Foreclosure Fraud- Crisis in Our Courts…From a

Consumer’s Perspective
June 5th, 2010

More in more in this debate and discussion of the fundamental unfairness and outright fraud and
deceit that has become the foreclosure courtroom, non-lawyers ―get it‖ and say it best.
Increasingly real people are ―getting it‖, the press is starting to ―get it‖ and a handful of judges
across this country are starting to ―get it‖. (The citizens of Pinellas County, Florida and those
located within the Second District Court of Appeals of Florida are very, very fortunate that many
of these judges in these courts ―get it‖) With all that being said, I want to publish below, a
fantastic analysis and essay that was submitted to me by a very astute commentator who has
gone far beyond merely, ―getting it‖. The key for him and others like him is to get this word and
message out….that’s what this blog is all about….I’ve posted his comments elsewhere, and
encourage the author of these comments to provide more information as a supplement to this
post…..

The word mortgage itself translates to death pledge. (The word ―mortgage‖ comes from the
French ―mort-gage‖, literally death-pledge.)

What I see here is a total disregard to any of the Rules of Civ. P. and the evidence rules. What is
the point of having any of these rules if the court is just going to ignore or legislate their own
rules at their whim?

The reality that is going on is that none or very few at best of these foreclosure cases ever give
the court subject matter jurisdiction yet the court takes it upon themselves to grant it even when
challenged. You keep making the judges look like they are honest nice guys but in reality they
are the core of the problem in all these cases.

They do not hold the banks to the standards that they would any other plaintiff. Its apparent at
just a motion to dismiss hearing, the rules are clear regarding attachments and the requirements
that would evoke the courts jurisdiction yet they get denied all the time. Why? 99% of the
complaints verified or not never show capacity or standing enough to evoke the courts
jurisdiction!

The importance of having a court reporter is to later show the judges where they litigated and
legislated from the bench then you have them rescue themselves. I actually heard a judge say to a
pro se, your a deadbeat just pay your mortgage. He was gone the next day but it shows the
mentality of some of these judges.

Its the terrible truth but most pro se defendants are up against the judges and the plaintiffs
attorney mean while the plaintiff never makes an appearance, whats wrong with this whole
picture?
Judges and attorney either do not understand or adhere to the basic rules of law, such as the Rule
of Stare Decisis, the policy of the court to stand by precedent; the term is but an abbreviation of
stare decisis et quieta non movere — ―to stand by and adhere to decisions and not disturb what is
settled.‖ the Pro Se Rule, the Do No Harm Rule, the fact that the Constitution is the Supreme
Law of the Land, the fact that Supreme Court law trumps appellate and district court law, the fact
that the United States is governed by the rule of law (or at least the founders thought so), the Best
Evidence rule, the rule against an attorney acting as a fact witness, the rule related to circular
arguments, the rule related to conclusory arguments, and the hearsay rule. This is all thrown out
the window!!!!

The facts are easy to understand by even by ―Pro Se‖ or ―Pro Per‖ litigants. The Courts are over
burdened by all of these ―Un-Verified Complaints‖ and that’s why the Florida Supreme Court
has made the changes to insure that all foreclosure complaints are now to be verified so the
banks and foreclosure mills quit wasting public resources, but did it stop the mills from
dishonoring the Supreme Court….NO!

Very few Judges understand banking, securitization and the actual rules of evidence enough to
understand what is happening but the few who are, are making the right decisions and dismissing
most of these frivolous complaints.(very few)

For the most part, they are just running ―rocket dockets‖ making assumptions and presumptions
that are not there due to the case loads they are facing. So in fact the judges are just
impersonating elected or public officials they are not doing their jobs and homeowners are the
ones paying the price and being thrown out on the street.

The guidelines are simple to follow why aren’t they doing so?

On a motion to dismiss, our gaze is constrained to the four corners of the complaint. William H.
Scovell v. Delco Oil Co., Inc., 798 So.2d 844, 846 (Fla. 5th DCA 2001). Where allegations are
not plainly untrue, we are forced to accept them.

That is what the Plaintiffs are trying to do, force the Court and Defendants to accept untrue
allegations where every document submitted cancels out the very allegations the Plaintiffs are
making. What we cannot do is make up facts that are not there but the courts allow them too.

