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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!

 

 

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