Saturday, July 19, 2014

How to Win $16 Million in the Loan Mod Lottery

You Can Win Colossal Damage Awards in a Jury Trial by Proving the Lender Injured you at the Inception of the Loan

by Bob Hurt, 19 July 2014.  Distribute Freely

The Linza v PHH case shows the good sense of MORTGAGE ATTACK (http://mortgageattack.com) as a methodology for dealing with foreclosure.  It shows how to win $16 million if the mortgagee cheats you in the loan modification process.

In a nutshell, mortgage company PHH agreed to a loan modification to reduce Phillip Linza's payments about $500, then jacked the payments higher than before, then demanded over $7000, and then refused to accept payments, and THEN foreclosed. Linza hired a lawyer, sued, and after 3-years of legal combat the jury awarded $16 million to Linza because of egregious lender behavior including credit rating damage.
If a lender/servicer has jilted YOU in a loan mod,  you might see something familiar in this scenario.  If so, you should do what Linza did:  SUE.
This does not exactly constitute a Loan Mod Lottery, but it might as well because so few mortgagors sue the lender for cheating them in the loan mod.  You can easily see why.  In a lottery you pay a dollar for a ticket and have a slim chance of winning.  In a loan mod lawsuit, you must find an attorney willing to take the case on contingency, or have enough money to pay for a 3-year litigation, but you have a HUGE chance of winning IF your lawyer has sufficient skill and perseverance.

I see a major problems with Loan Modifications.  To begin with the interest rate goes sky high in 5 years and you have a balloon you can never pay off.  Most loan mod agreements require the borrower to agree to an indemnity clause which waives the right to sue for prior injuries in the loan.  I see THAT as INSANE because lenders and their agents have injured 90% of all single family home mortgagors in the past 12 to 15 years.  

Yuba jury awards homeowner $16 million in mortgage case
Published: Friday, Jul. 18, 2014 - 2:43 pm
It started out as a simple loan modification for a troubled homeowner. It turned into a $16.2 million jury verdict against a nationwide loan-servicing company.
A Yuba Superior Court jury this week awarded $16.2 million in damages to a homeowner who nearly lost his home to foreclosure after the loan servicer botched his mortgage modification, the homeowner’s lawyers said Friday.
Phillip Linza, a homeowner in Plumas Lake, was awarded the damages after a three-year battle against PHH Mortgage Services, a loan servicer based in Mount Laurel, N.J.
Linza’s attorneys, Andre Chernay and Jon Oldenburg of the United Law Center in Roseville, said the award included $514,000 in compensatory damages and $15.7 million in punitive damages.
... 

Call The Bee’s Dale Kasler, (916) 321-1066. Follow him on Twitter @dakasler.

If you need help unraveling the weirdness of your mortgage and loan mod, and finding the causes of action underlying either, visit http://mortgageattack.com to learn the basics, and then call me for a discussion.  I don't practice law or give legal advice, but you might appreciate my business perspectives.
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Bob Hurt            Blog 1 2 3   f  t 
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Friday, July 18, 2014

Solutions for the high cost of messing with SOF

Trade and labor laws all tamper with the natural Law of Survival Of the Fittest (SOF). 

Somewhere along the way of Civilization, the unfit and their champions gained enough political power to create laws protecting the unfit from the exploitation of the fit, in a manner of speaking.  But they characteristically failed to remember put into those laws a means of retaining the benefits of SOF.  To do that they must first look at the history of SOF and determine its benefits. 

One can easily see that SOF provides the main benefit of ridding rids the planet of the segment of the unfit that presents the most challenge and direct threat to the fit.  That means, of course, that the absolutely LEAST fit often manage to thrive in remote enclaves because they slither under rocks when the shooting starts and stay their till after the combat ends and the fit go on enjoying their fitness undisturbed. 

Clearly, society tampers with SOF because it seems so gruesome and unpleasant to see the fit slaughter (as in the case of the white man versus Americian Aborigines) and enslave (as in the case of the white man versus African tribes people imported into the Americas) the less. But how shall laws retain the benefits of SOF without fully reinstating SOF?

I believe answering and implementing the answers to that question constitutes such an onerous task that the SOF reformers say "to hell with it" and simply mess with SOF, having no regard for the unsavory consequence of a burgeoning population of the unfit, or terrifying penalties of tampering with SOF.

We can see the lack of wisdom in laws protecting the unfit down through American history.  But for some reason (like the presence of many delusional and possibly unfit people in government who refuse to heed SOF's lessons) they seldom seem savvy enough to fix the laws so as to retain the benefits of SOF.  Few examples of this neglect become more clearly evident than the grand schemes of liberating slaves without preparing them for citizenship, allowing labor unions to have a monopoly over labor negotiations, or child labor laws that teach sloth to children.  Philosophers have observed that people who don't work go crazy, and crazy people don't work.

All of this tampering with SOF has caused the unfit to proliferate because parents see no problem with procreating hordes of unfit children.  Now government will care for them, and if the offspring want to, they can become even more criminally wealthy by venturing forth in the neighborhood to engage in criminal activities like drug dealing, mugging people, carjacking, and burgling homes.

All of this tampering with SOF has imposed profound and monumental burdens upon the American population without providing much benefit for those who must pay the tab.

Now, let's take a look at three examples of such tampering:  minimun wage laws, labor union laws, and right-to-work laws.  Government imposes a lower limit on the wages employers may pay certain kinds of workers.  Government requires corporations to negotiate with unions for wage scales, benefits, and conditions for workers under penalty of shutting the business down with a strike.  And of course union members then intimidate all who hate the unions and their thuggishness into joining or staying away from the workplace.   All of that causes a dramatic increase in the cost of goods and services provided by unionized labor, and it helps to drive factories offshore where workers cost the corporation less.  That deprives American laborers of jobs, and many go on the welfare rolls or get unemployment which increases the tax burden of the entire taxpayer population.

Advocates of such laws say people need minimum wage laws in order to live, and without such laws, low-wage workers will have to depend upon public welfare for subsistence.  For some reason they never manage to see low-wage workers in a class of people known as "dependents," but they should.  And ALL such dependent people should either live on whatever wages they can earn, OR find a family to take them in for domestic labor in exchange for room and board, OR find a corporation willing to provide gainful employment in exchange for room and board (such as in a FEMA camp). And after all, minimum wage laws don't, in actual practice, keep people off the welfare rolls.

To counteract the negative impact of unions on people who hate them and don't want to join them, states enact right-to-work laws that prohibit employers from restricting employment to union members.  THAT regulation requires policing, of course, and it costs taxpayers even more, and further increases prices of the goods and services.  Of course, the non-union workers try to demand the same wages and benefits that union workers get, and that makes union members generally hate scabs.

