Articles Posted in Foreclosure Defense

In early 2013, the Florida Supreme Court in Pino, told us that fraud, in a lawsuit, is defined by a person or entity actually getting away with deceiving the court.  Flat-out lying or attempts to deceive is not “fraud.”  The Court even went out of its way to avoid stating whether or not monetary sanctions would be warranted in Pino, because that issue was not before it.

Before reaching the Supremes, the 4th DCA addressed the case.  Justice Polen, adopting the written opinion of Justice Gary M. Farmer, wrote that:

“Decision-making in our courts depends on genuine, reliable evidence. The system cannot tolerate even an attempted use of fraudulent documents and false evidence in our courts. The judicial branch long ago recognized its responsibility to deal with, and punish, the attempted use of false and fraudulent evidence. When such an attempt has been colorably raised by a party, courts must be most vigilant to address the issue and pursue it to a resolution.”

The other night my wife and I saw the movie “300: Rise of an Empire.” It’s an expansion of the story behind the movie “300,” part prequel, part sequel.  The first of the two movies focuses on the Battle of Thermopylae.  In 480 BC, at the narrow coastal pass of Thermopylae, known as “The Hot Gates,” King Leonidas of Sparta and 300 men held off an advancing Persian army, rumored to be 1,000,000 strong. Not only did the Spartans hold off the Persians for three days, they inflicted huge losses on their massive army. As legend has it, Xerxes I, of Persia, demanded that the Greeks lay down their arms and surrender. King Leonidas responded, “MOLON LABE,” which translates to, come and take it!  Ultimately, all of the 300 were killed but the Greek states united and avenged them, decimating the mighty Persian army in two subsequent battles, the Battle of Salamis and the Battle of Plataea.

What has grown into an iconic statement of defiance, bravery, patriotism, loyalty and an unyielding commitment to never surrender, the saying “Molon Labe,” has been used many times since. “Come and take it” was a slogan in the Texas Revolution. The phrase is on the emblem of the Greek First Army Corps.  It is also the motto of United States Special Operations Command Central (“SOCCENT”). Headquartered in Tampa, SOCCENT, among other roles, has the distinct honor of running wartime special operations missions. The fact that the people responsible for coordinating and assisting our nation’s most elite warriors chose “Molon Labe” as their motto tells you all you need to know about the intense meaning of this phrase. There are many other examples as well.

However, for me the phrase Molon Labe defines the state of minds of so many of our clients, myself, our incredible team, and many of my fellow foreclosure defense attorneys and other consumer advocates of all kinds. We all know the facts behind the historic foreclosure crisis the world is still facing.  Banks gave out money with reckless abandon. They pooled enormous amounts of loans to form investment trusts. Then, they bought off ratings agencies to dupe both insurance companies and investors all over the world.  When the house of cards collapsed, the reckless, greedy sociopaths, who call themselves Wall Street executives, were allowed to fly off into the sunset on their private jets, fortunes intact with millions in new bonuses to boot, while so many of us got wiped out and are still struggling to put the financial pieces of our lives back together.

We won another trial recently.  Both the Plaintiff and the original lender were Suntrust.  For some reason, the Plaintiff moved to substitute to Fannie at the outset of trial.  I argued prejudice and fairness – considering our motion for leave to amend our answer and affirmative defenses was just denied 5 weeks ago, Plaintiff’s motion to substitute, which is effectively the same thing as our motion to amend, should also be denied. Judge ruled. P’s Motion – GRANTED.

On voir dire, the witness from Seterus testified that he just saw the original note today for the first time and learned of the file a few weeks ago in prep for trial.  Same facts as Kelsey vs SunTrust Mortgage, Inc. I argued authenticity of the note.  Also, the note the Plaintiff had in Court was different than note attached to complaint!  I argued several cases that say the Plaintiff is bound by its pleadings.  The pleadings frame the case and are considered judicial admissions. Objections overruled – Note in evidence.

Mortgage – No evidence it was ever recorded (no stamps from the clerk’s office) and it was not even certified!  I argued that it was not self authenticating and based on Yang v. Sebasian Lakes Condominium AssocGlarum v Lasalle Bank National Association and my voir dire of the Seterus representative, who confirmed he knew nothing about a Suntrust mortgage, the mortgage is also hearsay.  Objections overruled – Mortgage in evidence.

Another great depo of a Robo Verifier who knows pretty much nothing about a foreclosure case…

The deposition of Victoria Scott took place on November 20, 2013, during which time Evan questioned Ms. Scott about her knowledge of the truth and accuracy of the facts in the Complaint, which she allegedly verified. During the deposition, