From Our Friends at Living Lies Weblog


URGENT REQUEST! California Court attempting to Bury Decision!!! Don’t allow Guliex v. PennyMac to go unpublished! Act Today!
7h ago

California Fifth Court of AppealsGuilexguilex v pennymac

Unfortunately it is not uncommon for courts to skirt the rules in order to protect the banks if they can get away with it. It is up to California attorneys and homeowners nationwide to contact California’s Fifth District Appellate court and request that the Guliex case be published. YOU almost didn’t have this opportunity because it appears the court attempted to end the submission window six-days early !

We need all HOMEOWNERS and FORECLOSURE ATTORNEYS NATIONWIDE to HELP get this case published!

Homeowners, PLEASE write the Court at the address below TODAY (or use the template) and request that Guliex v. PennyMac be published. Attorneys and registered pro se litigants can file electronically through the court’s TrueFiling.com system.

Letters should be mailed TODAY or possibly MONDAY if you live in California to be received by the Tuesday, August 1st deadline.

Electronic filings are accepted up until Tuesday.

Originally the court had issued an order stating that no more letters requesting publication of Guliex would be accepted. Apparently after public outcry, the court clerk stated they would now accept requests to publish until Tuesday, August 1st, 2017.

On July 12th, 2017 the California Fifth Appellate Court issued an unpublished opinion in Guliex v. Pennymac Holdings, a case that may potentially benefit homeowners nationwide who are litigating illegal trustee sales and Chain of Title issues.

The Rules of the Fifth Appellate Court permit 20 days for attorneys and citizens to request publication of the case by submitting letters to the court. The court originally incorrectly listed the deadline as July 27th when the deadline should have been August 1st, 2017. Thus, the court clerk shut down requests for publication SIX days prematurely.

The Appellate court also issued the opinion that the Guliex decision, “does not establish a new rule of law, nor does it meet any of the criteria set forth in California Rules of Court, rule 8.1105(c).”

WHAT? REALLY? The decision likely doesn’t meet the court’s publication criteria because it actually benefits the Homeowner, not the Bank for a change!! Apparently Homeowners fighting foreclosure and hostile courts must also fight judicial CENSORSHIP if they prevail, in addition to the other abuses and injustices they confront at every judicial juncture.

Unfortunately, this is one more attempt to silence victims of fraudulent foreclosure and the attorneys who defend them. The Guliex case is important because the court actually complies with the rule of law it established in its own jurisdiction.

Common sense decisions regarding wrongful foreclosure are infrequent and typically eroded or overturned. Yvanova, one of the finest decisions on the importance of standing, was decimated by the Saterbak ruling. A favorable precedent that adheres to the rule of law must be allowed to stand. We must be vigilant and our voices united.

Please write a simple letter, or copy the template below and mail it TODAY requesting that the court publish the Guliex decision. The request for publication should not exceed 2 pages.

(Hat tip to Charles Cox for composing the content of this letter). Please edit as desired.

Fifth District Court of Appeal
Request for Publication, Case No. F073142
Attn: Honorable Brad Hill, Presiding Justice
2424 Ventura Street
Fresno, CA 93721

Subject: Request for Publication

Guliex v PennyMac Holdings LLC

Court of Appeal No F073142 filed July 12, 2017

Opinion cited as 2017 Cal App Unpub Lexis 4742

REQUEST FOR PUBLICATION OF OPINION

Dear Justices of the Fifth Appellate District of the California Court of Appeal,

Pursuant to California Rules of Court (“CRC”), Rule 8.1120(a) et seq., I am writing to respectfully and timely request certification for publication of the Court’s entire Opinion, or in the alternative, partial publication of Parts I. et seq. and II.B., for the case captioned above.

My interest in this request relates to the engineered attacks upon home ownership by unauthorized intermediaries engaged in self-help that is California’s non-judicial foreclosure process; and the application, interpretation, clarification and addressing of the facts in this instant case by the Appellate Court and its distinguishing other holdings involving legal issues of continuing public interest as well as clarification of certain specifics related to this field of litigation as the Opinion(s) may apply to other cases more readily once published.

The Opinion meets the standard for publication as authorized by CRC, Rule 8.1105(c) which provides that an opinion of a Court of Appeal or a superior court appellate division-whether it affirms or reverses a trial court order or judgment-should be certified for publication in the Official Reports if the opinion:

(1) Establishes a new rule of law;

(2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;

(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;

(4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;

(5) Addresses or creates an apparent conflict in the law;

(6) Involves a legal issue of continuing public interest;

(7) Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;

(8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or

(9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.

I contend the Court’s well-reasoned Opinion contained therein accordingly satisfy sub-sections 1, 2, 3, 4, 5, 6, and 8 as referenced above more specifically related to Sections I. sub-sections B, C, and D.

