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	<title>Foreclosure Defense &#38; Strategic Default</title>
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	<description>Stopa Law Blog - Florida Homeowners</description>
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		<title>Motion to Vacate Ex Parte Default</title>
		<link>http://www.stayinmyhome.com/blog/2012/02/motion-to-vacate-ex-parte-default/</link>
		<comments>http://www.stayinmyhome.com/blog/2012/02/motion-to-vacate-ex-parte-default/#comments</comments>
		<pubDate>Tue, 21 Feb 2012 22:57:58 +0000</pubDate>
		<dc:creator>Mark Stopa</dc:creator>
				<category><![CDATA[Main]]></category>

		<guid isPermaLink="false">http://www.stayinmyhome.com/blog/?p=2184</guid>
		<description><![CDATA[No commentary, no elaboration &#8230; just read the Motion, including the footnotes. Mark Stopa www.stayinmyhome.com]]></description>
			<content:encoded><![CDATA[<p>No commentary, no elaboration &#8230; just read the <a href="http://www.stayinmyhome.com/blog/wp-content/uploads/2012/02/Motion-to-Vacate-Ex-Parte-Default-and-for-Sanctions1.pdf">Motion</a>, including the footnotes.</p>
Mark Stopa<br>
<h3><a href="www.stayinmyhome.com">www.stayinmyhome.com</a></h3>]]></content:encoded>
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		<slash:comments>1</slash:comments>
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		<item>
		<title>Misplaced Priorities</title>
		<link>http://www.stayinmyhome.com/blog/2012/02/misplaced-priorities/</link>
		<comments>http://www.stayinmyhome.com/blog/2012/02/misplaced-priorities/#comments</comments>
		<pubDate>Sun, 19 Feb 2012 16:53:21 +0000</pubDate>
		<dc:creator>Mark Stopa</dc:creator>
				<category><![CDATA[Main]]></category>

		<guid isPermaLink="false">http://www.stayinmyhome.com/blog/?p=2182</guid>
		<description><![CDATA[Whitney Houston was a great singer, don&#8217;t get me wrong.  However, I find it totally insane that much of America has spent the greater part of the past week mourning her death.  A day (playing her songs in trubute), fine.  But a week of nonstop media coverage?  Lowering flags to half mast?  Seriously?  Is this what our country has [...]]]></description>
			<content:encoded><![CDATA[<p>Whitney Houston was a great singer, don&#8217;t get me wrong.  However, I find it totally insane that much of America has spent the greater part of the past week mourning her death.  A day (playing her songs in trubute), fine.  But a week of nonstop media coverage?  <a href="http://entertainment.msnbc.msn.com/_news/2012/02/15/10415956-should-flags-fly-at-half-staff-for-whitney-houston?chromedomain=todayentertainment">Lowering flags to half mast?</a>  Seriously?  Is this what our country has become?  Could our priorities be any more misplaced?</p>
<p>I don&#8217;t want to speak ill of the dead, so I&#8217;ll spare the adjectives about how she lived the past decade of her life.  After all, the point here isn&#8217;t the death of a singer &#8230; the point is how she is the most glaring example of misplaced priorities in America since, well, the Kardashian wedding/divorce. </p>
<p>The following is a list of items that merit our mourning/attention/concern.  This isn&#8217;t an exhaustive list by any means; just my attempt to get America talking about something more important than a dead singer:</p>
<p>- <a href="http://entertainment.msnbc.msn.com/_news/2012/02/15/10415956-should-flags-fly-at-half-staff-for-whitney-houston?chromedomain=todayentertainment">Greece is on fire</a>.  Literally.  If you&#8217;re not concerned this is where America is headed, then you&#8217;re either:  (i) not paying close enough attention; or (ii) not part of the 99%.   Maybe this is how the USA will wind up and maybe not, but the similarities between the economic problems in Greece and those in America are striking (and at least worth discussion).  Why isn&#8217;t anyone talking about this? </p>
<p>- The GOP lacks a frontrunner (and, arguably, a viable candidate) for the 2012 Presidential nomination.  Republicans have allowed Rick Santorum, Mitt Romney, and Newt Gingrich to &#8220;lead&#8221; the race just long enough for most Americans to realize none of them should be the leader.  (&#8220;He&#8217;s horrible, let&#8217;s take him.  Nah, he&#8217;s terrible, let&#8217;s take him.&#8221;)  Meanwhile, Ron Paul hasn&#8217;t won a single state so far yet thinks he can procure the nomination by getting <a href="http://www.youtube.com/watch?v=SBLhnCHR2aY">more delegates</a> than anyone else.  Can someone who has lost every state really win?  How?  If so, why aren&#8217;t the other candidates doing it?  And why is nobody talking about this?  Is Whitney Houston really more important than a strategy to get nominated for President?</p>
<p>- <a href="http://www.huffingtonpost.com/huff-wires/20120214/us-afghan-us-deaths/">1,771 military members have died in Afghanistan</a> since 2001.  Did New Jersey lower its flags to half mast for the death of each of those servicemembers (<a href="http://entertainment.msnbc.msn.com/_news/2012/02/15/10415956-should-flags-fly-at-half-staff-for-whitney-houston?chromedomain=todayentertainment">as it just did for Whitney Houston</a>)?  And why, exactly, are we still fighting wars overseas? </p>
<p>- A written agreement between the AGs and the banks <a href="http://www.crewof42.com/cbc-2/where-is-an-actual-copy-of-the-mortgage-settlement-agreement/">has STILL not been signed.</a>  You know, that $26 billion settlement where big banks were supposedly paying to help homeowners and remedy some of the injustices from their foreclosure fraud &#8230; the one the AGs all announced on February 9 as if it were some sort of cure-all &#8230; it still hasn&#8217;t been signed.  Does anyone care?  Was the purpose of the settlement to accomplish something for American homeowners, or just blow smoke where the sun doesn&#8217;t shine? </p>
<p>The <a href="http://www.nypost.com/p/news/business/ags_foreclosure_deal_still_being_PhIgna2fIsHJs6A0egzu2M">New York Post reports</a> the settlement is still being tweaked, which can only mean one thing &#8211; the banks are still negotiating for better terms, and the AGs have no leverage to stick to their guns because the banksters know the AGs can&#8217;t let the deal fall through.  Can you imagine the AGs now having to put their tails between their legs and announcing the lack of a deal?  Once again, big banks have screwed over America, yet nobody seems to care. </p>
