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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.

[…]

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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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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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Taylor v. BAYVIEW LOAN SERVICING, LLC | FL 2DCA “Genuine issues of material fact remain regarding the Taylors’ affirmative defense of lack of notice”

Taylor v. BAYVIEW LOAN SERVICING, LLC | FL 2DCA “Genuine issues of material fact remain regarding the Taylors’ affirmative defense of lack of notice”


JOYCE TAYLOR and LANKFORD TAYLOR, Appellants,
v.
BAYVIEW LOAN SERVICING, LLC, Appellee.

 

Case No. 2D10-1493.
District Court of Appeal of Florida, Second District. 

Opinion filed November 9, 2011.
Enrique Nieves III of Ice Legal, P.A., Royal Palm Beach, for Appellants.J. Joseph Givner, Esther S. Meisels, and Randon Loeb of Higer Lichter & Givner, LLP, Aventura, for Appellee.

PER CURIAM.

Joyce and Lankford Taylor appeal a final judgment of foreclosure entered after the trial court granted a motion for summary judgment in favor of Bayview Loan Servicing, LLC. Because genuine issues of material fact remain regarding the Taylors’ affirmative defense of lack of notice, we reverse the final judgment and remand for further proceedings.

On January 4, 2006, the Taylors signed a mortgage securing an indebtedness in the principal amount of $194,350, evidenced by a note Joyce Taylor signed on the same date. The mortgage names the lender as USMoney Source, Inc., d/b/a Soluna First (USMoney) and the mortgagee as Mortgage Electronic Registration Systems, Inc. (MERS), acting as a nominee for USMoney. Attached to the note is an allonge signed by the president of USMoney and dated January 4, 2006, that endorses the note without recourse to Bayview.

On August 1, 2007, Bayview filed an unsworn two-count complaint against the Taylors. Count one sought to establish and enforce the note, and count two sought to foreclose the mortgage. Bayview alleged that it “owns and holds said note by virtue of the endorsement/allonge and said mortgage by virtue of the assignment of mortgage, copies of both of which are attached hereto.” No copy of the assignment of mortgage was attached to the complaint. Although Bayview alleged that it holds the note, Bayview further alleged that the original note was lost or destroyed after Bayview acquired it and that the exact time and manner of the loss or destruction was unknown to Bayview. Copies of the note, allonge, and mortgage were attached to the complaint. The complaint also contained the general allegation that “[a]ll conditions precedent to the filing of this action have been performed or have occurred.”

The Taylors filed an answer and affirmative defenses. Among their affirmative defenses the Taylors asserted that Bayview “is not the proper holder of the mortgage and therefore lacks standing to bring a foreclosure action.” The Taylors also asserted that Bayview “failed to give proper notice of the default in the payments on the note and mortgage” and thus was “estopped from accelerating said debt.”

On November 21, 2007, Bayview filed its motion for summary judgment and affidavit of indebtedness. Later, amended affidavits of indebtedness were filed. None of the affidavits mentioned an assignment of mortgage, and no documents were attached to the affidavits.

Bayview did not file its reply to the Taylors’ affirmative defenses until June 17, 2008. In its reply, Bayview alleged that it met the notice requirements. Bayview also alleged that it was entitled to maintain the foreclosure action without a written assignment of mortgage because the transfer of the note was sufficient. Bayview subsequently filed the original note, allonge, and mortgage.

The trial court held a hearing on the motion for summary judgment on February 22, 2010. The record contains a notice of filing copy of assignment of mortgage dated February 10, 2010, but the notice was not filed until February 23, 2010. The assignment of mortgage reflects that it was executed on August 7, 2007, after the complaint was filed. The trial court granted summary judgment and rendered the final judgment of foreclosure.

The standard of review on a summary judgment is de novo. Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006). “A movant is entitled to summary judgment `if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'” Id. (quoting Fla. R. Civ. P. 1.510(c)). The movant has the burden to prove the absence of a genuine issue of material fact, and “this court must view `every possible inference in favor of the party against whom summary judgment has been entered.'” Id. (quoting Maynard v. Household Fin. Corp. III, 861 So. 2d 1204, 1206 (Fla. 2d DCA 2003)). And, “if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.” Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So. 2d 1138, 1140 (Fla. 2d DCA 2000). Furthermore, to be entitled to summary judgment, the movant must not only establish that there are no genuine issues of material fact regarding the parties’ claims, but also the movant “must either factually refute the affirmative defenses or establish that they are legally insufficient.” Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011).

We reject the Taylors’ argument that Bayview lacked standing to foreclose the mortgage. The Taylors’ affirmative defense asserted, and they argue on appeal, that the assignment of mortgage did not occur until after the complaint was filed. See Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acquisition Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010) (stating that the plaintiff lacked standing to bring the foreclosure action when it did not own or possess the note and mortgage when it filed the lawsuit); Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990) (determining that a complaint to foreclose a mortgage did not state a cause of action when it was filed because the assignment of mortgage to the plaintiff was dated four months after the lawsuit was filed).

But Bayview contends that its standing to foreclose derives from the allonge to the note because the mortgage follows the note. Bayview argues that when USMoney transferred to Bayview the note which the mortgage secured, Bayview received equitable standing to foreclose the mortgage, even without a written assignment. We agree.