Section I.B. The Opinion clarifies that a homeowner “…has standing to challenge a foreclosure by an unauthorized entity.” Further, the Opinion clarifies that although a superior court may take judicial notice of documents that have been publicly recorded at a county recorder’s office, the “disputed or disputable” factual content of recorded documents is inadmissible hearsay. This meets the standard for publication per CRC, Rules 8.1105(c)(2, 3, 5, 6 and 8).

Section I.C. The Opinion establishes a new rule on the analysis of a chain-of-title as reflected documents publicly recorded at a county recorder’s office; as well as the analysis of each link in the chain-of-title as to whether a document can establish an unbroken or perfect link in the chain. The Opinion further clarifies that a plaintiff must allege facts that show the defendant who invoked the power of sale was not the true beneficiary. This meets the standard for publication per CRC, Rules 8.1105(c)(1, 2, 4, 6 and 8).

Section I. D. The Opinion establishes a new rule by distinguishing the two illegal types of wrongful foreclosures: procedural irregularities v. unauthorized foreclosure. This is an important opinion for these cases not previously popularized by other opinions clarifying the question of whether and/or when a homeowner must allege tender and/or prejudice. This meets the standard for publication per CRC, Rules 8.1105(c)(1, 2, 4, 5, 6 and 8).

Based on the foregoing, I respectfully request this Honorable Court publish the above referenced Opinion.

Respectfully submitted,

We encourage readers to post copies of the letters mailed to the court in the comments section of this post. Just to keep the courts honest!

Thank you to California Attorney Charles Marshall, Eva Sutton and Celia Salazar for their efforts to publish this important opinion.

Morgan Stanley is paying a huge fine for a precrisis ‘magic’ trick

Morgan Stanley is paying a huge fine for a precrisis ‘magic’ trick

  • Feb. 11, 2016, 9:46 AM
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Morgan Stanley

Morgan Stanley is paying a huge settlement related to residential mortgage-backed securities, or RMBS, sold before the financial crisis.

New York Attorney General Eric Schneiderman on Thursday announced a $3.2 billion settlement with the firm over charges it misled investors on the quality of mortgage loans it sold.

New York State will receive $550 million.

“We are pleased to have finalized these settlements involving legacy residential mortgage-backed securities matters. The Firm has previously reserved for all amounts related to these settlements,” Morgan Stanley said in a statement.

The settlement follows an investigation by the Residential Mortgage-Backed Securities Working Group of the Financial Fraud Enforcement Task Force, a joint federal-state working group formed in 2012.

“Morgan Stanley securitized and sold RMBS with underlying mortgage loans that it knew had material defects,” the Attorney General’s office said in a statement.

The statement described a 2006 email in which Morgan Stanley’s due diligence team told a colleague: “Please do not mention the ‘slightly higher risk tolerance’ in these communications. We are running under the radar and do not want to document these types of things.”

Anothe 2006 email from a due diligence team member included a list of questionable loans, seeking approval for purchase. The email read: “I assume you will want to do your ‘magic’ on this one?”

Goldman Sachs last month announced it would pay a $5 billion settlement related to RMBS sold between 2005 and 2007. That nearly wiped out fourth-quarter earnings for the firm.

The RMBS Working Group has previously settled with Bank of America for $16.7 billion, JPMorgan for $13 billion, and Citigroup for $7 billion.

Here is the news release from the New York Attorney General:

NEW YORK – Attorney General Eric T. Schneiderman today joined members of the state and federal working group he co-chairs to announce a $3.2 billion settlement with Morgan Stanley over the bank’s deceptive practices leading up to the financial crisis.  The settlement includes $550 million – $400 million worth of consumer relief and $150 million in cash – that will be allocated to New York State.

The resolution requires Morgan Stanley to provide significant community-level relief to New Yorkers, including loan reductions to help residents avoid foreclosure, and funds to spur the construction of more affordable housing. Additional resources will be dedicated to helping communities transform their code enforcement systems, invest in land banks, and purchase distressed properties to keep them out of the hands of predatory investors.

The settlement was negotiated through the Residential Mortgage-Backed Securities Working Group, a joint state and federal working group formed in 2012 to share resources and continue investigating wrongdoing in the mortgage-backed securities market prior to the financial crisis.

“Today’s agreement is another victory in our efforts to help New Yorkers rebuild in the wake of the financial devastation caused by major banks,” said Attorney General Schneiderman. “Today’s settlement will deliver resources to the families and communities that need them the most, while helping New Yorkers avoid foreclosure, and spurring the construction of more affordable housing units statewide.”

The settlement includes an agreed-upon statement of facts that describes how Morgan Stanley made multiple representations to RMBS investors about the quality of the mortgage loans it securitized and sold to investors, and its process for screening out questionable loans.  Contrary to those representations, Morgan Stanley securitized and sold RMBS with underlying mortgage loans that it knew had material defects.

In the statement of facts, Morgan Stanley acknowledged that it increased the acceptable risk levels for loans in its securitized pools.  This allowed Morgan Stanley to purchase various loans with loan-to-value (LTV) ratios over 100%, i.e. loans that were “underwater.” In a May 31, 2006 email, the head of Morgan Stanley’s team tasked with doing due diligence on the value of properties underlying the mortgage loans asked a colleague, “please do not mention the ‘slightly higher risk tolerance’ in these communications. We are running under the radar and do not want to document these types of things.”