<p>- Foreclosure cases throughout America are being <a href="http://www.stayinmyhome.com/blog/2012/02/plaintiff-as-servicer-i-think-not/">prosecuted by servicers</a> who often don&#8217;t even know the identity of the owners of the Notes and Mortgages they&#8217;re seeking to foreclose, a phenomenon I&#8217;m calling <a href="http://www.stayinmyhome.com/blog/2012/02/the-wizard-behind-the-curtain/">the Wizard behind the Curtain</a>.  I won&#8217;t rest until the law is clear that a <a href="http://www.stayinmyhome.com/blog/2012/02/plaintiff-as-servicer-i-think-not/">thief can&#8217;t foreclose</a>; I wish everyone felt similarly. </p>
<p>- America&#8217;s unemployment rate <a href="http://www.google.com/publicdata/explore?ds=z1ebjpgk2654c1_&amp;met_y=unemployment_rate&amp;idim=country:US&amp;fdim_y=seasonality:S&amp;dl=en&amp;hl=en&amp;q=america+unemployment+rate">is above 8%</a>, and while that&#8217;s down from the 10% rate we saw during the height of the Great Recession, it&#8217;s still way too high.  Plus, I can&#8217;t help but think a significant reason for the decrease is based on how unemployment is defined.  Remember, &#8220;unemployed&#8221; is defined as someone searching for work unable to find it, so anyone who still lacks a job but gave up searching isn&#8217;t considered &#8220;unemployed&#8221; and, hence, isn&#8217;t part of the 8%.   </p>
<p>Nearly 10% of Americans don&#8217;t have a job &#8230; can we please talk about that instead of Whitney Houston? </p>
<p>&nbsp;</p>
Mark Stopa<br>
<h3><a href="www.stayinmyhome.com">www.stayinmyhome.com</a></h3>]]></content:encoded>
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		<slash:comments>9</slash:comments>
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		<item>
		<title>Failure to Prosecute &#8211; There Are No Do-Overs</title>
		<link>http://www.stayinmyhome.com/blog/2012/02/failure-to-prosecute-there-are-no-do-overs/</link>
		<comments>http://www.stayinmyhome.com/blog/2012/02/failure-to-prosecute-there-are-no-do-overs/#comments</comments>
		<pubDate>Fri, 17 Feb 2012 22:55:59 +0000</pubDate>
		<dc:creator>Mark Stopa</dc:creator>
				<category><![CDATA[Main]]></category>

		<guid isPermaLink="false">http://www.stayinmyhome.com/blog/?p=2176</guid>
		<description><![CDATA[I&#8217;m a bit frustrated at an Order I just received in the mail, entered sua sponte, without notice, and without hearing, which purported to grant a Motion to Dismiss for Lack of Prosecution but gave Plaintiff leave to amend and directed my clients to file an Answer.  (Obviously, that&#8217;s not a dismissal of the case).  [...]]]></description>
			<content:encoded><![CDATA[<p>I&#8217;m a bit frustrated at an Order I just received in the mail, entered <em>sua sponte</em>, without notice, and without hearing, which purported to grant a Motion to Dismiss for Lack of Prosecution but gave Plaintiff leave to amend and directed my clients to file an Answer.  (Obviously, that&#8217;s not a dismissal of the case). </p>
<p>Florida&#8217;s rules on lack of prosecution have changed recently, <span style="text-decoration: underline;">see Chemrock Corp. v. Tampa Elec. Co.</span>, 71 So. 3d 786 (Fla. 2011), but, frankly, it&#8217;s not that complicated.  If there is no record activity in the 10 months preceding a Notice of Intent to Dismiss for Lack of Prosecution or the 60 days thereafter, and a defendant files a Motion to Dismiss for Lack of Prosecution, then a plaintiff can avoid dismissal only by a showing of &#8220;good cause&#8221; for the inactivity.  In other words, any activity which occurs after the motion to dismiss is irrelevant in determining the propriety of dismissal, and the Court has no discretion to keep the case pending simply because the plaintiff has woken up and says &#8220;I&#8217;m ready to proceed now.&#8221; </p>
<p>In layman&#8217;s terms, there are no do-overs for a plaintiff&#8217;s failure to prosecute &#8211; if a year passes with no activity, the defendant follows the procedures in Rule 1.420(e), and the plaintiff fails to show good cause, then the case is over, dismissed, kaput, finito. </p>
<p><a href="http://www.stayinmyhome.com/blog/wp-content/uploads/2012/02/Motion-to-Vacate.pdf">Here</a> is a Motion I just drafted which lays out some of these principles of law.</p>
Mark Stopa<br>
<h3><a href="www.stayinmyhome.com">www.stayinmyhome.com</a></h3>]]></content:encoded>
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		<slash:comments>4</slash:comments>
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		<item>
		<title>Plaintiff as Servicer? I Think Not.</title>
		<link>http://www.stayinmyhome.com/blog/2012/02/plaintiff-as-servicer-i-think-not/</link>
		<comments>http://www.stayinmyhome.com/blog/2012/02/plaintiff-as-servicer-i-think-not/#comments</comments>
		<pubDate>Thu, 16 Feb 2012 03:59:16 +0000</pubDate>
		<dc:creator>Mark Stopa</dc:creator>
				<category><![CDATA[Main]]></category>
		<category><![CDATA[authority of agent to bind principal]]></category>
		<category><![CDATA[foreclosure defense strategies Florida]]></category>
		<category><![CDATA[owner and holder of note and mortgage]]></category>
		<category><![CDATA[plaintiff as servicer]]></category>
		<category><![CDATA[principal and agent]]></category>
		<category><![CDATA[Riggs v. Aurora Loan Services]]></category>
		<category><![CDATA[stop foreclosure Tampa]]></category>
		<category><![CDATA[Stopa Law Blog]]></category>

		<guid isPermaLink="false">http://www.stayinmyhome.com/blog/?p=2170</guid>
		<description><![CDATA[I observed a foreclosure trial today, and one aspect of it in particular really bothered me.  The plaintiff prosecuting the case was not the owner of the Note, but merely the servicer.  Many judges and, of course, plaintiffs&#8217; attorneys, seem to think this is fine, arguing the servicer can foreclose because it&#8217;s the &#8220;holder&#8221; of [...]]]></description>
