To all of you… …YOU ARE NOT ALONE and the moment you do feel alone it’s post’s like Lisa’s and Matt’s telling you they’re being attacked too that let us know we’re not alone.  ANYONE who is trying to help people in this uphill battle WILL BE ATTACKED!  Whether it be from companies like NTC, the Florida Bar, the Attorney General’s Office or foreclosure Mills like David J. Stern, an attempt to silence you will be made.  What we have seen in this foreclosure crisis is simple.  Corporate America truly believes they are bigger than the Constitution of the United States.  As a people we are finding it very difficult to have our own government protect us because unfortunately throughout the years they have played a major role in shredding the Constitution at the payment of large Corporate America.  Regardless to how successful they may have all been in executing their agenda’s by sacrificing the people, I would remind everyone of the decision made to fight for our independence from the British.  The mindset, the will power of the overall realization of a dream that we will no longer allow.  We will no longer allow is a strong feeling and view.  When we decided then that we would no longer allow, we stood up and fought.  We became the United States of America!  When we decided we will no longer allow, we brought an end to segregation.  When we decided we will no longer allow, we changed American voting.  The list is extensive when we the people decide… …we will no longer allow.

MY MESSAGE TO COMPANIES LIKE NATIONWIDE TITLE CLEARING & OTHERS

When people, government officials or corporations come into the people’s cross-hairs and a decision is made that we will no longer allow, YOU ARE DONE!  I will let history remind you that the proof of that statement is in the pudding.  To all the powers that be:

If you are emotional and acting on emotion DON’T!  Whoever is advising you to suppress freedom of speech as a means to strengthen your position has you ill advised…FIRE THEM!  Do not confuse what you do to turn a profit with being morally correct and sound.  This foreclosure crisis has been a direct attack against the American people on American soil for monetary gain.  American’s (as you can see) are starting to stand up and say “We will no longer allow!”  If you’ve learned anything from what has transpired with the Law Office of David J. Stern, it should be that when YOU get enough negative publicity in the American Press, no one will want to do business or associate themselves with YOU.  For NTC, your efforts are misplaced.  Attacking those who are advocates of the PEOPLE like Matt Weidner and Lisa Epstein makes you look bad.  The robo-signer negative publicity has had its impact but you were better off cleaning up that mess by re-assigning people and assuring the AMERICAN PEOPLE that you will take steps and measures to ensure NO robo-signing exist.  It would be better to agree with the people and show a positive support for the people rather than giving them the finger and hiring attorney’s to attack their CONSTITUTIONAL RIGHT to voice their opinion.  Truth be told, the American people don’t care about NTC or Stern or any other company.  They care about their family and friends and do business with those who will further their needs.  Your moves will only cause greater NEGATIVE PUBLICITY toward you which in turn, will cause YOUR CLIENTS to worry about their reputations and business if they associate and do business with YOU!  You don’t believe me?  Watch and learn how this Litigation Consultant gave you free insight that either saved or destroyed your business.     

Remove the legal theories and millions of dollars for a second and realize that millions of people have lost their homes or are losing them.  Children are losing their bedrooms and beds.  They are losing their sense of home and safety.  There are many arguments to be made and I have no doubt many people sleep just fine at night.  But again, if you can remove the legal theories and millions of dollars of profit out of the equation for a minute and just realize that family dreams and children’s futures have been compromised, you will see more clearly why your business line is more part of the problem and less part of the solution.  Children are hurting and are homeless.  Parents are failing.  The American Dream is crushed and at a record-breaking all time low.  If you can realize that for a second by looking into the eyes of your children and imagining it was your kids, you’d move differently.  You would have a different perspective.        

Companies like NTC, MERS, banks, servicer companies and Wall Street all around have an opportunity to say you know what, we’ve made enough money let’s stop the bleeding.  The government has the opportunity to come together with these companies and say listen, we are going to give all homestead homeowners a $250,000 forgiveness on their property.  Those whose homes are more than that receive a principal reduction of $250,000 and get a permanent modification at the new rate…PERIOD!  No fill out a hundred forms 15 times.  Those whose properties are less than $250,000 own their property free and clear.  You have to know the first thing they will do is run to the bank to re-finance.  Now you have a completely new Wall Street business BOOM!  See, problem solved in 5 lines or less!  And yes I’m being a bit flip about it only because some things should not be so hard.  Because truth be told both Corporate America and the Government are running out of time.  Soon the American people will stand up and say to YOU ALL…

WE WILL NO LONGER ALLOW!!!