I think government should eliminate laws requiring companies to negotiate with unions, and prohibit unions from destroying companies who don't want to pay exorbitant wages (pay more than the value of the work).  And laws should impose severe penalties on union members who intimidate scabs.  People can always relocate or choose other employment, or become entrepreneurs.

And those who lack the intelligence to compete can become domestic servants in exchange for room and board with affluent families.  Or they might opt to live in a labor (FEMA) camp, do piece work in its free trade zones, and enjoy the close supervision they deserve.  Those who don't like this can implement laws restricting procreation privileges to those intelligent enough to take care of themselves in modern society.

See?  I have solved the whole dilemma of protectionism - let those enjoying the protection pay the cost.  But you might enjoy someone else's perspectives.  How about this one?




July 18, 2014


The Problem with Right-to-Work Laws
by Logan Albright on July 18, 2014

One area where many otherwise-correct free-market thinkers and libertarians stumble is in the area of right-to-work laws, now gaining considerable popularity across the nation. These laws come in a variety of forms, but in most cases a state that adopts right-to-work laws makes it illegal for employers to require union membership as a condition of employment. So far, twenty-four states have adopted these laws and the state legislature in Missouri has plans to make that state a right-to-work state sometime early next year.

Right-to-work laws are attractive to some because they help undercut the monopoly powers granted to labor unions by government. They also appeal to the more pragmatic minded because of the distinct improvements in economic growth. A recent study by the National Institute of Labor Relations Research found that, over a ten year period, states with right-to-work laws experience significant growth in manufacturing output and GDP compared to non-right-to-work states. This is, of course, the result we would expect from diminishing the power of government-created monopolies such as those granted to labor unions.

But utilitarian concerns aside, free-market advocates must ask whether these laws are the right way to reduce government power, and whether they satisfy the moral and ethical criteria at the root of free-market and libertarian thought. Is it right to restrict the freedom to contract in order to counteract existing restrictions on that same freedom?

Read more here:
http://mises.org/daily/6813/The-Problem-with-RighttoWork-Laws

Logan Albright is Director of Fiscal Research at Capital Policy Analytics, Research Analyst for FreedomWorks, and a contributing editor for Mises Canada. He lives in Washington, DC. See Logan Albright's article archives.
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Monday, July 14, 2014

PEB clarifies the relationship between note, mortgage, and enforceability

FYI, every pretender defender and mortgage victim should read the UCC Permanent Editorial Board comments from November 2011 regarding security in mortgages:

http://www.uniformlaws.org/Shared/Committees_Materials/PEBUCC/PEB_Report_111411.pdf

The upshot:  almost ANYBODY with a modicum of proof can enforce (foreclose) a mortgage loan.  This shoots a silver bullet into the brain of assignment, standing, and securitization arguments.

Get used to it.

Can you solve mortgage problems with bankruptcy or loan mod?

Why get a loan modification when you know the interest rate will bump up after 5 years?  The overall cost of a loan mod far exceeds the cost of a mortgage examination that you can use to negotiate a settlement or sue your crooked lender.

Why do bankruptcy when you have to pay the arrearage within 5 years?

HOW WILL YOU AFFORD THAT?

Only one practical way exists to solve mortgage problems:



http://mortgageattack.com
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Bob Hurt            Blog 1 2 3   f  t  
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Sunday, July 13, 2014

Securitization and Show-Me-The-Loan MALARKEY Destroys Mortgagor Case


With respect to the message from Lee, way below, John Stuart is full of baloney and so is N.W. Raja the so called mortgage forensic auditor.  Please forward this reply to your mailing list.  I write to set the below issue straight for the readers misled by the Stuart (show-me-the-loan) and Raja  (securitization audit) BULLSHOUTS.  This has to do with the 2011 Virginia Eastern USDC case of Jeffrey Brown v HSBC, for which Raja prepared a long-winded forensic exam (securitization audit).

  1. The so called forensic audit report is full of meaningless history and conjecture and legal conclusions and contains not a single salient, demonstrable fact in support of the conclusions.  Therefore it is worthless, and Jeffrey Brown wasted his money on  it.
  2. In the memorandum opinion
    1. the court dismissed the counts 1 and 2 for fraud because the complaint did not contain the proper elements for that cause of action.
    2. the court dismissed count 3 and chided the plaintiff for his "show me the note" nonsense because Virginia's non-judicial foreclosure procedure does not require a show of the note.  
    3. the court denounced the securitization argument on the basis that nothing related to it made the note unenforceable, and because it had nothing to do with the plaintiff's failure to make payments.  And the court cited two cases in support of that view.
    4. The court dismissed the RICO claim Count 4 for failure to state a claim of fraud, or that any RICO violation injured the plaintiff.
    5. The Court dismissed count 5 (TILA rescission, RESPA, FDCPA) for failing to show the will and allege the ability to repay the lender the amount of the loan, and RESPA statute of limitations had tolled, the plaintiff's conclusory allegations about FDCPA violations lacked factual support, etc.
    6. The court dismissed count 6 (slander of title) for failure to state a claim, and denounced the diatribe against mortgage backed securities and the mortgage industry (neither are illegal).
    7. The court dismissed count 7 (unjust enrichment) as just more whining about the mortgage industry, and because it provided no legal basis for relief.
    8. The court dismissed count 8 (civil conspiracy) for failure to state a colorable claim
    9. The court dismissed count 9 (breach of fiduciary duty), a bogus legal conclusion, for failure to state a claim.
    10. For all of the above reasons, the court denied the request for declaratory judgment AND dismissed the whole case, counts 1-3 and 6 with prejudice, and warned plaintiff not to file any more frivolous complaints or suffer sanctions under Rule 11.
  3. Here are the relevant case documents:
Bottom line, Brown got his bottom torn up in federal court because of
  1. The incompetence of his legal adviser (John Stuart, I presume?),
  2. Reliance on a worthless securitization audit (a roll of T.P. would have more value) to save the day, and
  3. A TERRIBLE litigation strategy.
The mortgagor never became a party to assignment or securitization of the note, and has no standing to dispute or enforce either in court, in spite of 2 or 3 anomalous court opinions to the contrary.

REMEMBER, all who read this, ONLY ONE METHODOLOGY stands a chance of beating the bank in a foreclosure mess -  MORTGAGE ATTACK:
  1. Get a comprehensive mortgage examination by a competent professional, and
  2. Use the resulting evidence to negotiate a settlement or
  3. Sue for the torts, breaches, and legal errors underlying the mortgage itself.
You cannot successfully defend against foreclosure of a valid mortgage which the mortgagor BREACHED.  Your best and only viable defense lies in MORTGAGE ATTACK with proof in hand that the mortgage lacks validity.  Here's the best example of such an attack that I know of:
For full details on the principles of Mortgage Attack, see http://mortgageattack.com.  NO, I don't sell anything. I'm just a mortgage attack evangelist.