			<content:encoded><![CDATA[<p>I observed a foreclosure trial today, and one aspect of it in particular really bothered me.  The plaintiff prosecuting the case was not the owner of the Note, but merely the servicer.  Many judges and, of course, plaintiffs&#8217; attorneys, seem to think this is fine, arguing the servicer can foreclose because it&#8217;s the &#8220;holder&#8221; of the Note, even though, by its own admission, it&#8217;s not the owner.  In other words, the plaintiff/servicer concedes it does not &#8220;own&#8221; the Note, i.e. it&#8217;s not the plaintiff&#8217;s Note, but because it has the Note in its possession, and the Note is indorsed in blank, it can foreclose. </p>
<p>I&#8217;ve thought about this argument a lot, read a lot of case law, and see some fatal problems.  Frankly, I&#8217;m frustrated these problems are largely being ignored and hope that everyone starts arguing and adjudicating this issue appropriately.   </p>
<p>First off, taking the plaintiff&#8217;s argument to its logical extreme, anyone can steal a Note with a blank indorsement &#8211; literally, be a thief &#8211; but because he possesses the Note, and the Note is indorsed in blank, he could foreclose simply because he&#8217;s the holder.  That sounds insane, but once you accept the argument that the plaintiff need only be the &#8220;holder,&#8221; and that ownership is irrelevant, that&#8217;s what you&#8217;re allowing &#8211; a thief can foreclose.  Anyone can foreclose.  Come to court with a Note with a blank indorsement, and how you obtained that Note is irrelevant &#8211; you can foreclose. </p>
<p>Respectfully, that&#8217;s just not the law.  It can&#8217;t be the law.  There&#8217;s no way the law can allow or would allow a thief to foreclose.  Undoubtedly, this is why Rule 1.944 requires the plaintiff be the &#8220;owner and holder.&#8221;  </p>
<p>I can hear the plaintiffs&#8217; attorneys now.  &#8220;But many Florida cases say being a holder is sufficient; they don&#8217;t have an ownership requirement.&#8221;  To a limited extent, I suppose that is true, but read those cases.  For example, <span style="text-decoration: underline;">Riggs v. Aurora Loan Services</span>, 36 So. 3d 942 (Fla. 4th DCA 2010), talks at length about whether the plaintiff was the holder, and plaintiffs&#8217; lawyers love to cite <span style="text-decoration: underline;">Riggs</span> for the proposition that being the &#8220;holder&#8221; is all that matters.  However, the issue of ownership wasn&#8217;t a question in <span style="text-decoration: underline;">Riggs</span> &#8211; in that case, the plaintiff showed it was the &#8220;owner and holder.&#8221;  Respectfully, it is totally misguided to take a case where ownership was not in question and use that case for the proposition that ownership is immaterial.  It may have been immaterial <em>in that case </em>because ownership wasn&#8217;t disputed, but that certainly doesn&#8217;t mean ownership is immaterial <em>in all cases</em>. </p>
<p>Consider, again, my thief example.  Once you accept that a thief cannot foreclose, you necessarily accept that the plaintiff who forecloses must own the Note. </p>
<p>Again, I can hear the plaintiffs&#8217; lawyers.  &#8220;But a servicer can foreclose because the servicer is the holder and has a servicing agreement with the owner, so it&#8217;s foreclosing with the consent of the owner of the Note.&#8221;   This was the argument being espoused at the trial I observed today &#8211; the servicer doesn&#8217;t own the Note, but is foreclosing with the consent of the owner. </p>
<p>This argument may sound unique or complicated, but it&#8217;s one the Florida courts have adjudicated for many years in a number of contexts &#8211; that of principal and agent.  Here, the plaintiff is saying that it, the servicer, is acting as the agent of the owner, the principal, by prosecuting the foreclosure case.  This is the dynamic we see in thousands of foreclosure cases &#8211; the servicer alleges it can prosecute the case for the owner under a theory of agency. </p>
<p>In my view, this begs the question of <em>when can an agent bind the principal?</em>  Let&#8217;s say that again: </p>
<blockquote>
<p style="text-align: center;"><em>Under what circumstances can an agent bind a principal?</em></p>
</blockquote>
<p>There are zero Florida cases that discuss this concept in the context of foreclosure cases, so let&#8217;s look to case law in other contexts. </p>
<p>In <span style="text-decoration: underline;">Fla. State Oriental Med. Ass&#8217;n v. Slepin</span>, the First District ruled an attorney was not entitled to collect attorneys&#8217; fees incurred representing a corporation because the attorney (the alleged agent) did not have the authority to act on behalf of the corporation (the alleged principal).  971 So. 2d 141 (Fla. 1st DCA 2007).  The attorney said he was acting on the corporation&#8217;s behalf, and he purported to act on its behalf, but the First District ruled he wasn&#8217;t, in fact, an agent and didn&#8217;t have the authority to bind the corporation.  In so ruling, the court explained:</p>
<blockquote>
<p style="text-align: center;">A finding of actual authority would require evidence that a principal acknowledged an agent&#8217;s power, that the agent accepted the responsibility of representing the principal, and that the principal retained control over the agent&#8217;s actions.</p>
</blockquote>
<p>Similarly, the Florida Supreme Court has explained:</p>
<blockquote>
<p style="text-align: center;">Essential to the existence of an actual agency relationship is (1) acknowledgment by the principal that the agent will act for him, (2) the agent&#8217;s acceptance of the undertaking, and (3) control by the principal over the actions of the agent.</p>
</blockquote>
<div><span style="text-decoration: underline;">Villazon v. Prudential Health Care Plan</span>, 843 So. 2d 842 (Fla. 2003). </div>
<p>Let&#8217;s read those requirements closely, and break them down, one by one. </p>
<p>1.  The principal acknowledged the agent&#8217;s power. </p>
<p>2.  The agent accepted the responsibility of representing the principal.</p>
<p>3.  The principal retained control over the agent&#8217;s actions. </p>