Bayview alleged in its complaint that it “owns and holds said note by virtue of the endorsement/allonge.” Bayview attached copies of the note and allonge to its complaint. The note and the allonge reflect that on the same day that Joyce Taylor executed the note in favor of USMoney, USMoney in turn endorsed the note without recourse to Bayview. Before the summary judgment hearing, Bayview filed the original note and the allonge. Thus Bayview established its status as holder of the note and its right to enforce the note. See § 671.201(20), Fla. Stat. (2005) (“`Holder,’ with respect to a negotiable instrument, means the person in possession if the instrument is payable to bearer or, in the case of an instrument payable to an identified person, if the identified person is in possession.”); Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007) (“The holder of a note has standing to seek enforcement of the note.”); Kaminik v. Countrywide Home Loans, Inc., 64 So. 3d 195, 196 (Fla. 4th DCA 2011) (affirming in part a summary final judgment of foreclosure where the plaintiff “tendered the original promissory note to the trial court, which contained a special indorsement in its favor”); Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932, 933 (Fla. 4th DCA 2010) (“Aurora’s possession of the original note, indorsed in blank, was sufficient under Florida’s Uniform Commercial Code to establish that it was the lawful holder of the note, entitled to enforce its terms.”), review denied, 53 So. 3d 1022 (Fla. 2011).

Bayview also became the equitable owner of the mortgage when USMoney endorsed the note to Bayview because the ownership of the mortgage followed the note. In Johns v. Gillian, 184 So. 140, 143 (Fla. 1938), the Supreme Court of Florida summarized the law pertinent to the issue under review as follows:

[I]t has frequently been held that a mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt, unless there be some plain and clear agreement to the contrary, if that be the intention of the parties.

Johns stands for the proposition that a mortgage—as a mere incident to the debt it secures—follows the note unless the parties have clearly expressed a contrary intent. The First District Court of Appeal has cited Johns and other cases in support of the following proposition: “Because the lien follows the debt, there was no requirement of attachment of a written and recorded assignment of the mortgage in order for the appellant to maintain the foreclosure action.” Chem. Residential Mortg. v. Rector, 742 So. 2d 300, 300-01 (Fla. 1st DCA 1998) (footnote omitted). Because ownership of the mortgage followed the note in the absence of a contrary intention and Bayview owned and held the note when it filed its lawsuit, Bayview has standing to maintain the underlying foreclosure action. See Mazine v. M & I Bank, 67 So. 3d 1129, 1131 (Fla. 1st DCA 2011) (“The party seeking foreclosure must present evidence that it owns and holds the note and mortgage to establish standing to proceed with a foreclosure action.”).

Notably, the Taylors did not assert that the parties did not intend for the mortgage to follow the note, and they did not present any evidence in support of that proposition after Bayview filed with the trial court the original note, allonge, and mortgage. The mortgage itself reflects the parties’ intent that the mortgage would follow the note in the event of a sale. In addressing the subject of a sale or partial sale of the note in paragraph 20, the mortgage contemplates a sale of the note “together with this Security Instrument.” The note and the allonge reflect that USMoney sold the note to Bayview on the same day that the note and the mortgage were executed. The allonge also lists the “secured property address.” Thus the attachments to the complaint establish that Bayview acquired all of USMoney’s rights under both the note and the mortgage on January 4, 2006, before it filed the underlying action. Therefore, we conclude that Bayview refuted the Taylors’ affirmative defense and established its standing to foreclose the note and mortgage.

With respect to the affirmative defense of lack of notice, Bayview failed to refute this affirmative defense; it therefore prevents summary judgment in this case. Bayview made a general allegation that all conditions precedent had been performed, but the motion for summary judgment and affidavits do not negate the affirmative defense that Bayview failed to give proper notice of the default in the payments on the note and mortgage. Paragraph 22 of the mortgage, attached to the complaint, requires the lender to give the borrower notice prior to acceleration of the debt. In fact, the notice provision is the same as the one in Konsulian. See Konsulian, 61 So. 3d at 1284. There, the lender failed to establish that it met the condition precedent of providing the requisite notice when the borrower raised the issue as an affirmative defense; therefore, the lender was not entitled to summary judgment. Id. at 1285; see also Goncharuk v. HSBC Mortg. Servs., Inc., 62 So. 3d 680, 682 (Fla. 2d DCA 2011) (reversing summary judgment for plaintiff’s failure to address in its motion for summary judgment and affidavits the affirmative defense of lack of notice); Lazuran v. Citimortgage, Inc., 35 So. 3d 189, 189-90 (Fla. 4th DCA 2010) (reversing summary judgment where the plaintiff failed to refute the affirmative defense of lack of notice). For this reason, summary judgment was premature. Therefore, we reverse the final judgment of foreclosure and remand for further proceedings.

Reversed and remanded.

SILBERMAN, C.J., and NORTHCUTT and WALLACE, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

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Foreclosure Ruling Irks Banks

Foreclosure Ruling Irks Banks


Since they can’t find someone with real knowledge, they probably are stuck because the majority of the originating companies are long gone and so are the employees…just as planned.

Palm Beach Post-

WEST PALM BEACH — An appeals court ruling in favor of Wellington homeowners in foreclosure is causing “calamitous confusion,” according to bank attorneys who say it could snarl hundreds of thousands of pending foreclosure cases.

The bank is asking for a rehearing and clarification of the Sept. 7 decision by the 4th District Court of Appeal, which said a foreclosure affidavit submitted by a bank employee was hearsay because the person relied on computerized information and did not have personal knowledge of the case.

