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Anthony Martinez & Associates Launches New Audit to Help Borrowers and Counsel Fight Unlawful Foreclosures

December 5, 2016

FOR IMMEDIATE RELEASE

MIAMI, FLORIDA — Foreclosure defense ama-audit-magnifying-glassattorneys now have a new tool at their disposal that could help keep borrowers in their homes.

Anthony Martinez & Associates, the most advanced foreclosure litigation consulting, strategy and expertise firm in the foreclosure arena, has developed an advanced Foreclosure Defense Case Audit & Analysis Report that is now available to borrowers and their defense counsel.

“The FDCAA Report is significantly different from a securitization audit report,” says Anthony Martinez, Executive Director of AMA. “The FDCAA Report outlines the loan background but also factually identifies the complaint flaws and falsities.”

According to Martinez, the FDCAA report is specifically designed to find inaccuracies, frauds and other hidden anomalies in an unlawful foreclosure action. It also:

  • Factually identifies any lack of standing
  • Contains recommendations based on AMA’s experience and expertise
  • Provides direct allegation denials, applicable affirmative defenses, counterclaims, cross-claims, grounds for dismissal and grounds for judgment on the pleadings

“The report also provides a complete discover outline,”

Martinez says.

“The FDCAA Report is not designed to be attached as an exhibit to a pleading and is only designed as a reference tool. However, the Affidavit of Findings and Fact attached to the report may be attached to a pleading.”

The audit and analysis is comprehensive as AMA uses proprietary systems to cross-reference allegations, dates, signatures, verification’s, affidavits, chains of loan ownership and public record filing, all of which are attached to the FDCAA report.

For more information about the FDCAA Report, contact Anthony Martinez at audits@amaexperts.com, or call (305) 908-1755.

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About Anthony Martinez & Associates

Since 2007, AMA has provided dedicated foreclosure defense litigation consulting, strategy and expertise services across the United States. AMA has worked on hundreds of cases to help successfully defend foreclosure litigation.

AMA is not a law firm. AMA is led by its Executive Director, Anthony Martinez, a highly respected and sought-after foreclosure defense litigation consulting expert, seminar speaker and webinar presenter. He is a fact, rebuttal and expert witness in foreclosure cases as well as other civil and criminal litigation matters.

To learn more about Anthony Martinez & Associates, visit www.amaexperts.com, or call (305) 908-1755.

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The Status Quo Woe’s of Foreclosure Defense and What the People Need to Succeed!

July 13, 2015

DISCLAIMER: THE CONTENT IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE MISCONSTRUED AS LEGAL ADVICE! Anthony Martinez is a Litigation Discovery Expert, Consultant and Strategist. Neither Anthony Martinez nor his firm AMA engage in the practice of law and only provide Case Management Consulting (“CMC”) and Legal Process Outsourcing Services (“LPO”) to 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.  If you are not an attorney, AMA encourages you to consult with a licensed attorney in your area regarding the statements made in this blog and the use thereof.

Sign up today for AMA Experts Presents – HOW TO SUCCESSFULLY WIN FORECLOSURE TRIALS IN FLORIDA.  The advanced Webinar scheduled every Tuesday at 12:00pm to 1:30pm (EST). 

Tune in every Thursday evening at 7pm and listen to the controversial live or archived conversations of real property litigation with expert guests on Blog Talk Radio’s – Who Stole Your Loan Radio – Hosted by Anthony Martinez.  Look for up and coming Webinar Events  and Seminar Events presented and hosted by Anthony Martinez who talks specifically about foreclosure case and trial strategies and tactics that create winning results on the merits in favor of borrowers!

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Eight years into this dedicated battle I’ve watched a constant – the submission of false, misleading and/or fabricated paperwork and documents to create standing where none exists.  The result of that has been the demise of foreclosure mill firms like Stern, Ezra, Watson and a few smaller name brands that have come and go like Butler & Hosch etc.  And although the partners that never signed or submitted a pleading have been disciplined or disbarred, or couldn’t maintain their business mode, the reality is, all those little dark side minions have transferred to other foreclosure mill firms and continue to use the same bogus MERS assignments etc.  Of course the newest focus is on Robo-Witness – a pattern of false, misleading and fraudulent testimony designed to circumvent the rules of evidence and hearsay with the hearsay business record exception rule.

Strangely enough, with all the fraud and fabrication still in effect, that’s not what hurts the people faced with foreclosure the most.  Unfortunately, it’s the bias of the courts which has created an uneven bar that prejudices the people named as defendants in unlawful foreclosure cases.

There are many judges that will dispose of cases on the merits and apply the law appropriately however, there are still a great many judges that still lend a blind eye to the rightful application of the law, these fabricated documents and the rules of evidence. 

So the status quo still remains – you’re a deadbeat who is trying to get your home free and clear by defending this foreclosure action.

