Tag Archives: end game

FLORIDA HOMEOWNERS SHOULD STAY OUT OF BK 7 COURTS IF THEY WANT TO FIGHT FORECLOSURES!

The author of this post is not giving legal advice, just reporting what’s out there.  You should consult a competent foreclosure defense attorney regarding such matters, as the contents in this post appear to reflect the court’s intolerance for homeowners who file bankruptcy to stop a foreclosure. 

OP-ED — 

Folks who are in trouble with their mortgages in Florida really need to strategize before taking the plunge into the abyss known as the Florida legal system, where state judges clearly have “agendas”, the Florida Legislature has “agendas” and the federal courts have “agendas” … all aimed at taking of property when you can’t make the payments on it.  It’s not often that the author of this post steers away from chain of title issues, but there appears to be widespread ignorance (or in the alternative, intolerance) on the part of the Sunshine State’s legal system, which makes things “not so shiny” anymore, given the recent spate of legislation and court actions.

STATE JUDGES

All one needs to do is examine court dockets to see how fast, over time, that Florida circuit judges have blindly assumed that the financial institutions coming before them actually own the promissory note they’re trying to enforce.  It would seem that judges simply rely on the blatant attack on the property owner as just because otherwise, why would this particular bank show up in court?   Because they can!  And they do!  And judges give them so much leeway that Florida homeowners are stymied for options.  This is why the State of Florida has so many zombie homes (despite what the politicians, economists and the media would have you believe) and shadow inventory that sits empty because of title issues.  In very few cases I’ve examined have I seen evidence within a transcript that allowed for a forensic examination of the note, to make sure it’s “original”, like the bank’s attorney says it is.  To show you that the inequity between state court systems is similar in nature, I’m consulting a case in New Jersey where the bank’s law firm sent a “cover lawyer” into court with what appeared to be a “faxed copy” of the note, claiming it to be the “original”.  I think most judges, even in light of the foreclosure defense attorney’s objections, could tell the difference, but nope … this judge said that the word of the law firm and the faxed copy of what it self-authenticated is good enough!  Can you believe that shit?

Another part of the equation is the existence of foreclosure defense lawyers who have seen fit to turn the foreclosure debacle into a cash cow by using delay tactics to keep property owners in their homes, despite the probable outcome that only about 1 in 25 cases brought into court makes it past the 810-day mark in a Florida foreclosure cycle.  Knowing that the odds are never “in their favor” (attributing the quotation to The Hunger Games), frustrated mortgagors then contemplate using bankruptcy court to dodge the “sale bullet”. However, things in Florida are about to change.

THE FLORIDA LEGISLATURE

Effective July 1, 2017, Florida homeowners who run to the bankruptcy court and get their promissory note discharged are going to find themselves without other options to fight the foreclosure.  See House Bill 471 here if you don’t believe me: fl-hb-471  It’s only two pages long and I’m sure you can read (if you’re reading this)!

Simply put, any documentation that is filed in Bankruptcy Court which would indicate surrender of the property (commonly seen in Chapter 7 cases) makes it legally okay for the bank’s attorney to submit that document that was filed in the Bankruptcy Court under penalty of perjury to a Florida circuit judge to get a Final Judgment of Foreclosure.  I see this as a definite negative if you’re trying to fight a foreclosure.  But then again, most homeowners are like electricity.  They want to take the path of least resistance; and declaring bankruptcy is certainly a hell of a lot cheaper than fighting a foreclosure through Florida’s appellate system.

It appears that folks don’t understand the difference between an in rem and an in personam action.  Enforcement of a security instrument, which in Florida’s case is a mortgage, can only happen when the party claiming to have an interest in the property can prove ownership.  An attack on the property through the recorded security instrument is an in rem action (like quiet title actions).  This is why I wrote the book The Quiet Title War Manual (with the professional help of California attorney Al West).  The book explains the difference between the note and the mortgage.  Folks who don’t get it should get this book and read it, because when Al West and I taught quiet title workshops, we hammered these basic principles into the heads of the attendees.  In personam actions are actions involving debt, which in this case is the promissory note, NOT the mortgage!   How convenient it is that the Florida legislature has come up with this House Bill in the wake of the recent court conflicts within the federal system!