<p>In the trial I observed today, the plaintiff/servicer admitted it did not even know who the owner of the Note was.  Think about that for a minute.  The servicer was supposed to be acting on behalf of the owner, with the owner&#8217;s consent, but it didn&#8217;t even know who the owner was.  On these facts, how on earth could the servicer possibly prove the owner/principal &#8220;acknowledged the agent&#8217;s power&#8221;?  Clearly, it couldn&#8217;t, and it didn&#8217;t.  The servicer couldn&#8217;t even identify the owner, much less prove the owner authorized the servicer&#8217;s actions. </p>
<p>This argument is so simple it&#8217;s ridiculous. </p>
<p>&#8220;I have authority to foreclose.&#8221; </p>
<p>&#8220;Who gave you authority?&#8221;</p>
<p>&#8220;I don&#8217;t know, but I have authority.&#8221; </p>
<p>I can just see my kids making this argument to me and my wife. </p>
<p>&#8220;I have permission to stay up until 10:00.  That&#8217;s my new bedtime.&#8221; </p>
<p>&#8220;Who gave you that permission?&#8221;</p>
<p>&#8220;I don&#8217;t know, but it&#8217;s allowed.&#8221;</p>
<p>These arguments don&#8217;t even begin to make sense, but that&#8217;s what the servicer was arguing today.  &#8220;I don&#8217;t know who gave me authority, but I have authority.&#8221; </p>
<p>As I see it, to prove the requisite authority, the servicer must either (a) introduce a servicing agreement into evidence; or (b) provide testimony from the owner as to the servicer&#8217;s authority.  Without one of those two things, I just don&#8217;t see how the servicer can possibly show the owner of the note authorized the servicer to foreclose.  Do you disagree?  You tell me &#8230; without a servicing agreement or testimony from the owner as to the servicer&#8217;s authority, how can the servicer prove the owner &#8220;acknowledged the servicer&#8217;s power&#8221;?  Once you conclude there is no such answer, then you necessarily agree that a servicer cannot foreclose without such proof.   </p>
<p>Similarly, in the trial I observed, the plaintiff/servicer failed to show the owner of the Note &#8220;retained control over the agent&#8217;s actions.&#8221;  After all, how could the servicer possibly show the owner of the Note &#8220;retained control over the servicer&#8217;s actions&#8221; when the servicer couldn&#8217;t even identify the owner?   Clearly, the servicer was acting as its own boss here, answering to nobody. </p>
<p>I realize that some of the arguments being espoused by servicers in foreclosure cases seem unique, and there appears to be an absence of case law setting forth these issues.  However, once you realize a servicer purports to act on behalf of the owner, and is hence just another fancy word for an agent, it should become clear that basic principles of law regarding agents and principals must apply, as quoted above.  This requires proof in foreclosure cases that, many times, is simply not forthcoming.</p>
Mark Stopa<br>
<h3><a href="www.stayinmyhome.com">www.stayinmyhome.com</a></h3>]]></content:encoded>
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		<slash:comments>18</slash:comments>
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		<item>
		<title>Two Signs that Say it All</title>
		<link>http://www.stayinmyhome.com/blog/2012/02/two-signs-that-say-it-all/</link>
		<comments>http://www.stayinmyhome.com/blog/2012/02/two-signs-that-say-it-all/#comments</comments>
		<pubDate>Mon, 13 Feb 2012 03:14:20 +0000</pubDate>
		<dc:creator>Mark Stopa</dc:creator>
				<category><![CDATA[Main]]></category>
		<category><![CDATA[bank bailouts]]></category>
		<category><![CDATA[give a man a bank and he can rob the world]]></category>
		<category><![CDATA[give a man a gun and he can rob a bank]]></category>
		<category><![CDATA[too big to fail]]></category>
		<category><![CDATA[Wells Fargo Home Mortgage]]></category>

		<guid isPermaLink="false">http://www.stayinmyhome.com/blog/?p=2168</guid>
		<description><![CDATA[&#160; &#160; Mark Stopa www.stayinmyhome.com]]></description>
			<content:encoded><![CDATA[<p><img class="aligncenter" src="http://a7.sphotos.ak.fbcdn.net/hphotos-ak-snc7/s320x320/427765_10150601359322908_9124187907_9037917_252586072_n.jpg" alt="" width="300" height="131" /></p>
<p>&nbsp;</p>
<p><img id="rg_hi" class="aligncenter" src="http://t2.gstatic.com/images?q=tbn:ANd9GcQMZLiqI0D3cew_lLYcBh5vq1uqwVJXE2_t4qswmrKKZk0IHKjSBA" alt="" width="256" height="179" data-width="256" data-height="179" /></p>
<p>&nbsp;</p>
Mark Stopa<br>
<h3><a href="www.stayinmyhome.com">www.stayinmyhome.com</a></h3>]]></content:encoded>
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		<item>
		<title>The Wizard Behind the Curtain</title>
		<link>http://www.stayinmyhome.com/blog/2012/02/the-wizard-behind-the-curtain/</link>
		<comments>http://www.stayinmyhome.com/blog/2012/02/the-wizard-behind-the-curtain/#comments</comments>
		<pubDate>Fri, 10 Feb 2012 23:09:34 +0000</pubDate>
		<dc:creator>Mark Stopa</dc:creator>
				<category><![CDATA[Main]]></category>

		<guid isPermaLink="false">http://www.stayinmyhome.com/blog/?p=2164</guid>
		<description><![CDATA[Through my experience litigating foreclosure cases, I&#8217;ve become convinced that the plaintiffs prosecuting foreclosure lawsuits often don&#8217;t even realize those lawsuits are pending.  Let&#8217;s say that again:  The Plaintiffs who have filed suit don&#8217;t even realize a lawsuit is pending. How can that be?  Simple.  Third-party servicers retain a foreclosure mill, a.k.a. a plaintiff&#8217;s lawyer, and, without actually [...]]]></description>
			<content:encoded><![CDATA[<p>Through my experience litigating foreclosure cases, I&#8217;ve become convinced that the plaintiffs prosecuting foreclosure lawsuits often don&#8217;t even realize those lawsuits are pending.  Let&#8217;s say that again: </p>
<p style="text-align: center;"><em>The Plaintiffs who have filed suit don&#8217;t even realize a lawsuit is pending.</em></p>
<p>How can that be?  Simple.  Third-party servicers retain a foreclosure mill, a.k.a. a plaintiff&#8217;s lawyer, and, without actually appearing as a party in their own names, direct the foreclosure mill to file suit on behalf of the plaintiff, i.e. the owner of the Note and Mortgage.  Does the servicer actually have authority to do so?  Honestly, who the heck knows.  This strange phenomenon is something I&#8217;ve started to call the &#8220;Wizard Behind the Curtain.&#8221;  The servicer isn&#8217;t named in the lawsuit, but it&#8217;s the one behind the scenes, calling all the shots, directing the foreclosure of thousands of homes throughout America. </p>