To add insult to injury we also have the mounting problem of terrible foreclosure defense representation.  I’ve watched the people go before the court and request time to find new counsel or watch a judge question why a Miami attorney is representing a Sarasota resident or why a Tampa attorney is representing a Miami resident.  The answer is simple.  Although there are over 95,000 registered attorneys in the State of Florida many of which offer foreclosure defense, none of them are very good or more importantly, none of them are very successful in front of bias judges or overcoming the status quo.  When it is pointed out to a bias judge why one would ever hire a local attorney when the judge generously rules always in favor of the Plaintiff and hardly never if not ever in favor of the defense, most bias judges pause, laugh, snicker, smirk and flat out deny such a bias exists.

Lately a new trend has arisen making it even more difficult for the people.  Some of the foreclosure defense attorneys worth a dime will only accept the easy case.  They want that winning poker hand every time. 

That is, they want only that case where all the issues have been properly preserved; where no default has occurred; where a judgment hasn’t been entered or the case that blatantly falls within the pattern of the common Paragraph 22 or Standing at Inception argument.  I share a raised eyebrow to these attorneys because whether or not they admit it or even see it, they are still slaves to the status quo and forget their job in part is to change the status quo and bring equal application of the law to the courts attention.  Unfortunately these attorneys remain stuck in their “experience” that the court does not favor untying the knot – the people are only trying to delay the inevitable.  Let me tell you that ANY ATTORNEY and I mean ANY ATTORNEY that is willing to take your money and feels you are trying to delay let alone delay the inevitable is neither an attorney that will champion your cause or an advocate of playing his or her part in changing the status quo.

They are likely tail coat riders of the Mark Stopa’s or Mat Weidner’s or other Blog writers and litigators that actually bring the real bit to the oppositions doorstep and don’t fear championing the law as it should be applied to any judge bias, indifferent or otherwise.

Let’s face it, any attorney that can look at a foreclosure case wherein the note was transferred into the secondary market and  not be creative enough to identify the note was transferred after the purported default and is not the holder of a negotiable instrument under UCC 3 but instead is a holder under UCC 9 and must prove up each transfer in the chain as a rebuttal to 673.3011 is questionable.  Any attorney that can’t use 559.715 as a vehicle to address the transfer of ownership requirements and the transfer thereof as a means to negate the 673.3011 argument “hey I’m the holder of the note endorsed in blank that’s all that matters” and get meaningful discovery answers related to consideration and accurate transfer paperwork, is questionable.

The reality is – and it’s really unfortunate – there are not enough attorney’s willing to genuinely go up against the notion that well over 90% of the loans foreclosed on are the product of old ownership, shady, false, misleading and fraudulent paperwork and facts and the party bringing the foreclosure action is not the party to whom the debt is owed to. 

Quite frankly I’m very surprised the judges have not figured out these foreclosure actions are all brought by purported servicers of alleged owners who own nothing and actually have no role whatsoever in the foreclosure action.  I mean how often do you see a real representative of Deutsche Bank or BONY actually file something in a foreclosure case or show up to a hearing and testify?

I’ve always said – if I sued someone for owning me $500,000 for a loan I provided the Court would immediately ask me to show a cancelled check or some other proof I loaned the money aside from a note or other created paperwork designed to establish the debt or enforcement thereof.

I enjoy training foreclosure defense attorneys so I will put this out there again as a service for the people by the people.  If you are a foreclosure defense attorney that can put your ego to the side and are willing to learn how to successfully raise the right arguments that are not only the standard run of the mill defenses but game changers that are directed at changing the status quo.  If you are a foreclosure defense attorney that is interested is perfecting a litigation style that is effective and will separate you from every other foreclosure defense attorney.  If you are a foreclosure defense attorney that is open minded enough to move away from the current status quo and are willing to champion the fight against unlawful foreclosure.  Call me or email me directly.  I WILL CONSULT AND TRAIN WITH YOU FOR FREE AND WILL GIVE YOU ALL OF THE WINNING TOOLS TO COMPETE AND CHANGE THIS FORECLOSURE DILEMMA!  I WILL MAKE YOU A FORCE TO BE RECKONED WITH IN FORECLOSURE DEFENSE LITIGATION!  All you need to do is email me or pick up the phone and call.  But only do so if you truly want to win and impact unlawful foreclosure.  Even attorneys looking to jump ship and come to the light side of the force looking to start their own foreclosure defense practice are welcomed to reach out.

-Anthony Martinez

Strategic Depositions – Whose Feet Should You Hold To The Fire?

March 3, 2015

DISCLAIMER: THE CONTENT IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE MISCONSTRUED AS LEGAL ADVICE! Anthony Martinez is a Litigation Discovery Expert, Consultant and Strategist. Neither Anthony Martinez nor his firm AMA engage in the practice of law and only provide Case Management Consulting (“CMC”) and Legal Process Outsourcing Services (“LPO”) to 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.  If you are not an attorney, AMA encourages you to consult with a licensed attorney in your area regarding the statements made in this blog and the use thereof.

Sign up today for AMA Experts Presents – HOW TO SUCCESSFULLY WIN FORECLOSURE TRIALS IN FLORIDA.  The advanced Webinar scheduled every Tuesday at 12:00pm to 1:30pm (EST). 

