DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

July Term 2011

LAW OFFICE OF DAVID J. STERN, P.A.,
Appellant,

v.

STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS,
Appellee.

No. 4D10-4708

[December 14, 2011]

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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

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.

Open Letter to Rep. Kathleen Passidomo

Open Letter to Rep. Kathleen Passidomo
just a brief letter from your cousin-in-law here in Naples concerning your ‘Fair Foreclosure’ bill (HB 213). As you might be aware, this is a bill that will directly impact my mother, cousin of your husband here in Naples, who has been forced into foreclosure by persistent abuse of the legal system..while I won’t go into any of the details of that here, and while I’ll also set aside the unfortunate commentary that such lawmaking in relation to one’s ‘own’ family reveals about our society, I was mostly wondering how it can be possible for you to support a bill that would, it seems, remove one of the biggest obstacles many of these banks face when trying to foreclose on properties in this state and around the country?

I am speaking specifically about your changes to Florida Statute 702.015. My reading of this is that the bill will, in effect, allow banks to simply make ‘positive’ statements concerning loss of promissory notes or mortgages, documenting, in affidavits or whatever they want, (fictional or not) changes in ownership etc in place of actually providing the original notes themselves whenever they choose to ‘include a count to enforce a lost note’, which now (with your changes) only need to be included WHEN THEY ACTUALLY HAVE THE NOTE. Certainly, you are aware that original promissory notes are currently required by law because they are ‘negotiable financial instruments’, meaning that firms can buy them and sell them, nationally or internationally. By removing this requirement you now allow a firm to simply attest to ownership, ‘under perjury of law’, you will effectively have created a legal culture of trust and good-will towards these banks in a culture where it COULD NOT POSSIBLY BE MORE CLEAR the levels of abuse and deceit these firms are willing to go to for further lucre and profits.

Reading the Naples Daily News interview with you, you seem to indicate the issue being that foreclosure defense attorney’s purposes are to simply keep people in homes for free, indefinitely on holiday without paying. I beg you to see this differently if anything other than a program on some server parses this letter in order to auto-generate a response. The issue is simple, if I might offer a humble interpretation: your law will drive a wedge between, essentially, the financial-considerations of foreclosure law and the financial instruments they govern, thereby leaving an eviscerated foreclosure law-structure that no longer applies itself, or can apply itself, to the reality of the financial agreements they govern. Due process will be simply removed and this section of the law will leave a vacuum for all manner of abuse and profiteering in a totally slanted system. Not to mention that, to add insult to injury, you will further remove ‘actual lien holders’ (who may be out of state, out of country) ability to later seek recourse through the law to the property, re-directed as they are by this bill to a new domain of virtual rights and financials..

In very simple terms: banks and financial institutions who could and did–for certain–profit from the packaging and sale of Florida mortgages on to other firms in this state, country and elsewhere, perhaps in the knowledge, perhaps not, that these were certain to be worthless, will now be able to, perhaps, double their profits by now coming back in and reclaiming properties they no longer own, since the firms that do may be bankrupt or, as yet, unable or willing to initiate proceedings for ‘their claim’, adding them to their balance sheets once-again, selling them at public auction (or not, your bill now gives them the right to hold on to their, newlyfound, depreciated ‘asset’) for another profit.

Clearly, this is just one ‘conspiracy theory’ in a culture become every more steeping in the logic of conspiracies and the auto-dismissal of every complex opinion. And it is all just further support for the gravity-field of profit directed to those that have power over influencing the law you make.

In conclusion, I would just urge you to reconsider passing law that would have such an unfortunate effect of further skewing the law to support financial structures and institutions that have done nothing but corrode the democratic fabric of this once-great country. You sit in the House of Representatives of Florida, and you can, just as easily as you slid this torpedo into the ocean, withdraw it, protecting the rights of millions in this State, as well as your ‘own’ family (which I wouldn’t dream of using as an empty pity-plea), showing that the House Represents people and not only giant multi-national corporations who probably want to drain profit out of dollars and put them into Euros or Yen(…as capital controls endlessly slacken…).

