FLORIDA JUDGE IGNORES FLORIDA LAW AND RULES OF PROCEDURE “BECAUSE HE IS A CIRCUIT COURT JUDGE”

April 17, 2014

In what appears to be another showing of contempt for homeowners and the laws of the State, a Florida Circuit Court Judge today permitted a substitution of the FDIC as the Plaintiff in a foreclosure action with the Bank of New York as the claimed “trustee” of a securitized mortgage loan trust without any proof or evidence of a transfer of either the Note or the Mortgage from the FDIC to BNY while also simultaneously granting the homeowners’ Motion to file amended Affirmative Defenses but refusing to cancel the trial date which is scheduled for April 22, 2014 (5 days from now) with a brand-new Plaintiff.

Under Florida Rules of Civil Procedure, an action cannot be even requested to be set for trial until 20 days after the last pleading is served. After that occurs, a request can be made for a trial date, but the trial date cannot be for at least 30 days following the date of the request.

As the Court granted the homeowners’ Motion to assert a new pleading in the form of amended affirmative defenses based on the change of the Plaintiff, the action was, today, no longer able to be set for trial, and due process codified in the Florida Rules of Civil Procedure and case law would not permit the case to even be set for trial until sometime in June, 2014 at the earliest.

However, the Manatee County, Florida Circuit Judge refused to continue the trial. When asked what his legal basis for this was, he replied “Because I am a Circuit Court Judge”. Apparently this Judge has unilaterally anointed himself with the power to ignore and refuse to comply with the Florida Rules of Civil Procedure and Florida due process case law.

This type of conduct is exactly the “disparate treatment” we have repeatedly discussed on this website, and is a classic example of why oversight must be immediately implemented in foreclosure courts to insure that the law is complied with, and if a Judge refuses to comply with Court rules or the law, that Judge must not be permitted to handle foreclosure cases.

This example is not the norm, and most Judges we have seen are fair and abide by the rules of law and procedure. However, this example does point to a recent trend of certain Judges to ignore the law and do whatever they want in order to grant a judgment in favor of the “banks”.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

PUNITIVE DAMAGES UPHELD AGAINST US BANK IN MONTANA CASE

April 15, 2014

The Gallatin County, Montana District Court has rejected US Bank’s Motion to reduce a punitive damage award assessed against it by a jury, upholding the $5,000,000.00 award as well as the $1M compensatory damages award on the homeowner’s fraud and constructive fraud claims. The case is McCulley v. US Bank, Cause No. DV09-562C (Montana 18th Judicial District Court). The Order denying US Bank’s Motion to reduce the punitive damage award was entered yesterday, April 14, 2014.

The facts of this case are beyond shocking. The 22-page opinion sets out how US Bank intentionally lied to the Court and the homeowner about the underlying transaction and the existence of documents, withheld documents, made the homeowner sign three versions of the loan application while lying to the homeowner that she would receive a specific loan, switching the loan at the last minute, and then foreclosing in order to make a profit of over $350,000.00. The Court also found that the homeowner went from a healthy and athletic individual to one who was severely depressed and attempted a near-successful suicide because of the actions of US Bank.

The Court found that all of the factors to uphold the punitive damages award had been satisfied under Montana law, and that the $5M award was well within US Bank’s ability to pay without serious consequences to it given that US Bank’s Form 10-Q filing with the SEC showed that its net worth was $41,552,000.000 (that’s over $42 and a half BILLION dollars), and that US Bank had a net income for the nine months ending 09/30/13 of over $4.26 billion.

It is thus no wonder why the banks fight requests for jury trials with such vigor. They know that if regular people see the kind of fraudulent conduct which the banks engage in that there will be serious consequences.

We thank one of our clients for bringing this decision to us today.

Jeff Barnes, Esq., www.ForclosureDefenseNationwide.com

WHO’S ON FIRST: LOAN “OWNER” MUSICAL CHAIRS

April 14, 2014

We have said that the banksters trade mortgage loans like baseball cards. No one seems to know, from one day to the next, who owns the loan. More disturbing is that it now seems that different banks are claiming ownership of the same loan.