Tune in every Thursday evening at 7pm and listen to the controversial live or archived conversations of real property litigation with expert guests on Blog Talk Radio’s – Who Stole Your Loan Radio – Hosted by Anthony Martinez.  Look for up and coming Webinar Events  and Seminar Events presented and hosted by Anthony Martinez who talks specifically about foreclosure case and trial strategies and tactics that create winning results on the merits in favor of borrowers!

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The dynamics of foreclosure litigation are changing.  With the implementation of F.S. 702.015 and Fla. R. Civ. Pro. 1.115, fraudster plaintiffs have a greater burden to find themselves in a corner using fabricated documents or making false statements in a verified complaint.  Make no mistake, robo-signing still very much exists.  So does false statements about ownership, physical possession of the note, MERS, servicing rights and so much more.  These days the only documents you can comfortably get in a request for production is a copy of the documents they intend to use for trial.  A request for admissions is returned with a list of lies and a request for interrogatories is countered with objections of vagueness, over burdensome and not likely to lead to discovery.  So how do you get something tangible you can hold on to and actually use to create leverage in your case?  Consider strategic depositions of pawns the fraudster plaintiff is putting in front of you like the complaint verifier, the person that signs off on the certification of possession of the note and the person that signs an affidavit of indebtedness.  In other words, depose people that potentially lied and said they actually touched these documents prior to filing the lawsuit.

Here’s a great throw back question to opposing counsel that requires a little analysis when used so causally in foreclosure litigation.  Fannie Mae or Deutsche Bank etc. is the “investor”.  Here’s a question most attorneys never ask – Really?  What exactly does “investor” mean?  That question is actually relative to the allegation of default, what actually caused the default and who is the party that gets to declare it.  And that’s all outside of the “hey I am the holder under F.S. 673.3011 and that’s all that matters” approach of the fraudsters.  Consider what would happen if you knew the name of the Asset Manager of a particular Trust (easy to find by looking at a Distribution Report for a trust – contact me to learn more).  If you spoke with an Asset Manger of a trust they would tell you they don’t own anything – they are just a reporting agent and you must contact the Servicer of the loan for anything related to the loan.  What do you perceive the value of that information to be?  If you do your depositions right, the case outline and evidence to support it will ultimately be the Servicer – the party that actually hired the foreclosure mill law firm to file the foreclosure – is engaged in camouflaged equitable subrogation it would not be able to prove in a straight forward action against the borrower.  Stated another way, a fraudster servicer plaintiff would find it extremely difficult to prevail in a direct action against a borrower for money it (the servicer) lost in its own  contractual obligations under the wall street securitization scheme sandbox they got dirty in.

Foreclosure is a corrupted and eroded platform where fraudster plaintiffs can create a MERS assignment of mortgage say its together with the note or place a fabricated, undated stamp on a blank page of a note or allonge to create standing where none exists.  Take that coupled with a corporate witness who knows nothing about a loan – trained to parrot words like normal course of business or policy and procedure – and they will steal a families home right from under their feet.  Even worst, what fraudster plaintiffs have done on the foreclosure platform has morphed into a business model where you now see nothing but new servicing companies spawning everywhere claiming they are the servicer for some bogus trust and the court requires NO INQUIRY INTO THE PURPORTED TRUST AT ALL!  The court accepts the validity of the trust without proof despite Florida Statute requirements for a trust to conduct business in the State of Florida.  Who do you depose?  Here’s my list:

  • Complaint Verifier
  • Certification of Possession of Note Signer
  • Affidavit in Support of Summary Judgment Signers
  • Asset Manager of a Plaintiff Named Trust

You may also want to consider discovery as to the copy of the “policy and procedures” the fraudster plaintiff’s corporate witness will intend to rely upon in their parrot audition before the court.  In other words, also depose the corporate witness for trial and subpoena dues tecum the “policy and procedure” manual for production at the depo they intend to rely upon.  That will make for a great day of depositions.  You will find HEAVY resistance on turning that puppy over but just think what you get to exclude from testimony if they don’t turn it over.

What I have learned over the last 8 years in dedicating myself to foreclosure litigation is that to prevail in these arguments on motions to compel discovery, summary judgment, trial etc. is that you need to be a real litigator.  You can’t just be an attorney, you need to be a litigator – a salesman – trained in the art of convincing by artful and persuasive verbal combat.  If you’re an attorney that’s good at writing or good at research but your not good in the art of courtroom persuasion, you need to signup for my Webinars and Seminars.  There is no shame in perfecting an art and getting trained.  In this world there is only trained and untrained (quote by Denzel Washington in Man on Fire).  Which one are you?

The Foreclosure Frustration – What Will It Take To Change Things?

March 1, 2015

DISCLAIMER: THE CONTENT IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE MISCONSTRUED AS LEGAL ADVICE! Anthony Martinez is a Litigation Discovery Expert, Consultant and Strategist. Neither Anthony Martinez nor his firm AMA engage in the practice of law and only provide Case Management Consulting (“CMC”) and Legal Process Outsourcing Services (“LPO”) to 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.  If you are not an attorney, AMA encourages you to consult with a licensed attorney in your area regarding the statements made in this blog and the use thereof.

Sign up today for AMA Experts Presents – HOW TO SUCCESSFULLY WIN FORECLOSURE TRIALS IN FLORIDA.  The advanced Webinar scheduled every Tuesday at 12:00pm to 1:30pm (EST). 