In another email on November 21, 2006, a member of the Morgan Stanley due diligence team forwarded a list of questionable loans, seeking review and approval to purchase them and adding “I assume you will want to do your ‘magic’ on this one?” In another similar instance from July 2006, the head of Morgan Stanley’s valuation due diligence cleared dozens of risky loans for purchase after less than one minute of review per loan file.

In the settlement, Morgan Stanley also acknowledged that it securitized certain loans that neither complied with underwriting guidelines nor had adequate compensating factors. Morgan Stanley also purchased and securitized many loans which its credit and compliance team recommended not be purchased, after its finance team decided that the loans had “acceptable risk.”  Morgan Stanley also allowed loans that it knew were risky to be purchased and securitized without a loan file review for credit and compliance.

In his 2012 State of the Union address, President Obama announced the formation of the RMBS Working Group. The collaboration brought together the Department of Justice, other federal entities, and several state law enforcement officials – co-chaired by Attorney General Schneiderman – to investigate those responsible for misconduct contributing to the financial crisis through the pooling of loans and sale of residential mortgage-backed securities.

Under the settlement, Morgan Stanley will be required to provide a minimum of $400 million in creditable consumer relief directly to struggling families and communities across the state. The settlement includes a menu of options for consumer relief to be provided, and different categories of relief are credited at different rates toward the bank’s $400 million obligation. Creditable dollars will go toward the creation and preservation of affordable rental housing, land banks, code enforcement, communities purchasing distressed properties, and principal reductions for homeowners.

“Mayors across the state have been dealing with the impact of the financial crisis for years now. The settlement funds will have a huge impact, helping homeowners who continue to struggle and are in need of mortgage relief” said Tom Roach mayor of the city of White Plains and Vice President of the New York Conference of Mayors. “Applying the settlement proceeds to fund land banks, affordable housing and enhanced code enforcement will have a direct impact on the quality of life of those most affected by the financial meltdown and be of great assistance to our municipalities.”

“The Center for NYC Neighborhoods applauds Attorney General Eric Schneiderman for standing with New Yorkers at risk of foreclosure. This settlement will help to ensure that our neighbors’ homes do not fall into the hands of predatory investors. With innovative programs like these, we can finally put the housing crisis behind us and work toward a stronger, more affordable New York,” said Christie Peale, Executive Director of the Center for NYC Neighborhoods.

“Attorney General Schneiderman’s use of these settlement dollars to investment in communities hardest hit by the foreclosure crisis,  has significantly accelerated the recovery efforts of cities across New York who are still struggling to move past this crisis. Without these critical funds, our organization would not be able to make such broad revitalization impacts on such a short timeline,” said Madeline Fletcher, Executive Director of Newburgh Land Bank.

This matter was led by Senior Enforcement Counsel for Economic Justice Steven Glassman and Assistant Attorney General Tanya Trakht. The Division of Economic Justice is led by Karla G. Sanchez.

Marburg Virus Hitting Kenya! Be Safe!

RSOE EDIS
RSOE Emergency and Disaster Information Service
Budapest, Hungary

RSOE EDIS ALERTMAIL

2014-10-12 03:52:31 – Biological Hazard – Kenya

!!! WARNING !!!

EDIS Code: BH-20141012-45602-KEN
Date&Time: 2014-10-12 03:52:31 [UTC]
Continent: Africa
Country: Kenya
State/Prov.: ,
Location: The area was not defined,
City:
Number of infected people: 2

Description:
Kenya said Saturday that adequate measures have been put in place, with health facilities and ports of entry being on high alert, to check possible outbreak of Marburg haemorrhagic fever in the country. Nicholas Muraguri, director of medical services in the country’s health ministry, urged citizens to be vigilant and avoid contact with anyone who has travelled from Uganda after a Ugandan man died from the haemorrhagic fever, Xinhua reported. “Kenyan health workers have been provided with a case definition and instructions on screening all persons who have travelled to Kampala or have had contact with someone from Uganda if they present Marburg-like syndrome,” said Muraguri in a statement issued in Nairobi. He also confirmed that two suspected cases of the fatal virus were reported to the health ministry, which turned out to be negative. “Two suspected cases of Marburg have been reported to the Disease Outbreak Response Team. These were a man and a woman who had travelled from Uganda and developed fever and other symptoms that are similar to Marburg disease,” Muraguri said. He said the blood samples of the two, however, were found to be negative for both Marburg and Ebola viruses, adding that they were treated for other infections and discharged. According to the World Health Organisation (WHO), Marburg is a severe and highly fatal disease caused by a virus from the same family as the one that causes Ebola haemorrhagic fever. The illness caused by Marburg virus begins abruptly, with severe headache and severe malaise. As with Ebola, the family and health personnel in contact with infected patients are particularly at risk of contamination. Muraguri cautioned the public to avoid those who have complaints of fever, headache and other malaria-like symptoms as they could be exposed to Marburg disease. He appealed for maintenance of personal hygiene such as washing hands with soap as many times a day as possible as a sure way of remaining healthy and keeping the highly infectious virus at bay. The incubation period of the disease that manifests as a viral haemorrhagic fever is between two and 21 days.