(a) Parties Generally. Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought… 

The activation of this rule must be supported by – in effect - complying with Rule 1.130(a) of the Florida Rules of Civil Procedure that state:

(a) Instruments Attached.All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading…

 There is a misconception that the note and/or mortgage attached to the complaint is the operative document in support of the allegations in the pleading.  The note and mortgage are attached to the pleading because it is a foreclosure action and all foreclosure actions require such.  However, to sustain that a Plaintiff has standing to bring the action is very much separate and apart if that party’s name is not the name mentioned on the note/mortgage attached to the complaint.  Hence, in cases where the Plaintiff is not the name mentioned on the note/mortgage attached to the complaint, the “contract or document” granting such authority must be attached.  This is why we began seeing those bogus assignments surfacing all over the place. 

For a Servicer who is bringing the action on behalf of the “real” owner however, the operative document is the “contract” between the Servicer and the “real” owner.  This is a document that NO ONE is seeing attached to the Complaints.  The newest of Complaints being filed are actually alleging “Plaintiff is the Servicer for the owner and holder of the note and mortgage is authorized to bring this action.”  Without the “servicer contract” being attached to the complaint, Plaintiff’s have failed to state a cause of action and lack standing as they have not shown they are the “authorized” party as they have alleged in the complaint.  US Trustees and now doing this in their responses to Motions for Relief from the Automatic Stay pretender lenders are filing in bankruptcy claims.  US Trustee’s are simply saying in their pleadings:

“If Wells Fargo seeks to enforce the note and deed to secured debt as a servicer/agent of the holder of the note and security deed, Wells Fargo has failed to allege sufficient facts from which the Court can conclude that it is in fact the authorized agent of such holder and entitled to recover attorneys’ fees for its actions.”

The magic trick here is that it was ALWAYS the Servicer from the very beginning that was bringing these foreclosure actions in the name of another party – the trustee.  In a number of Bank of America cases where the caption reads the Plaintiff as Bank of America, NA and does not mention a trustee, you will sometimes see that the note and mortgage actually name Bank of America, NA as the lender.  You automatically think, ”wow” they have the right to foreclose…not so fast!  90% of the time you will see the allegations read “Plaintiff is the Servicer for the owner and holder of the note and mortgage is authorized to bring this action.”  That might cause you to scratch your head.  What the complaint is really saying is that this loan was sold some time ago by us but we are the Servicer for the current owner.  That’s great…where’s the operative document that supports that claim?  In most if not all instances where you see that the Plaintiff’s name matches the name of the lender on the note and mortgage, do a Fannie Mae search on the address.  Chances are you will find that the loan is owned by Fannie Mae and the Plaintiff has simply chose to omit that fact from the Court.  This is a great tool for attorneys to submit a very brief Request for Admission asking the critical re-affirmance “Admit you are the actual owner and holder of the note and mortgage.”  Get a yes back on that one while you have proof that Fannie Mae owns the note and you just uncovered a good fraud position to be supported by sanctions for attorney’s fees and costs.

As a rule of thumb always assume it is the Servicer that is foreclosing until you can rule that theory out.  If it is the servicer filing the action on behalf of a third-party then get the “documented facts” to support the Plaintiff is the servicer and move to dismiss using the failure to submit the “servicer agreement” between the servicer and the alleged “real” owner and holder of the note and mortgage.  The truth is they don’t want to disclose these documents because of the “other” information contained in them in addition to the fact that a “servicer agreement” would open the door for other operative documents subject to confidentiality.  They don’t want to disclose them even under a Protective Order.  These operative documents are at the very heart of the fraud and what plaintiff’s are hiding.  Also, remember that just because a “servicer agreement” that may actually be produced does state that they are the servicer for Fannie Mae for example doesn’t necessarily mean they are the Servicer for YOUR loan.  Make them prove it.  Move out of the complexity of conspiracy theories and move back to the statutory and rule requirements of the court.  If you don’t know how to or want the latest and greatest arguments contact us today!    

AMA NOTE: The foreclosure crisis is not just about people losing their homes to foreclosure.  It’s about homeowners who invested in their futures but were lied to from the very beginning about the contract they were entering into.  It doesn’t matter if you are foreclosed on or not.  If you’re a homeowner, you’re affected by the lie.  Anyone currently in foreclosure or not in foreclosure still making a monthly mortgage payment should contact AMA about your options.  If you are in foreclosure you should fight to keep your home.  If you’re not in foreclosure you should know that there is over a 95% chance that you’ve been paying a servicer every month an amount of money that was never and is not being applied to the loan you obligated yourself to.  With that in mind you should know your options.  Contact AMA today! 

