Why “Show me the Note” will have your case dismissed

Why “Show me the Note” will have your case dismissed

Many homeowners mistakenly go about making claims of “show me the note” and are surprised and upset when their case is tossed out of court.  They would cry foul, and accusing judges of siding with the bank, etc.  My personal philosophy on life is never blame the other guy…always look at what I am doing that is not good enough.  Here’s why:
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1) When you blame the other guy, you play the victim card.  The victim card is the weakest of plays.  It shows you are not willing to take responsibility for the event and seek to lay blame on something/someone else.
2) The situation is out of your control.  You can not do anything to make it better.
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Instead, look at what you are doing that is not giving the judge enough reasons to side with your case.  You see, the reason why “Show me the Note” does not work is because…there is no law/statutes that specifically requires the bank to “show you the note”.   In many States, there are case laws to prove this to be the case…especially in California.
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But George!  Isn’t that what you’ve been saying all along is to ask the bank to show the original wet ink signature promissory note?
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No.  That is not correct.  I’ve been saying all along is for you to ask the bank to “show me proof of claim” or, proof of ownership, or proof that you are the lender and not the servicer.  Under the contract of the Deed of Trust, and Civil Code Statutes…ONLY THE LENDER or the HOLDER may initiate a foreclosure proceeding.  This is how you use the law to support your case.  Look it up.  In California for example, it is California Civil Code 2932:

2932. A power of sale may be conferred by a mortgage upon the mortgagee or any other person, to be exercised after a breach of the obligation for which the mortgage is a security.
2932.5. Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded.

So, the trick is, challenging “who is entitled to the payment of the money” per 2932.5?  The “pretender lender” aka “the servicer”, claims to be the “person who by assignment becomes entitled to payment of the money”.  But, that is only a presumption that can and need to be rebutted.
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So, how can the party seeking to foreclose prove beyond a doubt that they are in fact “the person who by assignment becomes entitled to payment of the money”?  The only acceptable proof of this point is in fact, the original wet ink signature promissory note.
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It is the case of the carrot and the donkey.  The “proof of claim” in this case is the carrot, and the “note” is the donkey.  Always lead with the carrot.  If you ever tried to pull a donkey…it is very hard.  Those buggers are strong.
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In conclusion, the point is…it’s not about “show me the note”…it always has been about “show me proof of claim”.  It just happens that the only legally binding proof of claim is the original note.  I hope this clears things up for everyone.
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God Bless.
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Sincerely
George

Thanks to: http://www.freeandclearin90.com

Florida Supreme Court hears landmark foreclosure suit
By Michelle Conlin








An auction sign for a property is seen at the front garden of a foreclosed house in Miami Gardens, Florida September 15, 2009.
Reuters/Carlos Barria


The Florida Supreme Court heard arguments on Thursday in a landmark lawsuit that could undo hundreds of thousands of foreclosures and open up banks to severe financial penalties in the state where they face the bulk of their foreclosure-fraud litigation.

Legal experts say the lawsuit is one of the most important foreclosure fraud cases in the country and could help resolve an issue that has vexed Florida's foreclosure courts for the past five years: Can banks that file fraudulent documents in foreclosure proceedings voluntarily dismiss the cases only to refile them later with different paperwork?

The decision, which may take up to eight months, could influence judges in the other 26 states that require judicial approval for foreclosures.


The case at issue, known as Roman Pino v. Bank of New York Mellon, stems from the so-called robo-signing scandal that emerged in 2010 when it was revealed that banks and their law firms had hired low-wage workers to sign legal documents without checking their accuracy, as is required by law.

If the state Supreme Court rules against the banks, "a broad universe of mortgages could be rendered unenforceable," said former U.S. Attorney Kendall Coffey, author of the book, "Foreclosures in Florida."

One issue in Pino's case was an allegedly fraudulent mortgage assignment, the legal document that binds a loan to a lender.

Bank of New York Mellon, as trustee of the mortgage-backed security that owns Pino's loan, is the named plaintiff in the lawsuit. But it was Pino's mortgage servicer, Bank of America, that handled the loan's administration, foreclosure proceedings and coordination of litigation.

The parties reached a confidential settlement on July 22, 2011. That same day, Bank of New York Mellon and Bank of America filed a mortgage satisfaction on Pino's home with the Palm Beach County Recorder's Office.

Even though the two parties settled the lawsuit, the Supreme Court is still hearing the case. The court said the voluntary dismissal strategy used by the banks was of great "public importance" because so many foreclosures in Florida had been tainted by fraudulent paperwork.

Florida homeowner defense attorney Thomas Ice has represented Pino, a drywall hanger, since October 2008 when Pino received a foreclosure notice after falling behind on his mortgage payments. Pino bought the home in 2006 for $203,000. He put 20 percent down and took out a loan from Bank of America for the rest.

An associate with Ice's firm, Amanda Lundergan, made the oral arguments on Ice's behalf in Thursday's proceeding. Lundergan is a recent graduate of the Florida Coastal School of Law.

Bank of New York Mellon was represented by Bruce Rogow, an attorney who has argued civil rights cases and defended American Nazi Party members and Ku Klux Klan Grand Wizard David O. Duke. He has also represented consumers in the class action against banks for overdraft fees.