THE FLORIDA FEDERAL COURTS

Let’s look at the case of In re Hookerin-re-hooker   Once you get past the first three paragraphs, you’ll understand why the Florida legislature did what it did to help the banks fight continuous counterattacks in state court.  Again, how convenient, to avoid further confusion in the courts.  Let’s just legislate this away, shall we?

Now we come to the slam dunk that affects the way the 11th Circuit Court of Appeals (which covers Florida), has ruled that Chapter 7 debtors who file a bankruptcy action and put forth a statement of intention to surrender the real property cannot later contest a foreclosure in the state court. in-re-failla   If you read the first paragraph of this PUBLISHED OPINION, and then read the background on the case, it appears that the homeowners wanted to “have their cake and eat it too”.  The Failla case simply states: “Debtors who surrender property must get out of the creditor’s way.”   The Florida Legislature (I believe) made sure that a bill was passed that shut off the trough at the source of the feed (so to speak).

No more hogs at the trough.  There have been so many different points of view, it’s understandable that the Florida legislature would pass a bill that state courts could point a finger at and say, “SEE?”   So for those of you thinking that running into bankruptcy court (in any state for that matter) and declaring your intent to surrender the property (God forbid, why would you do that?) under penalty of perjury is so confusing to some when their state court cases get shut down.

ANOTHER WHAMMY! 

It has also become relatively apparent that any homeowner that has placed themselves in the foregoing position and continue to litigate their foreclosure in the state courts of Florida are likely to get sanctioned!   Vexatious litigants are likely to wind up in jail on contempt charges!  I say this because of what happened to foreclosure defense attorney Stuart Golant, 70,  in the Palm Beach County courtroom of Senior Judge Howard Harrison for simply making a motion!

Florida homeowners have had the deck stacked against them by the courts and the legislature in favor of the banks when it comes to promissory note enforcement.  Once a mortgage has been recorded in the land records where the subject property is situated, all it takes is a missed payment and the door to “foreclosure hell” opens to swallow the homeowners whole.   I can’t help but wonder what kind of counseling homeowners have received, given the phone calls and emails I get regarding strategizing an in personam case against them.

ONE MORE TIME …

In a judicial foreclosure state like Florida, a lender comes to court and waves the promissory note around and claims it has the right to enforce the terms of the note!  It should be required to prove that the note is genuine, forensically.  Have the actual paper tested.  Have the ink tested.  Check for pixelation by blowing the note up on a computer screen to examine evidence the note was photoshopped.  Object to the note being entered as the original.  I believe a majority of securitized notes are copies of what was downloaded into the MERS® System and later shredded, as I’ve covered in previous posts.

Once the lender gets the note in front of the court and gets it admitted into evidence and gets the court to agree that U.C.C. Article 3 (Negotiable Instruments) exists and that the alleged lender has the right to enforce the note, THEN the Lender gets to enforce the Security Instrument, the in rem part of the equation.  The security instrument (Mortgage) is then “ripe for the picking”.  Believe it or not, most homeowners think that the lender is foreclosing on the mortgage.  That couldn’t be further from the truth!  The Lender is foreclosing on the Note.  Proving it has the right to enforce the Note means the Lender gets the right to enforce the Security Instrument, not until!

Bankruptcy Courts are designed to handle in personam scenarios.  In personam relates to debt.  Promissory notes are evidence of debt!   Recorded mortgages are evidence of security interests, not debt!   If you’re going to use the bankruptcy court to alleviate your personal obligation to the note, and liquidate it in a Chapter 7 bankruptcy proceeding, be prepared to move out of your home!

Thinking twice about running into Chapter 7 bankruptcy court to stop the sale?   The “system” is ready for you!   (Hint: This is why we have Chapters 11 and 13!)  No matter, if you live in any state where you think the “deck is stacked” against you, plan your “end game” BEFORE you go into default, not after!