Tune in every Thursday evening at 7pm and listen to the controversial live or archived conversations of real property litigation with expert guests on Blog Talk Radio’s – Who Stole Your Loan Radio – Hosted by Anthony Martinez.  Look for up and coming Webinar Events  and Seminar Events presented and hosted by Anthony Martinez who talks specifically about foreclosure case and trial strategies and tactics that create winning results on the merits in favor of borrowers!

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This is going to be a little long…

I get that there are these long pauses from one of my blog post to the next.  I wish I could say that I had the time to sit down every day and write an inspiring or profound blog post that will change this foreclosure game.  I certainly don’t mean to discredit or take away from those that are able to write on a daily bases.  Kudos to them for keeping the information stream alive – for keeping hope alive in those that feel all is lost in this foreclosure game.  And I don’t mean to offend anyone by calling it a game as if to say I take it lightly.  Anyone who knows me personally knows how dedicated I am to finding and creating the game changer.  I don’t get to write everyday because I travel the entire state sitting in courtrooms in pretty much every county across the state.  It’s a very tiring and daunting task to sit in front of all of these judges to see how very different each judge views the same arguments like standing, standing at inception, paragraph 22, debt collector assignment notice etc.  Unlike some attorneys that only practice in certain counties, who I hold a high regard for that have perfected many of these arguments to a large degree, my job is to analyze and assess how to curb the arguments so that they are successful in front of any judge.  Why?  Because it sucks to have to file an appeal to prove you are right and what I am seeing is that even these local well known attorneys who are excellent attorneys, are losing at the trial court level only to have to go the extra mile to prove they were right by bringing the issues to the appeals court.  It sucks when a borrower has to pay more for an appeal simply because the court doesn’t like their attorney on a personal note because their overall presentation is more arrogant than professional.  Indeed there are GREAT attorneys out there right now that get in their own way simply because their personal presentation is not perfected.  What’s right should be working everywhere but in my experience 99.9% comes down to the attorney and the presentation of what’s right.  Remember it’s not what you say it’s how you say it.

There are a number of factors that contribute to the right answers however, I will at least identify what I have concluded plays a significant role in the reasons why.  First, courts across the state have super-imposed their own fundamental common law belief of what should be instead of following the law.  This not only applies to following the legislative intent of statutes or case law, it also applies to the plain language of rules of procedure and most importantly rules of evidence and the admissibility thereof.  Thus, you see one of the major problems in foreclosure is the ability in favor of the fraudster plaintiff to introduce a trial witness that knows absolutely nothing about the loan, nothing about the “policies and procedures” of the company they work for specific to business records or how they are obtained in the ordinary course of business etc.  So the result becomes a hearsay frenzy based on parroting key words and phrases the witness is trained to say.  And we know this because day in and day out we are hearing the corporate witness, trial after trial, saying the exact same thing to satisfy the business records exception rule element that satisfies a judges desire to rule in favor of the fraudster plaintiff.  Let me be clear – THE COURT WANTS TO RULE IN THEIR FAVOR – that is one of many elephants in the room!

Second, how you personally present yourself in the way you dress, in the way you speak and in the presentation of the facts, the rules of evidence, the rules of procedure and the law as it applies to the case at hand, has to be artfully applied.  Sales 101 – for anyone with a sales background – teaches you to get your potential client saying YES!  Why? because at the end of your sales presentation when it comes time to get them to commit to the sale you want them to say YES!  Artful trial strategy involves securing the right YES or the right NO to an artfully placed question to the witness or the judge so that in the end your presentation of the facts weigh in the judge rendering a decision that says YES to your arguments.  Some may not agree and I certainly do not mean to offend, but how you present yourself to the court in your physical appearance is relevant.  How you speak – if you have a speech impediment, speak low, speak loud, interrupt, appear unorganized etc – plays a SIGNIFICANT role!

Lastly,  you have to know how to artfully educate the court.  As I mentioned earlier, judges are super-imposing their own common law belief to complex secondary market transactions.  They are not well versed in the complexities of these loan transactions which is why fraudster plaintiff’s focus on tapping into the simplistic arguments that resonate with the judges common law beliefs.  For example the F.S. 673.3011 completely ignores UCC 3 and UCC9 arguments.  Here you have a complaint from Deutsche Bank as Trustee for a purported trust that alleges a default occurred on February 1, 2009 in a complaint filed December of 2009 based upon a bogus assignment in November of 2009 from MERS as Nominee for ABC Mortgage (original lender) to Deutsche Bank.  Based on the allegations and exhibits it is clear, DB acquired the loan AFTER the default hence they acquired it knowing it was in default.  Yes here they are attempting to enforce a mortgage based on a note endorsed in blank.  Indeed the note may be negotiable (and that’s a stretch and argument for a different post) however, it’s not UCC3 that governs it’s UCC9 that governs.  And under UCC9 you MUST prove up each sale and transfer in the chain from inception forward.  This is very different from hey we are the holder under 673.011, the note is endorsed in blank that’s all that matters.  In fact, this sale after the purported default ties in nicely to the reality this is nothing more than an attempt to collect an alleged debt and fails to meet the requirements of F.S. 559.715.  You see, you have to take the judge somewhere that makes the fraudsters argument more fantastical than real.  Look at this from another perspective.  If I came in suing your client saying I loaned them $500,000 and presented a copy of a contract, your first instinct would be consideration – show me a copy of the wire transfer or cancelled check showing you actually loaned the money.  And if I dare said to you and the court it doesn’t matter that I don’t have proof I loaned the money, I’d lose hands down and would probably have to pay attorneys fees.  So why is foreclosure any different and why is the money trail not even being addressed?