The name of Hazard: Marburg virus (MARV)
Species: Human
Status: Suspected

Posted:2014-10-12 03:52:31 [UTC]

Office Depot Memorial Drive Stone Mountain, GA 3-4 Hours to Make a Copy

Office Depot Acting Like Idiots

 
Have you ever been to Office Depot, where everyone wants to act like an idiot?

I sent someone to Office Depot today.  All he needed was three cover sheets printed onto 50-65# card stock.  He knows nothing about these things, and is from another country.

Anyway, the idiots in there told him that it would be 3-4 hours to make three copies on 50-65# card stock, because they have to change the paper?  What kind of bullshit is that?  3-4 Hours?  Hell, all they have to do, is take the three pieces of card stock over to the copier, stick those three blank pieces of card stock on top of the paper in the copier, and but the document to be copied onto the scanner, punch 3 for 3 copies, and hit enter.

How hard is that?  I swear Alex Jones and the others are absolutely right about us being “dumbed down”, that is about the dumbest thing I have ever heard.  3-4 hours for 3 copies.  I was in printing back before computers took over, and hell, you could wash up the printing press, put the new ink in, warm it up, install the plate on the drum, and get it registering, and print 3 sheets of card stock in 15 minutes tops.  And they are going to tell me that it will take 3-4 hours to change a copier over to print on card stock, when I know for a fact, it will print on that stock, without changing a damned thing.

Ok, Good Luck To All Out There Having to Get Something Printed on Card Stock at the Office Depot Memorial Drive Stone Mountain, GA!

Judiciary Has Become a Disappointment to MarK Stopa and The Rest Of US!

Foreclosure Court: The Erosion of the Judiciary

http://www.stayinmyhome.com/foreclosure-court-the-erosion-of-the-judiciary/

Posted on September 2nd, 2013 by Mark Stopa

 I’m a big believer in the justice system.  In fact, that’s part of why I became a lawyer.  I believe in every litigant’s right to obtain a fair hearing and trial before a neutral judge and/or impartial jury.  It sounds cliché, but that’s what I do – help people navigate the judicial system in their time of need. 

In recent months, though, the judiciary in many parts of Florida (not all, but many) has turned into something I don’t recognize.  The change has been so sudden and so extreme that it’s altering the face of the judiciary and hindering that which I hold so dear – the right to fair hearings and due process.  Yes, what I consider the “core” of a fully-functioning judicial system is eroding. 

If you’re a Florida lawyer but you don’t handle foreclosure cases, you likely have no idea what I’m talking about.  After all, outside of foreclosure-world, Florida’s courts are operating like normal, business as usual.  Sure, the down economy has brought some minor changes, but all in all, our courts are functioning in a normal way. 

Foreclosure cases, though, are a totally different animal. 

I was chatting with a colleague the other day, an attorney who doesn’t handle foreclosure lawsuits, and he was shocked as I described the things I see in foreclosure court on a daily basis.  This is a seasoned attorney who was SHOCKED at what I see every day.  That made me realize … I’m not doing a good enough job of explaining the travesties I see every day in foreclosure-world. 

It’s a tough line to toe, frankly.  Bar rules prohibit me from disparaging any particular judge, so it’s sometimes difficult to explain what’s happening in foreclosure court without crossing that line.  In this blog, though, I’m going to toe that line.  Don’t misunderstand – I’m not criticizing anyone in particular.  Rather, my critique – and that’s what I see this as, a constructive critique, coupled with a hope that everyone will realize just how flawed our system has become – is aimed at the entire institution.  My concerns aren’t with any particular judge or any one ruling – they lie with the entire judicial system, the way the entire judiciary is operating right now, at least as it pertains to foreclosure cases. 

I know what you’re thinking.  I’m just a self-interested, foreclosure defense attorney who’s trying to delay foreclosures and let people live for free.  I’m upset because the courts are making that more difficult.  Right?

Before you blow off my concerns in that manner, you tell me.  Are my concerns legitimate?  Is this how a judicial system should operate?  You tell me … 

As a foreclosure defense lawyer, I’ve seen pro se homeowners attend hearings in their cases and not be allowed to speak.  Not one word.  It wasn’t that the judge didn’t hear the homeowner or didn’t realize he/she was present, either – the homeowner asked the judge to speak at a duly-noticed hearing and was not permitted to do so.  Homeowner loses, yet couldn’t say one word.  Isolated incident, you say?  I’ve personally seen it more than once. 

Not being permitted to speak has not been limited to pro se homeowners.  I have personally been threatened with criminal contempt – criminal contempt – for moving to disqualify a judge after striking my defenses without letting me say one word about those defenses.  Your defenses are stricken, you can’t talk, and if you complain about it, I’ll throw you in jail. 

