Florida Foreclosure Defenses, Just The Easy Ones (For Now)

If you are in foreclose, this blog post referencing the findings of Judges could strike at the heart of almost every single foreclosure case. In my studied observations of the courts (non-lawyer pro se mortgage broker), foreclosure lawyers are the sloppiest, most incompetent of all lawyers, they have zero practical experience because they win their cases by lying to the courts with inadmissible evidence to obtain default judgments. These gutter lawyers in too many cases take homes with sewer service  disregarding due process. This is a position I have held for years as a mortgage insider fighting the systematic foreclosure fraud plaguing Florida which is now being proven correct in courts throughout Florida.

Foreclosure Service of Complaint

First let's address sewer service, this occurs when a process server does not hand serve a lawsuit to a defendant, the process server typically leaves the suit on the front porch, then the process server commits perjury when filing an affidavit with the court staying the suit papers were properly hand served to the foreclosure defendant. This "sewer service" is all too common particularly in foreclosure cases where the suing law firm actually and inappropriately (conflict of interest) OWNS the process service company (Florida Default Law Group owns Lighting Service of Florida).

Foreclosure Complaint Deficiencies

Second almost every single foreclosure lawsuit; Fails to State a Cause of Action, fails to establish standing to sue (See Shapiro Motion To Supreme Court), makes false statements about the note and in too many case the plaintiff did not own the note. Several cases have been identified where two different banks filed a lawsuit to foreclose sometimes the same law firm filed the lawsuits with affidavits proving at least constructive fraud by the law firm.

Foreclosure Summary Judgment Lies

• The evidence being used is inadmissible hearsay, and /or perjured testimony.
• The affiant did not have personal knowledge, and was never in a position to have personal knowledge of any material facts.
• The affiant failed to attach any alleged business records to the affidavit as required per Florida Rule of Civil Procedure 1.150

We know foreclosure mills have for years entered affidavits in support of summary judgment who were members of the law firm not members of the plaintiff party. How could the lawyer have any personal knowledge? No other area of law allows for such an absurd proposition, yet this has occurred for years with Judges rubber stamping the Judgment robbing Floridians of there homes. 

Foreclosure Is A Fight Worth Taking On

The greatest problem Florida foreclosure victims have is, they fail to put up any fight at all, where those who are fighting are sometimes getting there home awarded to them due to the banks and the Foreclosure Mills blatant fraud(s).  The Banks and Foreclosure Mills are having the tide turn, you have a very good chance of at least putting your bank into a corner and renegotiating you terms. Unfortunately our government via the FDIC has made some very stupid deals where the lenders are better off foreclosing on you and throwing you out because they will collect more from the FDIC insurance and other bailout monies. If you make foreclosure impossible they cannot collect anything, force the bank to play ball with you, lock in payments you can afford, or get stuck renting with terrible credit for seven years at least.

What can you do to halt your foreclosure? Here is some easy stuff you should discuss with your lawyer. If appropriate; file a Motion To Dismiss Due To Lack of Service or file a Motion To Set Aside Default Due To Lack of Service. File a Motion To Dismiss Due To Plaintiff’s Failure To Verify The Complaint,  or Motion To Set Aside Default Due To Failure To State A Cause of Action file a Judicial Notice attaching “Shapiro Motion For Rehearing” filed with the Supreme Court establishing “There Is No Party Available Who Has Personal Knowledge” of what has occurred with your mortgage file. File a Motion To Dismiss For Lack Of Standing Because The Plaintiff failed to establish they are the actual holder in due course of the note (there are so many improper mortgage assignments the paper trail between you and the mortgagee company was destroyed by bank obstruction or negligence). File a Motion To Dismiss Due To The Plaintiff Committed Fraud on The Court (appropriate when the Plaintiff knowingly enters fails “material” evidence to win case, read example and Florida Bar article). File an Objection To Evidence Submitted To Support Summary Judgment because it fails to comply with Florida Rule of Civil Procedure 1.150, no records are attached to the affidavit as required by said rule, the evidence is not authenticated, the affiant is not in a position to have personal knowledge rendering the evidence used to support Summary judgment as inadmissible hearsay and no exception applies. This is not an all inclusive list just the easy issues even lazy defense lawyers are failing to bring to the courts attention. These issues would in the least force the law firm to have to re-file the law suit, this will put you in a position to go back your alleged lender and renegotiate your note. If you are lucky they will file a contrary statement of facts and you may get a dismissal with prejudice.