Bob Hurt            Blog 1 2 3   f  t  
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On 2014-07-08 02:57, paralegals wrote:
  --------------------    From: Lee  Date: June 17, 2014 21:44:55 PM PDT  Subject: Fw: INFO on HOW MORTGAGES are created !!      Thought you all would be interested in this info, if you don't  already have it....    I have a link from John Stuart, which then provides two HYPER links,  so I will give you those here....  <http://www.myprivateaudio.com/John-Stuart-SMTL-Clarification-and-Forensic-Exam.html>    Here is the TEXT from the above link and below that will be the  two LINKS with a total of 32 pages.  Share with others you know  that have a MORTGAGE.  At least you will have the facts of what  they do when the BANKS create a FAKE LOAN from THIN AIR>>>>    Show me the loan!    A legal doctrine developed by: John Chester; of the family Stuart    Show Me the Loan Clarification and Example of a Forensic Exam From  John Stuart    Attached is some of the best shit I have EVER forwarded, I mean  that. You need to read them both.    We all know I created the saying "Show me the Loan" because every  one else was saying "show me the Note" I don't believe anyone. I  know almost everyone else has been brainwashed by the government  and the banks.    But holy shit. Some one has used my phrase Show me the loan  and written a short paper explaining exactly why I say it. Its  excellent. I get plagarized a lot, usually it pisses me off. This  time I don't care. I just want the truth out there. That short  document shows the truth, I think better than I have shown it. This  document kicked my ass as far as teaching goes. I don't mind getting  my ass kicked if it helps save some of you. Shit, my life is a  daily ass kicking any way.    I have also attached by link below a 27 page forensic exam and 5  page HOW LOAN ARE CREATED.    You MUST read both of these until you understand them. When you  understand these you will get it.  --  John C. Stuart http://www.showmetheloan.net/ -- Not sure if this  link is still good.... These are the other two links that are tied to  the above article http://www.myprivateaudio.com/show_me_the_loan2.pdf  -- 5 pages <http://www.myprivateaudio.com/68-1_Forensic_Exam.pdf>  --27 pages      

An Ideal Kind of Adverse Possession in Florida

Polk County, Florida sits in the middle of the state between Tampa Bay and Cape Canaveral.  It has a lot of wide open spaces in it. 

You can find the Adverse Possession (AP) filings for Polk County here:



I browsed around and found several AP Notices filed by Layne and Cary Lightsey, including the below parcels.  Click them and look at the filings.  These ranchers seem bent on gobbling up a bunch of land.

Search these on the map:


You'll soon see that as a real pain in the neck.  I don't think it works right because it doesn't show the actual parcels, but does show the Range, Township, and Section.

Notice the  approximate area of 293024...13040:


Another part of the county property appraiser's web site shows Plat Maps where I found the actual parcel.  So it looks like an area of sinkholes, scrub brush, and pasture fit for cattle grazing and citrus groves in the area north of Florida 60 & Sam Keen Rd, Lake Wales, Florida 33898.  The Lightseys listed their address as 2330 Sam Keen Rd.  Google Maps does not show any house in that area, so they probably own some adjacent property. 

Maybe they could build a lean-to on any one of the areas and live there, and the sheriff would do NOTHING about it.  Pretty soon they'll have unfettered claim to the property.  They probably have fenced it and use it to graze their cattle.

Any bona fide squatter could do the same.  Wouldn't THAT be fun? THAT's the kind of land would-be adverse possessors should seek out.

I note that a lot of the plat map does not show parcel numbers.  Does that mean the county or state owns the land, or it is just unclaimed?  Who knows?  If government owns it, you cannot take adverse possession of it.  But maybe some investors own it and lost interest or went broke.  Lightseys probably do their research, try to find the owner, and if unsuccessful, file an AP notice with the property appraiser.  In 7 years of paying the taxes and continuously occupying the property, they become adverse possessors and the owner loses the right to remove them from the land.

As I see it, people looking for land should do this all over America.  They could start by looking for land with unpaid taxes.  That could include farm or ranch land for which the county tax collector has auctioned the tax liens.  A land hunter could buy the liens from investors, and then keep paying taxes as part of an AP effort.

Such land hunters need to become familiar with your state's AP laws, and consult a competent attorney to find out for sure what they mean.

Bob Hurt
727 669 5511



Friday, July 11, 2014

Brown v. Quicken Loans shows how to beat a bad lender

Brown v. Quicken Loans teaches all mortgagors a critical lesson about MORTGAGE ATTACK.  A fifth grader should have no trouble grasping the idea.  You can undo a mortgage AND a foreclosure, even if you breached the note.  You need only ATTACK the lender and agents for injuring you, and prove in court that the mortgage lacks validity because of those injuries.
Brown v. Quicken Loans is a Wheeling, West Virginia case in which Quicken Loans created such a predatory loan for Lourie Jefferson (originally Brown) and her daughter Monique Brown that no investor would buy it or securitize it.  The house was worth $46,000, but Quicken gave them a 40 year amortized $144,000 loan with a 30-year balloon of  $107,000 balloon, charged outrageous origination fees, and, of course, lied about the value of the house in the appraisal.  
Brown sued and won a $2+ million judgment.  Quicken appealed and on remand, the trial court upped the judgment to nearl $5 million in compensatory and punitive damages and legal fees, and allowed Brown to sell the house when she pleases, with up to the loan amount going from the proceeds to Quicken.  Quicken appealed that, and the case awaits the WV Supreme Court opinion.  The parties have no dispute about whether Quicken injured Brown.  Quicken simply disputes the amount of the judgment they must pay for that injury. Oh, and Brown received $700,000 in a settlement from the appraiser who lied about her house value.
I have uploaded all of the relevant docs from the WV Supreme Court web site, and a news article overviewing the status of a few months ago.  The file is about 19MB in size, a combined PDF.  Get it here:

I encourage all mortgagors, whether or not in foreclosure to download and read it ENTIRELY and LEARN from it.  Why?  Because it shows what a competent lawyer can do.  Because of a prior relationship, and the extent of the provable injuries, the Lawyer took Brown's case on contingency for 40% of the winnings.  Most mortgagors will have a hard time finding lawyers willing to take such cases on contingency because most don't have the money to fund the litigation.  Brown, previously a Licensed Practical Nurse, certainly could not have afforded the litigation on her own.  And she could not have managed or litigated the case on her own.
I also encourage all mortgagors to look carefully at the potential outcomes of fighting a foreclosure and attacking the mortgage like Brown's lawyer did.  Nearly ALL foreclosure battles result in loss of the house because the Foreclosure Defense lawyers refuse to look at the inception of the mortgage for causes of action against the lender and lender's agents, and even if they find such causes, they merely engage in dilatory tactics to delay the inevitable foreclosure as long as possible.
If you don't believe this, ask Lisa Epstein whether she saved her house from through defending against the foreclosure, whether she knows ANYONE who has won anything more than a temporary dismissal with such a tactic, and whether her favorite law firm has ever won a damages and fees award because of attacking the mortgage as in Brown.  Excuse me while I tell you the uncomfortable answer:  NO - NO FORECLOSURE BATTLE EVER WINS ANYTHING except a delay - it just leads the mortgagor to ultimate loss of the house or an onerous loan mod that leaves them worse off than before financially.
I point out the above because issue with Lisa Epstein because for some reason she or one of her associates purged my previous article from this blog, EVEN THOUGH I DO NOT SELL ANY SERVICE OR PRODUCT AND DO NOT CHARGE ANY FEE.  Her deleting my article constitutes a waste of her and my time and does a DISSERVICE to the http://foreclosurehamlet.org subscribers who NEED the data I provide FREE.
I can think of only one motive for her purging my blog articles:  MONEY.  Somehow, she must earn money from some foreclosure defense service, and she cannot tolerate my telling people the truth that foreclosure defense of a valid mortgage which the borrower breached CANNOT bear worthy fruit, and so people who hire lawyers for such defenses merely throw their money away on worthless legal services.
Don't worry. I shall post on my OWN blog THIS blog entry along with my previous blog entry which Lisa deleted.  Sadly, maybe she'll delete this one too.  
FYI, I have created a web site which explains the principles of MORTGAGE ATTACK and sells nothing but ideas.  http://mortgageattack.com.   Check it out.  You might learn something valuable for free.

Call me if you need help with your mortgage, whether or not you face foreclosure, OR if you want to sue your foreclosure pretender defender lawyer for pretending to help you while he knowingly led you to lose your house and neglected to examine the mortgage for underlying causes of action.
Bob Hurt 727 669 5511
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Thursday, July 10, 2014

Proof of How to Punish Your Abusive Mortgage Lender

Here's Proof that A Talented Attorney Can Beat the Stuffing out of a Crooked Mortgage Lender

10 July 2014 by Bob Hurt. 727 669 5511. http://bobhurt.com. Okay to distribute this freely.

The Beauty of Brown v Quicken Loans

The outcome of the Brown v Quicken Loans case gives hope to all mortgage victims and should embarrass all Foreclosure Pretense Defense Attorneys.  This compilation  shows the public and the legal community HOW TO BEAT THE ABUSIVE MORTGAGE LENDER and obtain a nearly $5 million judgmentI challenge every Mortgagor to READ the above-linked document COMPLETELY.


https://archive.org/details/BrownVQuickenLoansOverviewAndCaseFiles

Hats off to Jim Bordas and Jason Causey of Bordas & Bordas Law firm, Wheeling WV, for engineering the defeat of Quicken Loans and using the LAW to bludgeon them into submission.  I expect the final opinion in Quicken's second appeal from the WV Supreme Court soon.

The Key to Winning - Attack the Mortgage, NOT the Foreclosure.

How did the Bordas team win?  They examined the mortgage and discovered a horror story of criminal and civil abuses by lender Quicken Loans.  Quicken made the loan so toxic they couldn't sell or securitize it.


Quicken refused to offer Brown a reasonable settlement, so Bordas sued, and won a whopping $2+ million judgment.  Quicken appealed, the Supreme Court of WV remanded, the trial court upped the judgment to nearly $5 million.  Quicken appealed again, and the Supreme Court of WV will soon end the case with a final opinion against Quicken.

What lesson shall we learn from this?  Just this... If you face foreclosure, you need a comprehensive mortgage examination to prove the causes of action against the lender, and you need a lawyer willing and able to attack the mortgage, not merely defend against the foreclosure.

If your lawyer won't seek and find the causes of action underlying your mortgage and then attack the lender on that basis, you need to FIRE that attorney.  Don't rest until you have found a competent litigator like Jim Bordas. 

Legal Malpractice Lawsuit Opportunities for Foreclosure Victims

If you have already lost your home to foreclosure AND you had a lawyer helping you who FAILED to seek causes of action or to attack on that basis, you may have a valid legal malpractice claim against that attorney. Call me at 727 669 5511 to discuss your issues.

Step-by-Step Plan for Coming Out Ahead

In order to save your home from foreclosure, or become able to negotiate a cram-down of the loan balance (and other favorable terms), or to sue the lender for injuring you, you must do one thing first:
  1. HIRE A COMPETENT MORTGAGE EXAMINER OR ATTORNEY to examine your mortgage and find all the causes of action. 
Of course, a good mortgage examiner will charge you a fraction of what the lawyer will charge, IF you can find an examiner or lawyer with the requisite competence.  Which worries me.  Which is why I have gone to the trouble of writing this message.

Read http://MortgageAttack.com then call 727 669 5511 for more info.  I know the only competent professional mortgage examiner in America. 
  1. If the examination report reveals causes of action (torts, breaches, legal errors) against the lender or lender's agents (title company,  mortgage broker, appraiser, servicer)...
    1. Notify the servicer and then attempt to negotiate a settlement.  I suggest finding a "CLOSER" type of lawyer to negotiate for you.  I suggest a "loan mod" type of settlement where the lender lowers the balance to the present market value, gives a favorable fixed interest rate, sets the term for 30 years, no prepayment penalty, assumable, no balloon, forgive arrears and legal fees/costs.  If this fails...

    2. Sue via complaint, counter complaint, cross complaint as necessary.  I suggest hiring a COMPETENT lawyer (not a foreclosure pretender defender) for this purpose.  If possible, find one to take your case on contingency.  The lawyer will use the causes of action from the mortgage examination report to formulate the pleading.

    3. Go to next step if you have no money or no causes of action.
  2. DO NOT let your home go to foreclosure final judgment.  If you do, it will haunt your credit record for 10 years AND (depending on your state) leave you owing a huge deficiency judgment when the auction does not bring enough money to discharge your debt.  Instead, try to work with the lender to do one of these:
    1. Short-Sale:  Bank agrees that you may sell the house at a discounted price in order to end the foreclosure, and hand over all the proceeds from the sale to the bank.  This imposes some work and stress on you, but if you have equity in the house (it has higher resale value than you owe on the mortgage note), this should be your first choice
    2. Keys-for-Cash:  Bank pays you cash ($2,000 to $20,000, depending on the value of the home) to move out, leave the home broom clean, and deed the property to the bank.   This can save a huge litigation cost for the bank, and make leaving the property less stressful for you.  Sometimes a mortgage examination can reveal weak causes of action that can pressure the bank to give you a Keys-for-Cash deal.

