(OP-ED) — The commentary provided within this post is not legal advice. The author of this post leaves it up to the reader of the material contained herein to determine its educational value and to always conduct due diligence prior to assuming you have rights that may not have been afforded to you, either in the chain of title … or in litigation.
For some reason, this case was seared into my conscience. I’ve seen a lot of investor cases, but this one … this one really spells it out for investors and third parties who attempt to acquire properties AFTER a foreclosure case has commenced, instead of BEFORE (as were the facts supported by this case):
Yes, I know it’s a Florida appellate case; however, it can be said that the facts contained within the case provide a complete measure of justice for investors throughout the entire State of Florida, the third most populated state in the U.S.
Notice that Florida Bar-suspended attorney Mark Stopa first litigated this case? He was later replaced by the listed attorneys and their respective firms. Notice Greenspoon Marder is representing the Defendant Bank (as Appellee)? Put them on your radar as a definite “foreclosure mill law firm”.
This case also represents that Florida Circuit Court Judges are notorious for quickly granting judgments of foreclosure. Of course, in Stopa’s disciplinary hearing before the Florida Bar, a judge who testified in Stopa’s favor admitted that judges were getting pay raises based on their ability to clear their dockets of foreclosure cases, courtesy of the Florida legislature. So not only is is apparent that Florida judges have a conflict of interest, their pension funds are vested in the very securities they grant foreclosure judgments for. This makes every Florida judge (and virtually all other state judges throughout the country) susceptible for recusal based on a conflict of interest. Most states allow recusal for cause. Some states allow recusal of a judge without cause. You have to do your homework.
My point on this case is found in the citations listed throughout the ruling. There are oodles of case citations from every appellate district in Florida that support the arguments being propounded by the 2nd DCA! These cases feed directly into the reasoning this appellate court took in noting that Green Emerald (the investor) took title BEFORE the filing of the Lis Pendens notice, not AFTER!
Further, notice the caveats (to investors) within the concurring-dissenting opinion filed by one of the judges. ALL of the sticking points for safe investing are found there! This case was full of “nuggets”, which is why I suggested reading it in the first place, especially BEFORE you drop a dime on any investment. Believe me, if I were in Green Emerald’s shoes, I would have researched the chain of title to check for “hiccups” in the chain that could be attacked. It’s always the dirty assignments, which is why C&E’s are so useful in attacking their false and misrepresentative statements. Defeating assignments (whether you recognize it or not), knocks the “standing” legs out from under the Plaintiff bank (through its mortgage servicer), while placing unwanted scrutiny on the bastards that created the document and under whose direction! You’ll find the foreclosure mills in many instances are directly tied to the creation of the phony documents they intend to rely on at trial (or in deed of trust state by advertisement and sale) for the prosecution of foreclosures.
Taking property “subject to” could mean one of two things … (1) you either want to continue to pay on the note and keep the mortgage “in play” until it’s paid off; or (2) you ignore the note and mortgage and prepare to spend thousands of dollars defending your position in court when the foreclosure suit is commenced. In either case, it pays to have your name on title BEFORE the SHTF! The other aspect NOT PURSUED here, noticeably, is that Green Emerald didn’t present any evidence that it had an assignment of the borrower’s litigation rights bestowed upon them (another key ingredient to having standing to litigate a foreclosure complaint.
And that’s all I have to say about that.