In many parts of Florida, attorneys are not permitted to attend foreclosure hearings by phone – regardless of how insignificant or short the hearing may be.  Never mind that the Florida Supreme Court created a rule of judicial administration which requires phone appearances be permitted for hearings that are 15 minutes or less absent “good cause” – in many parts of Florida, attendance by phone is simply not permitted. 

I’ve heard some justify this procedure by explaining how it’s difficult to deal with phone appearances in foreclosure cases.  Really?  How is it any more difficult than in other types of cases?  Frankly, I can’t help but wonder if the prohibition on phone appearances is designed to make it harder for defense lawyers to appear in cases for homeowners, enabling the courts to push through those cases faster.  (Prohibiting phone appearances obviously makes it harder and more expensive to attend hearings, often making the difference in a homeowner’s ability to afford counsel.) 

That’s an absurd proposition, though, right?  Why would our courts care how quickly foreclosure lawsuits are litigated?  Judges are neutral arbiters – they don’t care how quickly the cases are adjudicated.  Do they? 

The answer to that question is at the heart of the problem.  In recent months, the Florida legislature has been putting immense pressure on Florida judges to clear the backlog of foreclosure lawsuits.  How much pressure?  Well, the legislature controls the amount of funding that goes to our courts – funding that is needed to retain new judges, senior judges, court staff, and clerks (basically, the funding necessary to keep all judges and JAs from being totally overwhelmed).  Unfortunately, the legislature has been giving these judges an ultimatum, kind of like parents do to their children regarding allowance.  Basically, it works like this … “if you don’t finish these foreclosure cases, we won’t give you more funding.”  As such, the legislature holds the judiciary hostage … if the judiciary doesn’t clear cases, then the legislature doesn’t give the judiciary the funding necessary to manage the many thousands of foreclosure lawsuits pending before it. 

Perhaps worse yet, and to my sheer disgust, I’m told the legislature recently cut the pay of Florida judges (for the first time in years), and the clear understanding was that it was done as a way to punish/blame the judges for not clearing up the backlog of foreclosure cases faster.  “You won’t enter judgments fast enough for our liking … we’ll cut your pay.” 

(The pay of Florida judges is public record, right?  Why is nobody talking about this?) 

The judicial system shouldn’t operate this way.  We all learned it in elementary school, how the three branches of government exist as “separate but equal” branches of government, employing a system of “checks and balances” to ensure a fully-functioning government.  But that’s not what’s happening right now, certainly not in foreclosure court.  In foreclosure-world, the legislature is king. 

You might think this is conjecture and speculation on my part.  It’s not.  I can’t go a week without hearing how the legislature is forcing judges to move cases.  Judges discuss it openly in open court, and not just to me – to everyone.  As a result of this dynamic – judges wanting to move cases – I see all sorts of crazy things I’d never see in any other area of law. 

I’ve mentioned the homeowners who can’t speak, the threats of incarcertaion, and the prohibition on phone appearances, but let’s get to some more egregious concerns. 

Judges sua sponte set trials in foreclosure cases (without a Notice of Trial having been filed, without a CMC or pretrial conference, and without discussing/clearing the date with an counsel).  This is now routine, virtually everywhere in the state. 

Judges sua sponte set trials in foreclosure cases where a motion to dismiss is outstanding and the defendant has not filed an answer. 

Judges sua sponte set trials with less than 30 days’ notice (such that, as defense counsel, you randomly receive a trial Order in the mail, reflecting you have a trial in 2 weeks). 

The sua sponte setting of trials dominates the landscape of foreclosure-world.  Banks often don’t want trials in foreclosure cases, but the judges will set them anyway.  Then, even when the plaintiffs are vocal about not wanting a trial in that particular case, judges often insist they go forward anyway.  Even stipulated/agreed Orders to continue a trial or vacate a trial Order often go unsigned. 

Sometimes, where trial has been set in violation of Rule 1.440, judges will recognize the error and fix it.  (The judges in Pinellas and Hillsborough in particular are good about this, striving to follow the law.)  In many others cases, though, judges will proceed with trial anyway.  In foreclosure circles, one county has become known for using a stamp – DENIED – right on the motion to vacate trial Order, without a hearing.  Case not at issue?  Doesn’t matter.  Less than 30 days’ notice?  Doesn’t matter.  Bank doesn’t want a trial?  Doesn’t matter.  We’re going to trial! 

Often, judges won’t proceed with trial where the defendant hasn’t filed an Answer but will essentially force the Answer to be filed forthwith.  How is this accomplished?  Easily – either deny the motion to dismiss (often without a hearing), or sua sponte set a CMC to ensure the case gets at issue.   Some courts use CMCs as a way to, in my view, browbeat parties into settling.  One county, for example, has started setting three CMCs at once – one per week for three consecutive weeks, requiring in-person attendance, at mass-motion calendars that last an hour or more, with no input from counsel on when the CMCs are scheduled.  You’re not available?  Too bad.  You don’t need a CMC three weeks in a row?  Yes, you do.  Your case will get at issue and it will be set for trial. 