The lack of personal knowledge of foreclosure documents is the foundation of the robo-signing controversy that continues to delay foreclosure proceedings.

The bank is not challenging the court’s decision in Gary and Anita Glarum vs. LaSalle Bank, but it said the ruling has been misinterpreted to mean that the person relying on computerized records must be the one who actually entered them into the computer or the direct custodian of the record.

[PALM BEACH POST]

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GLARUM v. LASALLE BANK | FL 4DCA Reverses SJ “Home Loan Services Inc.’s Ralph Orsini Affidavit Fail”

GLARUM v. LASALLE BANK | FL 4DCA Reverses SJ “Home Loan Services Inc.’s Ralph Orsini Affidavit Fail”


DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

July Term 2011

GARY GLARUM and ANITA GLARUM,
Appellants,

v.

LASALLE BANK NATIONAL ASSOCIATION, as Trustee for
Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-FFI, FIRST WELLINGTON, INC., a dissolved
corporation, WELLINGTON SHORES HOMEOWNERS ASSOCIATION,
GREENVIEW SHORES NO.2 AT WELLINGTON HOMEOWNERS
ASSOCIATION, GREENVIEW SHORES HOMEOWNERS ASSOCIATION,
FIRST FRANKLIN FINANCIAL CORPORATION, and any unknown
heirs, devisees, grantees, creditors, and other unknown persons or
unknown spouses claiming by, through and under any of the abovenamed
parties,
Appellees.

No. 4D10-1372

[September 7, 2011]

PER CURIAM.

This appeal presents two issues. First, we consider whether the trial
court improperly granted a summary judgment of foreclosure in favor of
LaSalle Bank. We also consider whether the trial court erred in
sanctioning appellants’ counsel for filing frivolous pleadings pursuant to
section 57.105, Florida Statutes. We reverse the trial court’s entry of
summary judgment in favor of LaSalle in part, as LaSalle’s summary
judgment evidence was insufficient to establish the amount due to
LaSalle under the note and mortgage. We likewise reverse the entry of
sanctions against appellants’ counsel as improper. However, we find no
merit in appellants’ contention that LaSalle lacked standing to seek
foreclosure.

Appellants admitted in their answer that they had not made payments
according to the terms of the note, and as such, they were in default.
Appellants, however, denied LaSalle’s allegations regarding the amount
of the default. To establish the amount of appellants’ indebtedness for
summary judgment, LaSalle filed the affidavit of Ralph Orsini, a “specialist”
at the loan servicer, Home Loan Services, Inc. Orsini claimed
in the affidavit that appellants were in default of their payment
obligations and owed in excess of $340,000 on the note. In opposition to
the motion for summary judgment, appellants filed Orsini’s deposition,
wherein Orsini explained that he derived the $340,000 figure from his
company’s computer system. However, Orsini did not know who entered
the data into the computer, and he could not verify that the entries were
correct at the time they were made. To calculate appellants’ payment
history, Orsini relied in part on data retrieved from Litton Loan Servicing,
a prior servicer of appellants’ loan.

Florida Rule of Civil Procedure 1.510(c) requires a party moving for
summary judgment to “identify any affidavits, answers to interrogatories,
admissions, depositions, and other materials as would be admissible in
evidence.” If this evidence, taken in the light most favorable to the nonmoving
party, shows no genuine issue of material fact, the moving party
is entitled to judgment as a matter of law. Volusia Cnty. v. Aberdeen at
Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

We find that Orsini’s affidavit constituted inadmissible hearsay and,
as such, could not support LaSalle’s motion for summary judgment.
Pursuant to section 90.803(6)(a), Florida Statutes, documentary evidence
may be admitted into evidence as business records if the proponent of
the evidence demonstrates the following through a record’s custodian:
(1) the record was made at or near the time of the event; (2)
was made by or from information transmitted by a person
with knowledge; (3) was kept in the ordinary course of a
regularly conducted business activity; and (4) that it was a
regular practice of that business to make such a record.
Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008).

Orsini did not know who, how, or when the data entries were made
into Home Loan Services’s computer system. He could not state if the
records were made in the regular course of business. He relied on data
supplied by Litton Loan Servicing, with whose procedures he was even
less familiar. Orsini could state that the data in the affidavit was
accurate only insofar as it replicated the numbers derived from the
company’s computer system. Despite Orsini’s intimate knowledge of how
his company’s computer system works, he had no knowledge of how that
data was produced, and he was not competent to authenticate that data.
Accordingly, Orsini’s statements could not be admitted under section
90.803(6)(a), and the affidavit of indebtedness constituted inadmissible
hearsay. Because LaSalle presented no competent evidence to show
$422,677.85 in damages, the amount of the judgment to which LaSalle is
entitled remains at issue. Therefore, we reverse the entry of judgment in
favor of LaSalle and remand for further proceedings.

The trial court also entered sanctions against appellants’ counsel for
filing a “form affidavit” from an expert, Rita Lord, who opined on the
ability of lay persons to distinguish between original and high-quality
copies of promissory notes. Lord did not represent in the affidavit that
she reviewed the papers at issue in this case. Nevertheless, the trial
court was distressed by appellants’ counsel’s habit of filing “the same
affidavit in ten different cases, when [Lord] hasn’t seen the documents in
this case.” The court awarded LaSalle its reasonable attorney’s fees for
having to file a motion to strike Lord’s affidavit.

