Published: Tuesday, November 9, 2010 at 1:00 a.m.
Last Modified: Monday, November 8, 2010 at 10:04 p.m.
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Appellate courts in Tallahassee and West Palm Beach have admonished lower courts for allowing foreclosures to proceed without the proper paperwork and kicked the cases back to circuit judges in a move some experts say could further complicate the foreclosure crisis.
At issue is the use of sworn affidavits that convinced circuit judges the borrower’s original promissory note had been lost in the shuffle but that the lender still had a right to foreclose. Experts likened it to a used car dealer selling a vehicle using a photocopy of the title.
Circuit court judges have been using such promises to issue summary judgments, which have sped cases along at a time when the courts have been inundated.
Observers say the rulings from the 1st District Court of Appeal in Tallahassee and the 4th District Court of Appeal in West Palm Beach could become templates for more challenges.
It is unclear just how many cases could be affected — the chief judge in this region’s circuit says foreclosure paperwork is carefully scrutinized by teams of case managers — but the rulings come as the system already is dealing with disruptions from self-imposed bank moratoriums to deal with questionable paperwork.
“It is the culmination of the worst civil procedure nightmare we’ve ever imagined,” said Anne L. Weintraub, a real estate attorney at Sarasota’s Syprett Meshad law firm, referring to the recent appellate rulings.
What happens next could have widespread implications for the more than 200,000 Floridians who have lost their homes to foreclosure since January 2007, including the more than 12,000 in Manatee, Sarasota and Charlotte counties.
Foreclosure case against two Fla. candidates dropped
Deutsche Bank files, dismisses suit with Marco Rubio and David Rivera over mortgage
Katherine Concepcion • Staff Writer • June 28, 2010 Tallahassee.com
A 1,228-square foot home off Apalachee Parkway was the subject of recent controversy within the Florida political scene.
On June 14, the Deutsche Bank National Trust Company initiated a foreclosure filed in the Leon County Circuit Court against Marco Rubio and David Rivera, owners of the property in question. The lawsuit has since been dropped; a notice of voluntary dismissal and release of lis pendens was filed on June 23.
The Law Offices of Marshall C. Watson, who represented Deutsche Bank, declined to comment.
Rubio, former Speaker of the Florida House of Representatives, is running for the Republican seat currently occupied by George LeMieux in the U.S. Senate. Rep. Rivera, who serves District 112 of the Florida House, is campaigning as a Republican Congressional candidate in Florida’s 25th District. The two men purchased the house for $135,000 in 2005. The property is currently under contract pending sale.
Rivera delivered a cashier’s check for $9,525 to the plaintiffs on Thursday, June 17, prompting Rubio spokesperson Alex Burgos, who did not return calls for comment, to issue a statement that the men “took action right away to get this [matter] resolved.”
Court records reveal a debt of around $136,000 on the property, including late charges and accumulated interest. Mortgage payments had not been made since February because of an alleged dispute over how the adjustable rate mortgage would be calculated once the interest-only period expired.
This is not the first financial battle Rubio has been embroiled in.
During his tenure as House speaker, Rubio was questioned about his failure to disclose receiving a $135,000 home-equity loan, and charging $16,000 in personal expenses, including grocery bills and car repairs, to a Florida GOP credit card.
Question for Mr. Rubio is, exactly who is Foreclosing on you??
Where are the following assignments from the Original Lender to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (MERS) to DEUTSCHE NATIONAL TRUST?
Take a look at the Original Mortgage:
See the arrow it clearly states the Lender is AMERIFIRST FINANCIAL, so where are the missing Assignments of the Mortgage that gives DBNT legal standing to file this Lis Pendens??
It is clear that from the face of these documents and a search in Leon County, FL records that there is none!
Law Office of Marshall C. Watson is the foreclosure mill handling this case. Lets see when they plan on filing the missing assignments….we’ll be back!
In a time when you can stroll over to the computer and rattle off an e-mail to your elected official because you think your taxes are too high or leave an anonymous comment on a blog or article voicing your disapproval with a particular reporter, it would seem that the days of face-to-face action and rallies are unfortunately a thing of the past.Not for a group of activists in Florida heading to the Capitol in Tallahassee on Wednesday, April 21.
Michael Redman (4closureFraud), and Lisa Epstein (Foreclosure Hamlet), in an effort to convince Florida legislators to listen to their constituents, are organizing a transport to the capital. An old fashion road trip of attorneys, advocates, and homeowners. Transportation is being organized and buses will be available from key areas throughout Florida and along major roadways. Redman and Epstein had initially dipped into their own pockets to charter buses for the event.
As of April 16th, according to Redman’s blog, in a Friday post,
“Team Ice in West Palm has sponsored their bus and now one of Pinellas County’s toughest foreclosure fighters has generously agreed to sponsor a bus to make sure any attorney and homeowner who wants to go to Tallahassee and make his or her voice heard has the opportunity to get up there and meet face to face.”
“One of the most inspiring things about all of this is seeing how the defense attorneys are all throwing their time, talent and treasure into this fight. We all share our ideas, insight and experience because doing so serves the interests of not just our clients but those folks out there who cannot afford an attorney and it especially serves the Constitution we took an oath to protect and the judiciary we respect,”
The most important piece of legislation the group was trying to stop was a push by bankers to change the way Florida handles foreclosures. Florida currently, and always has had Judicial foreclosures. The bank’s proposed legislation would have allowed banks to foreclose on Florida homes without going to court. According to Matt Weidner, a Florida attorney, the bill for now appears to have been stopped in the House, but the Senate will meet next week and according to an old Florida saying, “No one’s safe while the legislature is in session.”