    3. Deed-in-Lieu-of-Foreclosure:  Same as Keys-for-Cash, except the bank gives you no cash.

Take the Right Action - Contact Me NOW

Okay, I have given you the proof that you can beat your abusive lender, and I have shown you the strategic plan for doing so.  If you simply refuse to do what I have outlined above, then you really deserve to lose your home to foreclosure, or to make underwater loan payments.  But if you feel READY TO ACT SENSIBLY, contact me immediately for help.

And if you don't need help, SOMEBODY you know DOES.  Pass on this message and encourage your friends, associates, family members, loved ones to call me or write me for help.  And send them to http://MortgageAttack.com for an education on the issues.


No, I have no authorization to practice law or give legal advice, so I refrain from both.  But I'll discuss the academic and strategic business aspects of your situation as necessary.


Yes, if you fit into the category of "Foreclosure Pretender Defender,"  you can contact me too, and I'll help you the best I can.  Believe it or not, training for kool-aid drinkers like you has become available.  Sorry, no CLE credits.


AND... I don't charge money for giving business guidance.  So, what do you have to lose?  Give me a call.

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Bob Hurt            Blog 1 2 3   f  t 
2460 Persian Drive #70
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Email Call: (727) 669-5511
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Monday, June 23, 2014

A challenge to Florida Adverse Possession Law Constitutionality and Fairness in 2014

Why Florida's Adverse Possession Law is Unfair and Unconstitutional in 2014

I think it important, when one contemplates adverse possession of realty, to do more than merely to ask an attorney what he thinks about adverse possession.  The attorney and the inquirer should carefully research prior to answering so as to know what the courts think of it. Unfortunately, too few attorneys have experience with the type of adverse possession about which I write, that of real estate which the owner has abandoned because of foreclosure.  The owner knows he will eventually lose the house, and servicer's preservation thugs start harassing the owner at some point, so the owner packs up and leaves for good.  Opportunists see that as an opportunity to squat in the place and maybe win it by adverse possession.

Hey, it could happen. The bank might get a final judgment of foreclosure of an owner-abandoned property where an adverse possession squatter lives, then get the court to set it aside because the preservation crew said it was in wretched shape.  But the adverse possessor moved in and cleaned it up and made repairs.  Maybe the owner will return to claim it.  Maybe not.

That constitutes our issue of primary concern in these days where a 1.5 million residences lie vacant in Florida, may of them apparently abandoned and left to vandals and ruination.  Those could become good residences for people willing to go through the pain of adverse possession requirements.   We should consider the opinions of courts of prime importance in the matter of adverse possession.

I have appended a case opinion below regarding an adverse possession dispute over ownership of a pond.  It has nothing to do with adverse possession of real estate which the owner abandoned in foreclosure. 

The courts clearly favor the owners in adverse possession disputes.  This explains why sheriffs and prosecutors so gleefully lock up squatters for grand theft who attempt adverse possession of foreclosure-abandoned residences.  As the below opinion shows, the courts hold adverse possession claimants to very high standards of proof.  To BEGIN WITH, they MUST NOTIFY the owner of possession of the property.  Many squatters start off by ignoring that requirement.  New laws (enacted since the below opinion) require the property appraiser to notify the owner of the adverse possession.  That becomes impossible when the owner has intentionally vanished and run off to a foreign land without leaving a forwarding mail or email address or phone number.  And that constitutes a core fault with the below opinion as applied to adverse possession of realty abandoned in foreclosure.  The squatter has no way of knowing how to contact the owner.  That means the squatter must do it by notification in a newspaper partly devoted to publication of legal notices.

I have scoured Google Scholar for Florida appellate opinions related to adverse possession in conjunction with criminal charges of grand theft, the charge sheriffs and prosecutors seem to prefer, but in my opinion absolutely cannot prove.  I have found nothing.  Presently, prosecutors BASH adverse possessors with charges of grand theft, and sheriffs and cops arrest without even seeing an affidavit of probable cause in support of a questionable warrant for arrest. They simply seem to HATE opportunist squatters who take steps to live in a nice house the owner abandoned in foreclosure.

If you want to read further considerations on this issue send email to adversepossession+subscribe@googlegroups.com, and then visit the group archives once you get signed up.

Meanwhile exercise your voting rights to correct the adverse possession laws.  If owners continue to abandon realty, then the legislature should impose penalties on them and provide some way to put those residences to good use during the foreclosure litigation process, and penalize mortgagees for dragging out foreclosures without having the properties occupied.  Perhaps counties should take the properties by eminent domain that sit vacant for more than 3 months, and rent them out for their costs of maintenance and supervision, and return them after the court disposes of the property and a new occupant comes to live in it.  I consider this the best way to care for abandoned homes.

Remember:  when prosecutors and law enforcers persecute people for exercising their common law rights, the only practical solution lies in the political method - creating changes in law to punish persecutors and to adjust and clarify rights.  Adverse possession has a history 600 years deep in Anglo-American statutory and common law.  It began when common people lived off the land and took untended portions of wealthy landowners' neglected property to produce crops, livestock, and derivatives.  They paid a portion of that to the King's tax collectors.  And therefore, they put the land to its highest, best use.  Only if the owner asked to have the squatter removed would the King allow interference with the squatter.  And then the King would expect the owner to continue paying taxes for use of that parcel of land.  But in those days little or no harm came to a community because the owner let the land lie fallow.

Nowadays city dwellers generally earn their livings from employment having nothing to do with their residences.  And they pay taxes from their income, not from husbandry and agriculture.   Furthermore, homes abandoned or neglected through foreclosure cause great harm to the community, because of the negligence of both the owner and the mortgagee, and also because of the length of time the courts require to handle the avalanche of foreclosures.  The Legislature has failed to make accommodations for these cultural and business phenomena.  It has made the adverse possession process more burdensome, but it has imposed no penalties (like jail time or fines or pre-emptive eminent domain) upon either the mortgagor who abandoned the property or the mortgagee who lets the property go to ruin during foreclosure delays lasting half a decade and more.

Because of the difference in taxation, the mortgagor usually pays the taxes through the servicer and escrows the monthly amount from mortgage payments necessary to retire the tax obligation annually.  No law requires this.  The mortgage stipulates it, but that should not impact the tax collector.  If the mortgagor abandons the property and stops paying taxes and someone squats there in contemplation of adverse possession and cannot pay the taxes because the tax collector returns payments, accepting instead the mortgagor's, then the tax collector and the courts should consider that payment a form of compliance by the squatter who has filed the requisite adverse possession documents, for the mortgagee knows full well that the mortgagor has stopped making payments.  In any case should a dispute over this arise, only a court should settle it.