The Court should follow the Rules of Stare Decisis and the Fla. Rules of Civ. P., at the initial
Motions to Dismiss. The Fla.R.Civ.P. 1.130(a) requires that all documents on which an action
may be brought be attached to the pleadings. Without these documents Plaintiff s fail to state a
cause of action because the essence of the action is omitted…..period! Easy enough though not
adhered too! When is the last time you seen any complaint with all the proper title pages,
assignments, mortgage and notes attached? Never!

Florida Rule of Civil Procedure 1.210(a) provides in pertinent part: ―Every action may be
prosecuted in the name of the real party in interest, but a personal representative, administrator,
guardian, trustee of an express trust, a party with whom or in whose name a contract has been
made for the benefit of another, or a party expressly authorized by statute may sue in that
person’s own name without joining the party for whose benefit the action is brought.‖

The Plaintiff in 99% of the actions meets none of those criteria. Because the exhibit attached to
Plaintiff’s complaints are inconsistent with Plaintiff’s allegations as to ownership of the subject
promissory note and mortgage, Plaintiff fail to establish themselves as the real party in interest
and fail to state a cause of action, yet the court proceeds. Again….why?

The facts are simple, the Plaintiff claims lost note, then all of a sudden it magically appears, how
convenient! Without amending the complaints no less.

Under Fla.R.Civ.P. 1.420(a)(1); there can be no partial dismissal, no dismissal of less than all
causes of action. Dave Hess, Inc. v. Black Angus of Pompano, Inc., 288 So.2d 286, 287 (Fla. 4th
DCA 1974); Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970); Scott v. Permacrete, Inc.,
124 So.2d 887, 889 (Fla. 1st DCA 1960). See also Smith, Kline & French Laboratories v.
A.H. Robins Co., 61 F.R.D. 24 (E.D.Pa.1973) Etablissements Neyrpic v. Elmer C. Gardner, Inc.,
175 F. Supp. 355 (S.D.Tex. 1959); Neiman-Marcus Co. v. Lait, 14 F.R.D. 159 (S.D.N.Y. 1953);
Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105 (2d Cir. 1953); Trawick,
Florida Practice and Procedure § 21-2 (1975).

The proper method of deleting less than all counts from a pleading is amendment of the pleading
pursuant to Fla.R. Civ.P. 1.190. Plaintiffs attempted to do the impossible and this courts allowed
it, once again…the judges!

As a matter of procedures, before the Plaintiffs offer to file the alleged Note, they must amend
their complaint to reflect the changes or otherwise the Court is limited to the four corners of the
complaint, which is to say the alleged note is not evidence to be considered by the court.

A Plaintiff cannot bring an action and then hope to obtain a cause of action. McGrath
Community Chiropractic at 1285. A lack of standing when the action is brought is not
curable….period! Try to get a circuit judge and even the appellate court to follow this, the video
today shows they don’t.

Furthermore, the Plaintiffs never or rarely show how they came into possession of the alleged
Note and the exact time of when it occurred and the correct assignments or chain of title to the
instrument as to determine if truly and in fact the Plaintiffs have standing at all.

Plaintiff might be the holder but has yet to prove that they have the right to enforce or how they
come to get the alleged Note therefore they might as well not have the note and now they are
producing ―fake notes‖ to fool the courts! The only ones who can allow this is the
judges…period!

Standing requires that the party prosecuting the action have a sufficient stake in the outcome and
that ―the party bringing the claim be recognized in the law as being the real party in interest‖
entitled to bring the claim. This entitlement to prosecute a claim in Florida Courts rests
exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar
Corp v. Nopal Lines Ltd., et al, 462 So.2d 1178 (Fla. 3rd. DCA 1985). Yet the courts help the
plaintiffs dodge these requirements when asked to show agency status or proof of ownership the
note.

All Plaintiff’s complaint fail to state a cause of action as there is no documentary link(s) or other
sufficient showing of standing within its four corners, connecting the named Plaintiff to the
interest it claims under the attached note and mortgage which are in the name of and run to the
benefit of other entities. See BAC Funding‖ Consortium, Inc. v. Jean-Jacques, 28 So. 3d 936
(Fla. 2nd DCA, Feb 2010) and Hunt Ridge at Tall Pines v. Hall, 766 So. 2d 399 (Fla. 2nd DCA,
2000).

