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.”
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.
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.
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.
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.
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.
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.
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.
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.
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
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 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
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.
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
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.
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?
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:
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2010
CARMEN VALCARCEL and VICTOR VALCARCEL,
Appellants,
v. CHASE BANK USA NA,
Appellee.
No. 4D10-379
[November 24, 2010]
TOWBIN SINGER, MICHELE, Associate Judge.
EXCERPTS:
The trial court granted the Valcarcels’ motion to dismiss as a sanction against Chase for sending a letter regarding the Valcarcels’ mortgage directly to the Valcarcels, rather than the Valcarcels’ lawyer. This mailing was a violation of rule 1.080(b), which requires service to be made upon a party’s attorney when he is represented by counsel.
Florida Rule of Civil Procedure 1.420(b) provides in pertinent part: “(b) Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court.” Rule 1.420(d) provides: “(d) Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.”
The trial court erred in denying the Valcarcels’ motion for attorney’s fees and costs based upon its finding that the order was not a judgment. Although the dismissal order was not an adjudication on the merits, the Valcarcels can nonetheless be considered the prevailing party. They are entitled to an award of attorney’s fees because the action against them was dismissed. We, therefore, reverse and remand to the trial court to determine the amount of attorney’s fees that should be awarded to the Valcarcels for both the trial and appellate proceedings.
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.
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.
Florida lawyer warns of deepening foreclosure mess
By Kevin Gray
ROYAL PALM BEACH, Florida | Wed Oct 6, 2010 2:58pm EDT
ROYAL PALM BEACH, Florida (Reuters) – A Florida lawyer at the forefront of legal challenges against foreclosure practices by mortgage lenders says the U.S. housing morass will drag on due to difficulty in determining who owns home loans.
Questions over practices in foreclosure procedures across the United States have forced at least three banks to temporarily halt their proceedings and prompted a growing chorus of calls by lawmakers and regulators for an industry-wide moratorium until problems are resolved.
However, Tom Ice, whose law firm Ice Legal P.A. was among the first to get banking executives to acknowledge shoddy foreclosure practices, said it will be difficult for banks to fix all of the paperwork errors.
“This isn’t just a procedural technicality, it’s exposed the very problem at the heart of the securitization fiasco, which is no one knows who owns what,” he said in an interview on Tuesday.
A record 1.2 million U.S. homes are expected to be taken over by banks this year, up from 1 million last year and 100,000 in 2005, real estate data company RealtyTrac Inc. says.
Faced with a rising tide of foreclosures, lenders employed so-called “robo-signers” — middle-ranking banking executives who signed thousands of affidavits a month claiming they were knowledgeable of the cases.
However, some lenders, prodded by legal challenges, now say officials were not aware of details in all of the cases and vow to resubmit them. It is unclear how many cases are involved but it is believed to be in the tens of thousands.
But Ice said a broader problem was damaging the process of resolving the foreclosures. He said many banks were initiating proceedings without knowing if they in fact own the loans and often failed to produce requested documents.
The securitization of home loans meant many have been sold off to other investors. Banks still own some, but frequently serve as loan servicers on behalf of the actual owner, whether it is another bank or an investor pool.
Some mortgages can be tracked in an electronic system known as MERS, or the Mortgage Electronic Registration Systems, that traces transfers among member banks. But the mechanism is not fully reliable, Ice said.
A recent sample among some 400 foreclosure cases Ice’s law firm is handling revealed 71 percent with possible discrepancies in detailing the owners of clients’ loans.
“Few of these processes followed the rules, shortcuts were used at every step,” he said. “The industry itself doesn’t know who owns what.”
BANKS WARY OF BAD LOAN STIGMA
Some banks may be reluctant to step forward, worried about how it might reflect the amount of bad loans on their balance sheets, Ice added.
Lenders, including JPMorgan Chase and Co., Bank of America Corp and Ally Financial Inc, are now scrambling to defend and improve their foreclosure procedures.
LOXAHATCHEE, Fla.—Israel Machado’s foreclosure started out as a routine affair. In the summer of 2008, as the economy began to soften, Mr. Machado’s pool-cleaning business suffered and like millions of other Americans, he fell behind on his $400,000 mortgage.
But Mr. Machado’s response was unlike most other Americans’. Instead of handing his home over to the lender, IndyMac Bank FSB, he hired Ice Legal LP in nearby Royal Palm Beach to fight the foreclosure. The law firm researched the history of Mr. Machado’s loan and found two interesting facts.
First, the affidavits IndyMac used to file the foreclosure were signed by a so-called robo-signer named Erica A. Johnson-Seck, who routinely signed 6,000 documents a week related to foreclosures and bankruptcy. That volume, the court decided, meant Ms. Johnson-Seck couldn’t possibly have thoroughly reviewed the facts of Mr. Machado’s case, as required by law.
Secondly, IndyMac (now called OneWest Bank) no longer owned the loan—a group of investors in a securitized trust managed by Deutsche Bank did. Determining that IndyMac didn’t really have standing to foreclose, a judge threw out the case and ordered IndyMac to pay Mr. Machado’s $30,000 legal bill.
Mr. Machado and his lawyer, Tom Ice, say they now want to convince the owners of the mortgage to cut Mr. Machado’s loan balance to between $150,000 and $200,000—the current selling price for comparable homes in his community near West Palm Beach. “The whole intent was to get them to come to the negotiating table, to get me in a fixed-rate mortgage that worked,” Mr. Machado said.
Recent Comments