During the proceeding, which lasted less than an hour, the justices asked the lawyers technical questions.

"Voluntary dismissal shouldn't be used as a shield for fraud," said Lundergan in one response. "It sets up a system where every litigant is condoned and encouraged to lie, cheat and steal, knowing that if they are caught, they can simply voluntarily dismiss and absolve themselves from that fraud."

At one point, Rogow said he believed that doing away with voluntary dismissal altogether was simply too broad a remedy because it would affect all cases, not just foreclosures.

"There are sanctions that can be imposed. We are not saying no sanctions if there are improper submissions," he said.

Voluntary dismissal is the banks' main strategy in judicial states for dealing with homeowners who challenge foreclosures, said Adam Levitin, Georgetown University consumer and housing finance professor, who has served as special counsel to the Congressional Oversight Panel following the 2008-2009 financial crash.

"If that fails, strategy No. 2 is to buy them off," says Levitin.

If the court rules against voluntary dismissal, the banks face the costly specter of not being able to simply refile cases using new paperwork and expect homeowners not to challenge the suits.

In Florida, that's a lot of cases. In the year through July 11, 2011, more than 104,000 foreclosure cases were voluntarily dismissed from Florida's courts, according to the Office of the State Courts Administrator.

Attorneys who work in the foreclosure field say such dismissals usually occur because of the banks' legal document issues.

A ruling against the use of voluntary dismissal would mean that the nearly 400,000 homeowners who are living in Florida's foreclosure limbo would simply stay there.

But it would not affect Pino's confidential settlement. No matter what, Pino, now 41, still owns his house.

Palm Beach County says it's now worth $32,915.

(Editing by Alwyn Scott and Kenneth Barry)







Thanks to: http://www.reuters.com

Defenses to Foreclosure

Challenge a foreclosure by bringing a defense such as unconscionability or lender mistake.

 



Until recently, successful defenses against foreclosure were relatively rare. But that is changing rapidly -- more homeowners are successfully challenging foreclosure actions.
This change is due, in large part, to the unearthing of more and more evidence that the real estate industry has been rife with fraudulent and predatory lending practices. Because of this evidence, courts that once rubber-stamped foreclosure actions are now shifting their sympathies towards homeowners.
Homeowners and their attorneys are taking advantage of this change in judicial attitude, and challenging foreclosure actions in many different ways. Here's a review of some of the most common defenses to foreclosure, and how to raise them in court. (To learn about other ways to avoid foreclosure, read Nolo's article How to Avoid Foreclosure.)

How to Raise a Defense to Foreclosure

In order to raise a defense to the foreclosure action, you must bring the issue before a judge. This is automatic in about half the states, where foreclosures are typically accomplished through civil lawsuits and judicial foreclosure orders.
In the other states, foreclosures typically take place outside of court (these are called nonjudicial foreclosures) and you have no automatic means to mount a legal challenge. To have your defenses ruled on by a judge in these states, you have to file a lawsuit alleging that the foreclosure is illegal for some reason and asking the court to put the foreclosure on hold -- pending the court's review of the case. (To learn more about judicial and nonjudicial foreclosures, read Nolo's article How Foreclosure Works.)

Common Foreclosure Defenses

As courts are increasingly sympathetic to challenges to foreclosure actions, attorneys across the country are raising many different types of defenses. Below is a description of the most common of these.

The Terms of the Mortgage Are Unconscionable

Over the years, attorneys have used a branch of law called "equity" to come up with a panoply of approaches to defending against foreclosure. The equity branch of law focuses on fairness in situations where a legal statute doesn't provide adequate relief. It usually isn't enough to simply claim that the foreclosure is unfair; rather, you have to come up with a specific justification for your position that has previously been recognized by the courts.
One such justification is a principle known as unconscionability -- that is, the terms of your mortgage, or the circumstances surrounding it, are so unfair that they "shock the conscience of the judge." In one case where this defense was successful the borrower spoke very little English, was pressured to agree to a loan that he obviously couldn't repay, was not represented by an attorney, and was unaware of the harsh terms attached to the loan (such as an unaffordable balloon payment ).

You Are a Servicemember on Active Duty

If you're on active military duty, the Servicemembers Civil Relief Act (SCRA) provides you with special protections. Most importantly, if you took out your mortgage before you were on active duty, your foreclosure must take place in court even if foreclosures in your state customarily occur outside of court. If a foreclosure is initiated while you're on active duty, you can receive a postponement of the proceeding by requesting it from the court in writing.

The Foreclosing Party Didn't Follow State Procedures

In some cases, the foreclosing party doesn't follow state procedural requirements for bringing a foreclosure action (for example, it fails to properly serve on you a notice of default required by state law). If this happens, you may be able to challenge the foreclosure. If your challenge is successful, the court will issue an order requiring the foreclosing party to start over. (To learn more about foreclosure procedures, read Nolo's article How Foreclosure Works.)
Virtually all judges will overlook errors that are inconsequential, such as the misspelling of a name. Similarly, if the foreclosing party's error doesn't actually cause you any harm, it may not be worth fighting over. More serious violations will get a more serious response from the court.
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Thanks to: http://www.nolo.com