Thank you for reading and good luck. I will be taking this point upon myself to make an issue out of.

Best Regards,
John Ferrara

**********

John has started a petition to withdraw and stop HB213 or the ‘Fair Foreclosure Act’ in Florida, brought up by his distant cousin Kathleen Passidomo, which is really the reason he started this.

Here is the petition: http://stophb213.blogspot.com/

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.

[…]

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Funny, because Florida homeowners are still waiting for you lawmakers to go after the fraud in your own backyard, you know like what Nevada AG Masto & California AG Harris are doing, by going after LPS, which HQ’s are in Florida.

Make any sense?!

Palm Beach Post-

Some Florida lawmakers want to tweak a rarely used fast-track foreclosure law to shrink the state’s court backlog and as an end run around Wall Street reforms that may bar nonjudicial foreclosures.

The Senate judiciary committee, which has discussed ways to reduce the average two-year timeline to repossess a home in Florida, is scheduled to meet today in Tallahassee.

[PALM BEACH POST]

Bradenton Herald-

Deputies had to clear out a crowd of at least 250 partiers from a vacant house owned by Bank of America early Sunday.

The loudness of the party, which caused a neighbor to call the Manatee County Sheriff’s Office, was held in the 4400 block of Sanibel Way in Bradenton, according to a sheriff’s office report.

The people who lived in the house just before it became vacant moved out a few days ago, but told friends they were going to throw one last party, the report stated.

.

The Foreclosure Crisis: As California’s AG Issues Subpoenas, Florida’s AG Quits Worrying

This Week on the Florida Senate Democratic Update

Tallahassee — In the ongoing foreclosure crisis, California and Florida have a lot in common when it comes to the high number of people caught in its grip, but that’s about where the similarities end. California’s attorney general has been aggressively pursuing banks and lender service companies, recently issuing another round of subpoenas in her drive to pursue criminal and civil charges on behalf of victims of mortgage fraud and other unscrupulous foreclosure practices.

In Florida, Attorney General Pam Bondi took a decidedly different track. Not only did she move to protect financial companies from criminal prosecution, but fired two of the most aggressive attorneys in her agency pursuing mortgage fraud shortly after taking office. News of the ouster prompted a flurry of activity to justify the abrupt dismissals, with the attorney general apparently more concerned with her own well being than that of victimized homeowners. “I can finally go to sleep now and quit worrying about how these women will attempt to destroy me,” Bondi confided in one late-night email.

This week on the Florida Senate Democratic Update, Senator Eleanor Sobel (D-Hollywood) talks about Florida’s approach to the foreclosure fraud crisis, and the firings of June Clarkson and Theresa Edwards.  Three months after Bondi’s request to a fellow Republican Cabinet member for an “outside” investigation of the dismissals, Senator Sobel is still waiting for answers.

Watch this week’s reality check at: http://www.youtube.com/flasenatedems or www.flsenate.gov/offices/minority.

###

What a team!

HW-

Attorneys General for Delaware and New York secured permission from a U.S. District Judge to intervene in court proceedings discussing the Bank of New York Mellon (BK: 18.03 -0.33%) $8.5 billion settlement with Bank of America (BAC: 5.045 -3.90%) over toxic mortgage-backed securities.

The AGs are eager to get a presence in the proceedings, so they can represent the interests of the investing public in their respective states before a final deal is reached. Admission to the process gives the AGs a chance to hear where talks are going and an opportunity to object to provisions of the deal.

[HOUSING WIRE]

Third District Court of Appeal
State of Florida, July Term, A.D. 2011
Opinion filed November 23, 2011.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D11-395
Lower Tribunal No. 08-59543
________________
Carlos Humberto Malagon a/k/a Carlos Malagon and Rosalba
Malagon,
Appellants,

vs.