And this is why I don’t talk about in personam issues much.  Homeowners really should get a financial education before they sit down at the closing table.

Tune into kdwradio.com every Friday night at 6:00 p.m. EST for my radio show, City Spotlight: Special Edition!   Order any of the author’s books by visiting Clouded Titles!

For those of you waiting for the new FDCPA book, it’s almost ready!   Pre-order your copy today!  (FDCPA actions are for dealing with debt collectors!)

3 Comments

Filed under Financial Education, Op-Ed Piece

The New Meaning of “Titanic Syndrome”

The author of this blog post is a paralegal who has involved himself with years of research in real property law, debt collection and consumer issues. He is not an attorney and cannot render legal advice.  For that, it is suggested that you contact an attorney well versed in this subject matter for consultation, preferably one that has an end game plan of their own. 

The term “Titanic Syndrome” has generally been equated with the inherent plummeting of stocks on Wall Street by as much as 10% in any given moment, based on precipitous scenarios.  In this instance, the term that I am using (the same as discussed here) is used to mean “what happens when a homeowner is on the verge of losing his home and has no ‘end game’ plan for his future”. 

When the ship (the Titanic silly, not the good ship Lollipop) began to sink, the passengers were in an apparent state of dysphoria and confusion. Knowing that their deaths were imminent, the expected result was going into shock, which was accompanied by denial that such an occurrence could be actually happening, followed by an increased sense of panic, which caused serious behavioral issues rooted in “survival of the fittest” instincts (or in the alternative, the nature to completely give up, throw in the towel and face the music … which in that case was “Nearer My God To Thee”).  Because many folks panicked to the point of doing foolish and insensitive things, needless lives were lost.  Because the designers of the ship didn’t really have an “end game plan” because they thought that the Titanic was infallible (oops, except for icebergs) they didn’t plan on having to conduct a mass evacuation of everyone on board and thus did not plan to have as many lifeboats as were needed to accommodate over a thousand people. While we can only surmise the outcomes based on eyewitness accounts (and obviously not rely on what the movie told us), it is obvious that many people entered the fatal voyage with no end game plan.  This is where I cut to the quick about the sinking ship relating to the conditions precedent to foreclosure.

How many of us actually thought that we had to put $10,000-$20,000 into a bank account to defend our homes from collateral attack in the event of default?  Not many.  In fact, with over 50% of Americans facing retirement age with less than $25,000 in vested savings, the chances are good that the retirement funds would be used up in a heartbeat should the saver of such funds find themselves unemployed with no alternative plan to rebound.

When the government-influenced media machine started to promote the fact that every American should own a home, they (from the Clinton administration forward) made the assumption that every American could afford to pay for one.  Instead, they made every American believe that they were entitled to one.  How easy was that … to cater to the “entitlement generation”, or those who bought into the scenario that they could afford more of a mortgage loan than possible to repay.  This is why the lending institutions went crazy making predatory, subprime loans.  They saw an opportunity to steal a big chunk of America (even though banks are technically NOT supposed to own real estate, other than what they were supposed to utilize to exist on) through subprime lending.  Most of America fell for the government-sponsored diatribe hook, line and sinker.  This is largely what caused the 2008 financial crash.  The government, seeing that it had made a mistake in its economic forecasts, attempted to create bailout scenarios, which ended up pouring more money into the banks’ coffers to “stay afloat” (which we know was based on false assumptions).  The bigger problem however is that the U. S. Constitution, at 1:10:1, prevents the U. S. Government from interfering in private contracts between banks and borrowers.

Thus, Borrowers facing impending foreclosure, reacted differently.   Many homeowners flatly hid the foreclosure from spouse and family, trying to work things out behind the scenes.  When there was no end in  sight, many of those homeowners resorted to murder-suicide to resolve their issues. Some suffered death at the hands of law enforcement, generally post sale and eviction.  More of the homeowners however abandoned their homes and became renters (part of the investors’ overall game plan to turn America into a nation of renters). Current statistics bear that out.