Hope is not lost however.  This is where I say, if you are pro-se, consider obtaining counsel.  Not because you are not good enough to represent yourself.  God and I know you have researched the hell out of the law, your loan, you case and no one will advocate better for you than you!  Consider obtaining counsel because you are smart enough to know that if the deck is stacked against defense lawyers walking in, how do you think the judge feels about you coming in to potentially have a judgment entered in your favor when he or she already believes you have paid your loan in years, having been living in your house for free and just might continue doing so?  My point is, no matter how good you are pro-se, and despite some of successful stories you may have read online about pro-se wins, the deck is stacked greater against you and the statistics against your success far outweigh prevailing.  I know this from personal experience and I can comfortably say I’m better than most attorney’s and pro-se’s out there.  So unless you absolutely can’t afford counsel – and even then there are still ways to obtain counsel – HIRE A LAWYER TO FIGHT YOUR FIGHT!

Next I will say no matter how many cases I’ve bee hired to consult on and have been successful in helping retained counsel obtain a victory, its not even a drop in the bucket in comparison to the number of foreclosures across the state.  So I’ve come to the conclusion that the only way to really affect change in foreclosure is to create a model that allows me to travel the state, get all foreclosure defense attorneys in a room, teach them how I’ve successfully trained and supported other defense attorneys to successfully win foreclosure cases and trials, and create a support portal that keeps the training and support ongoing as attorneys perfect the art of winning.  The only way to effect real change in foreclosure is to rain down on the entire state like an army invading.  This foreclosure game continues to get more difficult.  As it stands F.S. 702.015 and Fla. R. Civ. Pro. 1.115 certainly creates a higher bar to filing foreclosure cases and adds more defenses for the homeowner, but this heighten bar only creates the opportunity for fraudster plaintiff’s to create new fraudulent documents.  Bogus assignments of mortgage didn’t stop them before so don’t think they won’t create bogus certifications of possession of the note to overcome the standing arguments.  Let me be very clear, the new foreclosure requirements are designed to allow the fraudster plaintiff’s a faster way to obtain final judgment in a matter of months in opposed to the years we’ve seen in the past.  The days of prolonged delays to allow a borrower to stay in their home are gone and if that’s your strategy you are dead in the water.  There is only one new strategy attorneys across the country need to implement and that is – A WINNING STRATEGY!

So with that said I am sharing the winning strategies with anyone interested across the state.  I would implore you all to start by signing up for my WebinarAMA Presents – Introduction to How to Successfully Win Foreclosure Trials in Florida. The next phase after the Webinar is coming to your county with an incredible Seminar Team of Consultants and Litigation Attorneys that I’ve worked with personally who have been successful using the information and resources I’ve made available to them.  The Seminar will be a one day crash course educational platform and support system introduction well worth the time and will be the beginning of an incredible journey of perfecting the art of winning foreclosure cases and trials.  Even if you think you’ve got your arguments down and are already successful in wining foreclosure cases and trials, I implore you to attend anyway.  At the very least you will walk away added value to what you are already doing right and a peak into new quiet successful arguments that haven’t really hit the appellate level yet.  If you’re not winning this is a no brainer.  Take the time and spend the small cost to make a dramatic change in your law practice.  There is no shame in doing everything you can to be the winning litigator your clients not only need you to be but deserve you to be!

 

 

Standing at Inception – Overcoming the “We Hold the Note Your Honor – That’s All That Matters” Argument!

September 29, 2014

DISCLAIMER: THE CONTENT IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE MISCONSTRUED AS LEGAL ADVICE! Anthony Martinez is a Litigation Discovery Expert, Consultant and Strategist. Neither Anthony Martinez nor his firm AMA engage in the practice of law and only provide Case Management Consulting (“CMC”) and Legal Process Outsourcing Services (“LPO”) to 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.  If you are not an attorney, AMA encourages you to consult with a licensed attorney in your area regarding the statements made in this blog and the use thereof.

Sign up today for AMA Experts Educate Ya Self™ Platform Presents – HOW TO SUCCESSFULLY WIN A FORECLOSURE CASE IN FLORIDA and for e-Logic Group’s ONLINE ADVANCED INTRODUCTION – FORECLOSURE FRAUD AND LOAN NOTE EXAMINATION

Tune in every Thursday evening at 7pm and listen to the controversial live or archived conversations of real property litigation with expert guests on Blog Talk Radio’s – Who Stole Your Loan Radio – Hosted by Anthony Martinez.  Look for up and coming Webinar Events  and Seminar Events presented and hosted by Anthony Martinez who talks specifically about Unlawful Foreclosure Fraud, Exposing the Fraud, the importance of a Defense Trial Witness, Loan Note Examination a in addition to advanced discovery information, tactics and strategies!