<p>I see a myriad of problems with this.  In fact, just last month, I expressed my concerns when I saw a <a href="http://www.stayinmyhome.com/blog/2012/01/who-do-the-foreclosure-mills-represent/">foreclosure mill&#8217;s written admission</a> that it had no relationship whatsoever with the plaintiff it was purporting to represent.  Think about that for a second:</p>
<p style="text-align: center;"><em>The lawyer had no relationship whatsoever with the plaintiff it purported to represent.</em></p>
<p>Instead, the firm&#8217;s alleged authority to file the foreclosure lawsuit came from, you guessed it, the &#8220;servicer.&#8221; </p>
<p>I recently came across a document filed in a court case that sheds more light on this troubling phenomenon, and this document will provide a useful example to illustrate the problem. </p>
<p><a href="http://www.stayinmyhome.com/blog/wp-content/uploads/2012/02/Non-Title-Document-Review1.pdf">Take a look for yourself &#8230; what do you see?</a></p>
<p>Obviously this document, which Shapiro &amp; Fishman calls a &#8220;Non-Title Document Review,&#8221; is a checklist used prior to filing a foreclosure complaint.  What really strikes me about this document (which Shapiro filed with the Complaint in this case and is a matter of public record) is that it has one box for the &#8220;Plaintiff&#8221; and the heading/style of the case, and an entirely separate box for the &#8220;Client.&#8221;  Here, for instance, the &#8220;Plaintiff&#8221; is U.S. Bank, National Association, but the &#8220;client&#8221; is &#8220;Bank of America, N.A.&#8221; </p>
<p>Call me crazy, but shouldn&#8217;t the &#8220;client&#8221; and the &#8220;plaintiff&#8221; be the same?  How can Shapiro &amp; Fishman be filing a lawsuit on behalf of U.S. Bank when its &#8220;client&#8221; is Bank of America? </p>
<p>This may sound technical, and perhaps it is.  But think about how this &#8220;wizard behind the curtain&#8221; phenomenon will play out in a foreclosure case.  I see four huge problems.</p>
<p>First, the Florida Supreme Court requires via Fla.R.Civ.P. 1.110(b) that the Plaintiff verify its Complaint in all residential foreclosure cases.  Given the relationship between the foreclosure mills and the servicers, it seems clear the required verifications aren’t being done by the plaintiffs, but by the servicers.  Many learned judges in Florida before whom I appear have made it clear that verification by a servicer is insufficient – the complaints are supposed to be verified by the “plaintiff.”  Remember, the Rule doesn’t permit verification by a third party, but by “the plaintiff.”  In fact, Shapiro &amp; Fishman moved for rehearing of the Florida Supreme Court’s ruling on this precise issue, and the Court rejected its motion. </p>
<p>This prompts a significant question – if verification is required by the plaintiff, and the attorneys representing the plaintiff have no relationship with the plaintiff, how on earth can they get the required verification?  Undoubtedly, this is why the mills ask for 90 days or 120 days to get the requisite verification (when complaints are dismissed with leave to amend), as they often don’t even represent the plaintiff prosecuting the foreclosure case!  Literally, the mills are in the position of calling up an entity who they don’t represent and saying “You don’t know me, but I’m representing you in this foreclosure case, and I need you to verify under penalty of perjury that the allegations we’ve raised are correct.” </p>
<p>A bit awkward, eh?  Yet that’s the position in which the mills have put themselves (in a large percentage of foreclosure cases in Florida). </p>
<p>Second, I struggle to see how the mills can prosecute lawsuits on behalf of plaintiffs without the plaintiffs’ knowledge or consent in a manner consistent with The Rules Regulating The Florida Bar.  I’ve spoken with the Bar on this, and given our conversation, I’m not prepared to say it’s impossible, but I will say this.  Personally, I couldn’t imagine appearing as counsel for a party in any lawsuit without that party’s knowledge or consent, much less doing so on a widespread, systematic basis. </p>
<p>Think about it this way.  An attorney is able to act on behalf of a client because the attorney’s actions bind the client.  Stipulations, representations, court filings, etc. … we as attorneys are, quite literally, agents for our clients.  If a client is going to be bound in this manner, the attorney’s authority to represent/bind the client must be clearly established.  This is why, for example, there are strict rules about how an attorney may appear as counsel, failing which the attorney’s actions don’t bind the client.  See Pasco County v. Quail Hollow Props., Inc., 693 So. 2d 92 (Fla. 2d DCA 1997). </p>
<p>If these foreclosure attorneys don’t have an attorney-client relationship with the plaintiff, it seems to me they cannot represent the plaintiff at all and should be disqualified from doing so.  After all, how can an attorney bind the plaintiff when the attorney has no relationship with the plaintiff?  Why should any court accept the representations or stipulations of a plaintiff’s attorney when that attorney has no relationship with the plaintiff? </p>
<p>There must be a better answer than “there are lots of foreclosure cases in Florida, and this is just how it’s done.” </p>
<p>Third, you want to know why the Florida Supreme Court’s mediation program failed?  How can anyone expect to get a binding agreement with U.S. Bank when the attorneys prosecuting this foreclosure case don’t even represent U.S. Bank?  Remember, Shapiro &amp; Fishman&#8217;s client is Bank of America, so the contact person for Shapiro &amp; Fishman on this file is undoubtedly an agent of Bank of America, not U.S. Bank.  Again, how can anyone expect to get a loan modification under these circumstances, i.e. the appropriate parties aren&#8217;t even at the bargaining table. </p>
