Florida Securities Act Provides Yet another Basis for rescission

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The single transaction “theory” presented here as FACT is simple: an investor put up the money and the borrower received a loan. Everyone else in between took fees, made promises and otherwise was involved in making representations about the loan or the security that the investor bought, all of which were untrue, tainted or misleading.

The point of the single transaction theory, which is supported by UCC and other sources, is that one thing would not have happened without the other thing. No investor buying security, no loan. No loan signed by borrower, no security.

Thus the issuance of the note at the loan closing was a trick to get the borrower to become the issuer in what was an elaborate but obvious securities scheme, which is why the certificates on asset backed securities are being re-purchased for tens of billions of dollars when everyone knows they are worthless.

The issuance of these securities, including the engotiable isnturments (note and mortgage) wer part of the a securities scheme. Here are the Florida rules governing this type of situation and you can bet that most sttes have similar laws and rules:

517.301  Fraudulent transactions; falsification or concealment of facts.—

(1)  It is unlawful and a violation of the provisions of this chapter for a person:

(a)  In connection with the rendering of any investment advice or in connection with the offer, sale, or purchase of any investment or security, including any security exempted under the provisions of s. 517.051 and including any security sold in a transaction exempted under the provisions of s. 517.061, directly or indirectly:

1.  To employ any device, scheme, or artifice to defraud;

2.  To obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or

3.  To engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon a person.

(b)  To publish, give publicity to, or circulate any notice, circular, advertisement, newspaper, article, letter, investment service, communication, or broadcast which, though not purporting to offer a security for sale, describes such security for a consideration received or to be received directly or indirectly from an issuer, underwriter, or dealer, or from an agent or employee of an issuer, underwriter, or dealer, without fully disclosing the receipt, whether past or prospective, of such consideration and the amount of the consideration.

(c)  In any matter within the jurisdiction of the office, to knowingly and willfully falsify, conceal, or cover up, by any trick, scheme, or device, a material fact, make any false, fictitious, or fraudulent statement or representation, or make or use any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry.

(2)  For purposes of ss. 517.311 and 517.312 and this section, the term “investment” means any commitment of money or property principally induced by a representation that an economic benefit may be derived from such commitment, except that the term “investment” does not include a commitment of money or property for:

(a)  The purchase of a business opportunity, business enterprise, or real property through a person licensed under chapter 475 or registered under chapter 498; or

(b)  The purchase of tangible personal property through a person not engaged in telephone solicitation, where said property is offered and sold in accordance with the following conditions:

1.  There are no specific representations or guarantees made by the offeror or seller as to the economic benefit to be derived from the purchase;

2.  The tangible property is delivered to the purchaser within 30 days after sale, except that such 30-day period may be extended by the office if market conditions so warrant; and

3.  The seller has offered the purchaser a full refund policy in writing, exercisable by the purchaser within 10 days of the date of delivery of such tangible personal property, except that the amount of such refund in no event shall exceed the bid price in effect at the time the property is returned to the seller. If the applicable sellers’ market is closed at the time the property is returned to the seller for a refund, the amount of such refund shall be based on the bid price for such property at the next opening of such market.

Tags: 517.301 Fraudulent transactions; falsification or conc, concealment of facts, foreclosure defense, foreclosure offense
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