I begin my analysis of every foreclosure case not looking at what the magical foreclosure Plaintiff wants me to look at.  I immediately ask some very basic fundamental questions first.  The basic gramma school learning technique of who, what, when, where and how.  The thing is, I don’t apply it to the magical foreclosure plaintiff, I apply it to the party that got them in the door…their attorneys!  See, as a discovery expert for the past 15 years or so, I’ve worked with over 45 of the top AMLAW 100 law firms throughout the world.  Firms like Skadden Arps, Baker & McKenzie, Latham & Watkins, White & Case etc. and I’ve learned that the reason why they gross over 2 billion a year is because their clients can afford to pay their $750.00 an hour and better for legal fees.  They are the big boys of the legal world no doubt and their clients are the money-making conglomerates of the corporate world.  So when I see Chase, Citibank, Deutsche and Wells Fargo as the Plaintiff and a guy named Miguel from a firm called Law Offices of David J. Stern signing paperwork on their behalf, it immediately raises a red flag to me.  Banks don’t hire law offices for a flat fee of $1,200.  They hire entire FIRMS at $750.00 an hour to make sure they don’t lose!  With that red flag in mind I begin my research.

Over and over again I begin to find these so-called ”servicers” of all different names and pretty colors popping up.  I begin to look at SEC filings and other documents to see all the players to a “pool” of loans applying my skillful and advanced grammar school training of who, what, when, where, why and how.  I see the same red flag issue in the SEC documents.  I see major big boys from wall street like Goldman Sachs and a slew of self-created special purpose corporate created vehicles to limit liability to the core entities and I see who’s representing them in these big “pools” of money…an AMLAW 100 law firm.  Now I know the “who” factor so I move on to the “what” factor and that’s pretty simple enough.  It’s a “pool” of loans.  Not “a” loan but a “pool” of them so it’s billions of dollars at play and that makes perfect sense because big boys play with big money.  I recognize all of the big names but then I see names I don’t know like Home Loan Services which wouldn’t be so bad until research uncovers how this servicer uses DBA’s in the name of the big boy banks to give the “appearance” you are dealing with one of the big boys.  I’ve just found one of the illusions used in the magic trick!

Now all of this is pretty academic until you factor back in Miguel from Sterns Law Firm who just graduated law school in 2008.  Why did Deutsche Bank hire Stern and why did Stern let Miguel run with the case?  There is a long analysis here but I will get to the crux of it.  Deutsche Bank never hired Stern.  Home Loan Services did.  Why?  Because everyone had their share of the big money pie EXCEPT the servicer who’s cut was in the monthly homeowner payments and when everyone stopped paying their mortgage, the servicer stopped getting its cut.  The big boys were already paid off the deal long ago.  When people stopped making their payments the big boys didn’t suffer because their money was already made but the monthly payment is how the servicer made his share.  Agreements give servicers the right to foreclose in the name of the big boys.  So who hired Stern, Watson, Fishman or Florida Default to foreclose on your home?  The servicer!    

Stay tuned for Part II of this series coming shortly.  Circumventing the Rules of Civil Procedure To Bring Suit In Another Parties Name.

AMA NOTE: The foreclosure crisis is not just about people losing their homes to foreclosure.  It’s about homeowners who invested in their futures but were lied to from the very beginning about the contract they were entering into.  It doesn’t matter if you are foreclosed on or not.  If you’re a homeowner, you’re affected by the lie.  Anyone currently in foreclosure or not in foreclosure still making a monthly mortgage payment should contact AMA about your options.  If you are in foreclosure you should fight to keep your home.  If you’re not in foreclosure you should know that there is over a 95% chance that you’ve been paying a servicer every month an amount of money that was never and is not being applied to the loan you obligated yourself to.  With that in mind you should know your options.  Contact AMA today! 

In hearing after hearing I’m seeing these defense attorneys walk in with the same timid attitude of sorts trying to be nice, trying to maintain their professionalism while across the table I’m seeing these foreclosure mill runners (I call them runners because they’re not even the attorney on the case just the runner appearing before the judge on behalf of the foreclosure mill) being extremely flagrant, arrogant and flat-out bully like to a large degree.  And what I’ve noticed is that the moment they get tripped up by the more aggressive defense lawyer, they tend to quickly tell the judge how they’re not the attorney assigned to the case and how they’re just present for the hearing and will have to check back or ask for a continuance or make the defense feel like they’ve won something by postponing the sale.  Amazing how on the fly these runners are making decisions for their clients about postponements without making a call.