We note that LaSalle moved for sanctions under section 57.105,
Florida Statutes. That statute permits a trial court to award a
“reasonable attorney’s fee” to the “prevailing party” where the plaintiff’s
claim was frivolous or to a party to compensate for the opposing party’s
dilatory conduct. § 57.105(1)-(2), Fla. Stat. The trial court did not find
that appellants’ claims were frivolous, a n d th e trial court did not
conclude that Lord’s affidavit was filed to cause unreasonable delay.
Thus, section 57.105 could not serve as a basis for the award of
attorney’s fees to LaSalle.

To the extent that the trial court may have been exercising its
inherent authority to sanction parties or their attorneys, we also find
error. “[A] trial court possesses the inherent authority to impose
attorneys’ fees against an attorney for bad faith conduct.” Moakley v.
Smallwood, 826 So. 2d 221, 226 (Fla. 2002). To impose attorney’s fees
as a sanction under its inherent authority, the trial court must make an
“express finding of bad faith conduct” that is “supported by detailed
factual findings describing the specific acts of bad faith conduct that
resulted in the unnecessary incurrence of attorneys’ fees.” Id. at 227.
The trial court did not make any specific findings of bad faith on the
record, and the sanctions order must be reversed without prejudice. See
Finol v. Finol, 912 So. 2d 627, 629 (Fla. 4th DCA 2005). “Upon remand,
should the court be asked to reconsider the issue, any future hearing
and order must comply with the requirements of Moakley.” Id.

In summary, we reverse the judgment of foreclosure and the entry of
sanctions against appellants’ counsel a n d remand for further
proceedings consistent with this opinion.

Reversed and remanded.

CIKLIN, LEVINE, JJ., and THORNTON, JOHN W., JR., Associate Judge, concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Meenu Sasser, Judge; L.T. Case No. CA08-028930 AW.

Thomas Ice of Ice legal, P.A., Royal Palm Beach, for appellant.

Thomasina F. Moore and Dennis W. Moore of Butler & Hosch, P.A.,
Orlando, for appellee LaSalle Bank National Association.

Not final until disposition of timely filed motion for rehearing

[ipaper docId=64200208 access_key=key-2gbo7ur1dwfuhkdraayd 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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FL 4DCA Reversed “Attorney’s Fee Provision in the Mortgage” | NUDEL v. FLAGSTAR BANK

FL 4DCA Reversed “Attorney’s Fee Provision in the Mortgage” | NUDEL v. FLAGSTAR BANK


DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

January Term 2011

TATYANA NUDEL,

v.

FLAGSTAR BANK, FSB, UNKNOWN SPOUSE OF TATYANA NUDEL,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS
NOMINEE FOR FLAGSTAR BANK, FSB, PALM BEACH COUNTY,
ADORNO & YOSS, LLP, UNKNOWN TENANT(S) IN POSSESSION, and
ALL OTHER UNKNOWN PARTIES

No. 4D10-3001

[May 18, 2011]

GROSS, C.J.

EXCERPT:

On June 30, 2009, Flagstar Bank sued Tatyana Nudel to foreclose a mortgage. According to the mortgage, Flagstar was defined as the  lender” which lent Nudel $220,000; Mortgage Electronic Registration Systems, Inc., (“MERS”) was the “mortgagee” under the instrument, acting as a “nominee” for Flagstar; and Nudel was the “[b]orrower.” Under section 22 of the mortgage, the “lender” Flagstar was entitled to reasonable attorney’s fees and costs in foreclosure proceedings. MERS assigned the mortgage to Flagstar on August 21, 2009.

Nudel moved to dismiss the complaint, arguing that Flagstar lacked standing because MERS did not assign the bank the mortgage until after the bank filed the complaint. See Fla. R. Civ. P. 1.140(b). The circuit court agreed, granted the motion, and dismissed the case without prejudice on March 29, 2010.1 Nudel moved for attorney’s fees and costs on April 15, relying in part on the attorney’s fee provision in the mortgage. The circuit court denied the motion for fees, accepting  Flagstar’s argument that Nudel had waived entitlement to fees under Stockman v. Downs, 573 So. 2d 835 (Fla. 1991), and Sardon Foundation v. New Horizons Service Dogs, Inc., 852 So. 2d 416 (Fla. 5th DCA 2003), because she had not sought attorney’s fees in her motion to dismiss.

[…]

For the purpose of determining a “prevailing party” under section 57.105(7), we see no reason to distinguish between a voluntary dismissal without prejudice and a court’s involuntary dismissal without prejudice. This same conclusion was reached in Bank of New York v. Williams, 979 So. 2d 347 (Fla. 1st DCA 2008), where the first district affirmed an award i f prevailing party attorney’s fees on facts similar to those in this case. There, the bank sued the defendant to foreclose a mortgage. Id. at 347. The defendant moved to dismiss because the bank failed to show that it owned the mortgage and promissory note and, thus, it lacked standing to sue. Id. The court dismissed a complaint and amended complaint  without prejudice; “[w]hen the Bank declined to file a second amended  complaint, the trial court dismissed the amended complaint with prejudice.” Id. The bank did not appeal this order, but instead instituted a new foreclosure action. Id. In the first action, the court awarded the defendant prevailing party attorney’s fees and costs. Id.