<p>Fourth, when the plaintiff alleges in the complaint that it is the owner and holder of the Note and Mortgage, what exactly does that mean?  Taking plaintiff’s allegations literally, the plaintiff is the owner/holder.  But in all of these cases where the entity driving the suit is actually the servicer, it seems that the servicer is the “holder” of the Note, not the Plaintiff.  Remember, to be the holder, the “plaintiff” must be in “possession” of the Note.  See Fla. Stat. 671.201(21).  However, are these plaintiffs really in possession when they don’t even know a case has been filed?  I suppose it’s possible, but when the Note is subsequently put into the court file, how did it get there?  If it’s from the servicer, as I’d think it must since the servicer is the only one who knows about the case, then doesn’t that show the servicer was in possession, not the Plaintiff? And that the servicer was the “holder,” not the Plaintiff?  Actually, no – where the Note is specifically indorsed to the plaintiff, the servicer isn’t the holder, either.  In that situation, the servicer has possession, but the plaintiff has the indorsement, so neither one is the “holder.” </p>
<p>So what’s the solution to all of this madness?  It’s two-fold: (1) Require verifications by the plaintiff (not the servicer, the plaintiff) and dismiss all cases without it; and (2) Require the foreclosure mills to have attorney-client relationships with the plaintiff (not the servicer, the plaintiff prosecuting the case) and disqualify all attorneys who lack such a relationship.  That sounds harsh, but it’s ridiculous to inundate our courts with garbage pleadings that languish for years without a resolution when the parties prosecuting them don’t even know they’ve been filed.</p>
Mark Stopa<br>
<h3><a href="www.stayinmyhome.com">www.stayinmyhome.com</a></h3>]]></content:encoded>
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		<title>Top 12 Reasons to Hate the AG Mortgage Settlement</title>
		<link>http://www.stayinmyhome.com/blog/2012/02/top-12-reasons-to-hate-the-ag-mortgage-settlement/</link>
		<comments>http://www.stayinmyhome.com/blog/2012/02/top-12-reasons-to-hate-the-ag-mortgage-settlement/#comments</comments>
		<pubDate>Fri, 10 Feb 2012 02:34:28 +0000</pubDate>
		<dc:creator>Mark Stopa</dc:creator>
				<category><![CDATA[Main]]></category>

		<guid isPermaLink="false">http://www.stayinmyhome.com/blog/?p=2161</guid>
		<description><![CDATA[Before you listen to the propoganda being spewed by Florida Attorney General Pam Bondi, bankers, and media outlets about today&#8217;s settlement between 49 of the 50 Attorneys General and the big banks, here are 12 reasons to hate the deal, courtesy of Naked Capitalism: 1. We’ve now set a price for forgeries and fabricating documents. [...]]]></description>
			<content:encoded><![CDATA[<blockquote><p>Before you listen to the propoganda being spewed by Florida Attorney General Pam Bondi, bankers, and media outlets about today&#8217;s settlement between 49 of the 50 Attorneys General and the big banks, here are 12 reasons to hate the deal, courtesy of Naked Capitalism:</p>
<p>1. We’ve now set a price for forgeries and fabricating documents. It’s $2000 per loan. This is a rounding error compared to the chain of title problem these systematic practices were designed to circumvent. The cost is also trivial in comparison to the average loan, which is roughly $180k, so the settlement represents about 1% of loan balances. It is less than the price of the title insurance that banks failed to get when they transferred the loans to the trust. It is a fraction of the cost of the legal expenses when foreclosures are challenged. It’s a great deal for the banks because no one is at any of the servicers going to jail for forgery and the banks have set the upper bound of the cost of riding roughshod over 300 years of real estate law.</p>
<p>2. That $26 billion is actually $5 billion of bank money and the rest is your money. The mortgage principal writedowns are guaranteed to come almost entirely from securitized loans, which means from investors, which in turn means taxpayers via Fannie and Freddie, pension funds, insurers, and 401 (k)s. Refis of performing loans also reduce income to those very same investors.</p>
<p>3. That $5 billion divided among the big banks wouldn’t even represent a significant quarterly hit. Freddie and Fannie putbacks to the major banks have been running at that level each quarter.</p>
<p>4. That $20 billion actually makes bank second liens sounder, so this deal is a stealth bailout that strengthens bank balance sheets at the expense of the broader public.</p>
<p>5. The enforcement is a joke. The first layer of supervision is the banks reporting on themselves. The framework is similar to that of the OCC consent decrees implemented last year, which Adam Levitin and yours truly, among others, <a href="http://www.nakedcapitalism.com/2011/10/quelle-surprise-servicer-consent-orders-producing-expected-whitewash.html">decried as regulatory theater</a>.</p>
<p>6. The past history of servicer consent decrees shows the servicers all fail to comply. Why? Servicer records and systems are terrible in the best of times, and their systems and fee structures aren’t set up to handle much in the way of delinquencies. As Tom Adams <a href="http://www.nakedcapitalism.com/2010/12/joseph-mason-on-the-myth-of-good-servicers.html">has pointed out in earlier posts</a>, servicer behavior is predictable when their portfolios are hit with a high level of delinquencies and defaults: they cheat in all sorts of ways to reduce their losses.</p>
<p>7. The cave-in Nevada and Arizona on the Countrywide settlement suit is a special gift for Bank of America, who is by far the worst offender in the chain of title disaster (since, <a href="http://www.nakedcapitalism.com/2010/11/more-on-bofa-employee-damaging-admissions-re-failure-to-convey-mortgage-notes.html">according to sworn testimony of its own employee in Kemp v. Countrywide</a>, Countrywide failed to comply with trust delivery requirements). This move proves that failing to comply with a consent degree has no consequences but will merely be rolled into a new consent degree which will also fail to be enforced. These cases also alleged HAMP violations as consumer fraud violations and could have gotten costly and emboldened other states to file similar suits not just against Countrywide but other servicers, so it was useful to the other banks as well.</p>