Citimortgage, Inc. f/k/a Citifinancial Mortgage Company d/b/a
Citifinancial Mortgage Company (DE),
Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade

County, David C. Miller, Judge.

Garry W. Johnson and Bruce K. Herman (Fort Lauderdale), for appellants.

Burr & Forman and Reid S. Manley and Christine Irwin Parrish (Orlando),
for appellee.

Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

SUAREZ, J.

Appellants, Carlos Humberto Malagon a/k/a Carlos Malagon and Rosalba
Malagon appeal the trial court’s order denying their motion to vacate final
judgment of foreclosure and to cancel and/or rescind sale. Appellee, Citimortgage,
Inc., concedes error on the trial court’s denial of appellants’ motion to vacate the
final judgment of foreclosure.1 Appellee consents to a reversal of the order and a
remand for further proceedings. Upon concession of error, this Court, therefore,
reverses the trial court’s denial of appellants’ motion to vacate the final judgment
of foreclosure and remands for further proceedings.

Reversed and remanded.

1 This Court appreciates appellee’s candor in conceding error

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2011

RODGER and LINA DUKE,
Appellants,

v.

HSBC MORTGAGE SERVICES, LLC,
Appellee.

No. 4D09-5183

[November 23, 2011]

POLEN, J.

Appellants, Rodger and Lina Duke (“the Dukes”), appeal the trial
court’s order granting final summary judgment of foreclosure in favor of
appellee, HSBC Mortgage Services, Inc. (“HSBC”). We reverse the trial
court’s order and hold that the record reflected genuine issues of
material fact, making summary judgment improper.

In May 2009, appellee, HSBC, brought an action against appellants,
the Dukes, to foreclose on a mortgage on real property in Palm Beach
County, Florida. The mortgage, as attached to the complaint, showed
that the “borrower” was the Dukes and the “lender” was First NLC
Financial Services, LLC (“First NLC”). The mortgage further showed that
Mortgage Electronic Registration Systems, Inc. (“MERS”) “is a separate
corporation that is acting solely as a nominee for Lender and Lender’s
successors and assigns.” HSBC’s complaint indicated that the mortgage
was assigned to it, and that it was the rightful owner and holder of the
note and mortgage. The Dukes alleged that HSBC did not attach an
assignment of mortgage to their complaint; however, a notice of
assignment was filed with the court on August 26, 2009, with a copy of
the assignment dated June 1, 2009, attached. HSBC alleged that the
original note and mortgage had been lost and were not in HSBC’s
custody or control.

On July 10, 2009, and July 17, 2009, the Dukes were served by
publication in the Palm Beach Daily Business Review. When the Dukes
failed to respond to the service by publication, HSBC moved for default.
On the same date as the motion for default, HSBC also moved for
summary judgment as to “the existence of a valid mortgage and
promissory note and [HSBC’s] right to a Judgment of Foreclosure.” On
September 11, 2009, the Dukes filed a motion for additional time to file a
response to the foreclosure complaint. Shortly thereafter, on September
30, 2009, default was entered against the Dukes. In November of 2009,
a n agreed order on motion for additional time to file response was
entered, allowing the Dukes to file their response to the foreclosure
complaint on or before November 12, 2009.

On November 18, 2009, a hearing was held on HSBC’s motion for
summary judgment. At the hearing, the original note was unable to be
located. The Dukes argued that the original note did not contain any
endorsements proving that the note and mortgage were assigned to
HSBC, thus summary judgment should not be granted because of an
issue of material fact precluding such a determination. However, the
trial court entered final summary judgment of foreclosure on November
18, 2009, and set a sale date of December 21, 2009. This appeal
followed.

