Tag Archives: in personam

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

PROPERTY OWNERS SUFFER AT THE HANDS OF WASHINGTON STATE POLITICS

The following post is an op-ed piece by the author and does not constitute legal advice. 

You know when the state “rank and file” are in control because things get “political” when property owners turn up the heat and they end up suffering for it in the end.  In this instance, I turn to Washington State.  I thought there was some promise to being a property owner in the “Evergreen State” but now I’m not so sure.  Between the politicos there and the rank and file that control things (and I’m talking about the state’s justice and legislative arms) there, those in power certainly appear to be manipulated by bank money and banking interests.  It is sad when the electorate doesn’t understand that they are doing a grave disservice to those that put them in office when they allow the same nonsense over property ownership to continue.  Part of property ownership is the right to defend your property.  Being denied access to justice because you don’t have a “war chest” to fight with forces people to have to resort to pro se tactics, or even less desirable, to seek out those who are non-lawyers who charge fees for advice that might be considered by the “rank and file” as unauthorized practice of law.

To that end, the power arm of the law, the Washington State Bar Association (who by the way took my $50 and didn’t respond to my request to do a CLE for attorneys there on property law), is having its own set of issues to deal with, when the state’s UPL committee members all jumped ship, as reflected in the following post:

Board members quit, blast Washington State Bar in fight over UPL, legal technicians

When you read articles like this, it makes you wonder what exactly the Attorney General’s office is doing to prevent Washington property owners from getting justice.  One only has to look deeper to find out there’s a letter floating around that explains WSBA “politics” and it’s not pretty:

Letter_to_Supreme_Court_Explaining_Resignations

On top of that, the politics of the Seattle City Auditor’s audit (conducted by Marie McDonnell) is now being “diluted” by MERS.  MERSCORP CEO Bill Beckman (one of the named targets in the OSCEOLA COUNTY FORENSIC EXAMINATION) wrote a letter to the City Auditor of Seattle in an attempt to explain away the legalities of what the Washington Supreme Court didn’t rule on, which gives MERS the legal right to continue to commit what I consider to be criminal RICO-style behavior in giving MERSCORP members unfettered privileges to “doctor up” assignments in the name of MERS, continuing to treat MERS as if it’s a beneficiary (with some beneficial interest in property) after the Supremes ruled in the Bain decision that MERS is NOT a valid beneficiary under the Washington Deed of Trust Act.  See the letter below:

SEA000958 Letter from MERS 3-27-2015

Notice how things are critically quiet in Florida after the Forensic Examination made its way to DC?  I still want my day in front of the grand jury to explain the way things really are … the letter Beckman wrote to Seattle might as well have been worded with the headline, “How to Steal People’s Homes for Fun and Profit by using the MERS® System as a Document Manufacturing Tool”.   This is what MERSCORP members are doing to every county in America, not just in Washington State.  If there wasn’t a glitch, why then is there now a mers_rider in effect in Washington (Oregon and Montana), states who have struck out against MERSCORP in their respective courts?   This is what led me to believe that the entire “audit” process was going to cause internal conflict that was going to spill over into the body politic.

I could bitch about the fact that the bid specifications (within the RFP) that the City Auditor’s office put out called for whoever won the bid to make a personal appearance to explain their findings that wasn’t adhered to by city council, but I won’t.  The results would have been the same.  MERSCORP would still be trying to finesse their way around the real issues like they always do, attempting to add credence to their business model, making excuses why they can’t communicate with Montgomery County’s “witness”.  Is there a conflict there?   Not sure I want to even address this, because now, the entire debacle has gone political.

I have largely contended that if you put a robosigner and their notary in front of a grand jury, they will squeal like pigs and tell the grand jury that they were ordered by their bosses to sign these assignments (that MERS is attempting to whitewash in the letter you’ve probably read that brought vomit halfway up your esophageal tract by now) that “created” standing for their client to foreclose.  It is hard fighting this uphill battle when the system has been custom-tailored for the banks.