Quite frankly for those who know me personally I give you what you dish out.  If you act like a bully I’m going to treat you like a bully.  I personally don’t like these foreclosure mills and what they stand for on a moral and ethical front.  I believe that any attorney that can stomach putting families in masses in the street for money is morally challenged and any lawyer that’s willing to commit fraud upon the court doesn’t deserve my professional courtesy.  Defense attorneys need to stop treating these foreclosure mill attorneys as their equal brothers and sisters of the profession and start treating them like enemies of the state.  That may seem a bit harsh but for every homeowner that seeks our assistance does so with a passion unseen or felt by our profession.  We need to harvest that same passion, translate it into legal argument and bring it right into the courtroom.  We cannot allow for families to lose their home as a matter of course through runners!  RUNNERS!!! Are you kidding me!  We should be kicking their ass’s right out the courtroom down out to the street and we aren’t.  We are giving them professional courtesy.

I think it’s time to get aggressive and outright scary in these courtrooms.  Why should a judge take us seriously when we’re not bringing the passion and seriousness of the issues to the forefront?  I walk into courtrooms and see judges laughing, I see lawyers talking while waiting their turn and a hearing is going on.  I see judges making jokes and then saying your motion to dismiss is denied.  I am nothing short of AMAZED at how unimportant kicking a family out of their home is.  Let me tell you that it’s one thing to see an adult client in front of you but it is something completely different to visit their home and see a child 4 or 5 holding a toy or a 12-year-old ask you if you’re going to save his family.  I recently traveled to New York on another case and let me tell you that in these judges courtroom, intimidation is not the word.  NO ONE is talking in the courtroom.  These judges in New York are not playing and neither are the defense attorneys.  I see great passion and argument and I see judges looking squarely at the merits of the case.  So why is this not happening in Florida courts?

When I see my legal associates like Matt Weidner put up a post of frustration and fear that we are losing the battle I get angry and begin calling members of my legal team to have a strategy session and figure out new ways to take back the momentum.  Defense attorneys need to silence the courtroom with their passion and sound legal arguments.  They need to create the platform in which judges and other defense attorneys stay quiet to learn.  We need to own the room when we’re in it and speaking and we need to spank these little foreclosure mill runners and make them run back to daddy Stern or daddy Watson.  Walk into court every time knowing they’ve committed fraud.  Stop being so scared to say it and use every other word you know to describe it.  Say it loud…FRAUD FRAUD FRAUD!!!  Move for sanctions!  They’re crooks…treat them like it!  Stop treating them like your equal, stop giving them professional courtesy and start treating them like they deserve to be treated!

TIME TO TAKE OFF THE GLOVES!!!    

AMA NOTE: The foreclosure crisis is not just about people losing their homes to foreclosure.  It’s about homeowners who invested in their futures but were lied to from the very beginning about the contract they were entering into.  It doesn’t matter if you are foreclosed on or not.  If you’re a homeowner, you’re affected by the lie.  Anyone currently in foreclosure or not in foreclosure still making a monthly mortgage payment should contact AMA about your options.  If you are in foreclosure you should fight to keep your home.  If you’re not in foreclosure you should know that there is over a 95% chance that you’ve been paying a servicer every month an amount of money that was never and is not being applied to the loan you obligated yourself to.  With that in mind you should know your options.  Contact AMA today! 

——————————————————————————

17 Fla. L. Weekly Supp. 787a

Online Reference: FLWSUPP 1709FIRS

 Mortgages — Foreclosure — Discovery — Special magistrate’s recommended order granting motion to compel better responses to discovery requests relevant to plaintiff’s standing is adopted

FIRST FRANKLIN FINANCIAL CORPORATION, Plaintiff, v. RICHARD A. QUINLAN, et al., Defendants. Circuit Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2009-CA-5271-NC. June 21, 2010. Rick DeFuria, Judge. Nicholas J. Vanhook, Butler & Hosch, P.A., Orlando. Gregory D. Clark, Clearwater.

ORDER ADOPTING RECOMMENDED ORDER

THIS CAUSE came before the Court on the Recommended Order of Magistrate, filed by Magistrate Deborah A. Bailey, and the undersigned, having considered the findings and recommendation contained therein, it is hereby,

ORDERED AND ADJUDGED that:

1. The Recommended Order of Magistrate, entered on JUNE 1, 2010, a copy of which is attached hereto, is ratified and approved.

