor by merger to Chevy Chase Bank, F.S.B., Petitioner,
v.
DOUGLAS R. FORBES, Respondent.

Case No. 2D09-4735.

District Court of Appeal of Florida, Second District.

Opinion filed May 12, 2010.

Carrie Ann Wozniak of Akerman Senterfitt, Orlando, for Petitioner.

Nicole E. Durkin of Deeb & Durkin, P.A., St. Petersburg, for Respondent.

LaROSE, Judge.

Capital One, N.A. (the Bank), seeks a writ of certiorari to quash a protective order that allows the disclosure of trade secrets to Mr. Forbes’s consultants and experts. The Bank also asks us to quash the trial court’s order because it did not sufficiently limit the scope of discovery.

Factual Background

The Bank filed a mortgage foreclosure action against Mr. Forbes. Allegedly, Mr. Forbes breached a construction loan agreement. Mr. Forbes filed a counterclaim alleging breach of contract, anticipatory breach of contract, and fraud in the inducement.

Mr. Forbes requested documents from the Bank. It produced responsive documents except, as relevant here, for requests ten and thirteen:

10. All technical and administrative manuals used in the internal communications system of Lender, or through which Lender policies, practices and procedures were communicated to its bank officers, employees, agents, partners, managers and/or “staff,” effective during the period from January 1, 2006 through the present, including, but not limited to, those manuals relating to construction or developer financing.

. . . .

13. All complaints, claims or protests brought in any judicial forum, arbitration proceeding, or industry dispute resolution forum by Lender clients or third parties against Lender alleging any breach of obligations, terms, conditions, or responsibilities by Lender in the conduct or exercise of its responsibilities and obligations with respect to or arising from engaging in the business of banking within the preceding five (5) years.

The Bank sought a protective order. The Bank argued that its construction-lending manual is a trade secret requiring adequate measures to protect against improper dissemination. There appears to be no dispute that the manual is a trade secret. The Bank also argued that other complaints, claims, or protests made against the Bank in any forum in the past five years were irrelevant, not reasonably calculated to lead to the discovery of any admissible evidence, and intended solely to harass the Bank. See generally, Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 995 (Fla. 1999) (holding that there is an exception to the rule of complete discovery where it may be harassing or embarrassing).

After a hearing, the trial court denied the Bank’s motion as to request 13, except it narrowed the time frame to three years. The trial court concluded that the requested documents “may potentially lead to admissible evidence just based upon the counter plaintiff’s theory of policy written or potentially otherwise as to the lender’s motive to pull out of the project.”

As for the manual, the Bank’s counsel brought the document to the hearing for an in-camera inspection. The trial court did not inspect the materials but accepted counsel’s explanation that the materials contained the Bank’s lending guidelines and practices. The Bank’s counsel argued that the Bank would produce the materials if the trial court entered an adequate confidentiality order. The trial court denied the motion for a protective order, but agreed to grant a “confidentiality agreement between the parties for the protection of [the Bank].”

The trial court asked Mr. Forbes’s counsel to take the Bank’s proposed confidentiality order from the hearing and draft an order satisfactory to both sides. The Bank and Mr. Forbes could not agree. Each submitted a proposed order to the trial court. To center the dispute, we note that Mr. Forbes’s proposed order had no provision requiring consultants, experts, or their employees retained for the litigation to consent to the confidentiality provisions before viewing the manual.

The trial court adopted Mr. Forbes’s proposed order. The order provided that documents marked “Confidential” shall not be disclosed to any persons, except for counsel actively engaged in the litigation along with their employees and staff, parties and employees of the parties, persons with prior knowledge of the documents or the confidential information contained therein, and court officials involved in the litigation. Other relevant portions of the order provide as follows:

3. Plaintiff shall produce the documents requested, however the time period shall be limited to three (3) years prior to the date of this Order.

4. That the documents being produced pursuant to Paragraph 10 of Defendant’s First Request for Production of Documents which are marked “Confidential” by Plaintiff’s counsel shall not be disclosed to any persons, except that such documents may be disclosed or otherwise utilized as follows:

. . . .

(B) Such documents may also be disclosed to persons noticed for depositions during the course of such depositions, including retained outside consultants or experts and their employees retained for the purpose of assisting counsel in the litigation;

. . . .

5. Within 30 days after final conclusion of all aspects of this litigation, stamped confidential documents and all copies of same . . . shall be returned to the party or person which produced such documents or, at the option of the producer, destroyed.

(Emphasis added.)

Certiorari Jurisdiction

We may grant a petition for certiorari “only when the petitioner establishes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal. We examine prongs two and three first to determine our certiorari jurisdiction.” DeLoach v. Aird, 989 So. 2d 652, 654 (Fla. 2d DCA 2007)(citing Parkway Bank v. Ft. Myers Armature Works, Inc., 658 So. 2d 646, 648-49 (Fla. 2d DCA 1995)). If jurisdictional prongs two and three are not fulfilled, then we dismiss the petition rather than deny it. Id.

Analysis

Other Claims Specified in Request 13

The trial court denied, in part, and granted, in part, the Bank’s motion for a protective order as to these materials. The trial court narrowed Mr. Forbes’s request from five years to three years but did not otherwise narrow its breadth.

Discovery allows the parties to find potentially relevant evidence. The conduct of discovery is left to the trial court’s sound discretion. Fla. R. Civ. P. 1.280(b)(1); Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So. 2d 189, 193 (Fla. 2003). The order on review does not necessarily cause irreparable harm by allowing discovery of what the Bank claims to be irrelevant materials. See Am. Home Assurance Co. v. Vreeland, 973 So. 2d 668, 671 (Fla. 2d DCA 2008) (citingFirst Paradee, Ltd. v. Jones, 828 So. 2d 483, 485 (Fla. 2d DCA 2002)). Thus, certiorari jurisdiction is improper. We dismiss this portion of the Bank’s petition.

Manuals Specified in Request 10

The Bank argues that the trial court departed from the essential requirements of law by requiring the disclosure of trade secrets without providing adequate protective measures. An order requiring disclosure of trade secrets may cause irreparable injury that cannot be corrected on appeal; the disclosure lets the “cat out of the bag.” Id. Here, the trial court did not err. Its order sufficiently protects the Bank. See Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). The Bank is concerned that experts or consultants retained by Mr. Forbes will misuse the materials. The order does not ignore that concern; only specified individuals may have access to the materials for the stated and limited purposes of assisting counsel in the litigation. No other use is contemplated. Further, the order requires that designated confidential materials, and any copies, be returned or destroyed at the end of the litigation.

Perhaps the order could have been clearer. However, we understand it to limit experts’ and consultants’ access to confidential information. Paragraph 4 of the order provides a blanket protection that documents may not be disclosed to “any person,” with enumerated exceptions. Importantly, the identification of people to whom access is granted is drawn narrowly to include only the parties and their employees, court employees, and outside consultants and experts. As for the consultants and experts, the order allows access only for a limited time and for the limited purposes of assisting counsel in this litigation.[1] The trial court did not depart from the essential requirements of law by entering the order proposed by Mr. Forbes’s counsel. As to this issue, the petition for certiorari is denied.

Dismissed in part; denied in part.

SILBERMAN and CRENSHAW, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

[1] We do not decide who would be liable should a consultant or expert violate the protective order. See, e.g.,Quinter v. Volkswagen of Am., 676 F.2d 969, 973 (3d Cir. 1982) (holding a nonparty liable for civil contempt where the nonparty had knowledge of the protective order.)

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Posted in capital one, concealment, insider, investigation, trade secretsComments (3)

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