This is where MERS and the Washington State Bar Association’s Practice of Law Committee have (in my book) caused homeowners’ rights to grind to a minimum, if not a virtual halt.  Check out the front of their website (which I provided you with here in .pdf format):

Practice of Law Board

I could probably count the number of homeowners on one hand that have been actually “helped” by this.  If this wasn’t the case, why are there so many homeowners resorting to using non-lawyers to help them “fight the good fight”?  Because they’re being denied decent representation (and legal help) elsewhere.   Any law firm that does good for the people (like Stafne-Trumbull) gets attacked by the AG’s office and the WSBA, because the rank and file in the AG’s office include former foreclosure mill attorneys with an apparent axe to grind.  This is what has exacerbated Washington State property owners.

Here’s another dilemma: CONSTRUCTIVE NOTICE!

When a borrower goes to closing, they sign a mortgage (deed of trust) as the Security Instrument … and a Note.  The Note creates the obligation and the Security Instrument collateralizes the property.  The Note isn’t recorded in the public record. The Security Instrument is recorded.  The Note is in personam.  The Security Instrument is in rem.  If you have not figured out the difference between these two documents yet, you should not have bought the house in the first place!

When you went to the closing table, you might have signed a security instrument that contained the name MERS in it.  If that’s the case, you’ve already got “issues” with your chain of title, because you didn’t get constructive notice as to:

  1. Who is MERS, really?  Did you as the Borrower fully understand that you were giving MERS rights that would eventually be brought into question in the courts as to whether MERS is a real “beneficiary”?
  2. Was there ever a recorded document that established the agency relationship between MERS and the “Lender” of record?  Unfortunately, there is no public record of that (at least I haven’t found one). So then, what actually did you agree to, since the “agency relationship/nominee status” was established BEFORE you signed on the dotted line?
  3. How can you perfect an already-established “agency relationship” between MERS and your Lender? At least when you sign a “master form mortgage” or “fictitious deed of trust”, which are protected under statute, you at least know there’s reference document establishing certain covenants that you and the lender agreed to.  Well, the MERS agreement isn’t one of them!  There is no “master form MERS agreement” (at least not one I can find)!
  4. Normally, when agency is designated, there is a recorded power of attorney BEFORE the act takes place!  Now go find me a MERSCORP power of attorney in your land records that completely explains the relationship promulgated by the MERSCORP executory contracts with its lenders in any instance (including any agreement like the ETA_Warehouse_Template_v6) wherein the Borrower had constructive notice that MERS was usurping the county land records with its own privatized database, and I promise I will post it on line and print a retraction to this op-ed piece’s portion where I rip MERS a “new one” for concealing its business model from the Borrower, who had no idea his loan funds were actually coming from Wall Street “suckers” … uh, er, investors, who gave up a lot of their pensions to fund all the blow, booze and hookers that Wall Street executives feasted on post-2008 crash.
  5. Besides, HOW is it that YOU as a Borrower can approve a deal that was struck BEFORE you went to the closing table? You didn’t have notice of that, did you?

I can’t wait for The Big Short movie to come out in December!  I bet the movie doesn’t address the foregoing scenario though, but you can still see the trailer here (it’s pretty cool):  The Big Short Trailer

If the foregoing scenario was actually presented to a criminal grand jury however, I think you’d see some indictments.

Isn’t it nice to finally figure out that your note might have been fractionalized into 35 pieces, sold off to 35 different investment groups, and there’s not a damned thing the courts will do about it … at least for now?

On the other hand, follow the Wolf v. Wells Fargo Bank, N.A. case in the 151st District Court in Houston, Texas.  We’re expecting to see the jury award against Wells Fargo in that case (for manufacturing phony documents to prove standing … remember that 150-page manual that was floating around out there that New York bankruptcy attorney Linda Tirelli brought to the attention of the court there), $5,000,000 in punitive damages!  You can expect they’ll try to appeal that. Still, a good case that has some promise.

The prosecution of these issues has not gone far enough.  We’ll see what the DC machine does next, since they’ve promised they’re going after “individuals” who caused the 2008 crash.

1 Comment

Filed under Breaking News, Financial Education