Wednesday, February 09, 2011

Foreclosure and Confrontation in Court

A reader sent this message:

From: Beach RentalSent: Wed, February 2, 2011 12:03:22 PMSubject:  Re: Memorandum in Support of Oppose to MSJ
I have a friend in Florida who is able to stay in his house since 2006 by just try to delay the Plaintiff Motion for Summary Judgment. He filed so far 4 times discovery, try to depose the Bank Presidents and Trustee, robot signers who signs the affidavits and the assignments . So far so good. The Bank can't produce the Trustee and the Custodian for depositions so discovery is still in force. They can't get the Hearing for their MSJ. In many Florida courts, the Senior Judges won't listen to Prose in MSJ. They will grant the Bank MSJ and the house will be gone in couple months. Therefore I would try to avoid direct court confrontation as long as I can. The tide is turning favoring Homeowners, the longer I can stay in my house to fight, the better. 

The way to avoid Summary Judgment against you in Foreclosure:
  1. Do not wait for a foreclosure complaint to arrive.  File a quiet title action and ATTACK.
  2. Move to dismiss their complaint for failure to state a cause of action for which the court can grant relief.
  3. Challenge jurisdiction and standing, and HAMMER hard on these points.  It could take the Plaintiff years to correct this.
  4. Contradict the factual allegations in the complaint
  5. Press immediately for discovery to prove your contradictions
  6. In the discovery ALWAYS bring in corporate charter, articles of incorporation, and try to depose President, CEO, and treasurer.  Depositions can cost a lot of money, but they can stave off the other proceedings for months.
  7. Press for summary judgment in your favor. 
  8. Strategize two Dismissals - the second in Florida comes WITH PREJUDICE.  Fight like hell if they try to complain again after a second dismissal.
  9. Remind the judge of the obligations imposed by the Code of Judicial Conduct.
  10. Prepare to challenge the judge for Prejudice and ROGERS them immediately and explosively with loud complaining against the judge.  Read my article ROGER THE JUDGE at within the past week.

If you want to avoid court, you believe you cannot get justice there.  You MUST PREPARE FOR CONFRONTATION IN COURT, so get used to the idea.

One should never do discovery merely to delay the inevitable or drive up your opponent's cost of litigation.  To begin with, that violates court rules.  Secondly, it ends up costing you that much more when you lose.

Until the Court realizes and admits that we have a crooked impossibly corrupt money system, banks take ill-gotten gains through loans of credit or loans where the borrower's note actually funds it, that separation of the note from the mortgage without agency makes the note unenforceable through confiscation of the property, that the assignee owes the note maker for unpermitted conversion of the note through securitization, and that since the mortgage security instruments puts the property in the Lender's name, the lender therefore owes all taxes and insurance on it...

Until the courts grasp and admits all that, they will believe that you borrowed money and you either pay it back or forfeit the house.  Only ONE thing can reliably defeat such reasoning:  FRAUD in the transaction.

In every other instance, when you claim fraud, you don't win much even with treble damages because the fraud didn't cost you that much.  But in APPRAISAL fraud, you can get from a third to half of the property value, tripled, and that will typically pay for the property outright when added to return of your payments and other costs.

So if you have any sense at all, you will stop trying to litigate on the basis of anomalies in the paperwork and burn midnight oil to prove appraisal fraud, the most common of all real estate transaction frauds.

If you want me to explain why, let me know.

Meanwhile, call Mortgage Attack at 727 669 5511.  If you can get an overworked man on the phone, he will explain it to you.  And, if you do as he suggests, you will end up with proof of the fraud so that your attorney can win a dismissal, disgorgement of all funds, and treble damages for you.

If you cannot prove such fraud (something that justifies reversal of the purchase and loan), you should stay in the house as long as you can and then short-sell the property, pay what you can against the note, and go rent something.  You can look for a cheap house to buy sometime over the next couple of years when your credit rating improves.  Your family has probably outgrown your house anyway and it probably needs a new roof, paint, landscaping, flooring, nuisance repairs, and fence - tens of thousands in overdue maintenance.  So why feel glued to the old place on a principle you cannot win in court?

Yes, all this constitutes my general advice to anyone facing foreclosure, but you really should consult an attorney who has a reputation to protect and a vested interest in your success.  Since you did not pay me for this advice, naturally you cannot rely on it to solve YOUR SPECIFIC problems.   Almost certainly your attorney will give you different, more prudent advice based on your specific circumstances.  And you SHOULD stick your nose into everything the attorney does and get an explanation as to why he recommends any particular action or path.

Consider this good example to see why:

An attorney in XXX County Florida failed to show at his client's dismissal hearing.  The client had moved the court to dismiss the case for Plaintiff's lack of action on the case in the past year.  The attorney knew the court would grant the client's dismissal motion, and that the Plaintiff would probably re-file the case after correcting any errors in it, and then the Plaintiff would win in summary judgment, trial, or appeal, and the client would have to pay a lot more expenses and opponent attorneys fees.  So the attorney thought he did the client a favor by ending the misery of the lawsuit quickly, with the client losing it.    He said "I thought in the best interest of the client."

Well, Florida has a two strikes rule regarding foreclosures.  If the court dismisses an action for the plaintiff twice, the second occurs with prejudice, and the plaintiff cannot refile except with extreme justification.  So the Defendant will effectively get the house, and use homestead and/or bankruptcy protections to keep the place.

Therefore, if the Plaintiff screws up a second time, the court might dismiss the complaint with prejudice.  And the legal climate regarding foreclosure looks like a disastrous mine field for foreclosure mill attorneys who screw up lots of paperwork, BUY "original" notes/mortgages  printed by another company, and so on.  Any or all could provoke an honest judge to dismiss the case again.  And that would let the defendant move the court for a damages award, including payment of attorney fees.

So do YOU think the above attorney really acted in the best interest of the client?  I do not.  I told him so and he filed a frivolous UPL complaint against me.

Therefore, even if you hire an attorney, you have to MAKE CERTAIN that you understand and agree with his plans, and fire him and file bar complaints  and beg the judge to sanction him if he drives ahead on a plan that will eventually hurt your cause.  Act FAST to protect your rights and MAKE your attorney work for you.  Make sure the attorney does not miss any deadlines and shows up in person or by phone for every hearing.  The attorney is the pony, and you are the cowboy.  You have to RIDE THAT PONY, and sometimes you need a quirt and spurs, for the now-obvious reason.

Mortgage Attack

Mort Gezzam

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