―Possession of the note, following an exchange of consideration, will give that necessary
standing‖. WM Specialty Mortgage, LLC, v. Alan F. Salomon, 874 So.2d 680, 682 (Fla. 4th
DCA 2004); J.J. Johns v. Sam Gillian, 184 So. 140, 143 ( 1938). Exchange of consideration is
the root of the cause of action, hence there is the injury and try to get the plaintiffs to show the
court the consideration….its impossible! And again, the judges just allow this granting
protective orders, letting the plaintiffs run all over the defendants…again the judges!

Jurisdiction

This should give some understanding on why ―subject matter jurisdiction‖ should always be
challenged in any foreclosure case. A quick review of the case history below will give clarity to
the subject.

Just because a Court listens to foreclosure cases everyday does not mean they have subject
matter jurisdiction, the Plaintiff council and attorneys seem to be confused between ―venue‖ and
―subject matter jurisdiction‖, but if gone unchallenged it’s assumed. The Defendant should make
no assumptions! And, when the jurisdiction of the Court is challenge it falls on the plaintiff and
the court to establish the jurisdiction, not the other way around.

―A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or a
representative capacity, some real interest in the subject matter of the action.‖ Lebanon
Correctional Institution v. Court of Common Pleas 35 Ohio St.2d 176 (1973).

Once again, the Plaintiff fails to bring forth the injured party, and the Plaintiffs themselves have
no real interest in the subject matter of the action in most cases.

―A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or a
representative capacity, some real interest in the subject matter of an action.‖ Wells Fargo Bank,
v.Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722 (2008). It went on to hold,‖ If
plaintiff has offered no evidence that it owned the note and mortgage when the complaint was
filed, it would not be entitled to judgment as a matter of law‖

Where are these rulings in Florida?

When is the last time anyone got to depose the injured party or seen the owner of the note who
suffered the injury in a court with you? Never!

Indymac Bank v. Boyd, 880 N.Y.S.2d 224 (2009). To establish a prima facie case in an action to
foreclose a mortgage, the plaintiff must establish the existence of the mortgage and the mortgage
note. It is the law’s policy to allow only an aggrieved person to bring a lawsuit . . . A want of
―standing to sue,‖ in other words, is just another way of saying that this particular plaintiff is not
involved, and that the case in 99% of foreclosure cases.

Defendants should recognize the district court, in our unified court system, is a court of general
jurisdiction and is constitutionally endowed with ―unlimited original jurisdiction of all justiciable
matters, except as otherwise provided in the Articles of the Florida Constitution. However, this
―unlimited original jurisdiction of all justiciable matters‖ can only be exercised by the district
court through the filing of pleadings which are sufficient to invoke the power of the court to act.

The requirement for verified information to confer subject matter jurisdiction on the court and
empower the court to act has been applied to both courts of record and not of record. So the
question is, when was the last time anyone has seen verified information in the thousands of
unverified complaints?

Apparently the Florida Supreme Court determine that the mandatory language of form 1.944 was
nothing more than merely a ―guaranty of good faith‖ of the prosecution. It, in fact, is required to
vest the district court with subject matter jurisdiction, which in turn empowers the court to act.
Only by the filing of an information which complies with this mandatory statutory requirement
can the district court obtain subject matter jurisdiction in the first instance which then empowers
the court to adjudicate the matters presented to it.

Once again, almost every foreclosure case is lacking in all areas yet not one attorney argues
subject matter till the end.

Summary judgment should never be granted and are void on their face in almost every
foreclosure case and are subject to collateral attack.