The standard of review on an order “granting summary judgment is de
novo.” McLeod v. Bankier, 63 So. 3d 858, 860 (Fla. 4th DCA 2011).
Summary judgment is granted only when no genuine issues of material
fact exist and the party moving for summary judgment is, as a matter of
law, entitled to judgment. Id. Florida Rule of Civil Procedure 1.510(c)
governs summary judgment motions and proceedings. The rule states,
in relevant part:

The motion shall state with particularity the grounds upon
which it is based and the substantial matters of law to be
argued and shall specifically identify any affidavits, answers
to interrogatories, admissions, depositions, a n d other
materials as would be admissible in evidence (“summary
judgment evidence”) on which the movant relies. The movant
shall serve the motion at least 20 days before the time fixed
for the hearing, and shall also serve at that time a copy of
any summary judgment evidence on which the movant relies
that has not already been filed with the court. . . . The
judgment sought shall be rendered forthwith if the pleadings
and summary judgment 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.

Fla. R. Civ. P. 1.510(c).

The Dukes argued that at the time the foreclosure complaint was
filed, the mortgage was held by First NLC, not appellee, HSBC. In its
complaint, HSBC alleged it owned and held the note and mortgage at the
time the complaint was filed. “When exhibits are attached to a
complaint, the contents of the exhibits control over the allegations of the
complaint.” BAC Funding Consortium Inc. v. Jean-Jacques, 28 So. 3d
936, 938 (Fla. 2d DCA 2010). Here, HSBC alleged in its complaint that it
“now owns and holds the Note and Mortgage,” but an assignment was
not attached to the complaint, supporting HSBC’s position. Instead, the
mortgage attached to the complaint showed First NLC as the lender,
creating discrepancies between the complaint and the attached exhibit.
Thus, at the time of the argument on the summary judgment motion,
genuine issues of material fact existed as to whether HSBC was the
proper owner and holder of the note and mortgage where First NLC was
named on the mortgage and evidence of an assignment was not included.

We therefore reverse the trial court’s order granting summary
judgment because genuine issues of material fact remain in dispute
regarding the owner and holder of the note and mortgage at the time the
complaint was filed.

Reversed.

GROSS and CONNER, JJ., concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Meenu T. Sasser, Judge; L.T. Case No. 502009CA018957
XXXXMB.

Elsa M. Figueras of E. Figueras & Associates, P.A., Davie, and Peter J.
Snyder of Peter J. Snyder, P.A., Boca Raton, for appellants.
Enrico G. Gonzalez, Temple Terrace, for appellee.

Not final until disposition of timely filed motion for rehearing.

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Great job! FL Atty Carol C. Asbury

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2011

VENTURE HOLDINGS & ACQUISITIONS GROUP, LLC and VINCENZO GURRERA,
Appellants,

v.

A.I.M. FUNDING GROUP, LLC,
Appellee.
No. 4D10-832

REAL INVESTMENTS, LLC and ALEXANDER GONZALEZ,
Appellants,

v.

A.I.M. FUNDING GROUP, LLC,
Appellee.
No. 4D10-1159

REAL INVESTMENTS, LLC and ALEXANDER GONZALEZ,
Appellants,

v.

A.I.M. FUNDING GROUP, LLC,
Appellee.
No. 4D10-1848

[ November 23, 2011 ]

PER CURIAM.

In these consolidated appeals, appellants challenge three separate
final summary judgments of foreclosure entered in favor of appellee,
A.I.M. Funding Group, LLC. Appellants raise several arguments on
appeal, two of which merit discussion: (1) A.I.M., having assigned the
promissory note as collateral for a loan, was not the proper party in
interest to file suit, and (2) the trial court erred in granting summary
judgment for A.I.M. without receiving the original promissory note or
accounting for its absence. We find that because A.I.M. did not file the
original promissory note or account for its absence before the court
entered summary judgment, we must reverse the summary judgment
orders in each of the cases. We further find that A.I.M. lacked standing
to foreclose at the time it filed its complaints, but that some parties
waived the defense of lack of standing. Any remaining issues are
rendered moot by our decision and we decline to address them.