2. The parties are ordered to abide by all of the findings and recommendations contained in the Recommended Order of Magistrate, and the Court hereby adopts each and every finding and recommendation therein as the Order of this Court.

__________________

RECOMMENDED ORDER OF MAGISTRATE

This cause came on for hearing before Magistrate Deborah A. Bailey, on June 1, 2010, on the Defendant’s Motion to Compel. The Magistrate has jurisdiction pursuant to Rule 1.490 of the Florida Rules of Civil Procedure. Being fully advised in the premises, the Magistrate reports as follows:

1. This is a foreclosure case. On or about July 10, 2009, Defendant served a Request for Production on the Plaintiff. On or about July 22, 2009, Plaintiff responded primarily by objecting and producing minimal documentation, most of which had been previously filed in the court file. On or about August 6, 2009, Defendant served Plaintiff with a First Set of Interrogatories. Plaintiff’s response to Defendant’s Interrogatories was similar to its response to the Request to Produce — primarily objections and the disclosure of very little information.

2. As a result of the Plaintiff’s responses and objections, on or about December 11, 2009, Defendant moved to compel the Plaintiff to provide better responses to his discovery requests. Defendant asserts that his discovery requests are directly relevant because Defendant seeks documentation and information establishing the Plaintiff’s chain of ownership to the note and mortgage on which it seeks to foreclose. At the time of the hearing, Defendant’s counsel indicated that he is primarily interested in compelling answers to the Interrogatories at this time. Accordingly, the Magistrate has focused her review on the Interrogatories and the Plaintiff’s answers to same.

3. After review of the First Set of Interrogatories and the Plaintiff’s answers, the Magistrate recommends the Court overrule the Plaintiff’s objections¹ to Interrogatory Nos. 1, 2, 3, 4, 6, 8, 10, 12, 13, 14, 15, 16, 17, 18 and 19 and direct the Plaintiff to serve amended answers to these Interrogatories.

4. The Magistrate finds that the Plaintiff’s responses to Interrogatory Nos. 5, 9 and 11 are either deficient or non-responsive. Accordingly, the Magistrate recommends the Court direct the Plaintiff to serve amended answers to these Interrogatories.

5. The Magistrate finds that the Plaintiff’s response to Interrogatory No. 7 is complete as presently stated. Plaintiff will have to disclose its documents and exhibits in accordance with the Court’s subsequent pretrial order.

6. It should be clear to the Plaintiff after the recent cases of Verizzo v. Bank of New York, 28 So. 3d 976 (Fla. 2d DCA 2010), and BAC Funding Consortium v. Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010), that trial courts are going to be scrutinizing more closely the chain of documents evidencing a plaintiff’s right to foreclose. The Plaintiff’s consistent position in responding to Defendant’s discovery requests has been that it filed an Assignment of Mortgage and that’s sufficient to demonstrate its standing to foreclose.

7. Of note, the Assignment purports to be from Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for First Franklin A Division of Nat. City Bank of IN, (Assignor) to First Franklin Financial Corporation (Assignee). The Assignment purports to assign not only the Mortgage, but also the Note, a Note in which MERS reportedly has no legal or beneficial interest. The Assignment was purportedly executed on March 12, 2009.

8. Also, of note, the Complaint contains a “lost note” count in which the Plaintiff (First Franklin Financial Corporation) alleges in pertinent part: “The above-described Note and Mortgage have been lost and are not in the custody or control of the Plaintiff. The time and manner of the loss is that the subject Note and Mortgage were lost or disappeared under unknown circumstances after the Plaintiff became the holder thereof.”(Complaint at ¶ 20, emphasis supplied) The allegation in ¶ 20, however, appears to be contradicted by the Plaintiff’s own Affidavit of Lost Note, filed on July 16, 2009, in which Sharon D. Maerkle,² a Vice President of First Franklin a Division of Nat. City Bank of IN (“Lender”), who attests that the Lender is the lawful owner of the Note and, as of March 10, 2009, the Lender “has not cancelled, altered, assigned or hypothecated the Note . . . .” (Affidavit of Lost Note at ¶ 3) Even more interesting, the Affidavit asserts (under oath) that: “The original Note was in the Lender’s possession and was maintained in its filed located in Pittsburgh, Pennsylvania. After a thorough and diligent search of the mortgage loan file and of all mortgage loan files in the Lender’s Pittsburgh, Pennsylvania office, the original Note cannot be found.” (Affidavit of Lost Note at ¶ 4)

9. Faced with the contradictory statements the Plaintiff itself has placed of record, the information sought by the Defendant through his Interrogatories is directly relevant to the Plaintiff’s standing to foreclose on his property and is discoverable.