Florida's latest incarnation of adverse possession law in 95.18  (appended immediately below) contains certain absurdities that cause readers to conflate its meanings, and that has severely chilled exercise of the common law right of adverse possession.  I shall point out the areas that I think might not stand up to a challenge of constitutional or other rights guarantees.

1 reads  "under a claim of title exclusive of any other right."  This seems like nonsense to me, for a person who does not own the property (and has no title to it), cannot claim title except by a quiet title action or inheritance or court-ordered forfeiture of a prior title holder.  And even a mortgagee has no actual title to the property, so if a squatter fulfills the requirements of adverse possession, perhaps a court would determine that the mortgagee must forfeit the claim.  But since the mortgage operates as a lien, perhaps the court would declare that the lien still exists and the adverse possessor may not dispose of the property without discharging the mortgagor's debt, or that the mortgagee may enforce the lien through foreclosure sale regardless of adverse possession.  In the end, I think it appropriate that the court honor the lien and allow the foreclosure sale to proceed, and the adverse possessor to lose the property just as the owner would had the owner not abandoned the property.

In any case, the foregoing quoted language seems to make adverse possession impossible because squatters never have proper claim of title.

1a makes no sense to require the adverse possessor to pay the taxes.  ANYONE could pay the taxes.  What difference does it make whether the adverse possessor/squatter paid them?  For example, the mortgagee could pay them without that counting toward any right of possession. 

3d seems absurd to me and it unduly burdens the squatter seeking adverse possession with requirements that violate the squatter's common law right to adverse possession.  And requiring a notarized attestation exposes the squatter to risk of prosecution for perjury unnecessarily, since returning the incorrect information would only encumber the consummation of adverse possession.  That should suffice to guarantee correct information.

3e extraneously exceeds the needs of the property appraiser, for the squatter already must obey zoning  and HOA restrictions or suffer fines, and since the government never required that information of the owner, it violates the squatter's right of privacy under Florida Constituiton Article 1 Section 23.

I have already challenged the principle of 3g with respect to taxes.  I makes no difference who pays the taxes if the owner or owner's agent doesn't pay them, and government has no fundamental basis for requiring the squatter to pay them if someone else beside the owner pays them.  Furthermore, Florida already has laws governing sale of tax certificates at a premium to investors who thereby pay the taxes.  A squatter seeking adverse possession should have the same right to delay paying taxes as the owner does.  In Florida that means letting investors pay them  (see F.S. 197.432) for two years, and in the third year (see F.S. 197.502) allowing the investor to force a tax deed sale if the owner (or squatter) does not pay those taxes plus the premium.  Thus this provision is unfair by virtue of denying equal protection of the law to the squatter and owner, and it is unduly burdensome to the squatter.

4a should relieve the squatter of any requirement to notify the owner that the squatter will occupy the property without permission, and this law should clarify that.  If the property Appraiser cannot reach the owner, then it stands to reason the adverse possession squatter cannot either.

4 might seem like a good idea, but it actually makes no sense and imposes an unreasonable burden on the property appraiser that tax payers must pay for.  To begin with, the main issue at hand deals with adverse possession of property abandoned in foreclosure.  That means the owner RAN OFF and will not receive mail at the address of the property, and might not have left a forwarding address, so as to avoid the hounding by bill collectors.  Secondly, the owner owes the community the duty to care for the property, and abandoning it is a clear breach of that duty.  If the owner had cared for the property, no squatter would have tried to take it by adverse possession.  The abandonment makes it obvious that the owner does not care whether someone squats on the property, or expects the community to take over the owner's responsibility.

9 and 10 operate like an open season hunting license for squatters, and that violates core principles of adverse possession.  These two provisions violate Florida Constitution Article I Section 2 basic rights of natural persons. The Legislature had attempted to convert adverse possession into a crime and has thereby violated the common law right of adverse possession without providing a statutory substitute.  First of all, a squatter does not trespass by squatting on an abandoned property.  If the owner does not care, the Legislature has no business interfering.  Secondly, prohibiting rental of a squatted property by imposing a criminal penalty upon the squatter violates the ancient right of usufruct, that right to enjoy the fruit of the land.  Rental income does not differ from income derived from sale of fruit harvested from the property's trees, or milk harvested from cows or goats or eggs from fowl on the property, or wild game harvested on the property.

I do not believe the Adverse Possession law in 95.18 will withstand a constitutional challenge.  And of course, WHO will raise that challenge when it will cost tens of thousands of dollars to bring it to the Supreme Court of Florida?

In conclusion, I believe the Legislature needs to impose more obligations of proper care upon owners and mortgagees of real estate, and upon the county commissions, so they don't let property go into decline from owner abandonment.  I believe adverse possessors don't comprise the best alternative, but they certainly do the property more good than abandonment.  Ideally, an owner should notify the county of the abandonment, and the county should repair it and rent it out,  charge the fee for repairs to the mortgagee or deduct the fee and expenses from the rental income, and pay the balance to the mortgagee. 


Florida Adverse Possession Statute of Limitations (not under color of title)

95.18 Real property actions; adverse possession without color of title.

(1) When the possessor has been in actual continued possession of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written instrument, judgment, or decree, or when those under whom the possessor claims meet these criteria, the property actually possessed is held adversely if the person claiming adverse possession:
(a) Paid, subject to s. 197.3335, all outstanding taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality within 1 year after entering into possession;
(b) Made a return, as required under subsection (3), of the property by proper legal description to the property appraiser of the county where it is located within 30 days after complying with paragraph (a); and
(c) Has subsequently paid, subject to s. 197.3335, all taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality for all remaining years necessary to establish a claim of adverse possession.
(2) For the purpose of this section, property is deemed to be possessed if the property has been:
(a) Protected by substantial enclosure; or
(b) Cultivated, maintained, or improved in a usual manner.
(3) A person claiming adverse possession under this section must make a return of the property by providing to the property appraiser a uniform return on a form provided by the Department of Revenue. The return must include all of the following:
(a) The name and address of the person claiming adverse possession.
(b) The date that the person claiming adverse possession entered into possession of the property.
(c) A full and complete legal description of the property that is subject to the adverse possession claim.
(d) A notarized attestation clause that states:

UNDER PENALTY OF PERJURY, I DECLARE THAT I HAVE READ THE FOREGOING RETURN AND THAT THE FACTS STATED IN IT ARE TRUE AND CORRECT. I FURTHER ACKNOWLEDGE THAT THE RETURN DOES NOT CREATE ANY INTEREST ENFORCEABLE BY LAW IN THE DESCRIBED PROPERTY.