Factual Background

In April 2007, Venture Holdings & Acquisitions Group, Inc. and
Vincenzo Gurrera, individually, entered into a loan agreement with A.I.M.
and gave A.I.M. a mortgage on certain real property. Gurrera, Venture’s
president, signed the promissory note as a guarantor.

Likewise, Real Investments LLC entered into two loans with A.I.M, one
in January 2008 and another in May 2008. In connection with these
loans, Real gave A.I.M. a mortgage on two properties. Alexander
Gonzalez, Real’s president, signed the promissory notes as a guarantor.
There is no dispute that the borrowers failed to remain current on
their payments and defaulted on all three loans. Accordingly, A.I.M. filed
mortgage foreclosure actions on the three properties.

In Case No. 09-19636, A.I.M. sought to foreclose o n Venture’s
property. Gurrera filed a proper answer, but Venture did not. A.I.M.
moved for default against Venture and the court granted the motion.
This default has not been contested in this appeal.

In Case Nos. 09-018086 and 09-18089, A.I.M. sought to foreclose on
the two properties owned by Real. In Case No. 09-018086, Gonzalez filed
a proper answer, but Real did not. A.I.M. moved for a default against
Real and the court granted the motion. This default has not been
contested in this appeal. In Case No. 09-18089, however, both Real and
Gonzalez answered the complaint.

In each of its complaints, A.I.M. alleged that it “now owns and holds
the Mortgage Note and Mortgage.” Prior to initiating suit, A.I.M. assigned
its interest in the properties as collateral for a loan. This was indicated
by an allonge attached to each promissory note. The assignment was
still in effect when A.I.M. filed suit.1 The circuit court, in each case,
determined that no issues of genuine fact were raised by the defendants.
In each case summary judgment was entered against the defendants and
in favor of A.I.M. These consolidated appeals followed.

Analysis

“The standard of review of an order granting summary judgment is de
novo.” Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So. 3d 1211,
1213 (Fla. 4th DCA 2009). We examine the record in the light most
favorable to the non-moving party. Id. The moving party must
conclusively show the absence of any genuine issue of material fact. Id.
An assignment of a promissory note or mortgage, or the right to
enforce such, must pre-date the filing of a foreclosure action. Jeff-Ray
Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990). A party
must have standing to file suit at its inception and may not remedy this
defect by subsequently obtaining standing. Progressive Exp. Ins. Co. v.
McGrath Cmty. Chiropractic, 913 So. 2d 1281 (Fla. 2d DCA 2005). “The
assignee of a mortgage and note assigned as collateral security is the real
party in interest, that he holds the legal title to the mortgage and note,
and that he, not the assignor is the proper party to file a suit to foreclose
the mortgage.” Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla. 1st
DCA 1966); see also A & B Discount Lumber & Supply, Inc. v. Mitchell,
799 So. 2d 301, 307-08 (Fla. 5th DCA 2001).

Here, before A.I.M. filed any of the foreclosure actions below, A.I.M.
assigned the promissory note and mortgage to a third party as collateral
for a loan. Thus, A.I.M. did not have standing to foreclose on any of the
properties at the time it filed suit. However, “th e entry of default
precludes a party from contesting the existence of the plaintiff’s claim
and liability thereon.” Fla. Bar v. Porter, 684 So. 2d 810, 813 n.4 (Fla.
1996) (citations omitted). Real, in Case No. 09-018086, was found to be
in default. Venture in Case No. 09-19636, was found to be in default.
Neither party may contest A.I.M.’s standing at the inception of the suit.
See Glynn v. First Union Nat’l Bank, 912 So. 2d 357, 358 (Fla. 4th DCA
2005) (holding that a homeowner waived any claim that the bank lacked
standing to foreclose where the homeowner never filed a motion or an
answer in the trial court).