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Dealing with Non-Jury Trials and Summary Judgment…

There is this fundamental position foreclosure plaintiffs have taken across the state to usurp the Holder in Due Course requirement and Florida Rules of Civil Procedure Form 1.944 pleading requirement of identifying the owner and holder of the note and mortgage.  It is the HOLDER argument and its design is to withstand the STANDING AT INCEPTION requirement for trial and summary judgment.  The new status quo is the reliance on F.S. 673.3011 which plaintiffs use as a moving target to foreclose as the HOLDER of the note and not the Holder in Due Course.  For some odd reason, defense attorneys seem to find this position as a road block to a successful dismissal of a foreclosure complaint.  The truth is, understanding how to overcome the HOLDER argument by successfully addressing the STANDING AT INCEPTION issue gets you a judgment in favor of the Defendant instead of an involuntary dismissal or allowing a voluntary dismissal.  Take a minute to read this blog piece thoroughly.  It’s right out of my current Webinar – How to Successfully Win a Foreclosure Case you might consider signing up for after you read this.

We’ve been hearing the same song and dance from plaintiffs counsel and the courts have been somewhat hypnotized by it.  It sounds sort of like this – “We hold the original note endorsed in blank Your Honor – that’s all that matters.”  And under Florida Statutes 673.3011, a holder is entitled to enforce the terms.  Here are some little things you should be mindful of.

  • Did plaintiff plead holder under F.S. 673.3011 in the complaint?
  • If so, what subsection of F.S. 673.3011 did they claim?

Remember, one cannot just argue points never raised in the complaint and vagueness and lack of pleading a short and plain statement results in a failure to properly state a claim.  This is why your affirmative defenses have to specifically address these issues of standing AND standing at inception.

All to often we forget the devil is in the details and we fall into assumption and presumption mode very much like judges.  We assume that because a copy of the note endorsed in blank was filed with the complaint and that the purported original is present at trial its game over – the Plaintiff has established standing at inception.  This simply is not so.  Case law doesn’t state presenting a copy of the note attached to the complaint endorsed in blank AT THE INCEPTION of the case is sufficient to establish standing t inception.  Case law states:

“A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiff’s status as the holder of the note.”

See Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013).  However, standing must be established at the time the complaint was filed. Id. Thus, the bank needed to introduce evidence that it was in possession of the original note with the blank endorsement at the time it filed the complaint. Id.  Did you hear that?  THE BANK NEEDS TO INTRODUCE EVIDENCE that it was in possession of the original note with the blank endorsement at the time it filed the complaint.  EVIDENCE!  If a plaintiff submits a copy of a note endorsed in blank at the time the complaint was filed this is not evidence of possession of the ORIGINAL.  This simply means they were in possession of a copy at the time the complaint was filed.  Let’s take a look at some of the relevant case-law courts rely upon when dealing with the standing at inception issue:

To establish standing at inception it is clear, the plaintiff can present an assignment or the original note with a special endorsement or endorsed in blank.  Why the assignment?  Assignments are notarized documents and the original is commonly recorded in public records thus, a copy of an assignment is sufficient because it is validly dated.  An original note specifically endorsed or endorsed in blank that is submitted to the court at the time the complaint is filed makes clear that the party filing the action is clearly in possession as of the date of the filing.  A copy of a note endorsed in blank at the time the complaint was filed simply does not get you there without assumptions and presumptions that the Plaintiff was in possession at the time the complaint was filed.

It is common at non-jury trials for plaintiffs counsel to have the servicer witness testify the plaintiff was in possession at the time the complaint was filed.  This is not evidence.  There must be documentary proof the note was actually PHYSICALLY transferred to the named plaintiff in order to be the HOLDER.  The STANDING AT INCEPTION argument is drilled home effectively when you can show the court the plaintiff has failed to present any DOCUMENTARY EVIDENCE the plaintiff was in possession of the note at the time the complaint was filed.

Consider signing up for my latest Webinar – How to Successfully Win a Foreclosure Case and perfect a successful foreclosure defense litigation strategy.

Desensitization of Foreclosures – The Tragedy of the Business as Usual Approach

August 15, 2014

DISCLAIMER: THE CONTENT IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE MISCONSTRUED AS LEGAL ADVICE! Anthony Martinez is a Litigation Discovery Expert, Consultant and Strategist. Neither Anthony Martinez nor his firm AMA engage in the practice of law and only provide Case Management Consulting (“CMC”) and Legal Process Outsourcing Services (“LPO”) to 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.  If you are not an attorney, AMA encourages you to consult with a licensed attorney in your area regarding the statements made in this blog and the use thereof.