Oh, and if you want to set a hearing in this county, you have to mail in a form – MAIL IN A FORM – and wait for them to respond to you, by mail, with a form that gives you a set hearing date, without any input from you on when that hearing takes place. 

What dominates the thinking from the judiciary – again, not my speculation, but something the judges openly discuss – is their desire to “close” cases.  That’s the monster that the legislature has created – evaluating the performance of judges not based on their work as judges but based on the results set forth in an Excel spreadsheet.  How many foreclosure lawsuits were filed in that county?  How many judgments have been entered?  If the ratio of judgments entered to cases filed is high enough, then the judges in that county are doing a good job and deserve more funding from the legislature.  If not, then those judges and JAs can all suffer through the many thousands of cases without more help. 

The dynamic is so perverse that I’ve seen judges refuse to cancel foreclosure sales even when both sides ask them to. 

Plaintiff’s lawyer:  “We don’t want this foreclosure sale to go forward, judge.” 

Defendant’s lawyer:  “We are living in this house.  We don’t want this foreclosure sale to go forward, judge.” 

Judge:  “Foreclosure sale will go forward as scheduled.” 

Huh? 

This dynamic is particularly difficult to take when the parties have reached a settlement.  For example, loan modifications sometimes happen after a judgment but before a sale.  That means, essentially, that both sides are willing to forego foreclosure with the homeowner resuming monthly mortgage payments.  Incredibly, based partly on their desire to “close” a case, some judges will force a foreclosure sale to go forward even when both parties don’t want it to, having settled their dispute via a loan modification. 

Plaintiff’s lawyer:  “We have agreed to a loan modification.  We want the foreclosure sale cancelled.” 

Defendant’s lawyer:  “We have agreed to a loan modification.  We want the foreclosure sale cancelled.” 

Judge:  “Foreclosure sale will go forward as scheduled.” 

Huh? 

Even when both sides are able to resolve disputes before trial, even then they sometimes can’t escape a dress-down from the judiciary.  For instance, I’ve watched judges threaten Bar grievances against lawyers – yes, Bar grievances – where they settled the lawsuit by consenting to a foreclosure judgment with a deficiency waiver and extended sale date.  Mind you, that’s a perfectly legitimate way to compromise and settle a foreclosure lawsuit – bank gets the house, homeowner avoids any further liability and gets to stay in the house longer so as to pack up and move – but the prospect of the sale date getting pushed out 4-5 months angers some judges.  “No, you can’t settle that way.  The sale has to happen sooner.”  Yes, I’ve seen settlements like this rejected with the sale set sooner than the parties agreed.

Huh? 

There’s absolutely no rule or law that requires a sale to happen sooner where the parties agree.  Unfortunately, the judges are motivated by having that case “closed” so the numbers on the spreadsheet look better for the legislature. 

My natural response is to lament the unfairness of it all.  After all, that homeowner gave up the chances of winning at trial predicated on getting more time in the house.  I find it terribly unfair that the homeowner gave up a right to trial in exchange for an extended sale date that the judge took away … right?  Some judges would scoff at that notion.  After all, I’ve heard several times, in open court, ”there is no defense to foreclosure,” or “I’ve never seen a valid defense to foreclosure,” or words of that ilk.  Never mind that I’ve had many dozens of foreclosure cases dismissed throughout Florida, including several at trial (25 different judges have dismissed a lawsuit of mine on paragraph 22 noncompliance, for example) … there is no valid defense to foreclosure and, hence, no reason for an extended sale date. 

Another county has become known for punishing any defendants who force a trial to proceed.  I personally observed the judge begin every hearing by telling the homeowners and their counsel that they “better” accept a 120-day extended sale date, as if that “offer” was rejected then it would be “off the table” after the trial.  The implication here was obvious to everyone in the room … You want to show up and force the bank to prove its case?  You’ll lose, and I’ll punish you by ruling against you and forcing you to move out sooner. 

Some would say that the way to deal with this madness is to appeal.  Easier said than done.  Homeowners facing foreclosure are often in no position to fund an appeal.  I’ve taken some appeals for free, but there’s only so many I can handle that way.  Oh, and even if you get beyond the issue of funding, go look for published decisions that are pro-homeowner in the First DCA, Third DCA, or Fifth DCA.  Many thousands of foreclosure cases have been adjudicated in those areas in the past several years.  How many favorable rulings do you think have come out of those jurisdictions during that time?  I’ll give you a hint – not many.  In many ways, appealing in those parts of the state is like standing at the bottom of Mount Everest and being told “climb.” 