But even a party in default does not admit that the plaintiff in a
foreclosure action possesses the original promissory note. See Lenfesty
v. Coe, 16 So. 277, 278 (Fla. 1894). “The decree pro confesso cannot be
extended to a confession of ownership of the note in complainant up to
the time of the master’s report and the confirmation thereof by the court,
and the authorities above cited sustain the view that a production of the
note or securities at the hearing is essential to show complainant’s right
to judgment then.” Id. A.I.M., in order to be entitled to summary
judgment, must establish that it is the proper holder of the promissory
note. Id.

In this case, A.I.M. failed to produce the original promissory note,
failed to account for its absence, and failed to present evidence to
otherwise establish it was the proper holder of the note. The allonge
established that the note was indorsed to a third party. A.I.M.’s failure to
produce the original promissory note, or account for its absence, created
a genuine issue of material fact. Lenfesty, 16 So. at 278. For this reason
alone, the summary judgments were improper in each of the cases.2

Accordingly, in Case No. 09-18089, we reverse the final summary
judgment and remand with directions that the action be dismissed in its
entirety without prejudice.

In Case No. 09-19636, we reverse the summary judgment and vacate
the final judgment of foreclosure. With regard to appellant Vincenzo
Gurrera only, we direct that the action be dismissed without prejudice.
With regard to Venture, however, we do not direct dismissal of the action.

In Case No. 09-018086, we reverse the summary judgment and vacate
the final judgment of foreclosure. With regard to appellant Alexander
Gonzalez only, we direct that the action be dismissed without prejudice.
With regard to Real, however, we do not direct dismissal of the action.
While A.I.M. is free to file the original promissory note and to move for
summary judgment in the actions that have not been dismissed as to
Venture and Real, we caution that the absence of Gurrera and Gonzalez
from those proceedings would leave those parties’ interests unaffected by
any judgment.

Reversed and Remanded.

TAYLOR, HAZOURI and LEVINE, JJ., concur.

* * *

Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Ana I. Gardiner, Judge(Carol, please
check the judges in the other cases) ; L.T. Case Nos. 09-018086 CACE,
09-18089 08, and 09-19636 CACE.

Carol C. Asbury, Fort Lauderdale, for appellants.

Thomas D. Oates of the Law Offices of Oates & Oates, P.A., Pompano,
for appellee.

Not final until disposition of timely filed motion for rehearing.

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“This action concerns far more than the financial interests of a few sophisticated investors,” Pauley wrote. “And the intervention of the State AGs in this action will protect the interests of absent investors.”

 WSJ-

The federal judge presiding over the landmark $8.5 billion settlement between Bank of America Corp. (BAC) and major investors in mortgage-backed securities has allowed the state attorneys general of New York and Delaware to intervene in the case.

In a ruling dated Friday, Judge William H. Pauley agreed with the state lawmakers that the massive settlement carries implications for the nation’s financial markets, not just the investors who will be impacted by the pact.

“This action concerns far more than the financial interests of a few sophisticated investors,” Pauley wrote. “And the intervention of the State AGs in this action will protect the interests of absent investors.”

[WALL STREET JOURNAL]

HuffPO-

No other state has experienced the dizzying heights of the housing boom or the depths of the subsequent bust quite like California. Today, four metro areas in the Golden State have the highest foreclosure rates in the country, eclipsing — for the first time — even Las Vegas, Nevada. In last night’s look at the housing crisis that continues to cripple this country, we traveled to southern California and met Lise Johnson, a mother of four who’s been in the same home for 12 years and is desperate to stay put.

[HUFFINGTON POST]

Supreme Court of Florida
____________
No. SC08-2443
____________

IN RE: IMPLEMENTATION OF COMMITTEE ON PRIVACY AND COURT RECORDS RECOMMENDATIONS—AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE; THE FLORIDA RULES OF JUDICIAL ADMINISTRATION; THE FLORIDA RULES OF CRIMINAL PROCEDURE; THE FLORIDA PROBATE RULES; THE FLORIDA SMALL CLAIMS RULES; THE FLORIDA RULES OF APPELLATE PROCEDURE; AND THE FLORIDA FAMILY LAW RULES OF PROCEDURE.