GOING TO TRIAL?  BE PREPARED AND GIVE YOUR CASE A VOICE.  CONTACT AMA EXPERTS TODAY!  Obtain the most advanced, state of the art Securitization and Professional Loan Note Forensic Examination Analysis and Audit Reports from e-Logic Group (www.e-logicgroup.com). Sign-up today for e-Logic Group’s ONLINE ADVANCED INTRODUCTION – FORECLOSURE FRAUD AND LOAN NOTE EXAMINATION. Lean more about AMA Global Group’s Reverse Debt Collection Platform and Services at www.amaglobalgroup.com

Tune in every Thursday evening at 7pm and listen to the controversial live or archived conversations of real property litigation with expert guests on Blog Talk Radio’s – Who Stole Your Loan Radio – Hosted by Anthony Martinez.  Look for up and coming Webinar Events  and Seminar Events  presented and hosted by Anthony Martinez who talks specifically about Unlawful Foreclosure Fraud, Exposing the Fraud, the importance of a Defense Trial Witness, Loan Note Examination and How to Become a Professional Loan Note Examiner in addition to advanced discovery information, tactics and strategies!

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There is an attorney I’ve been working with as of late who tends to be overlooked and is severely prejudiced unfortunately because of her physical appearance.  She’s a very emotional and passionate attorney.  At times my job, when working with her, sometimes becomes about keeping her calm rather than keeping her on point with the arguments.  She’s a constant reminder to me about why I continue to pick up the sword every day and do battle against the dark side.  Now its just a matter of continuing to perfect the arguments and keep winning cases with her and the clients she represents.  It’s interesting to see such a huge contrast between an attorney like this versus the plaintiff’s attorney and the court’s demeanor and predisposition that the business of foreclosure is simple – you took out a loan, you failed to pay, you’re a deadbeat and now its time for us to take your home.  How foreclosure became so desensitized is beyond me but foreclosure has a business as usual approach and its sad to see young plaintiff lawyers and courts be so emotionally detached from the destruction of families and the American dream.

Cases are about the facts and should not be about emotional pleas.  The problem is, 99% of foreclosure cases are not about the facts – they are about facts that have been severely skewed.  Homeowners are emotional and screaming fraud and screaming injustice – not because they stopped paying their loan – but because there are factual reasons WHY they stopped paying.  There are factual reasons WHY they are being foreclosed upon that lends favor to non-payment.  Sure “plaintiff is the holder of the note” and under 673.3011 as the holder you are “entitled” to enforce the note however that’s nothing more than an angle – a technical legal position at best.  Being a holder doesn’t play into the facts of the loan or the reason behind foreclosure.  At best the technical nature of using the holder argument has provided the path for stealing homes based solely on a legal position.  Let’s face the real facts, the plaintiff didn’t buy the loan for face value or real value.  The documents created to clear the path for the legal position of holder was exactly that – a created path.  It’s not a debt actually owed on the loan to a lender.

We all know these loans were fractionalized, monetized and paid for in leaps and bounds.  We also know the default trigger was designed to collect the insurance for full value as well.  We don’t need to get into the bailout money.  At best foreclosure cases are servicers using foreclosure to mask equitable subrogation.  Servicers are using the courts as a means to get back the money they dished out under third party contracts requiring them to make payments on behalf of the borrower so no default actually occurs.  So you have default swaps and payments down one avenue, insurance payments down another avenue, foreclosures down another avenue and fractionalization and monetization money down another.  All of it designed to make money hand over foot at the expense of the unknowing borrower who clearly had no idea all these people would be benefiting off of his loan which he always believed to be a simple arms length transactions where he would be protected.  So why would loan payment double or triple when the financials make clear this is what I can afford and this is what you’re approving me based on?  Why would a “lender’ institute a forced place insurance policy that would triple the payment knowing the borrower can’t afford it?  Clearly these are steps to put the borrower in a forced position.  So let’s not pretend this is about deadbeats refusing to pay especially when the only reason plaintiff’s offer modifications is to get $1,500.00 from the government for each loan it entertains knowing it has no intention on modifying the loan.

The tragedy of desensitizing foreclosure and treating it like business as usual is that homeownership does not represent business as usual.  It represents the American dream.  It represents family, the wife, the husband, the children, the dog, the white picket fence, the job, the family package as a whole.  Home represents stability, safety and security for the family.  For children, home and their bedroom represent a sense of security that no move into another home will ever cure.  This is why the choosing of a home for a family is such an important decision – because so much is riding on it.  I’m an advocate of the adversarial process but foreclosure cases are not being disposed of on the merits and they are not being debated based on the true facts of the case.  They are being disposed of as a matter of course to the detriment of family.  They are being disposed of to clear dockets – business as usual.  There are kids and adults attempting and in some cases succeeding in committing suicide because of final judgment being entered and their home being sold.  At some point we have to stop falling back on the crutch – its my legal obligation – and start realizing its our moral obligation to always do the right thing.  When you keep falling back on your “legal obligation” and keep ignoring your moral obligation as a human being, you cannot be surprised by the response of the people to lash out against you.  Just look at the Ferguson controversy – case in point!

– God Bless!

Should Young Foreclosure Mill Lawyers Worry About the Trending Lawsuits Against Them and Is It Worth It?