Dealing with this dynamic has been very difficult in recent months.  It’s a hard pill to swallow.  It’s difficult to watch the judicial system bend at the direction of the legislature.  It’s tough to know the concept of “separation of powers” that we all learned in elementary school is being cast aside.  It’s hard to feel like the most fundamental concepts of due process are being sacrificed to push lawsuits faster when even the plaintiffs in those lawsuits don’t so desire.  It’s hard to feel like these procedures have made it impossible for me to help homeowners in certain parts of the state.  It’s frustrating that many reading this will be upset at the entire judiciary, not realizing there are many circuit judges – particularly in Hillsborough, Pinellas, and other areas within the ambit of Florida’s Second District – who are striving to be fair and follow the law notwithstanding all of the pressure from the legislature. 

Mostly, though, I’m disappointed.  I’m disappointed that such perverse procedures are happening in our courts every day yet nobody is talking about it – and many don’t even realize it’s happening.  I’m disappointed that the justice system I knew is eroding.  I’m not going to find a dictionary definition, but that’s what erosion is – a slow process of deterioration such that, before too long, that thing which previously existed is no more. 

I hope everyone shares this blog.  I hope my friends, colleagues, attorneys and homeowners all understand what’s happening in our courts.  I hope everyone stands up to the legislature and demands it stop this madness.  Most of all, I hope the erosion of our judiciary stops … soon.

Another Great Article From Living Lies, Telling It Like It Is!

  

LAST CHANCE FOR JUSTICE

Posted on August 19, 2013 by Neil Garfield

“We are still in the death grip of the banks as they attempt to portray themselves as the bulwarks of society even as they continue to rob us of homes, lives, jobs and vitally needed capital which is being channeled into natural resources so that when we commence the gargantuan task of repairing our infrastructure we can no longer afford it and must borrow the money from the thieves who created the gaping hole in our economy threatening the soul of our democracy.” Neil Garfield, livinglies.me

We all know that dozens of people rose to power in Europe and Asia in the 1930′s and 1940′s who turned the world on its head and were responsible for the extermination of tens of millions of people. World War II still haunts us as it projected us into an arms race in which we were the first and only country to kill all the people who lived in two cities in Japan. The losses on both sides of the war were horrendous.
Some of us remember the revelations in 1982 that the United States actively recruited unrepentant Nazi officers and scientists for intelligence and technological advantages in the coming showdown with what was known as the Soviet Union. Amongst the things done for the worst war criminals was safe passage (no prosecution for war crimes) and even new identities created by the United States Department of Justice. Policy was created that diverted richly deserved consequences into rich rewards for knowledge. With WWII in the rear view mirror policy-makers decided to look ahead and prepare for new challenges.

Some of us remember the savings and loans scandals where banks nearly destroyed everything in the U.S. marketplace in the 1970′s and 1980′s. Law enforcement went into high gear, investigated, and pieced together the methods and complex transactions meant to hide the guilt of the main perpetrators in and out of government and the business world. More than 800 people went to jail. Of course, none of the banks had achieved the size that now exists in our financial marketplace.

Increasing the mass of individual financial institutions produced a corresponding capacity for destruction that eclipsed anything imagined by anyone outside of Wall Street. The exponentially increasing threat was ignored as the knowledge of Einstein’s famous equation faded into obscurity. The possibilities for mass destruction of our societies was increasing exponentially as the mass of giant financial service companies grew and the accountability dropped off when they were allowed to incorporate and even sell their shares publicly, replacing a system, hundreds of years old in which partners were ultimately liable for losses they created.

The next generation of world dominators would be able to bring the world to its knees without firing a shot or gassing anyone. Institutions grew as malignancies on steroids and created the illusion of contributing half our gross domestic product while real work, real production and real inventions were constrained to function in a marketplace that had been reduced by 1/3 of its capacity — leaving the banks in control of  $7 trillion per year in what was counted as gross domestic product. Our primary output by far was trading paper based upon dubious and fictitious underlying transactions; if those transactions had existed, the share of GDP attributed to financial services would have remained at a constant 16%. Instead it grew to half of GDP.  The “paradox” of financial services becoming increasingly powerful and generating more revenues than any other sector while the rest of the economy was stagnating was noted by many, but nothing was done. The truth of this “paradox” is that it was a lie — a grand illusion created by the greatest salesmen on Wall Street.

So even minimum wage lost 1/3 of its value adjusted for inflation while salaries, profits and bonuses were conferred upon people deemed as financial geniuses as a natural consequence of believing the myths promulgated by Wall Street with its control over all forms of information, including information from the government.

But calling out Wall Street would mean admitting that the United States had made a wrong turn with horrendous results. No longer the supreme leader in education, medical care, crime, safety, happiness and most of all prospects for social and economic mobility, the United States had become supreme only through its military strength and the appearance of strength in the world of high finance, its currency being the world’s reserve despite the reality of the ailing economy and widening inequality of wealth and opportunity — the attributes of a banana republic.