Some homeowners however, chose to react without an “end game plan”, dragging their families down into the muck that is destitution because they panicked and without thinking.  It’s perfectly obvious that one without an “end game” has no fight to begin with.  Homeowners caught in this situation exhaust virtually every dollar on foolish ambitions, falling for the “trap” that is called a “loan modification” …  95% of the time, loan mods put the homeowner in a worse financial position than when he started out making his payments.  However, moving out of the home and moving your family into a storage unit or some other substandard living situation is not healthy either.  For one thing, if a family contains school-aged children, the parents are still responsible for making sure that: (a.) the children continue to live in the district in which they are enrolled; (b.) their children are not truant; and (c.) the children have the appearance of being well-fed and healthy and outwardly happy and energetic.

There are some serious facts to consider here:

UNTIL THE PROPERTY IS SOLD OR THE DEFAULT CURED, THE HOMEOWNER IS STILL LIABLE FOR DAMAGES OR INJURIES RESULTING FROM FAILURE TO MAINTAIN THE PROPERTY! 

With the foregoing statistics present … and the homeowner’s name still on title to the property … he is still liable for anything that happens on that property.  If someone is injured or dies on that property and the homeowner was not there to have prevented it or in the least interceded to prevent it, that homeowner could be facing serious legal issues for negligence (among other claims).  Responsible American homeowners do NOT leave their homes until they are dragged screaming and kicking by the constabulary and if it was me … I would make it a media three-ring circus.  It seems that no one gives a damn about their neighbor’s financial condition, yet a foreclosed home is the first thing to affect neighborhood values, not to mention the tax base.

The first thing to go when a homeowner can’t make his payments is the hazard insurance (unless it is escrowed as part of the mortgage payment).  That’s part of the contract that the homeowner signed at closing.  It’s called a mortgage (or deed of trust).  The part the homeowner didn’t read at closing was that the contract provided for hazard insurance to be in force at all times.  When the homeowner doesn’t pay his escrows or maintain hazard insurance, the lender is put in an awkward position of having to institute forced-placed insurance, which is usually double or triple what the homeowner normally pays.  In the past, forced-placed insurance has come under scrutiny because of kickbacks to the lender from the insurance provider.  Not a good position to be in if you’re a homeowner.

The second thing to go is the utilities.   Because feeding a family is most important, food is the number one concern.  That is generally where most of the available survival money is wasted … on frivolous fast food purchases or buying junk food or unhealthy comfort food, just to keep bellies full.  This again is due to improper “end game” planning strategies.  How can one expect to hire an attorney when they can’t keep food on the table? It all just seems so unrealistic, doesn’t it?

Radio talk show host Dave Ramsey advocates keeping food on the table as the number one priority of the breadwinner. Number two is to keep the lights on.  At least this much of his strategies I agree with.  The part where we split on the issues however is the lack of willpower and disruption of America’s belief systems.  Most of America is living in the “Age of Entitlement”.  They have been led to believe that:

1. “Obama’s gonna buy me a house”!  (Remember the 2008 pre-election video?)

2. When they get older, the government will take care of them.  (Social Security = Welfare for Seniors)

3. In a crisis situation, they expect a handout. (Remember Hurricane Katrina?  In the food lines, refugees were asking for McDonald’s or Pizza Hut instead of the food supplies that were trucked in by emergency personnel. Refugees trashed the dining facilities and mocked and ridiculed the volunteers who trekked across the country to help feed them). Don’t be so shocked!  This is how “entitled” people behave!

Most homeowners did not have an “end game” before they bought their homes in the first place! 

The government dangled the carrot.  The mortgage companies dangled the credit.  The government sanctioned all of the “smoke and mirrors” of MERS.  The real property records across America became littered with tens of thousands of title issues.  Seeing as banks are not supposed to “own” property according to Title 12 (Banks and Banking), the homeowner’s name is on title until the last possible minute.  So why isn’t the homeowner still in the home?  Another victim of the lack of financial education.

Most of America is destined to be the “nation of renters” that everyone is griping about! 

Let’s face it, many Americans can’t even pay rent.  Statistics show that there are more crimes committed by renters than by responsible American homeowners.