<p>8. If the new Federal task force were intended to be serious, this deal would have not have been settled. You never settle before investigating. It’s a bad idea to settle obvious, widespread wrongdoing on the cheap. You use the stuff that is easy to prove to gather information and secure cooperation on the stuff that is harder to prove. In Missouri and Nevada, the robosigning investigation led to criminal charges against agents of the servicers. But even though these companies were acting at the express direction and approval of the services, no individuals or entities higher up the food chain will face any sort of meaningful charges.</p>
<p>9. There is plenty of evidence of widespread abuses that appear not to be on the attorney generals’ or media’s radar, such as servicer driven foreclosures and looting of investors’ funds via impermissible and inflated charges. While no serious probe was undertaken, even the limited or peripheral investigations show massive failures (60% of documents had errors in AGs/Fed’s pathetically small sample). Similarly, <a href="http://www.nakedcapitalism.com/2011/05/us-trustee-estimates-significant-servicing-errors-at-10x-level-claimed-by-banks-and-parroted-by-federal-regulators.html">the US Trustee’s office found widespread evidence of significant servicer errors</a> in bankruptcy-related filings, such as inflated and bogus fees, and even substantial, completely made up charges. Yet the services and banks will suffer no real consequences for these abuses.</p>
<p>10. A deal on robosiginging serves to cover up the much deeper chain of title problem. And don’t get too excited about the New York, Massachusetts, and Delaware MERS suits. They put pressure on banks to clean up this monstrous mess only if the AGs go through to trial and get tough penalties. The banks will want to settle their way out of that too. And even if these cases do go to trial and produce significant victories for the AGs, they still do not address the problem of failures to transfer notes correctly.</p>
<p>11. Don’t bet on a deus ex machina in terms of the new Federal foreclosure task force to improve this picture much. If you think Schneiderman, as a co-chairman who already has a full time day job in New York, is going to outfox a bunch of DC insiders who are part of the problem, I have a bridge I’d like to sell to you.</p>
<p>12. We’ll now have to listen to banks and their sycophant defenders declaring victory despite being wrong on the law and the facts. They will proceed to marginalize and write off criticisms of the servicing practices that hurt homeowners and investors and are devastating communities. But the problems will fester and the housing market will continue to suffer. Investors in mortgage-backed securities, who know that services have been screwing them for years, will be hung out to dry and will likely never return to a private MBS market, since the problems won’t ever be fixed. This settlement has not only revealed the residential mortgage market to be too big to fail, but puts it on long term, perhaps permanent, government life support.</p></blockquote>
Mark Stopa<br>
<h3><a href="www.stayinmyhome.com">www.stayinmyhome.com</a></h3>]]></content:encoded>
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		<title>Foreclosure &#8230; Why?</title>
		<link>http://www.stayinmyhome.com/blog/2012/02/foreclosure-why/</link>
		<comments>http://www.stayinmyhome.com/blog/2012/02/foreclosure-why/#comments</comments>
		<pubDate>Thu, 09 Feb 2012 03:23:50 +0000</pubDate>
		<dc:creator>Mark Stopa</dc:creator>
				<category><![CDATA[Main]]></category>
		<category><![CDATA[Deutsche Bank National Trust Company]]></category>
		<category><![CDATA[fight foreclosure]]></category>
		<category><![CDATA[foreclosure defense duval county]]></category>
		<category><![CDATA[foreclosure help Jacksonville]]></category>
		<category><![CDATA[foreclosure sales Florida]]></category>
		<category><![CDATA[jacksonville foreclosure attorney]]></category>
		<category><![CDATA[Mark Stopa blog]]></category>

		<guid isPermaLink="false">http://www.stayinmyhome.com/blog/?p=2154</guid>
		<description><![CDATA[Take a look at this house, below (the one on the right).  A woman named Ora Albright purchased it in May, 2005 for $124,000.   This was her home.  Her homestead, actually (according to the Duval County Property Appraiser).  I don&#8217;t know Ora.  She&#8217;s not my client, and I&#8217;ve never been to this home (located in Jacksonville, Florida).  [...]]]></description>
			<content:encoded><![CDATA[<p>Take a look at this house, below (the one on the right).  A woman named Ora Albright purchased it in May, 2005 for $124,000.   This was her home.  Her homestead, actually (according to the Duval County Property Appraiser). </p>
<p><img id="pp-cb-refined-thumb" class="aligncenter" src="http://cbk1.google.com/cbk?output=thumbnail&amp;cb_client=maps_sv&amp;thumb=2&amp;thumbfov=60&amp;ll=30.298949,-81.747270&amp;cbll=30.299167,-81.747249&amp;thumbpegman=1&amp;w=300&amp;h=118" alt="" width="300" height="118" /></p>
<p>I don&#8217;t know Ora.  She&#8217;s not my client, and I&#8217;ve never been to this home (located in Jacksonville, Florida).  So why am I showing you a picture of Ora&#8217;s house?  Frankly, it&#8217;s because I&#8217;m pissed off.  I&#8217;m pissed off because this house was sold today at a foreclosure sale to a third party (investor) for $12,100.  $12,100!  Apparently, rather than working something out with Ora, Deutsche Bank preferred to foreclose, and throw her on the street, for a measly $12,100.   (If you don&#8217;t know how foreclosure sales work, Deutsche Bank could have bid up to the amount of its judgment, more than $116,000, without taking a cent out of its pocket, but it preferred to sell the house, which has an assessed value of $68,000, for a stinkin&#8217; $12,100.) </p>
