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Banks Need More Than Original Note

February 15, 2010

“…Moreover, while U.S. Bank subsequently filed the original note, the note did not identify U.S. Bank as the lender or holder. U.S. Bank also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage. Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage. Accordingly, the documents before the trial court at the summary judgment hearing did not establish U.S. Bank’s standing to foreclose the note and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor.”

Editors Note: Attorneys and Pro-Se homeowners need to realize that these bogus affidavits or “other” alleged supporting documentation in support of the Notice of Filings of ORIGINAL’S or copies thereof have an electronic trail.  If someone signed an affidavit 99% of the time there is an email relating to such request for an affidavit and more importantly the affidavit was most likely drafted in Microsoft Word or other Word Processing Application.  How interesting would it be if an affidavit was dated on say August 15, 2008 but the electronic version of the document in MS Word shows a creation date of February 10, 2010.  Indeed when a copy of a document is produced you are entitled to ask for inspection of the original.  The same would apply to an electronic version of the document by which it was originally created prior to being printed out and signed. 

OPEN YOUR MINDS AND THINK PEOPLE…learn more about electronic discovery requests by contacting Anthony Martinez at anthony@amartinezlaw.com.

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A Stunning Second District Court of Appeals (Florida) Foreclosure Reversal! (The Courts Are Finally Pushing Back Against Lender/Attorney Lies!)

February 14th, 2010

By: Matthew Weidner

Foreclosure BAC FUNDING CONSORTIUM V. US BANK- The Liar Lender Game is Up!

Remember that case name because this case, which was released by the Florida Second District Court of Appeals on February 12, 2010, represents a stunning change in the legal landscape governing foreclosures. The full text of the opinion can be found here. This case is an absolute must read for any attorney practicing law, any homeowner in foreclosure and respectfully, any judge who presides over foreclosure cases.

As I’ve been screaming about on this blog, and as I plead in virtually all my foreclosure cases, a lender must present some kind of evidence to show they have any rights whatsoever to foreclose on a home. In the vast majority of cases, Plaintiff’s attorneys file pathetic foreclosure lawsuits with attached copies of notes and mortgages, but no documents that show the Plaintiff has any rights whatsoever to file the foreclosure case. The standard response from Plaintiffs attorneys has been, “Screw off, we say we have the right to take the home and we’re taking the home.” Unfortunately in far too many cases, and despite case law to the contrary, judges have often given in to these unsound positions, just as the trial court did in this case. This brand new opinion should help to eliminate these arguments because the appellate court reversed the trial court finding:

U.S. Bank’s complaint conflicts with its allegations concerning standing and the exhibit does not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not establish its entitlement to foreclose the mortgage as a matter of law.

But wait, there’s more oh so much more. When challenged, a bank will often come to court with the original note. Judges have been quite impressed with this and have responded… “Plaintiff has the original note, they must be entitled to foreclose”…..not so fast…

Moreover, while U.S. Bank subsequently filed the original note, the note did not identify U.S. Bank as the lender or holder. U.S. Bank also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage. Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage. Accordingly, the documents before the trial court at the summary judgment hearing did not establish U.S. Bank’s standing to foreclose the note and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor.

And that part of the opinion really is earth shattering because even if the lender comes marching into court with the original note, the appellate court is now saying that’s not enough. (I can hear plaintiff law firms across the state fabricating the evidence they need to comply with this new ruling right now.) The real irony of this opinion is that the stunning reversal did not come because a homeowner had a talented foreclosure defense attorney defending the case….no, the parties involved in this appeal were two banks fighting over the loans they had on the home…..how’s that for ironic justice.

It doesn’t matter where it came from, the opinion represents a watershed moment in foreclosure defense and is a tremendous victory for justice and the integrity of the court systems.

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One Comment leave one →
  1. February 15, 2010 10:33 pm

    Great website, I’m subscribed, keep up the good work. Look forward to sharing more with you.
    The affidavit and assignment fraud really is going to come back to haunt these lenders and the attorneys. The knowledge of the widespread fraud is getting to big for courts to ignore….and now courts are becoming aware of the impact on title and other liability. Title claims and motions to set aside final judgments for fraud on the court are just some of the landslide of issues to come.

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