Based upon the above-stated findings, the Magistrate submits the following Recommended Order for approval by the Court:

Recommended Order

1. Defendant’s Motion to Compel is GRANTED in part.

2. Within 15 days of the date the Court adopts this Recommended Order as final, the Plaintiff shall provide Defendant with supplemental answers to the Interrogatories noted in ¶’s 3 and 4 of the Magistrate’s findings.

Please take notice that pursuant to Rule 1.490(h), the parties to this cause have ten (10) days from the date of service of this Recommended Order to serve exceptions to its contents. The party filing exceptions is required to send copies of the exceptions directly to the Judge assigned to this case, as well as to undersigned Magistrate. The party filing exceptions will be required to provide the Court with a record sufficient to support their exceptions or the exceptions will be denied. A record ordinarily includes a written transcript of all relevant proceedings. The party filing the exceptions must have the transcript prepared for the court’s review. If exceptions are timely filed, they shall be heard on reasonable notice by either party or the court. If no exceptions are filed within ten (10) days from the date of service, the Court shall take appropriate action on the report.

__________________

^{1This includes the following objections wherever stated in the Plaintiff’s responses to the subject Interrogatories: overbroad, unduly burdensome, irrelevant, calls for a legal conclusion, and requests information from a third party.}

^{2This is the Magistrate’s best guess at the spelling of this name, the quality of the Affidavit filed by the Plaintiff containing very small type and being of exceptionally poor quality.}

^{__________________}

^{ORDER ADOPTING RECOMMENDED ORDER}

^{THIS CAUSE came before the Court on the Recommended Order of Magistrate, filed by Magistrate Deborah A. Bailey, and the undersigned, having considered the findings and recommendation contained therein, it is hereby,}

^{ORDERED AND ADJUDGED that:}

^{1. The Recommended Order of Magistrate, entered on JUNE 1, 2010, a copy of which is attached hereto, is ratified and approved.}

^{2. The parties are ordered to abide by all of the findings and recommendations contained in the Recommended Order of Magistrate, and the Court hereby adopts each and every finding and recommendation therein as the Order of this Court.}

^{__________________}

^{RECOMMENDED ORDER OF MAGISTRATE}

^{THIS CAUSE came on to be heard on Defendant’s Motion TO AMEND RESPONSIVE PLEADING.}

^{The Magistrate has jurisdiction pursuant to Fla. R. Civ. P. 1.490. After review of the Motion, upon consideration of the arguments of counsel, and for the reasons set forth at the hearing, the Magistrate recommends the Court GRANT the Motion.}

^{Based on the above findings, the Magistrate submits the following Recommended Order for approval by the Court:}

^{Motion to Amend Responsive Pleading is GRANTED. The additional affirmative defenses may be added by filing an Amended Answer within 10 days of the date the Court adopts this Recommended Order as final.}

^{Pursuant to Rule 1.490(h), the parties to this cause have ten (10) days from the date of service of this Recommended Order to serve exceptions to its contents.}

^{* * *}

AMA NOTE: The foreclosure crisis is not just about people losing their homes to foreclosure.  It’s about homeowners who invested in their futures but were lied to from the very beginning about the contract they were entering into.  It doesn’t matter if you are foreclosed on or not.  If you’re a homeowner, you’re affected by the lie.  Anyone currently in foreclosure or not in foreclosure still making a monthly mortgage payment should contact AMA about your options.  If you are in foreclosure you should fight to keep your home.  If you’re not in foreclosure you should know that there is over a 95% chance that you’ve been paying a servicer every month an amount of money that was never and is not being applied to the loan you obligated yourself to.  With that in mind you should know your options.  Contact AMA today! 

“The Court finds that Plaintiff in this case is entitled to know how Defendant came into possession of the debt, including what amount was paid for the account, who the account was purchased from, when it was purchased and what collection efforts they took in order to collect that debt. If the debt at issue in this case was sold to another entity, Plaintiff is entitled to know who Defendant sold it to, when the account was sold and how it was transferred. If Defendant, Collection Company of America, has knowledge of other information beyond that as to the corporate custody of this account, it is required to provide that information to the extent that it has knowledge.” 

This is the same issue we are having with the Pooling and Servicing Agreements, Underwriter Agreements and other documents that foreclosure mills are fending off as “not relevant” 3rd party agreements.