(e) A description of the use of the property by the person claiming adverse possession.
(f) A receipt to be completed by the property appraiser.
(g) Dates of payment by the possessor of all outstanding taxes and matured installments of special improvement liens levied against the property by the state, county, or municipality under paragraph (1)(a).
(h) The following notice provision at the top of the first page, printed in at least 12-point uppercase and boldfaced type:

THIS RETURN DOES NOT CREATE ANY INTEREST ENFORCEABLE BY LAW IN THE DESCRIBED PROPERTY.

The property appraiser shall refuse to accept a return if it does not comply with this subsection. The executive director of the Department of Revenue is authorized, and all conditions are deemed met, to adopt emergency rules under ss. 120.536(1) and 120.54(4) for the purpose of implementing this subsection. The emergency rules shall remain in effect for 6 months after adoption and may be renewed during the pendency of procedures to adopt rules addressing the subject of the emergency rules.

(4) Upon the submission of a return, the property appraiser shall:
(a) Send, via regular mail, a copy of the return to the owner of record of the property that is subject to the adverse possession claim, as identified by the property appraiser’s records.
(b) Inform the owner of record that, under s. 197.3335, any tax payment made by the owner of record before April 1 following the year in which the tax is assessed will have priority over any tax payment made by an adverse possessor.
(c) Add a notation at the beginning of the first line of the legal description on the tax roll that an adverse possession claim has been submitted.
(d) Maintain the return in the property appraiser’s records.
(5)
(a) If a person makes a claim of adverse possession under this section against a portion of a parcel of property identified by a unique parcel identification number in the property appraiser’s records:
1. The person claiming adverse possession shall include in the return submitted under subsection (3) a full and complete legal description of the property sufficient to enable the property appraiser to identify the portion of the property subject to the adverse possession claim.
2. The property appraiser may refuse to accept the return if the portion of the property subject to the claim cannot be identified by the legal description provided in the return, and the person claiming adverse possession must obtain a survey of the portion of the property subject to the claim in order to submit the return.
(b) Upon submission of the return, the property appraiser shall follow the procedures under subsection (4), and may not create a unique parcel identification number for the portion of property subject to the claim.
(c) The property appraiser shall assign a fair and just value to the portion of the property, as provided in s. 193.011, and provide this value to the tax collector to facilitate tax payment under s.197.3335(3).
(6)
(a) If a person makes a claim of adverse possession under this section against property to which the property appraiser has not assigned a parcel identification number:
1. The person claiming adverse possession must include in the return submitted under subsection (3) a full and complete legal description of the property which is sufficient to enable the property appraiser to identify the property subject to the adverse possession claim.
2. The property appraiser may refuse to accept a return if the property subject to the claim cannot be identified by the legal description provided in the return, and the person claiming adverse possession must obtain a survey of the property subject to the claim in order to submit the return.
(b) Upon submission of the return, the property appraiser shall:
1. Assign a parcel identification number to the property and assign a fair and just value to the property as provided in s. 193.011;
2. Add a notation at the beginning of the first line of the legal description on the tax roll that an adverse possession claim has been submitted; and
3. Maintain the return in the property appraiser’s records.
(7) A property appraiser must remove the notation to the legal description on the tax roll that an adverse possession claim has been submitted and shall remove the return from the property appraiser’s records if:
(a) The person claiming adverse possession notifies the property appraiser in writing that the adverse possession claim is withdrawn;
(b) The owner of record provides a certified copy of a court order, entered after the date the return was submitted to the property appraiser, establishing title in the owner of record;
(c) The property appraiser receives a certified copy of a recorded deed, filed after the date of the submission of the return, from the person claiming adverse possession to the owner of record transferring title of property along with a legal description describing the same property subject to the adverse possession claim; or
(d) The owner of record or the tax collector provides to the property appraiser a receipt demonstrating that the owner of record has paid the annual tax assessment for the property subject to the adverse possession claim during the period that the person is claiming adverse possession.
(8) The property appraiser shall include a clear and obvious notation in the legal description of the parcel information of any public searchable property database maintained by the property appraiser that an adverse possession return has been submitted to the property appraiser for a particular parcel.
(9) A person who occupies or attempts to occupy a residential structure solely by claim of adverse possession under this section prior to making a return as required under subsection (3), commits trespass under s. 810.08.
(10) A person who occupies or attempts to occupy a residential structure solely by claim of adverse possession under this section and offers the property for lease to another commits theft under s. 812.014.

History.s. 7, ch. 1869, 1872; s. 6, ch. 4055, 1891; RS 1291; GS 1722; RGS 2936; CGL 4656; s. 1, ch. 19254, 1939; ss. 13, 14, ch. 74-382; s. 1, ch. 77-102; s. 523, ch. 95-147; s. 1, ch. 2011-107; s. 1, ch. 2013-246.

Candler v Watch Omega

http://scholar.google.com/scholar_case?case=8824188323883621960&q=%22adverse+possession%22+foreclosure&hl=en&as_sdt=4,10&as_ylo=2000&as_yhi=2014

947 So.2d 1231 (2007)

CANDLER HOLDINGS LIMITED I, Appellant,
v.
WATCH OMEGA HOLDINGS, L.P., Appellee.

No. 1D05-6132.

District Court of Appeal of Florida, First District.

January 30, 2007.

1232*1232 William J. Haley of Brannon Brown Haley Robinson, Lake City, and Jack W. Shaw, Jr., Orlando, for Appellant.

Dawn Giebler-Millner of Greenberg Traurig, P.A., Orlando, Elliott H. Scherker and Julissa Rodriguez of Greenberg Traurig, P.A., Miami, for Appellee.

PER CURIAM.

Candler Holdings Limited I (Candler Holdings) appeals a final summary judgment granted to Watch Omega Holdings, L.P. (Watch Omega) on Watch Omega's claim of adverse possession with respect to a parcel of real property in Leon County which vested title to that property in Watch Omega. We reverse because the record evidence does not meet the requirements of section 95.18, Florida Statutes (2003),[1]governing adverse possession without color of title.

1233*1233 In 1988, Candler Holdings owned the Lafayette Place Shopping Center in Leon County. As part of that development, a retention pond was created for storm water drainage. In connection with a loan to Candler Holdings from General Electric Capital Corporation (GE), Candler Holdings granted GE a mortgage on the shopping center property and several other unrelated parcels. The parcel of land on which the retention pond was located, however, was not included within the legal description of the mortgaged property. When that mortgage was foreclosed, GE assigned its interest to Watch Omega's predecessor in title, CJU, Ltd. (CJU). In 1998, CJU transferred that interest to Watch Omega. In 2003, when title work was being performed on Watch Omega's property, the parties first learned that the record title to the parcel of land on which the retention pond is located remained in the name of Candler Holdings. Until that time, the parties were under the mistaken impression that the legal description of the retention pond parcel had been included in the mortgaged property.