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Full Deposition Transcript of ROY DIAZ Shareholder of Smith, Hiatt & Diaz, P.A. Law Firm

Full Deposition Transcript of ROY DIAZ Shareholder of Smith, Hiatt & Diaz, P.A. Law Firm


Excerpts:

Q. So through that corporate authority as
Exhibit 4 to this deposition, MERS assented to the terms
Of this assignment of mortgage?

A. Through me.

Q. So it was you that assented to the terms of
This assignment of mortgage.

A. The one in this case, yes.

Q. And no one else.

A. Correct

Q. And you signed as vice president of MERS
acting solely as a nominee for America’s Wholesale
Lender; is that correct?

A. Yes, it is.

Q. How did you know that MERS was nominee for
America’s Wholesale Lender?

A. By reviewing documentation.

Q. What documentation?

A. I don’t specifically recall what I reviewed
In this case to see that, to determine that, but I would
have reviewed either the mortgage or I would have
reviewed other documentation that would have established
that to me.

Q. So in this case you don’t remember a single
Document that you looked at that would establish the
Nominee status of MERS for America’s Wholesale Lenders;
Is that correct?

A. I don’t

Q. Did someone at America’s Wholesale Lender
Tell you that MERS was acting as the nominee?

A. No.

Q. Did someone at MERS tell you they were
Acting as Nominee for America’s Wholesale Lender?

A. NO.

Q. Was America’s Wholesale Lender in existence
On May 19, 2010?

A. don’t now.

Q. Did you check that before signing this
assignment of mortgage?

A. No.

<SNIP>

Q. Now, you’ve said you review the MERS
Website and you’ve seen documents like this, like
Composite Exhibit 6. Any reason why you wouldn’t review
the documents contained in Exhibit 6 before executing the
assignment of mortgage?

A. It’s not necessary.

Q. Why not?

A. Because it’s not. Because I decided it’s
not.

Q. You as vice president of MERS?

A. In every possible capacity as it relates to
This case.

Q. Did you sign this assignment of mortgage
after being retained as counsel for the plaintiff?

A. After my law firm was retained?

Q. (Nods head.)

A. Is that the question?

Q. Sure.

A. Yes.

Q. Okay. So you executed an assignment to be
Used as evidence in your case, correct?

A. Sure.

Q. Is that a yes?

A. It’s a sure.

Q. Is that a yes o a no?

A. You said sure earlier. Was that a yes or a
No?

Q. Okay. So…

A. It’s a yes.

Q. It’s a yes.

And were you aware when you signed the
assignment of mortgage that MERS was a defendant in this
Case?

[ipaper docId=53916343 access_key=key-1rk8dl6pcjqgja1oy0ki height=600 width=600 /]

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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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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

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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 /]

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FULL DEPOSITION TRANSCRIPT OF ALDEN BERNER WELLS FARGO LEGAL PROCESS SPECIALIST

FULL DEPOSITION TRANSCRIPT OF ALDEN BERNER WELLS FARGO LEGAL PROCESS SPECIALIST


Alden Berner, Legal Process Specialist Wells Fargo Home Mortgage. Signed verifications of complaints.

Courtesy of IceLegal.com

Excerpts:

8 Q. Did you do anything to attempt to
9 verify whether or not the original note and mortgage
10 were actually in the custody of the trustee by the
11 time the closing date for the trust occurred?
12 MR. WINSTON: Object to form.
13 THE WITNESS: No.
14 BY MR. FLANAGAN: (resumed)
15 Q. Do you even get involved in that at
16 all?
17 A. No.
18 Q. Have you seen any documents that
19 establish what the relationship is between HSBC Bank
20 and Wells Fargo Home Mortgage?
21 MR. WINSTON: Object to form.
22 THE WITNESS: No.
23 BY MR. FLANAGAN: (resumed)
24 Q. Do you know how it is that Wells Fargo
25 Home Mortgage came to be selected to do the
1 verification for HSBC Bank in this particular case,
2 the case?
3 MR. WINSTON: Object to form.
4 THE WITNESS: No.
5 BY MR. FLANAGAN: (resumed)
6 Q. Do you know if there is some document
7 that designates you to be the person to verify on
8 behalf of HSBC Bank.
9 MR. WINSTON: Object to form.
10 THE WITNESS: Me personally?
11 MR. FLANAGAN: Yes, sir.
12 THE WITNESS: No.
13 BY MR. FLANAGAN: (resumed)
14 Q. How about for Wells Fargo Bank, NA, is
15 there any document that you’re aware of that
16 designates you to have the authority to sign these
17 verifications on behalf of Wells Fargo Bank, NA?
18 MR. WINSTON: Object to form.
19 THE WITNESS: No, but I don’t need to,
20 because I’m an employee of Wells Fargo Home
21 Mortgage, which is owned by Wells Fargo Bank, N A.
22 BY MR. FLANAGAN: (resumed)
23 Q. Are they a subsidiary, as far as you
24 know?
25 A. Yes.

Continue below…

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FULL DEPOSITION OF FLORIDA DEFAULT LAW GROUP MANAGING PARTNER RONALD WOLFE

FULL DEPOSITION OF FLORIDA DEFAULT LAW GROUP MANAGING PARTNER RONALD WOLFE


EXCERPT:

Q. Okay. And who would do the title search?
2 MS. HILL: Are you asking who did the title
3 search in this case?
4 MR. IMMEL: Yes.
5 A. Generally for the firm, again, the title
6 company that — that we’ve engaged to do the title
7 search and exam is New House Title.