<p>I realize this home isn&#8217;t lavish or extravagant.  It&#8217;s not a palace.  But it was Ora&#8217;s home.  I don&#8217;t know her, but I&#8217;d have to imagine she&#8217;d have found a way to pay more than $12,100 to keep her home (if given the chance).  But there&#8217;s the rub - rather than trying to work something out with Dora, Deutsche Bank preferred to foreclose and sell the house to a stranger.  For $12,100.   Subtract out the attorneys&#8217; fees it paid, and the costs of conducting the sale, and what did Deutsche Bank make here?  Ten grand? </p>
<p>What are we doing here, folks?  Is this what things have come to in our country?  When did it become okay for banks to refuse settlements with homeowners so they could sell houses worth $68,000 for 10-12 grand?  Does anyone care?</p>
<p>There has to be a better way, and for all of you who agree, let&#8217;s keep fighting until it happens.</p>
Mark Stopa<br>
<h3><a href="www.stayinmyhome.com">www.stayinmyhome.com</a></h3>]]></content:encoded>
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		<title>If Life Were Like Monopoly</title>
		<link>http://www.stayinmyhome.com/blog/2012/02/if-life-were-like-monopoly/</link>
		<comments>http://www.stayinmyhome.com/blog/2012/02/if-life-were-like-monopoly/#comments</comments>
		<pubDate>Wed, 08 Feb 2012 03:25:11 +0000</pubDate>
		<dc:creator>Mark Stopa</dc:creator>
				<category><![CDATA[Main]]></category>

		<guid isPermaLink="false">http://www.stayinmyhome.com/blog/?p=2150</guid>
		<description><![CDATA[I played a game of Monopoly with my kids tonight, and it occurred to me &#8230; America would be better if it functioned like Monopoly.  Think about it &#8230; The rules are the same for everyone; Everyone can buy houses; The banker doesn&#8217;t get to steal your houses; Property values don&#8217;t decrease, and if take [...]]]></description>
			<content:encoded><![CDATA[<p>I played a game of Monopoly with my kids tonight, and it occurred to me &#8230; America would be better if it functioned like Monopoly.  Think about it &#8230;</p>
<p>The rules are the same for everyone;</p>
<p>Everyone can buy houses;</p>
<p>The banker doesn&#8217;t get to steal your houses;</p>
<p>Property values don&#8217;t decrease, and if take out a mortgage, your property values are still the same even after you pay it;</p>
<p>There&#8217;s a luxury tax;</p>
<p>If the banker goes bankrupt, nobody will bail him out;</p>
<p>No matter how much money you have, you can still go to jail.</p>
Mark Stopa<br>
<h3><a href="www.stayinmyhome.com">www.stayinmyhome.com</a></h3>]]></content:encoded>
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		<title>Can You Find the Fraud, Part II</title>
		<link>http://www.stayinmyhome.com/blog/2012/02/can-you-find-the-fraud-part-ii/</link>
		<comments>http://www.stayinmyhome.com/blog/2012/02/can-you-find-the-fraud-part-ii/#comments</comments>
		<pubDate>Sun, 05 Feb 2012 17:19:47 +0000</pubDate>
		<dc:creator>Mark Stopa</dc:creator>
				<category><![CDATA[Main]]></category>

		<guid isPermaLink="false">http://www.stayinmyhome.com/blog/?p=2146</guid>
		<description><![CDATA[I recently posted this blog illustrating a Tampa judge&#8217;s frustration with a bank&#8217;s indorsement fraud in one of my cases.  I just received the transcript of the hearing, so let&#8217;s revisit this issue.  Here is a copy of the indorsements which were affixed to the Note that was attached to the Complaint in a mortgage foreclosure [...]]]></description>
			<content:encoded><![CDATA[<p>I recently posted <a href="http://www.stayinmyhome.com/blog/2011/12/can-you-find-the-fraud-the-judge-did/">this blog</a> illustrating a Tampa judge&#8217;s frustration with a bank&#8217;s indorsement fraud in one of my cases.  I just received the transcript of the hearing, so let&#8217;s revisit this issue. </p>
<p><a href="http://www.stayinmyhome.com/blog/wp-content/uploads/2011/12/Indorsements-on-Note-attached-to-Complaint.pdf">Here</a> is a copy of the indorsements which were affixed to the Note that was attached to the Complaint in a mortgage foreclosure case I’m defending. </p>
<p><a href="http://www.stayinmyhome.com/blog/wp-content/uploads/2011/12/Indorsements-on-Original-Note.pdf">Here</a> is a copy of the indorsements which were affixed to the original Note, which the Plaintiff, Citimortgage, Inc., filed after filing suit. </p>
<p>The notes themselves were identical, but notice any differences in the indorsements?   </p>
<p>Upon close inspection, it’s clear that the Note attached to the Complaint contains a blank indorsement, whereas on the “original” Note, the blank indorsement is filled in with the stamp of “Citimortgage, Inc.” </p>
<p>At my motion to dismiss hearing, the judge jumped all over this discrepancy, and <a href="http://www.stayinmyhome.com/blog/wp-content/uploads/2012/02/Transcript_for_12-2-12_Hearing1.pdf">here&#8217;s the transcript setting forth his concerns</a>.</p>
<p>As you can see, the judge was troubled at how the original Note was specifically indorsed to Citimortgage when the Note attached to the Complaint was indorsed in blank. </p>
<p>The bank’s lawyer argued “maybe the Note that was stored electronically was different than the hard copy.”  But the judge wasn’t buying that argument, especially since it was prefaced with “maybe.”  The judge granted the motion to dismiss and directed that Citimortgage, Inc. explain, in its Amended Complaint, how Citimortgage’s stamp appeared on the original Note when it wasn’t on the Note attached to the Complaint. </p>
<p>The lawyer’s explanation, in my view, is hogwash.  I suppose I could see this argument if there was no indorsement at all on the Note attached to the Complaint.  In that event, it might be possible that the specific indorsement was done later.  However, I see no innocent explanation for how there was a blank indorsement on the Note attached to the Complaint, and that very indorsement had the name “Citimortgage, Inc.” on the blank when the original Note was filed.  In my view, there’s only one explanation here – Citimortgage had a Note, indorsed in blank, and said “We don’t want this indorsed in blank, let’s put our stamp on it.”  Maybe I’m wrong, but let’s put it this way – I can’t wait to hear their explanation.  (Of course, it&#8217;s been two months and I&#8217;m still waiting.)</p>
Mark Stopa<br>
<h3><a href="www.stayinmyhome.com">www.stayinmyhome.com</a></h3>]]></content:encoded>
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