In Nard, Inc. v. De Vito Contracting & Supply, Inc., 769 So. 2d 1138 (Fla. 2d DCA 2000),
the court clearly sets out the basis in the Second District for the criteria of granting summary
judgment. ―We have consistently followed Hall v. Talcott in applying Rule 1.510(c). Thus, if the
record reflects the existence of any genuine issues of material fact or the possibility of any issue,
or the record raises even the slightest doubt that an issue might exist, that doubt must be resolved
against the moving party and summary judgment must be denied.‖

The Nard court continued: ―We likewise must emphasize that contrary to assertions of the trial,
each and every Florida court of appeals has concurred with out holding that the merest
possibility of the existence of a genuine issue of material fact preludes the entry of final
summary judgment.‖
The Courts without any showing by Defendant – has statutory authority pursuant to set aside a
decree of foreclosure and to dismiss the foreclosure proceedings. Fla. St. § 702.07 provides:

The circuit courts of this state, and the judges thereof at chambers, shall have jurisdiction, power,
and authority to rescind, vacate, and set aside a decree of foreclosure of a
mortgage of property at any time before the sale thereof has been actually made pursuant to the
terms of such decree, and to dismiss the foreclosure proceeding upon the payment
of all court costs.

This statute was enacted in1927and has remained unchanged since that time. Laws of Fla. ch.
11881, § 1 (1927).

The facts must be ―crystallized‖ so as to eliminate any residual doubt. Gardner at 1112;
Henderson at 773. Even in the video of the appellate court the facts were not crystallized yet
they affirmed…why? The judges once again!

It is the burden of the moving party to show conclusively (not the other way around) that a
genuine issue of a material fact does not exist before a summary judgment should be entered, and
it should be further shown that the moving party is entitled to judgment as a matter of law. A. B.
G. Invest, Inc. v. Selden, 336 So. 2d 444, 446 (1976); Holl v. Talcott, 191 So.2d 40 (1966)

The law, what law? The judges don’t honor the law anymore. They are mere rubber stamps for
the banks.

Most of all the answers are on the face of the mortgages and notes themselves and establish
evidence that present no argument before the court. On the face of the mortgage it was given to
MERS in most cases, the note remained with the lender, we have to assume. Its bifurcated from
the start and there is no proof to the contrary…period!

Then, the alleged Plaintiffs are in violation of the the mortgage and note. Read sect 20 of the
mortgage, they must give you eventual notice of the sale of the note and mortgage, but they
never do and they cant its bifurcated. Notice of the change in loan servicer does not constitute
notice of the note, don’t be fooled.

The notice clause of the note says you must give notice to the note holder, you cant you don’t
know who that is because they failed to notice you and are in breach of contract.

The servicer plays intermediary creating an interference with your ability to notice the note
holder. How are you going to hold up your end of the deal when the servicer wont tell you who
the note holder is and when asked to prove if they are the note holder with authority from the
note holder to collect or compel payments they refuse to give it up or say your not entitled to it?
This just opens the door for the defendant to become the plaintiff and hammer the servicer if
done correctly under the FDCPA, FCRA, TILA, and Title 18.

Failure to disclose ―ALL‖ terms and conditions is a violation of the Truth In Lending Act. Fina
Supply Inc. v. Abilene National Bank, 726 S.W.2d 537 (1987). It says, ―Party having superior
knowledge who takes advantage of another’s ignorance of the law to deceive him by studied
concealment or misrepresentation can be held responsible for that conduct.‖

―If any part of the consideration for a promise be illegal, or if there are several considerations for
an unseverable promise one of which is illegal, the promise, whether written or oral, is wholly
void, as it is impossible to say what part or which one of the considerations induced the
promise.‖ Menominee River Co. v. Augustus Spies L & C Co., 147 Wis. 559 at p. 572; 132
NW 1118 (1912).

And a more recent ruling, Deutsche Bank v. Peabody, 866 N.Y.S.2d 91 (2008). EquiFirst, when
making the loan, violated Regulation Z of the Federal Truth in Lending Act 15 USC §1601 and
the Fair Debt Collections Practices Act 15 USC §1692; ―intentionally created fraud in the
factum‖ and withheld from plaintiff… ―vital information concerning said debt and all of the
matrix involved in making the loan‖. (which is the case in 100% of all mortgages, emphasis
added)

―It is not necessary for rescission of a contract that the party making the misrepresentation
should have known that it was false, but recovery is allowed even though misrepresentation is
innocently made, because it would be unjust to allow one who made false representations, even
innocently, to retain the fruits of a bargain induced by such representations.‖ Whipp v. Iverson,
43 Wis. 2d 166, 168 N.W.2d 201 (1969).