[November 3, 2011]

REVISED OPINION

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© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

EX PARTE COMMUNICATION, TOO

KWTNBLUE-

It was just a routine foreclosure case. Nothing special. Just another poor smuck losing his house. The pupose of the hearing was to determine how much the smuck was going to have to pay the bank in addition to giving up his house. In legalese, that’s a deficiency judgement. The smuck appealed to the Third District Court of Appeals— but he lost there, too. A three-judge panel voted 2-1 in favor of the bank.

Appeals Judge Juan Ramirez Jr was the sole dissenting judge— but, boy, was his dissenting opinion a barn-burner! “In my view, to affirm what happened here requires that we turn a blind eye to the Florida Rules of Civil Procedure, the Florida Bar Rules of Professional Conduct, and the Code of Judicial Conduct, to say nothing of the Constitutions of the United States and the State of Florida,” Judge Ramirez wrote.

“I dissent because I cannot condone the unprofessional and unethical means used by the bank’s counsel, with the trial court’s complicity, to obtain an amended final judgment in this case. Counsel for Centennial Bank admitted at oral argument that the amended final judgment, which more than doubled the amount of the deficiency judgment, was obtained after an ex parte communication with the judge’s chambers.

“Either the judge or her staff then advised counsel on how to proceed,” Judge Ramirez continued. “Not only was it improper for the trial court to give legal advice, but the advice was wrong— directing counsel to send a letter with a proposed amended final judgment, rather than to file a motion seeking appropriate relief. This was then followed by another ex parte communication— a letter from the bank’s counsel to the judge, that then resulted in a new final judgment two and half times larger than the previous final judgment. The bank did not even send a copy of the letter to the appellant.”

[KWTN]

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You should know by now that no one and I mean no one is coming to the borrowers rescue, even after all the fraud, after all the robo-signing… No one has tried to put a stop to this fraud.

A simple halt to investigate and an examination of the documents would easily demonstrate the massive fraud happening to titles to real estate. Each day that goes by, families continue to get evicted.

But NO.

PERIOD.

END OF STORY.

Palm Beach Post-

Florida Attorney General Pam Bondi’s effort to play catch-up and clear her name following the revelation that her office fired two highly praised foreclosure fraud attorneys suggests that she is more concerned with her image than her job.

In July, The Post’s Kim Miller broke the story of the firings, which happened in May. On Tuesday, Ms. Miller reported on emails related to the firings. In one, Ms. Bondi responds to a statement detailing that June Clarkson and Theresa Edwards were fired because of “shoddy legal work” by saying, “I can finally go to sleep now and quit worrying about how these women will attempt to destroy me.”

In another email, Ms. Bondi wrote that she learned about the firings during a “two-minute phone call” and that she “did not even know the details, nor should I have needed to know.”

Therein lies the problem.

[PALM BEACH POST]

IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT, IN AND FOR
DUVAL COUNTY, FLORIDA

JIM FULLER, CLERK OF THE CIRCUIT
COURT, DUVAL COUNTY, FLORIDA,
in his official capacity and on behalf of
all those similarly situated,

Plaintiff,

vs.

MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., a Delaware corporation; and
MERSCORP, INC., a Delaware Corporation

Defendants.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

July Term 2011

FAYTHE P. WOODRUM, TIMOTHY P. WOODRUM and DAWN M.
WOODRUM,
Appellants,

v.

WELLS FARGO MORTGAGE BANK, N.A., as successor by merger to
WACHOVIA BANK, N.A.,
Appellee.

No. 4D10-3538

[November 9, 2011]

PER CURIAM.