There are a vast number of defenses that should be argued in a motion to dismiss and preserved with your answer filed with the court, you also have the right to counter sue, and should (coming article). These strategies shall be the subject of our next post. Please remember I am not a lawyer, this information is for education and discussion purposes and if you have a lawsuit, discuss your options with a real estate lawyer with experience in foreclosure defense if you want to have a chance at winning. (The Florida Supreme Court found Decemebr 2009 MOST Lawyers in foreclosure defense had no experience, were taking peoples money and did nothing).

Countrywide Will Pay $108 Million for Overcharging Struggling Homeowners in Foreclosure Actions; Loan Servicer Inflated Fees, Hired Subsidiaries Instead of Bidding Out Work, and Mishandled Loans of Borrowers in Bankruptcy. This is a Violation of RESPA 8a & 8b.

Two Countrywide mortgage servicing companies will pay $108 million to settle Federal Trade Commission allegations that they collected excessive fees from cash-strapped borrowers who were struggling to keep their homes. $108 million is one of the largest judgments imposed in an FTC case, so far, the largest mortgage servicing case,(however their are plenty in the pipeline). The judgment is suppose to be used to reimburse overcharged homeowners whose loans were serviced by Countrywide before it was acquired by Bank of America in July 2008, watch the money people get yours now. (Ask your attorney to amend your defense and claim a sett-off making your late mortgage current and modify your loan as a settlement). 

“Life is hard enough for homeowners who are having trouble paying their mortgage. To have a any loan servicer like Countrywide piling on illegal and excessive fees is indefensible,” said FTC Chairman Jon Leibowitz. “We’re very pleased that homeowners will be reimbursed as a result of our settlement.”

According to the complaint filed by the FTC, Countrywide’s loan-servicing operation deceived homeowners who were behind on their mortgage payments into paying inflated fees – fees that could add up to hundreds or even thousands of dollars. Many of the homeowners had taken out loans originated or funded by Countrywide’s lending arm, including subprime or “nontraditional” mortgages such as payment option adjustable rate mortgages, interest-only mortgages, and loans made with little or no income or asset documentation, the complaint states. You must read the full story and bring this story to your lawyers attention, could open new defenses and settlement strategy.

Some claim the continuing problems with the foreclosure process could affect the speed at which the housing market recovers by slowing the process of reselling properties and stabilizing the market. I believe the allowing people to keep their home and recover from the situation is by far better because after these people are removed form home ownership, they will probably not be eligible to own a home for the next seven years which will have a far greater negative effect on Florida's economy.

Miami-Dade Circuit Court Judge Jennifer Bailey sent a message to every  lender who presupposes that simply being owed money by a borrower is enough to circumvent laws, orders or anything else that under any other circumstances would simply not be tolerated in a court of law. Florida courts have long held that if you commit fraud in a court of law your case gets dismissed with prejudice. For wht ever reason courts have been rubber stamping foreclosure filing by the sholock Foreclosure Mills like The Florida Default Law Group, well the tide is finally turning.

Eslava vs. HSBC defended by The Florida Default Law Group

The substance of the case was: THe borrower was looking for a loan modification to make payments more affordable.  Essentially unable to come to terms, the lender’s motion to foreclose was granted … but, HSBC (the lender) lost the mortgage note.  Because of this, the court mandated that the lender post a bond to avoid any issues from another lender filing a claim against the borrower.

HSBC never posted the bond and proceeded to foreclose, violating a specific court order.  Eslava’a attorney Shaleen Khan, sought to overturn the sale based on HSBC’s violation. Judge Bailey threw the book at William Huffman, who represented HSBC through Florida Default Law Group.

Ruling and What It Means Going Forward

Basically holding Huffman in contempt, Judge Bailey overturn the foreclosure and she wiped out Enslava’s entire $207,000 mortgage.  Bailey blasted Huffman saying the order she expects  performance not apologies and complained about the general “chaos and disorganization” of lenders and their lawyers.

Could Be A Landmark and Precedent Setting Ruling

 Thank you Judge Bailey for finally sending a message.  “Do your job or there will be hell to pay! We will have to follow this and see if it will be appealed and set presidence for the State.