Archive for March 27th, 2012

Public Access to “Original” Notes in Court Files

As a foreclosure defense attorney, I regularly ask my clients to go to the courthouse and inspect the “original” note in their case (whenever the bank files it).  My intent?  To ascertain if the “original” note is actually an original?  Often, the “original” note is nothing more than a copy, creating a valid defense to foreclosure.  See e.g. Downing v. First Nat’l Bank, 81 So. 2d 486 (Fla. 1955) (reversing a final judgment of foreclosure because the bank did not introduce the original note into evidence); Servidio v. U.S. Bank Nat’l Assn., 46 So. 3d 1105 (Fla. 4th DCA 2010) (reversing summary judgment of foreclosure where “the record on appeal does not contain the original note”).

Unfortunately, the clerks in Manatee County have recently begun preventing my clients (and, apparently, the public at large) from accessing their own court files, preventing these homeowners from inspecting the “original” notes.  As such, I just wrote this letter to the Chief Judge of Florida’s Twelfth Judicial Circuit, Honorable Andy Owens, requesting that he take whatever steps necessary to ensure homeowners can access these “original” notes in their own court files.

If you’ve encountered this problem, don’t give up.  Any homeowner facing foreclosure should absolutely have the right to inspect that “original” note.  Whether it’s truly an “original” is at the heart of any foreclosure case, so every homeowner absolutely has the right to look at that note and say “that’s not the original note” or “that’s not my signature.”  Hopefully, Chief Judge Owens agrees.  I’ll keep you updated.

Mark Stopa

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Trayvon Martin – a Double Standard?

One of the fundamental notions of foreclosure defense is the concept that, even if a homeowner is behind on his/her mortgage, the bank must prove its entitlement to foreclose in a court of law.  Homeowners have no burden of proof and no obligation to do anything except force the bank to prove its case.  In recent years, as robo-signing and foreclosure fraud have become household terms, many consumer advocates have advocated such an approach on a widespread basis, and rightly so.  This is how the legal system works.

In recent days, however, some of these same consumer advocates have adopted a different approach when it comes to the terribly sad death of Trayvon Martin.  How can there not be an arrest and conviction when an unarmed, 17-year old is shot to death by a neighborhood watch captain, they lament?

I sympathize with Trayvon Martin’s family.  Their pain is unimaginable.  However,  the fact remains that, just as homeowners facing foreclosure have defenses which might not be readily apparent to those unfamiliar with the facts, neither you nor I know what happened in the moments before his tragic death.  Did he initiate the fight?  Did he punch George Zimmerman in the face and slam his head into the concrete, as a recent story suggests?  Was Trayvon Martin shot in the back, or the chest?  From close range, or a distance?  With Trayvon Martin on top of him, or while standing?  At this point, I don’t know the answers to these questions, nor do you.  We weren’t there, and forensic reports have yet to be released.  So why all the public outcry about the lack of an arrest?  Why is the public so quick to jump to the conclusion that George Zimmerman must have committed murder?

Before anyone else jumps to more conclusions, I think everyone should exercise the same restraint we want to be exercised in foreclosure cases.  Let the system work as intended.  Let the investigators collect the required forensics.  Let’s allow the legal system to work.  If Zimmerman is guilty, let’s require the state to prove its case beyond a reasonable doubt.  Otherwise, we aren’t searching for justice, but a result we think is just based on an incomplete understanding of the facts, and if that’s the route we’re going, we’d be no different than anyone who calls homeowners in foreclosure “deadbeats.”

Mark Stopa

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