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Standing Before A Florida Judge…

April 18, 2010

DISCLAIMER: THE CONTENT IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE MISCONSTRUED AS LEGAL ADVICE! Anthony Martinez is a Complex Litigation & Consulting Expert. Neither Anthony Martinez nor his firm AMA engage in the practice of law and only work in conjunction with licensed practicing attorneys. AMA will provide public information only and will not provide any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms or strategies.

Be Prepared Be Prepared Be Prepared!!!

Most Pro-Se Homeowners don’t know this and EVERY attorney representing a homeowner in a foreclosure case should.  When you go in front of a Florida Court Judge for any type of hearing, be prepared…be prepare…be prepared!  So what exactly does that mean? I’m going to get into depth on this topic because I’ve been sitting in judges chambers as of late watching homeowners and attorneys go before some really great judges that actually listen yet lose interest and get frustrated because of the terrible presentation before them.

Here is the AMA Best Practices on Foreclosure Defense Tactics in FRONT OF THE JUDGE!!!

1. Print out a copy of all the case-law you’ve cited in your pleadings and highlight the important portions you are relying on.  Judges are people, not super computers that have ever case in history memorized.  When you bring up a point that is supported by case-law the judge is going to want to see it.  Don’t be that person that say’s “oh uh I don’t have it.”  That’s like going back to the 8th grade and telling your teacher you forgot your homework.  No matter what the excuse, you just made yourself look bad.

2. Beware citing cases that have a line or two in your favor but the rest of the case completely disproves or hurts your argument.  Even though you highlighted the portion you want the judge t focus on, if it’s interesting enough, he will continue to read.  Don’t let the additional reading pull him away from the point you are trying to make.

3.  It’s a 5 minute hearing at best so Keep It Simple Sweetheart (K.I.S.S.).  Sales people are trained to close their targets in minutes and can identify if their target is sold on their spiel using K.I.S.S.  You are a sales person and the judge is your target.  Keep it simple and he will love you.  Complicate the issue and you will frustrate him and lose him.  Don’t go into the hearing shooting from the hip.  Know what points you want to focus on, have those cases available and bring it home in 5 minutes or less.

4.  If in your hearing you see opposing counsel has pissed off the judge and his/her honor begin digging into opposing counsel, keep your mouth shut!  You’re work is pretty much done!  Once the judge is done spanking opposing counsel all you need to do is remind the judge why he should rule in your favor and when he does, simply ask if he/she would like you to draft the Order then get out of there!

5.  Pro-Se homeowners, you are in front of the judge whose only objective and desire is to hear the facts in dispute.  The judge does not want to hear Countrywide is a predatory lender.  The judge does not want to hear how you are being abused.  There are ways that I have observed that have helped a homeowners argument.  For example I’ve seen a homeowner before a judge who rather than call it predatory lending stated that their monthly payment went from $1,800.oo a month to $5,300.00 a month.  This caused the judge to take a greater interest in homeowners argument.  When you are speaking with the judge only bring up the facts that are in dispute.  For example Capacity to Sue, Standing to Foreclose, Negotiable Instrument, UCC, Conditions Precedent (i.e. failure to post non-residential bond), Notice of Acceleration etc.  These are all facts in dispute to be raised and have supported case-law to argue.

6.  The “endorsed note” magically has appeared in the file.  I’ve seen defense counsel stumped on this one as opposing counsel now has a “legal standing” argument.  SO WHAT!  It takes more than a note endorsed in blank to prove standing.  Remember Florida requires you to be the OWNER and HOLDER of the Note.  If the complaint alleged OWNER and HOLDER and the note is endorsed in blank the OWNER element has not been met. BEWARE the MERS assignment to support the transfer of the beneficial interest in the NOTE.  I’m seeing attorney after attorney walk into court and have their Motion to Dismiss denied because they fail at this juncture of the hearing.  These MERS assignments should be scrutinized in their entirety but there is no need to try to cry conspiracy.  Judges don’t want to hear that.  Instead approach the document on its face.  MERS is cited as nominee on MORTGAGE and is NOT mentioned ANYWHERE on the Note.  The Mortgage follows the Note and not vice versa.  Although opposing counsel can argue MERS granted its interest in the Mortgage, the Note does not mention MERS anywhere on the document.  Hence a MERS Assignment that transfers beneficial interest in the Note when MERS is not mentioned anywhere on the NOTE is a fact in dispute that will cause a judge t ask opposing counsel… “How is MERS able to issue and assignment transferring a beneficial interest that the Note clearly does not give them to transfer?”  This will cause a judge to dismiss.

7.  Your place on the docket – whether hearings are being held in chambers on in the courtroom, once you are in there, make it a point to listen to the other foreclosure cases being heard before you.  They are critical to determining the mood of the judge and if lawyers are making the same arguments as you and the judge is denying them.  Be smart and ready to adapt your strategy to the color of the day. Paying attention to this is crucial to success in front of the judge.  If you see the judge is playful in his commentary don’t change his mood against you.  If you see he’s not favoring opposing counsel today, come out straight to the point and force opposing counsel to respond.  Use insight of what you are seeing in court to your advantage.

I will begin posting more comments like these to help attorneys and pro-se homeowners alike. The point of this post is to get you all to be prepared.  Most judges want to help but you have to do your part, be right on point and raise the important issues. Feel free to reach out to me if you have any questions at anthony@amartinezlaw.com or www.amartinezlaw.com.

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