Generally, it’s the renters that commit the crimes against the responsible American homeowners.  It’s the “haves” versus the “have nots” as middle class America continues to fall apart.

Again, all of this is due to the lack of financial education in our public schools, which many Americans think is also their “right” and that they are “entitled” to an education.  Where in the U. S. Constitution does it say that?

You want to complain about your rights?  Rights that are mistaken for privileges?  Then stop being apathetic and start being proactive.  The America of old “pulled itself up by the bootstraps” when things got tough.  If you can’t get your head around this, you must not have had parents that lived through the Great Depression as mine did (as young adolescent children, young enough to understand).

Let’s face it … America is “depressed”.

The sad thing is, while Wall Street continues to flourish, much of Main Street is too apathetic to care. I don’t care what race, creed, color or gender you are … you have a responsibility as an American citizen to be proactive.  You have a duty of care and a duty of responsibility to your community.   This is your immediate sphere of influence.  You have a duty to your neighborhood to pull yourself out of your rut.

The result of the Titanic Syndrome is the manifestation of NOT having an end game … and then realizing you don’t have an “end game plan” WHEN the ship begins to sink.  You literally cling onto anything to keep yourself alive, even if it means pushing others under (it’s a cliche, get it?)  Even if I have to resort to visuals (like the part in the movie where Kate Winslet is forced onto a piece of floating debris by her companion, Leonardo DiCaprio, who then sinks to the bottom of the ocean … and her dreams), then understand that there is NOT a lifeboat for everyone.  This is the government’s end game.  The government does not care about anything but the perpetuation of itself.

The United States Government does not plan for the real welfare of its citizens, yet it promotes a socialist agenda.  There cannot be a socialist agenda when the middle class can’t pay for it.  The rich won’t pay for it.  They’ve got their hands in the politicians’ and the judges’ back pockets to make sure of that!

When the economic balance of society becomes disrupted, there is unrest among the “entitled” class.  When the “entitled” class becomes disrupted, you have political anarchy.  The government would like to think that it has answers to everyone’s problems, but it doesn’t.  All politicians want is to get re-elected by whatever means possible.  A sample of political anarchy is the ousting of Eric Cantor in the last Virginia primary by a tea party candidate (that the government, spoon-fed media want you to believe was due to money supplied by the Koch Brothers).  There is room in this argument to imply that voters in Virginia got pissed off enough at Eric Cantor and sent him (and Congress) a message.  Despite what may have happened in Virginia, most elected officials think they’re “entitled” to another term on the backs of the working poor.

In Florida for example, about a third of the state legislature got re-elected to another term due to voter apathy in the primaries.  That is sad, considering the number of the “entitled” class that live in Florida.

Florida is the first of the “sand states” that got hit by mass foreclosures, followed simultaneously by California, Arizona and Nevada.   As a result, zombie neighborhoods sprang up all over the state.  Blighted neighborhoods are prime indicators of societal disruption.  Americans are withdrawing unto themselves catering to their “me first” whims. When that happens, you have protectionism.

While protectionism in of itself caters to the thoughts of “buying American”, which many proactive Americans try to do, it still doesn’t stop the government’s socialist agenda from moving forward.  To avoid socialistic tendencies, Americans have to exercise their rights at the county level to reorganize themselves into a proactive force to be reckoned with.  It is sad that those who stand for justice are mocked and ridiculed by those who feel they are “entitled”.  Entitlements are the result of continued indoctrination of the masses into believing that the masses have rights and privileges that come without sacrifice.

To avoid anarchy, America needs to become proactive and stop being apathetic.  You don’t have to be a nosy neighbor to realize that the next door neighbor’s yard has weeds that are three feet tall because of financial issues. In this case, “State Farm” ain’t there folks, but you are!  I don’t see State Farm bailing out homeowners, do you?  I don’t see the government bailing out homeowners either.  Most of the intended money went into the state coffers to be spent on political agendas. The “talking heads” on TV aren’t going to help you either.  Most state attorneys general are using the bailout vis a vis the “National Mortgage Settlement” as part of their political maneuvering to get re-elected because they want you to think they are “for the people”.  Remember, absolute power corrupts absolutely.