Last week, we defended a Rule 120 hearing in Colorado. The “Movant” who in 2013 filed the Petition for an Order Authorizing Sale was U.S. Bank as Trustee for a securitization trust. However, on March 14, 2014 (just 3 weeks before the hearing), the law Firm representing the “Movant” advised the homeowner that U.S. Bank no longer had any interest in the Note or the Deed of Trust, which had been “sold or otherwise transferred” to Citibank, N.A. The law Firm representing U.S. Bank moved to substitute Citibank, N.A. as the moving party without any notice to Citibank.

No documents showing any sale or transfer of the loan were ever produced, and there was no affidavit or testimony from anyone at Citibank as to the alleged sale or transfer, yet the hearing proceeded. The Judge has held off issuing an Order Authorizing Sale pending an issue relating to the appeal of the substitution of Citibank for U.S. Bank.

In a separate case in Florida (which is on appeal), we received two letters today: one from Nationstar dated April 2, 2014 stating that the owner of the loan is U.S. Bank as Trustee for LXS Series 2006-11, located in St. Paul, Minnesota. A second letter dated April 4, 2014 (just 2 days after the date of the Nationstar letter) from the law Firm representing Nationstar in the appeal stated that the owner of the loan is Bank of America, N.A. as Trustee for Lehman XS Trust Mortgage Pass-Through Certificates Series 2006-11 located in Charlotte, North Carolina.

Who is lying? What we suspect is that BOTH U.S. Bank and Bank of America have made claims for payment from the trust, credit default swap policies, and/or other insurance policies on the same “defaulted” loan, in however many tranches the loan was (allegedly) assigned to. Note that the designation of the trust was in “long form” on one letter and “short form” on another. This is probably so that the claims come in under a different reference and so both are paid.

Another scam so that now different banks can get paid on the same loan?

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com

FLORIDA RAILROADING FORECLOSURE TRIALS

April 1, 2014

No April Fool: Florida courts are railroading foreclosure cases to trial on a “rocket docket”, apparently at the behest of the Supreme Court of Florida to clear the court dockets of foreclosures. This has lead, predictably, to myriad problems.

As we previously discussed on this website, homeowners in foreclosures are and have already been subjected to disparate treatment, separate and apart from other general civil litigants, by having their cases relegated to special “foreclosure dockets” and procedures. One Florida court has even enacted procedures which, by Court Order, automatically deny all motions directed to the pleadings, find that the case is ready for trial, and set the case for trial. Further, no motions, other than those requiring the presentation of evidence, are even set for hearing: the court rules on motions on the papers alone. As the only real “evidentiary” motions are those requesting summary judgment (which are usually filed by the “banks” or servicers), it is the banks and servicers which get the hearings; homeowner motions compelling discovery or to compel a deposition of the representative of the “bank” or servicer do not get a hearing.

In other parts of Florida, “docket calls”, with upwards of 90 cases on the morning calendar, are being scheduled, and 5-minute foreclosure trials are set unless any attorneys say they need more time. Homes are thus being foreclosed on at the trial rate of 12 or more homes per hour on “trial days”.

Meanwhile, the “banks” and servicers have let the cases sit for years, do not respond to discovery, and then try to ask for summary judgment when a trial order is issued. Of course, THEY get a hearing.

Another phenomenon that has been occurring recently is that the attorney for the bank or servicer is being replaced with another law Firm as soon as the trial order is issued. The problem this causes is that when a request is made to the “new” law Firm as to outstanding discovery which is overdue or to schedule the deposition of the bank/servicer’s representative, the response is “we will get back to you.” ┬áSometimes they do, sometimes they don’t; meanwhile, the trial date comes closer and closer.

We understand the frustration of the Supreme Court, but it is not the fault of the homeowners, who should not be treated like cattle to the slaughter and should be afforded the rights of all other civil litigants. Meanwhile, the daily disparate treatment continues…..

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com