The Appellants, the Woodrums, appeal the trial court’s entry of a final
summary judgment of foreclosure in favor of Wells Fargo Mortgage Bank,
N.A. They argue that entry of summary judgment was error where the
record did not refute affirmative defenses raised by one of the Appellants
in an affidavit in opposition to the motion for summary judgment. We
agree and reverse.

The bank filed a mortgage foreclosure complaint, to which the
Woodrums failed to file an answer. Instead of moving for entry of a
default, the bank filed a motion for summary judgment. In response, one
of the Appellants, Faythe P. Woodrum, filed an affidavit in opposition to
the motion, which raised numerous affirmative defenses.

The standard of review of an order granting summary judgment is de
novo. E. Qualcom Corp. v. Global Commerce Ctr. Ass’n, 59 So. 3d 347,
350 (Fla. 4th DCA 2011) (citation omitted). “[I]f a plaintiff moves for
summary judgment prior to the defendant’s filing an answer, she must
conclusively demonstrate that the defendant cannot assert a genuine
issue of material fact.” Miles v. Robinson ex. rel. Estate of Kight, 803 So.
2d 864, 865 (Fla. 4th DCA 2001) (citation omitted).

The bank argues o n appeal that where a n answer is overdue,
affirmative defenses raised in a n affidavit opposing the motion for
summary judgment cannot be considered by the trial court. The bank
offers no case law supporting its position. Florida Rule of Civil Procedure
1.510(c) allows the court to consider affidavits when determining whether
a genuine issue of material fact exists. Additionally, a party may plead or
defend at any time before a default is entered. Fla. R. Civ. P. 1.500(c).
Because the bank failed to refute the affirmative defenses or show
they were legally insufficient, it was error for the trial court to grant
summary judgment. See Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th
DCA 2009).

Reversed and remanded.

TAYLOR, HAZOURI and LEVINE, JJ., concur.
* * *
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Victor Tobin, Judge; L.T. Case No. 09-43276 CACE 18.

Philippe Symonovicz of Law Offices of Philippe Symonovicz, Fort
Lauderdale, for appellants.

Todd A. Armbruster of Moskowitz, Mandell, Salim & Simowitz, P.A.,
Fort Lauderdale, for appellee.

Not final until disposition of timely filed motion for rehearing

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© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

This is major and pay close attention to the words below

Mortgage Servicing News-

The most recent lawsuit was filed by a county clerk in Florida, and seeks class action status to represent the state’s 67 counties. The complaint alleges the use of MERS does not comply with state property laws and has cost municipalities millions in unpaid recording fees.

Jim Fuller, the clerk of Duval County, filed suit against Merscorp Inc. and its wholly owned subsidiary, Mortgage Electronic Registration Systems, Inc., on Oct. 31, claiming civil conspiracy, unjust enrichment, as well as fraudulent and negligent misrepresentation. The suit also seeks a hearing to determine the validity of tracking note transfers on the MERS System and a court injunction to prohibit the use of MERS in Florida.

“MERS has usurped the rights and privileges of the Florida Clerks of Court by establishing, maintaining and inducing lenders to use its private recording system, which unlawfully interferes and competes with the public recording system,” the suit, filed in state circuit court, reads.

[…]

“Both the note and mortgage are to be recorded. The principle issue we’re trying to get at is the punitive distinction of MERS being the mortgagee while the note is shifted from one to another up through the typical securitization process,” Volpe said in a phone interview. “The principle concern about the disconnect is that the public records are not complete insofar as the true beneficial owner of the mortgage is not reflected in the public records.”

[MORTGAGE SERVICING NEWS]

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Via Foreclosure Hamlet-

I urge everyone to email

Melissa Sotillo msotillo@pbcgov.org

[FORECLOSURE HAMLET]

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I had to post this and sorry if off topic… this goes to show that no one is above the law.

Miami Police going 120mph to an off duty job… Trooper isn’t having it!