All of us remember the great crash of 2008-2009. It was as close as could be imagined to a world wide nuclear attack, resulting in the apparent collapse of economies, tens of millions of people being reduced to poverty, tossed out of their homes, sleeping in cars, divorces, murder, riots, suicide and the loss of millions of jobs on a rising scale (over 700,000 per month when Obama took office) that did not stop rising until 2010 and which has yet to be corrected to figures that economists say would mean that our economy is functioning at proper levels. Month after month more than 700,000 people lost their jobs instead of a net gain of 300,000 jobs. It was a reversal of 1 million jobs per month that could clean out the country and every myth about us in less than a year.

The cause lay with misbehavior of the banks — again. This time the destruction was so wide and so deep that all conditions necessary for the collapse of our society and our government were present. Policy makers, law enforcement and regulators decided that it was better to maintain the illusion of business as usual in a last ditch effort to maintain the fabric of our society even if it meant that guilty people would go free and even be rewarded. It was a decision that was probably correct at the time given the available information, but it was a policy based upon an inaccurate description of the disaster written and produced by the banks themselves. Once the true information was discovered the government made another wrong turn — staying the course when the threat of collapse was over. In a sense it was worse than giving Nazi war criminals asylum because at the time they were protected by the Department of Justice their crimes were complete and there existed little opportunity for them to repeat those crimes. It could be fairly stated that they posed no existing threat to safety of the country. Not so for the banks.

Now as all the theft, deceit and arrogance are revealed, the original premise of the DOJ in granting the immunity from prosecution was based upon fraudulent information from the very people to whom they were granting safe passage. We have lost 5 million homes in foreclosure from their past crimes, but we remain in the midst of the commission of crimes — another 5 million illegal, wrongful foreclosures is continuing to wind its way through the courts.

Not one person has been prosecuted, not one statement has been made acknowledging the crimes, the continuing deceit in sworn filings with regulators, and the continuing drain on the economy and our ability to finance and capitalize on innovation to replace the lost productivity in real goods and services.

We are still in the death grip of the banks as they attempt to portray themselves as the bulwarks of society even as they continue to rob us of homes, lives, jobs and vitally needed capital which is being channeled into natural resources so that when we commence the gargantuan task of repairing our infrastructure we can no longer afford it and must borrow the money from the thieves who created the gaping hole in our economy threatening the soul of our democracy. If the crimes were in the rear view mirror one could argue that the policy makers could make decisions to protect our future. But the crimes are not just in the rear view mirror. More crimes lie ahead with the theft of an equal number of millions of homes based on false and wrongful foreclosures deriving their legitimacy from an illusion of debt — an illusion so artfully created that most people still believe the debts exist. Without a very sophisticated knowledge of exotic finance it seems inconceivable that a homeowner could receive the benefits of a loan and at the same time or shortly thereafter have the debt extinguished by third parties who were paid richly for doing so.

Job creation would be unleashed if we had the courage to stop the continuing fraud. It is time for the government to step forward and call them out, stop the virtual genocide and let the chips fall where they might when the paper giants collapse. It’s complicated, but that is your job. Few people lack the understanding that the bankers behind this mess belong in jail. This includes regulators, law enforcement and even judges. but the “secret” tacit message is not to mess with the status quo until we are sure it won’t topple our whole society and economy.

The time is now. If we leave the bankers alone they are highly likely to cause another crash in both financial instruments and economically by hoarding natural resources until the prices are intolerably high and we all end up pleading for payment terms on basic raw materials for the rebuilding of infrastructure. If we leave them alone another 20 million people will be displaced as more than 5 million foreclosures get processed in the next 3-4 years. If we leave them alone, we are allowing a clear and present danger to the future of our society and the prospects for safety and world peace. Don’t blame Wall Street — they are just doing what they were sent to do — make money. You don’t hold the soldier responsible for firing a bullet when he was ordered to do so. But you do blame the policy makers that him or her there. And you stop them when the policy is threatening another crash.

Stop them now, jail the ones who can be prosecuted, and take apart the large banks. IMF economists and central bankers around the world are looking on in horror at the new order of things hoping that when the United States has exhausted all other options, they will finally do the right thing. (see Winston Churchill quote to that effect).

But forget not that the ultimate power of government is in the hands of the people at large and that the regulators and law enforcement and judges are working for us, on our nickle. Action like Occupy Wall Street is required and you can see the growing nature of that movement in a sweep that is entirely missed by those who arrogantly pull the levers of power now. OWS despite criticism is proving the point — it isn’t new leaders that will get us out of this — it is the withdrawal of consent of the governed one by one without political affiliation or worshiping sound sound biting, hate mongering politicians.

People have asked me why I have not until now endorsed the OWS movement. The reason was that I wanted to give them time to see if they could actually accomplish the counter-intuitive result of exercising power without direct involvement in a corrupt political process. They have proven the point and they are likely to be a major force undermining the demagogues and greedy bankers and businesses who care more about their bottom line than their society that gives them the opportunity to earn that bottom line.

New Fraud Evidence Shows Trillions Of Dollars In Mortgages Have No Owner
http://thinkprogress.org/economy/2013/08/13/2460891/new-fraud-evidence-shows-trillions-of-dollars-in-mortgages-have-no-owner/

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