8 BY MR. IMMEL:
9 Q. Okay. And what relationship does New House
10 Title company have to Florida Default Law Group?

11 A. New House Title is a —
12 MS. HILL: Well, I’m going to object to the
13 form of the question.
14 MR. IMMEL: Okay.
15 MS. HILL: He just said that the firm engages
16 New House Title, so —
17 MR. IMMEL: Right.
18 MS. HILL: — it would appear they have a
19 relationship of vendor and vendee, but your
20 question was objectionable.

21 MR. IMMEL: Okay.
22 A. It’s the title company we engage to provide
23 the service. And I believe what we are getting to is
24 the fact that the law firm owns the title company.

25 BY MR. IMMEL:

Q. Okay. That is reflected on — commonly on
2 affidavits and things of that nature. Does Florida
3 Default Law Group solely utilize New House Title as
4 their — to review — do title searches?

<SNIP>

22 Q. Okay. Okay. Do you personally know Lisa or
23 Erin Cullaro?
24 A. I do.
25 Q. You do. Okay. And as I’m sure you’re aware,

1 we’ve sought to take the depositions of Lisa and Erin
2 Cullaro in numerous cases and those affidavits were
3 withdrawn. Are you familiar with that issue within this
4 case?
5 MS. HILL: I’m sorry. Are you asking this
6 witness as to what — what transpired in this
7 particular case, this foreclosure case?
8 MR. IMMEL: Yes. Based on his personal
9 involvement.
10 MS. HILL: Okay. Then objection. You’re
11 assuming facts that have not been established.
12 You’re mischaracterizing his testimony. As far as
13 I can tell, the only fact that you’ve established
14 regarding his personal involvement is the
15 Assignment of Mortgage that is Exhibit A. And
16 whether that’s a part of this file or not a part of
17 this file are two different issues. But you have
18 not established that Mr. Wolfe individually has
19 served as an attorney with respect to the
20 prosecution of this foreclosure action, and so
21 asking him questions as to what may or may not have
22 transpired as part of the prosecution of this
23 foreclosure action is improper.
24 MR. IMMEL: Okay.
25 BY MR. IMMEL:

<SNIP>

14 Q. Are you choosing not to answer that you have
15 any personal knowledge as to whether or not affidavits
16 have been withdrawn by Lisa and Erin Cullaro?

17 A. Yes.
18 Q. You have no personal knowledge that –
19 A. I’m refusing to answer.
20 Q. You’re refusing to answer. Okay. Did you
21 ever discuss having their depositions taken with either
22 Lisa or Erin Cullaro?

23 MS. HILL: Same objection. Same instruction.
24 BY MR. IMMEL:
25 Q. And are you choosing not to answer based on

1 your attorney’s instructions?
2 A. Yes, I am choosing not to answer.
3 Q. Okay. Did you ever instruct Lisa Cullaro or
4 Erin Cullaro that Florida Default Law Group would
5 aggressively defend having their depositions taken in
6 this case or any other cases?

7 MS. HILL: Same objection. Same instruction.
8 BY MR. IMMEL:
9 Q. Are you choosing not to answer as to whether
10 or not you have any personal knowledge regarding the
11 Cullaro deposition, Lisa Cullaro or Erin Cullaro’s
12 deposition based on your attorney’s recommendation?
13 MS. HILL: That’s a different question. But
14 to that question, it’s the same objection and the
15 same answer.

16 A. I have —
17 MS. HILL: I mean, the same objection and the
18 same instruction.
19 A. Yes. I’m not going to answer. I have no idea
20 what — what deposition of Lisa Cullaro you’re
21 referencing.

22 BY MR. IMMEL:
23 Q. Do you — do you have any personal knowledge
24 that our office has sought the deposition of Lisa
25 Cullaro or Erin Cullaro?

Continue reading the rest…

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Taking On a Second Mortgage to Pay the Foreclosure Lawyer

Taking On a Second Mortgage to Pay the Foreclosure Lawyer


By DAVID STREITFELD
Published: November 6, 2010

For some Florida residents, the price of getting out of foreclosure will include taking on a second mortgage — payable this time to their lawyers.

The new mortgage, which takes effect only if the foreclosure is dismissed and the homeowner’s debt to the bank is reduced, is controversial among defense lawyers, some of whom call it “creepy” and “crass.” Yet even they acknowledge it offers a solution to a vexing question: How do they get paid?

After recent revelations that banks were sloppy in processing many foreclosures and in some cases lack standing to seize a house, potential clients seeking to challenge their lenders are flocking to lawyers. But while these distressed homeowners might have a case, they generally lack the resources to pay legal fees. Being in foreclosure usually means being broke.

“We thought, ‘Why don’t we use a bit of ingenuity to find an affordable way to represent them?’ ” said Peter Ticktin of the Ticktin Law Group in Deerfield Beach, Fla. “It’s a new model, a new paradigm.”

Foreclosure defense is a new legal specialty whose strategies and techniques are still being worked out. Mr. Ticktin, who has some 3,000 foreclosure clients, says his plan to collect fees by taking another mortgage on his clients’ properties has already been copied by other firms.

The Ticktin mortgages resemble the loans that the clients originally got from Countrywide, GMAC and other lenders. Each will be a contractual obligation with the law firm, labeled as a mortgage and structured like one, too, with the client paying a certain sum every month and using the house as collateral.

