Florida Residents Should Attend Judiciary Hearings in Tallahassee NOW!!!

HEARING TODAY BETWEEN 4PM AND 6PM

Unfortunately I have scheduling conflicts that prevent me from being there but most likely Danielle Kelley from my firm will be there. They don’t allow a lot of time for each speaker so you might want to split up the points — and make sure you are on the list of speakers. Call the capital and find out how you can be assured of speaking time. If you can’t actually come to the capital, make a call and write an email and wire a snail mail.

TALKING POINTS:

Point 1: The legislature is pursuing the wrong goals. Current plans will result in increasing the expenses associated with the court system and increasing the amount of litigation.

The goal is to reduce expenses and ease the burden on the court system of the State of Florida. SB 87 and HR 1666 do nothing that will actually achieve that goal. There are other ways to to assure that the recording fees, fines, penalties and taxes are collected that will bring in far more revenue than the reduction of expenses being sought.

In Arizona alone, taking such action was computed by their finance department as producing $3 billion in new revenue.

Florida is a bigger state with more foreclosure activity each of which involves off record transfers that should be recorded (and paid for in stamps, taxes and fees) in order to clear up the corruption of title in the state caused by Wall Street false claims that they securitized consumer debt, particularly residential home loans HELOCS and other loans based on using the home of the borrower as collateral.

Point 2: The premise of the proposed litigation is wrong. The debt is not real or legitimate or enforceable by the parties seeking to foreclose. Studies around the country show that most of the alleged foreclosure sales were awarded to bidders who were complete strangers to the transaction and with no investment or risk in the loan. (see San Francisco study, Katherine Ann Porter Study, Baltimore Study).

The note is evidence of the debt, not the loss. And so if there is no loss, there should be no enforcement by the party suing in foreclosure. This is basic rules of pleading and proof — an injured party must specify the injury and allege that the loss was the result of the breach of duty by the borrower. If there is no loss because of the receipt of the proceeds of insurance and credit default swaps, the borrowers’ loan payable should be correspondingly reduced. Any other path is a legislative attempt to stop due process and equal protection for both real parties in interest — the investor-lenders and the homeowner borrowers.

Those who would initiate foreclosure proceedings should not only show the note and mortgage which are only evidence of the debt, but the allegation and proof that they lost money. This can easily be done with a cancelled check and wire transfer receipt, but the pleading and the proof requirement has been changed to allow strangers to the transaction to borrow the existence of the note and mortgage and claim a presumptive loss when there is no loss.

Current legislation proposed would eliminate a basic element of law which is that only injured parties may bring lawsuits and that they must specify and prove the amount of their damages. In this case, it means they must show ALL transactions in which money exchanged hands including mitigating payments. The banks want it both ways — they want to be considered the real parties in interest for foreclosure and the receipt of proceeds from insurance and credit default swaps but they want the actual loss to be suffered by the real source of funding — the investor lenders representing millions of people whose retirement and pensions are completely dependent on the safety and security of their retirement or pension funds.

Point 3: Current legislation assumes a valid debt, note and mortgage and raises presumptions that possession of the note is validation of both the debt and the mortgage. Neither of those premises is true if the transaction in which the borrower was loaned money was with a party outside of the four corners of the closing documents.

If the transaction is subject to “claims” (most of which are false because there was no sale where anyone paid money) of sales to the secondary market, Fannie Mae etc. were true, then the origination of the loan would have been with the party who supplied the funds and who had a risk of loss, without which there was no incentive to confirm the loan as viable, that the collateral appraised value was true, and that the borrower could pay the payments even after a reset for higher interest, or when negative amortization expires.

In both the case of origination and supposed sale of the loans there was a lack of consideration and a lack of privity with the real source of funds. If the Banks were not attempting, with considerable success, to use the money of other people, claim the asset as their own for insurance and credit default swaps  purposes, then the name of the supposed REMIC Trust would have been on the note and mortgage or the recorded assignment. This is not rocket science. The lender is supposed to be on the note and mortgage because otherwise there is break in the chain of title and any satisfaction of mortgage executed by some stranger would at the very least cloud title and most probably cause a fatal defect in title.

Point 4: Non-creditors submitting credit bids.

It is clear from the studies, settlements and investigations around the country, that the real parties with a claim against the borrowers are the investor lenders and NOT any of the nominees whose existence is referred to an bankruptcy remote by Wall Street which is to say that they are using nominees, of nominees with powers of attorney from non-existent companies who never had the loan on their books as a loan receivable. It is obvious that strangers to the transaction with no loss and no risk of loss are submitting bids at auction and getting themselves a free house. Every study that has examined this aspect has concluded the same thing.

The reason why this is happening is that the issue of standing has been twisted into something that allows servicers and other third parties to initiate the foreclosure. They do so without any pleading alleging damages. The loss or damage is presumed by the Court since they apparently have an original note and mortgage, many of which, as we now know, were fabricated using photoshop and robosigning, not to speak of outright forgery and perjury when they bring these fabricated documents to court.

As Massachusetts, Hawaii and Nevada, to name a few states, have already determined, OWNERSHIP of the note is dependent entirely on having paid for it, without which the instrument is not negotiable under the UCC> This legislature, along with others around the country, is being pressured by the banks to ignore the issue of where the money came from and where it went.

It is an absurd position to take given the fact that the essence of the transaction is a loan of money, but it nevertheless is working both because some legislatures are refusing to go against the bank lobby and the failure of attorneys general to prosecute the banks criminally has left us standing in a mist that creates an opaque glimpse at the real transaction.

The solution is simple: using existing law and procedure force the banks back to the allegation and proof that the defendant is in breach to them (the banker) and that as a direct and proximate result of the said breach the Plaintiff has been damaged in an amount in excess of the jurisdictional limit. If you want the foreclosures to go away completely then make them attach proof of payment and proof of loss.

Posted in Eviction, securities fraud |