August 14, 2014

DISCLAIMER: THE CONTENT IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE MISCONSTRUED AS LEGAL ADVICE! Anthony Martinez is a Litigation Discovery Expert, Consultant and Strategist. Neither Anthony Martinez nor his firm AMA engage in the practice of law and only provide Case Management Consulting (“CMC”) and Legal Process Outsourcing Services (“LPO”) to 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.  If you are not an attorney, AMA encourages you to consult with a licensed attorney in your area regarding the statements made in this blog and the use thereof.

GOING TO TRIAL?  BE PREPARED AND GIVE YOUR CASE A VOICE.  CONTACT AMA EXPERTS TODAY!  Obtain the most advanced, state of the art Securitization and Professional Loan Note Forensic Examination Analysis and Audit Reports from e-Logic Group (www.e-logicgroup.com). Sign-up today for e-Logic Group’s ONLINE ADVANCED INTRODUCTION – FORECLOSURE FRAUD AND LOAN NOTE EXAMINATION. Lean more about AMA Global Group’s Reverse Debt Collection Platform and Services at www.amaglobalgroup.com

Tune in every Thursday evening at 7pm and listen to the controversial live or archived conversations of real property litigation with expert guests on Blog Talk Radio’s – Who Stole Your Loan Radio – Hosted by Anthony Martinez.  Look for up and coming Webinar Events  and Seminar Events  presented and hosted by Anthony Martinez who talks specifically about Unlawful Foreclosure Fraud, Exposing the Fraud, the importance of a Defense Trial Witness, Loan Note Examination and How to Become a Professional Loan Note Examiner in addition to advanced discovery information, tactics and strategies!

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It appears more and more homeowners are beginning to file lawsuits against not only the foreclosure mill law firms, but also the young lawyers signing their name to the pleadings.  But does this make sense to do and is it worth it?  Looking at this from several perspectives, young lawyers signing their names to these pleadings should be concerned especially where the document being filed are false, misleading or fabrications designed to create standing where none existed.  This would include complaints, exhibits, MERS assignments, summaries, allonges, amounts and final judgment on behalf of a named client that never hired them directly but was instead, retained by another party under a purported power of attorney.

Indeed borrowers are on the offensive as we see more and more federal complaints being dismissed under the compulsory counterclaim rule to the foreclosure action.  Borrowers are being forced to file cross-claims against the mills, their attorneys and servicers and counterclaims against named plaintiffs in the foreclosure action to preserve their rights.  From a numbers standpoint the effect could be staggering enough to cause serious problems to foreclosure mills and the young attorneys signing these pleadings.  For example, there are only several foreclosure mills representing all of the foreclosure cases throughout the State of Florida.  If each mill firm, individual attorney and servicer is cross-claimed with the named plaintiff being counterclaimed for filing false, misleading and/or fraudulent documents in the case, have discovery propounded against them, be deposed etc. this alone would raise the cost of litigating template style foreclosures.  As it stands,  foreclosure mills charge their plaintiff clients an average of $1,500.00 to handle uncontested cases.  But what would it cost the foreclosure mill firm, attorney and servicer to defend a cross-claim against them up to the motion to dismiss phase or if successfully denied, past the motion to dismiss?  And would that cost be something the foreclosure mill firm would be entitled to pass on to their plaintiff client?  Regardless of who pays, someone has to absorb that cost.

Right now there are sanctions being dished out left and right against foreclosure mill firms and their clients for fraud, misconduct and other acts.  Borrowers have watched David Stern disbarred and Marshall C. Watson suspended and sanctioned for millions but the foreclosure mill attorneys escaped, changed names and continued to do the dirty work with impunity.  Is it worth a young attorney to sign their names to these pleadings for less than $65,000 a year?  Given there are only a hand full of foreclosure mill firms – from a tactical and strategic point, cross-claiming them and the attorney signing the pleadings could cripple them.

But does it make sense in every case to do this?  First consider if you lose you may be subject to paying their request for attorney fees but given a home loan is the largest loan you will ever have and given their desire for deficiency and a borrowers likelihood to file bankruptcy, I can see how filing the cross-claim without worry comes into play.  Second, I can see why many are filing these cross-claims in actions where the loan was sold into the secondary market given the loan typically never made it into the trust and their entire angle of standing is everything but the trust documents to support their foreclosing position.  Third, it is only a matter of time before this windfall “we’re the holder of the note that’s all that matters” comes to a screeching holt once judges start understanding why plaintiff’s are not claiming holder in due course as oppose to just holder.  Granted Florida case law hasn’t gotten to the level of adopting the fact that secondary market loans purportedly sold and transferred to NY Common Law Trusts are governed under NYS Trust Law.  But once Florida courts start figuring it all out like other states are that these loans weren’t funded by the so-called originators, the loans never made it to the trust, these post closing and cut-off assignments are void and begin rejecting MERS and the signing authority of these auto-generated self proclaimed MERS employees, the deeper the hole for the attorney whose name appears on the pleading(s).  Once the music stops and you’re left standing with no chair, YOU’RE DONE!  My advice… …come over to the light and jump ship now from the dark side.  There’s greater morality in helping families to save their homes then playing a role in taking bedrooms from children.  Even if the you don’t answer to these judges in this life – promise you will have to answer to the only judge that does matter!

God Bless!