______________

17 Fla. L. Weekly Supp. 784a 

Online Reference: FLWSUPP 1709JOH2

It’s no secret modifications are a sham for the most part.  On the left you have the servicer calling or sending those one pagers requesting you to provide them with your financial status information while on the right you have David J. Stern, Marshall C. Watson or the Florida Default Law Group moving full speed ahead on the foreclosure lawsuit through the court.  What to do what to do what to do!

Judges want to help homeowners and have been looking for reasons and lawful ways to do it.  They’ve found one and attorneys and homeowners should pay careful attention since judges can’t scream it to you out loud.  It’s one word…HAMP!  That’s right the HAMP Program!  Now of course we know the HAMP Program is pretty useless overall but it’s the next best thing to offering the judge a white chocolate moca grande from Starbucks!  Why you might ask?  Because HAMP is a federal requirement that allows judges to say “if the homeowner and bank are in talks who am I to stop those negotiations…sale is set aside/cancelled until there is an agreement or resolution!”

Motion practice is great and filing Motions to Vacate Summary Judgment and Set Aside The Sale are important however in Dade County and Broward County, the foreclosure process is taking on new forms.  There are now hearings specific to the sale and the Judge is not able to hear arguments because they are not the judge in the case.  What this means is their sole purpose is to grant or deny the sale and if you come in with proof of ANY modification talks they will DENY DENY DENY!  Other judges from different counties who are the judges on the case are doing the same.  So when you get that modification package in the mail keep it close to your file.  Fill it out and be prepared to send it in right before the sale.  Hold on to those one pagers that say you may be eligible for a modification.  All of these documents are PROOF that a modification is viable under the HAMP Program.

Another important strategy to note is when on several occasions you receive these one pagers that state you may be eligible for a loan modification and then receive something to the effect that says the owner of your loan does not offer modifications.  These are great documents to hold on to and present to the court at the right time when you argue the bank is playing games with you.  It frustrates the judge and causes them to get proactive.

For attorney’s in the trenches who receive cases late in the game where final judgement has been issued and a sale date is on the rise, the accurate tactic seems to be what I have described above.  Get these modification papers from the client, go to the hearing with papers in hand and explain to the judge your client is in modification talks.  Once the sale is cancelled, file your Motion to Vacate Summary Judgement and set it for special hearing to show that material issues exist and get the judgement vacated then.  It the sale goes through anyway remember you have 10 days so have that Motion to Vacate Final Summary Judgement and Set Aside the Sale/Certificate of Title ready and file it.  Let opposing counsel set it for hearing as this will give your client more time in the property.  Always remember, be prepared…be prepared…be prepared!

Good Luck!     

AMA NOTE: The foreclosure crisis is not just about people losing their homes to foreclosure.  It’s about homeowners who invested in their futures but were lied to from the very beginning about the contract they were entering into.  It doesn’t matter if you are foreclosed on or not.  If you’re a homeowner, you’re affected by the lie.  Anyone currently in foreclosure or not in foreclosure still making a monthly mortgage payment should contact AMA about your options.  If you are in foreclosure you should fight to keep your home.  If you’re not in foreclosure you should know that there is over a 95% chance that you’ve been paying a servicer every month an amount of money that was never and is not being applied to the loan you obligated yourself to.  With that in mind you should know your options.  Contact AMA today! 

Florida Local Attorney Search

To better facilitate the fight against crime, there is a Florida Law Firm that is hands-down one of the most elite technology litigation firms on the rise that has a foreclosure practice and is expanding its foreclosure division.  Currently this firm is handling a substantial caseload.  They are based out of Miami and are looking for attorneys to handle hearings for clients in their respective local areas.  These hearing attorney’s need to be excellent speakers (and I do mean excellent because these pleadings are first-rate) that know how to present the arguments within the pleadings.  The right attorney will have access to the latest foreclosure defense training for hearings.  Any attorney interested (especially if you’re looking to enhance your litigation practice) should contact me for further information at 305-460-2246 or email me at anthony@amartinezlaw.com.

California Local Attorney Search

The same Miami based firm as mentioned above is looking to expand its practice in California by affiliating itself with local solo practitioners to act as local counsel for their client base.  This firm not only has an excellent foreclosure division but also has several other litigation divisions.  In some cases local counsel will handle all hearings etc. while in other cases partner up so that Miami counsel can come in Pro Hac Vice.  This is a great opportunity for solo practitioners to expand their client base and partner up with a very state of the art law firm that is sure to become extremely high-profile.  I would implore ALL California solo practicing litigators to inquire about this opportunity.  Any attorney interested (especially if you’re looking to enhance your litigation practice) should contact me for further information at 305-460-2246 or email me at anthony@amartinezlaw.com.