Upon learning that it had legal title to the retention pond, Candler Holdings asserted an interest in the property. Watch Omega responded by filing a two-count complaint for adverse possession and reformation of mortgage and deed.[2] The complaint sets forth a legal description for the retention pond parcel.[3] Watch Omega alleges that on its ad valorem tax returns the legal description of the retention pond was included within the legal description of the Lafayette Place Shopping Center. Those returns, however, were neither appended to the complaint nor introduced into evidence below; and are not contained in this record.

In support of its motion for summary judgment, Watch Omega filed the affidavits of representatives of CJU and Watch Omega. Both assert that a review of Leon County's tax rolls indicate that the retention pond was treated as part of the Lafayette Place Shopping Center. No public records are appended to either affidavit and no public records were introduced into evidence below by Watch Omega. In his affidavit in opposition to the motion for summary judgment, the principal of Candler Holdings, Asa G. Candler, disputes Watch Omega's contention, stating that the Lafayette Place Shopping Center and the retention pond are two separate parcels for tax purposes. In his earlier deposition, Candler had testified that his son had talked to someone in the Leon County Tax Assessor's Office and was told that, because the parcel containing the retention pond was so small, no tax bill had been sent regarding that parcel. Candler Holdings did not introduce any public records in support of Candler's statements.

At the summary judgment hearing, Candler argued that, to obtain relief pursuant to section 95.18, it was Watch Omega's affirmative duty to prove it had filed "a return of the property by proper legal description to the property appraiser of [Leon County] within one year after entering into possession and . . . subsequently 1234*1234 paid all taxes . . . levied against the property . . ." as required by section 95.18(1). Even though the record does not contain evidence of such a return,[4] or the form DR-452, Florida Administrative Code Rule 12D-16.002, mentioned in Manin v. Milander, 452 So.2d 997 (Fla. 3d DCA 1984), the trial court entered final summary judgment in favor of Watch Omega, relying upon Candler's deposition testimony that he had not paid taxes on the property containing the retention pond and rejecting his affidavit on the grounds that it constituted hearsay.

As stated in Meyer v. Law, 287 So.2d 37, 40-41 (Fla.1973):

In Florida, there are only two ways to acquire land by adverse possession. First, without color of title, the claimant must show seven years of open, continuous, actual possession, hostile to all who would challenge such possession, must both pay all taxes for the seven year period, returning said land for taxes during the first year of occupation, and enclose or cultivate said lands for the seven year period. Second, with color of title, the claimant must show he entered into possession of the premises under a claim based upon a written instrument of conveyance of the premises in question, or deed, or judgment of a competent court, and there has been a continued occupation and possession of the premises . . .
* * *
Public policy and stability of our society, . . ., requires strict compliance with the appropriate statutes by those seeking ownership throughadverse possession.

Under either section 95.16[5] or section 95.18, Florida Statutes (2003) "the possession of the real property by the one asserting the right must be continuous, adverse, and exclusive of any other right." Mullins v. Colbert, 898 So.2d 1149, 1151 (Fla. 5th DCA 2005). As we explained in Turner v. Wheeler, 498 So.2d 1039, 1042 (Fla. 1st DCA 1986):

Adverse possession is not favored and all doubts are resolved in favor of the owner. It is essential to a finding of adverse possession that the possessor's use not be permissive. Actual use is presumed permissive and the user has the burden to demonstrate that his use was without permission. Permissive use can become adverse, but only upon clear, positive and distinct notification of the owner by the permissive user that he is claiming the property other than by permission.

(Citations omitted). "Each essential element of an adverse possession claim must be proven by clear and convincing evidence." Bailey v. Hagler, 575 So.2d 679, 681 (Fla. 1st DCA 1991). (Citations omitted). "The claim cannot be `established by loose, uncertain testimony which necessitates resort to mere conjecture.'" Grant v. Strickland, 385 So.2d 1123, 1125 (Fla. 1st DCA 1980)(quoting Downing v. Bird, 100 So.2d 57, 64 (Fla.1958)). In addition, "[t]o establish adverse possession without color of title, the claimant must show . . . payment of all taxes by proper legal description for the statutory period." McLemore 1235*1235 v. McLemore, 675 So.2d 202, 206 (Fla. 1st DCA 1996).

The requirements of the statute and the case law were not met in this case. As the movant for summary judgment, Watch Omega bore a heavy burden, see Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1095 (Fla. 1st DCA 1999), and was required to prove "a negative . . . the nonexistence of a genuine issue of material fact," Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966), before "it becomes necessary to determine the legal sufficiency of the affidavits or other evidence submitted by the party moved against." Id. Watch Omega's reliance solely on the bare affidavits of representatives of it and CJU was clearly insufficient to meet its heavy burden. The affiants' review of the public records and assertion that the appropriate taxes had been paid on the disputed property, by itself, was insufficient to establish adverse possession here.Zoda v. Hedden, 596 So.2d 1225, 1226 (Fla. 2d DCA 1992)(unauthenticated documents referred to in the affidavit of appellee's counsel, Walter E. Smith, which were not attached to his affidavit, constituted incompetent hearsay not sufficient to support summary judgment). "[A] corporate officer's affidavit which merely states conclusions or opinion [is insufficient] even if it is based on personal knowledge."Alvarez v. Florida Ins. Guar. Ass'n, 661 So.2d 1230, 1232 n. 2 (Fla. 3d DCA 1995)(citing Nour v. All State Pipe Supply Co., 487 So.2d 1204, 1205 (Fla. 1st DCA 1986)).

REVERSED and REMANDED for further proceedings consistent with this opinion.

BARFIELD, VAN NORTWICK, and THOMAS, JJ., concur.

[1] Section 95.18, which has remained substantively the same throughout the period of the parties' transactions, with one very minor technical change, see chapter 95-147, § 523, at 394, Laws of Florida, provides:

(1) When the occupant or those under whom the occupant claims have been in actual continued occupation of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written instrument, judgment, or decree, the property actually occupied shall be held adversely if the person claiming adverse possession made a return of the property by proper legal description to the property appraiser of the county where it is located within 1 year after entering into possession and has subsequently paid all taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality.

(2) For the purpose of this section, property shall be deemed to be possessed in the following cases only:

(a) When it has been protected by substantial enclosure.

(b) When it has been usually cultivated or improved.

[2] The count seeking reformation is not before us.

[3] We note that the legal description in the complaint is not identical to the legal description contained within the final summary judgment.

[4] See Forman v. Ward, 219 So.2d 68, 69 (Fla. 1st DCA 1969)(suggesting that compliance with this requirement of section 95.18 may be achieved by delivering a return based upon a legal description "having reference to a book and page number in the records of the circuit court clerk where a recorded deed may be found.").

[5] Section 95.16, Florida Statutes (2003), addressing adverse possession under color of title, has not been invoked in this case.

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