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Foreclosure, You Can Beat The Bank and Their Stupid Lawyers

posted Jun 13, 2010, 9:31 PM by Bill Trudelle   [ updated Jun 13, 2010, 10:19 PM ]

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

Last (for the sake of this post only) every single Summary Judgment obtained by a foreclose mill is accomplished with affidavits that do not contain admissible evidence and are usually perjured. Most being faced with a Summary Judgment in foreclosure can defeat the action by filing an objection in the record served on the lawyer stating
  • 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).