Being proactive (and halting the Titanic Syndrome) starts with getting a financial education BEFORE it is too late! 

If you didn’t have an end game plan when you bought your home, then maybe it’s time to get one now!

(1) Start by educating yourself as to the options you have available.   One of them is to buy a copy of Clouded Titles. I’m not here just to sell books folks … I’m here to educate America to become proactive!

(2) The next thing you can do is to share this blog with your neighbors (that still have Internet; or invite them over for coffee and a look-see at your Internet) and encourage them to stay in their home while they figure out their “end game” plan.

(3) If you have the opportunity and the means to help your fellow man (and yourself), attend the upcoming Chain of Title Assessment (101) Workshop in Las Vegas August 22-24, 2014.  Go to www.cloudedtitles.com for more information and to sign up and register.  On August 1st, 2014, early bird registration ends and you’ll be paying $200 more to attend the 3-day event, which includes a foreclosure defense and quiet title panel discussion by five (5) well-known attorneys (and what I consider to be leaders of this movement to restore America).  We have $70 a night room rates for all COTA Workshop attendees (call the Hampton Inn & Suites – Las Vegas Airport to register by August 1st) which includes FREE breakfast (believe me, if you’re attending this event, you’re “entitled” to a FREE BREAKFAST!). This is three (3) days packed with educational information that will teach you a career and in the least, make you a responsible and more prepared American homeowner!

(4) Listen to and share my upcoming podcasts!  I will announce the podcast launch shortly and make them available to you on various links on the Internet.  Surviving is the point … and you can’t do it without knowledge!   Knowledge is power!

STOP THE NATIONAL LAND GRAB!

If you must vacate your home as part of your end game, prepare yourself by buying vacant land for future use and development.  Buying land is a great “savings account”, because as Will Rogers has stated, “They’re not making any more of it!”  Buying land is a great way to proceed with your new future, mortgage free.  I’ll share tips that I used to buy land!   I’ve bought, owned and sold dozens of tracts (from 1/4-acre parcels up to tracts as large as 12 acres), as an investor!

While many real estate agents and financial planners think this mere folly, understand that money-making opportunities exist in this arena, which you can learn about at the COTA 101 Workshop in Las Vegas!  I will share various tools you can use to find property, which in most instances, IS FREE FROM MERS’ INFLUENCE AND LENDER CONTROL!  Some property can be bought owner financed.  Learn about what inter vivos trusts are designed to do as a means of asset protection!  Learn why and how the banks screwed you over at the closing table!   Learn how to help your fellow man become proactive.  Learn how you can make a living helping those who are trying to come up with their own end game plan!  We even give you the marketing ideas to help you succeed!

Imagine how much more you’ll know after you attend this workshop!

We give you the knowledge and the tools to fight!  Shouldn’t this be part of your end game plan?

BE PROACTIVE AND MAKE A DIFFERENCE!

SIGN UP NOW WHILE WE STILL HAVE SEATS AVAILABLE …

BE A RESPONSIBLE AMERICAN!

www.cloudedtitles.com

FOLLOW THE INSTRUCTIONS ON THE WEBSITE!  DOWNLOAD THE FLYER AND REGISTRATION FORM.  REGISTER TO ATTEND.  FAX IN YOUR REGISTRATION FORM.  CONTACT THE HOTEL (if you’re from out of town) AND RESERVE YOUR SLEEPING ROOM!  EARLY BIRD FEES END AUGUST FIRST!

ONCE YOU’VE REGISTERED, WE’LL SEND YOU A FREE COPY OF THE NEW Clouded Titles Mayday Edition!  TAKE THE TIME TO READ IT BEFORE YOU ATTEND THIS WORKSHOP!

DON’T LET AMERICA SINK LIKE THE TITANIC!  Despite what your “leaders” tell you, they have more education than you do.  They’ve already planned for their financial futures and they have an “end game”!

It’s time to get your “end game” on!

Leave a comment

Filed under Breaking News