The mortgage, as evidenced by the mortgage instrument, is only a mere incident to the debt.
Therefore, the mortgage instrument is of lesser significance. Because the assignment of the note
is an imperative act as to the transferring of the mortgagee’s right, the assignment of the
mortgage instrument without the note is an ineffective assignment. Vance v. Fields, 172 So. 2d
613 (Fla. 1 DCA 1965); Sobel v. Mutual Dev. Inc., 313 So. 2d 77 (Fla. 1 DCA 1975); Amacher
v. Keel, 358 So. 2d 889 (Fla. 2 DCA 1975)

Who has seen a valid assignment of the note? Apparently no one! An assignment of the
mortgage assigns nothing of value the only value is the note.

I am going after quit title based on many fact but these are a few. I am suing for FDCPA with
success and now FCRA and Title 18, we shall see what happens.

The real fact is the core of the problem are the judges not the plaintiffs. If the judges were to do
their jobs then the plaintiffs would have to prove up their cases. Not until these rouge judges are
sued and made to actually do their jobs are things going to change. There someone said it!

Just like any other employee, you screw up and you first get reprimanded and eventually fired.

The defendants need to file complaints against these judges and the mills attorneys on a regular
basis with the regulatory agencies and their insurance carriers and let the Supreme Court know
Floridians mean business. Once enough complaints are filed, it will put the pressure on them
because them become harder to insure if not impossible. Then and only then are things going to
change.
If the tax payers paid the bill for the banks to keep their doors open why should we lose our
homes to the very same banks we keep paying to keep in business? Is this not dictatorship?

The American people need to wake up and get out of the ―me‖ syndrome that their in. Is it
obvious that the entire system is against the people? Is it not obvious to America that the system
has pledged our great grandchildren ’s future labor to pay the banks and help the banks throw
Americans out on the streets now? The system itself is a form of slavery whether you like it or
not, its very obvious on its face.

Is it not obvious to Americans that the only reason that the banksters get away with this is the
judges themselves? They are nothing but debt collectors for the banks.

If the judges just threw the banksters out and turned the favoritism to the people and not against
as is the case the banksters, they banksters could not get away with it….period!

If the judges would hold the banksters as accountable as the people then they would never get a
foreclosure summary in their favor.

Ask yourselves the question, if I did not get the results I should have gotten, what other option do
I have? The appellate court, they are part of the same system. The Supreme Court, they are part
of the same system. You have no choices, it always fall back on the same system.

The same system that the banks give millions to be on their side! So, if I don’t like the fruit at
Public’s I go to Wynn Dixie, you have choice. With our system, you have no choice, the
banksters fund and run the whole thing.

Just look at the Bar Association, judges and attorney must belong. Well if I have a problem with
a judge in circuit court I have to turn to another one of their brother to file a complaint. Wow
this makes sense, there is no preferential treatment or bias there is there?

Even our defense attorneys are officers of the courts and part of the same system. Thank God for
the few like Matt that actually fight back, but they are still limited in their behavior or they get
booted from the bar.

Our system is flawed beyond repair and its just like a hamster in a wheel, run all you want but
you still get no where.

We have no choices, it meant to be that way, slaves have no option but to obey the plantation
owner….Period!

If you understand GAAP and actually read it, pay attention to 1231 and you will see banks cant
lend credit. ―There is no doubt but what the law is that a national bank cannot lend its credit or
become an accommodation endorser.‖ National Bank of Commerce v. Atkinson, 55 F. 465;
(1893).
In Howard & Foster Co. vs. Citizens National Bank, 133 S.C. 202, 130 S.E. 758 (1926), it
was stated, ―It has been settled beyond controversy that a national bank, under Federal law, being
limited in its power and capacity, cannot lend its credit by nor guarantee the debt of another. All
such contracts being entered into by its officers are ultra vires and not binding upon the
corporation.‖ It is unlawful for banks to loan their deposits.

So you must realize that they lent you nothing and if you just read Modern Day Mechanics and
look up Walker Todd’s affidavits online, who worked for the FEDS as council you will see they
lent you nothing and risked nothing. Hard to absorb but true.

You and the uneducated investors are the only one who risks anything in any loan. But bring it
into court and the judges refuse to hear the argument because its not in the public’s best interest
to know we are the source of all monies. It would collapse their monopoly and strong hold on
us.