Unconventional payment structures are becoming popular in the foreclosure hotbed of Florida. Whether they yet have caught on elsewhere is unclear. Certainly, Mr. Ticktin is far from the only lawyer being forced to innovate.

“We can put in $100,000 of our time but over the length of a case be paid only $6,000 in monthly fees,” said Thomas E. Ice of Ice Legal in Royal Palm Beach.

Mr. Ice, Mr. Ticktin and many other Florida foreclosure lawyers typically receive a few hundred dollars a month from each client. To supplement that, they seek legal fees from the banks they successfully challenge as well as contingency fees.

Contingency fees are standard in cases in which the client has little money but there is the possibility of a large payout. A slip and fall on a store’s wet floor or a medical malpractice claim are classic contingency cases. If the plaintiff wins, insurance companies ultimately foot the bill.

In foreclosure cases, however, the client pays the contingency fee. While such an approach is sometimes used in commercial litigation, this is a first for consumer cases, said Lester Brickman, a professor at Cardozo Law School in New York.

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



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FULL DEPOSITION TRANSCRIPT OF HOLLAN FINTEL FORMER FLORIDA DEFAULT LAW GROUP ATTORNEY

FULL DEPOSITION TRANSCRIPT OF HOLLAN FINTEL FORMER FLORIDA DEFAULT LAW GROUP ATTORNEY


Excerpts:

Q. Okay. And did it actually grant you
14 authority to sign as vice president anywhere in there?
15 A. The listing capacity on that assignment was
16 — is a clerical error. It needed to state “attorney in
17 fact.” This document grants the power as attorney in
18 fact.
19 Q. Okay. So —
20 A. But it does grant the authority to execute
21 the assignment of mortgage.
22 Q. Okay. So you are not vice president of
23 Wells Fargo Bank N.A.?
24 A. No.
25 Q. Okay. During your employment at Florida

1 Default Law Group, were there other companies that you
2 would execute assignments of mortgages on behalf of?
3 A. Yes. I believe there were others.
4 Q. And would you execute those assignments of
5 mortgages as attorney in fact or vice president?
6 A. I believe it varied. I do believe there were
7 other corporate resolutions that it did vary, the
8 capacity in which I signed.
9 Q. Okay. Do you recall specifically any of the
10 other entities that you would execute assignments of
11 mortgages on behalf of?
12 A. Mortgage Electronic Registration Systems,
13 known as MERS.
14 Q. MERS?
15 A. Yes.
16 Q. And what was your capacity as — what was
17 your signing authority on behalf of MERS?
18 A. I believe it was as vice president and
19 assistant secretary. I’m not positive, but I believe it
20 was as vice president.
21 Q. All right. Are you currently — this grants
22 you authority to act as attorney in fact for Wells Fargo
23 Bank until December 31st, 2010.
24 Do you still then execute documents as
25 attorney in fact for Wells Fargo Bank?

1 A. No, I don’t.
2 Q. Okay. And when did you stop doing that?
3 A. It would have been when I left Florida
4 Default in October of 2008.
5 Q. Okay. So was the sole basis of your actions
6 to sign documents as attorney in fact for Wells Fargo
7 Bank out of your employment for Florida Default Law
8 Group?
9 MS. HILL: Object to form.
10 MR. GANO: Objection to the form.
11 A. I’m sorry. Can you rephrase it?
12 Q. Outside of working as an attorney for Florida
13 Default Law Group, did you execute assignments of
14 mortgages for Wells Fargo Bank pursuant to this for any
15 other types of actions not related to Florida Default
16 Law Group?
17 A. No.
18 MS. HILL: When you say “this,” you pointed.
19 For record, you are referring to?
20 MR. IMMEL: This Limited Power of Attorney.
21 MR. GANO: Exhibit A.
22 MR. IMMEL: Exhibit A.
23 Q. And have you ever been to Wells Fargo Bank’s
24 headquarters or any of their offices?
25 A. No. I don’t believe I have.

1 Q. Okay. Are you aware — did you have to apply
2 for the limited power of attorney status with Wells
3 Fargo?

4 A. No.
5 Q. Are you aware of how you were chosen as a
6 limited — to be appointed the limited power of
7 attorney?
8 A. No, I don’t.
9 Q. Okay. Did Wells Fargo Bank provide you any
10 formal training or, I guess, any sort of detailed job
11 responsibilities, or was just this limited power of
12 attorney provided to you?
13 MR. GANO: I’m going to object as far as that
14 going into any specific instructions regarding
15 particular files that she was working while at
16 Florida Default on behalf of the Plaintiff.
17 Q. Without divulging privileged information, if
18 you would limit the answer to that.
19 A. Instruction from Wells Fargo, no.
20 Q. Okay. Did you receive any compensation from
21 Wells Fargo Bank for your duties as an attorney in fact,
22 limited power of attorney?
23 MR. SMITH: You’re asking about her
24 personally?
25 MR. IMMEL: Yes, her personally.