A non-judicial foreclosure would mean that, “you the homeowner won’t automatically get your day in court if your lender tries to take your house away. The way it works right now is the lender is required by law to file a civil lawsuit against you in order to foreclose. You then have to answer it. If you don’t answer it or don’t show up to court, the judge issues a summary judgment against you. In a non-judicial foreclosure everything is done administratively and your right to due process is compromised and you have to beg for your day in court,” as explained by Steve Dibert of MFI-Miami.
Although the bill appears to have died, and the bankers appear to have conceded, this motivated band of advocates doesn’t want to leave anything to chance.
An e-mail from Weidner reads:
As Mark Twain said, ‘News of My death was greatly exaggerated.’ Although the legislation appears to have died, the passion and concern that its introduction incited has only increased with word of its demise. Tapping into broad based anxiety and concern felt by homeowners all across Florida, the group has turned its focus from defeating this legislation to demanding legislation that will increase protections for Florida homeowners. Talk about turning the tables. They are meeting with Senator Mark Aronberg and Rep. Darren Soto who introduced a “Homeowner’s Bill of Rights“. They’re asking that this legislation be resurrected… at the very least they want to make sure their legislators are fully aware of their concerns and the problems they’re facing.
According to Weidner’s press release,
“The response from legislators to this movement has been awe-inspiring. Our leaders in Washington may have trouble hearing the voices of their people, but the leaders who represent us in Tallahassee hear the voice of the people loud and clear! Already leaders from both houses have graciously agreed to meet with their voters, we’re confident many more will agree to meet with us when we arrive.”
Michael Moore spoke of the apathy and lack of action he witnessed despite his tireless work drawing attention to key issues affecting millions of Americans.
“Two years ago, I tried to get the health-care debate going, and it did eventually, and now where are we? We may not even have it. What am I supposed to do at a certain point?, ” Moore said in an 2009 Toronto press conference.
It’s refreshing and inspiring to think that may be changing.
Denise Richardson (givemebackmycredit.com) posted the following from Lisa Epstein on her blog:
This is not just for homeowners!We are ALL reduced by the actions behind the mortgage frauds and scams. Tenants! Anyone who relies on any public service funded by our now shrunken tax revenues! Anyone owning any property at all, fully paid off or not. Any business owner! Unemployed family members! Credit card/bank account fees victims! Those with drained 401Ks and college savings accounts!
We will be heard as was the Florida Bankers Association on their own “Capitol Day” on March 10, 2010. Florida Bankers, guess what? You wanted a “Taste of Florida”? You are gonna get one! We are having our own “Capitol Day”! But our collective voices will be a harmony; louder, clearer, unwavering, and with a foundation firmly planted in the historical roots of our country as a nation for WE, THE PEOPLE!
Bankers and other stealth foreclosing entities, listen up! We are NOT boobs, chumps, doormats, dupes, easy marks, fools, goats, gulls, patsies, pigeons, pushovers, saps, scapegoats, schmucks, sitting ducks, stooges, suckers, victims, or weaklings, And we most certainly are not “deadbeats”!
To find out more about the rally and let them know you’ll be along for the ride, see Redman’s site at 4closurefraud.org or Weidner’s blog for more information.
The Florida Legislature is in session until April 30th. There are a variety of bills pending in the legislature which threaten to dramatically change the practice of consumer law and would eliminate homeowner and consumer rights.
The bankers, the foreclosure mills and other wrongdoers are lobbying Tallahassee hard and they absolutely will get some kind of legislation passed….if every one of us doesn’t act now to do something about it.
Subject to confirmation of the date, we will have a rally on the Capital. The date is tentatively set for Wednesday April 21, but it may be April 19 or 20 if those days would be more effective given committee schedules and other considerations.
Please mark your calendars now and please put forth this extra effort of service to our profession, our courts and to the citizens of the State of Florida. As attorneys, we took an oath to defend the Constitution, the citizens and our courts. These are all under attack and we are all duty bound and obligated to rise up and defend them.
In Tallahassee, we will meet with our local representatives and with the leadership of both houses. Our message is clear and distinct….
We must preserve and restore the dignity of the courts and ensure consumers and homeowners continue to have access to a fair and properly funded judiciary.
We cannot allow the continued breakdown of law and lack of respect for courts that currently exists in courts across the State of Florida.
We cannot allow the unethical foreclosure mills and zombie lenders to continue to infect our courts with the cancer they are spreading in courts across the State of Florida
We owe this duty to our courts. We owe this duty to our judges who are overwhelmed, overburdened and facing impossible pressures from all sides and we owe this duty to the citizens of the State of Florida–whether they are represented by counsel or not.
Please mark your calenders and begin making plans now. We will be chartering busses from major areas and more details will be forthcoming! We expect that consumers and other pro-se advocacy groups will rally behind this cause as part of a major grass-roots effort. There are brave and principled leaders in Tallahassee who share our concerns and we need to take our message of support to them.
MARK YOUR CALENDERS AND PLAN TO JOIN US IN TALLAHASSEE!
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