This firm pays well and has an extensive client base in immediate need.

AMA NOTE: The foreclosure crisis is not just about people losing their homes to foreclosure.  It’s about homeowners who invested in their futures but were lied to from the very beginning about the contract they were entering into.  It doesn’t matter if you are foreclosed on or not.  If you’re a homeowner, you’re affected by the lie.  Anyone currently in foreclosure or not in foreclosure still making a monthly mortgage payment should contact AMA about your options.  If you are in foreclosure you should fight to keep your home.  If you’re not in foreclosure you should know that there is over a 95% chance that you’ve been paying a servicer every month an amount of money that was never and is not being applied to the loan you obligated yourself to.  With that in mind you should know your options.  Contact AMA today! 

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The filing of a foreclosure suit is a hard blow to a homeowner. The delivery of the Summons and Complaint is paralyzing to a large degree and has shown to certainly cause you to feel defenseless.  On a massive level, millions of foreclosure filings has the effect of assault by a mob.  A powerful mob at that because this mob has money and is armed to the teeth.  No one in their right mind dares to fight an armed mob.  And so when we are met with fear we take steps to protect ourselves by sometimes going to self-defense classes.

In Florida (at least  in the Tri-County area of Miami, Fort Lauderdale and West Palm), the court has embraced and assisted the Mob regardless of it doing so knowingly or unknowingly.  They have allowed a charge of $1901.00 for homeowners to Counterclaim making it extremely difficult for homeowners to truly defend themselves.  For this reason, homeowners are turning to the black-belts of homeowner defense…the ATTORNEY!  What some homeowners are quickly finding out is that many of these attorneys homeowners are turning to are yellow belts at best.

For the Black-belt attorney, consider changing your litigation tactics.  If a homeowner cannot counterclaim because of the $1901.00 filing fee, consider filing a separate action where the filing fee is $401.00 instead. If you feel your cause wreaks fraud or other causes of actions and you have other viable claims outside of a real property claim against parties in the case bring a separate action against them.  Here are some things to consider:

Discovery in the foreclosure case is not getting you copies or proof that show the Plaintiff actually purchased your loan or how the payments to them were being distributed to Investors of your loan.  However what you do have are monthly statements of payments that were made to the Servicer. Consider that in a separate lawsuit the homeowner charges Unjust Enrichment and several other causes of action against the servicer and raises the argument that their loan was purchased in the security chain and paid in full but that the Servicer charged and continued to the monthly amount of $xxxx.xx.  You attach statements to your complaint in support of the allegations.  

How will the Defendant respond and what will it produce in discovery in support of its claim?  In foreclosure defense it is to the homeowners benefit to let the prosecuting Plaintiff delay its prosecution because the longer your client can stay in their home the better.  But when you file an action and prosecute you can certainly push the envelope much faster than the outcome of a foreclosure case.  Also, consider the number of defendant’s you could potentially name individually.

Regardless to the approach, my point is lawyers need to start acting like lawyers and go to work!  Start becoming a little bit more creative than these foreclosure mills who have you up against court runners hired on contract just to appear.  I mean come on guys…not only does the Plaintiff not even show their face in court but neither is the foreclosure mill attorney!  You are losing battles against ghost’s…

File suit against a Servicer for actions non-real property related and things will certainly become different.  They won’t be paying $1,200 for that defense this I promise you.  You would be surprised how many homeowners would be willing to pay for that fight if you can present it properly to them.  If we can collaborate on foreclosure defense maybe we can all collaborate on Litigation Tactic’s against these Servicers on both state and federal causes of action.   

AMA NOTE: The foreclosure crisis is not just about people losing their homes to foreclosure.  It’s about homeowners who invested in their futures but were lied to from the very beginning about the contract they were entering into.  It doesn’t matter if you are foreclosed on or not.  If you’re a homeowner, you’re affected by the lie.  Anyone currently in foreclosure or not in foreclosure still making a monthly mortgage payment should contact AMA about your options.  If you are in foreclosure you should fight to keep your home.  If you’re not in foreclosure you should know that there is over a 95% chance that you’ve been paying a servicer every month an amount of money that was never and is not being applied to the loan you obligated yourself to.  With that in mind you should know your options.  Contact AMA today!