1 A. No.
2 Q. No. Okay. Did you ever attend any board
3 meetings or executive meetings for Wells Fargo Bank?

4 A. No.
5 Q. For that matter, with regard to your signing
6 authority on behalf of MERS, was there any difference
7 between how you carried out your authority with being
8 able to sign documents on behalf of MERS versus Wells
9 Fargo Bank?
10 MS. HILL: I’m going to object to the form.
11 A. I’m sorry. Rephrase, please.
12 Q. Okay. In executing an assignment of mortgage
13 on behalf of Wells Fargo Bank pursuant to the Limited
14 Power of Attorney, when you would do that, did that
15 differ in any way from when you would execute them and
16 an assignment of mortgage on behalf of MERS?
17 A. No.
18 MS. HILL: Object to the form.
19 Q. Okay. Are you still — do you still have
20 signing authority on behalf of MERS?

21 A. I don’t know.
22 Q. You don’t know?
23 A. No, sir.
24 Q. Okay. Did MERS pay you for executing
25 assignments of mortgages?

1 A. No.
2 Q. Okay. Approximately, how many assignments of
3 mortgages would you execute on behalf of Wells Fargo
4 Bank?
5 A. I have no —
6 MS. HILL: Object to the form.
7 A. I don’t know.
8 Q. Okay. Going back to Exhibit A, it says that
9 Mark Wooton, Vice President of Loan Documentation,
10 granted this Limited Power of Attorney.
11 Did you ever meet Mark Wooton?
12 MS. HILL: I’m going to object to the form
13 only to the extent that Mark Wooton signed the
14 Limited Power of Attorney, I don’t know if signing
15 it is the same thing as granting it or if there is
16 a distinction. But to that extent, I’m objecting
17 to the question.
18 Q. Mark Wooton signed the Limited Power of
19 Attorney. Did you ever meet Mark Wooton?
20 A. Not that I recall.
21 Q. Okay. Are you aware of whether he was
22 authorized to sign this Limited Power of Attorney?
23 A. No. I don’t know.
24 Q. Okay. Did you report to anyone directly at
25 Wells Fargo Bank?

1 A. No.
2 Q. Did you receive directions to execute an
3 assignment of mortgage directly from Wells Fargo Bank?
4 MR. GANO: I’m going to object base upon
5 attorney-client privilege, any specific
6 instruction she obtained regarding this case or
7 any other cases.
8 Q. Without divulging privileged information.
9 A. We did have a procedure that under certain
10 circumstances, yes, we were directed to prepare the
11 assignments.
12 Q. Okay. Could you, I guess, describe the
13 procedure for when you would be directed, without
14 divulging attorney-client privileges?
15 A. Yes. When our client referred in the
16 mortgage referral.
17 Q. Okay.
18 A. It could be the owner or it could be the
19 servicer. In this particular case with Wells Fargo,
20 they sent in the referral. They indicated that they
21 were the servicer for the new owner, which I believe was
22 HSBC, and indicated that HSBC was the proper owner and
23 holder of the note.
24 In that event of record, Wells was the last
25 of-record owner and holder of the note; therefore, we

1 were to effectuate the assignment of mortgage prepared
2 and executed on behalf of Wells Fargo.
3 Q. Okay. What type of documents would you rely
4 upon to determine that aside from just the referral
5 stating that HSBC Bank was, I guess, the owner of the
6 note; what other documents would you rely upon to
7 ascertain that?
8 A. That HSBC was the owner?
9 Q. Yes.
10 A. We relied on our client’s referral indicating
11 that they had sold it to HSBC.
12 Q. Okay. Was there any other information that
13 you can recall?
14 A. Not that I recall.
15 Q. Okay. So going back to the referral, the
16 determination to execute an assignment of mortgage then
17 would be sent to you by Wells Fargo in a case like this
18 — in this case?
19 MR. GANO: Object to the form.
20 A. I’m sorry. I don’t quite understand that
21 question.
22 Q. Okay. Wells Fargo directed you to execute
23 the assignment of mortgage in this case?
24 MR. GANO: Again, I’m going to object based
25 upon any specific information given as

1 attorney-client privilege.
2 Q. Without divulging attorney-client privilege.
3 A. Under the procedure we had, yes.
4 Q. Okay.
5 A. Correct.
6 Q. Okay. And how would the referral — how was
7 the referral sent?
8 A. I’m not positive. It varied. I believe it
9 was electronic.
10 Q. Okay. And in situations where the — would
11 you ever rely upon the note to determine who to execute
12 an assignment of mortgage to?
13 A. Rely upon the note?
14 Q. The note, the promissory note.
15 A. A copy or the original?
16 Q. Copy, original, any fashion, the promissory
17 note?
18 A. No.
19 Q. Okay. So whether or not the note was lost at
20 the time of the referral would not impact your execution
21 of the assignment of mortgage?
22 A. No.
23 Q. Okay. How would you receive a promissory
24 note then from the plaintiff or whoever referred the
25 case to you?

1 A. Typically, they would mail the original
2 documents to our office.
3 Q. Do you recall if it would be mailed by any
4 sort of certified mail or return receipt; would you sign
5 for anything?
6 A. I don’t know. It didn’t come to me directly.
7 Q. And in cases such as this where Wells Fargo
8 would send the referral to you and state that they were
9 the servicer, what type of information would you review
10 to ascertain that they were, in fact, the servicer?

11 MR. GANO: Object to the form, and object to
12 any specific information, again, on this
13 particular referral.
14 Q. Without divulging privileged information.
15 A. We just relied on them indicating that they
16 were the servicer –

17 Q. Okay.
18 A. — who the plaintiff was to be.

See Deposition/Transcript below

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



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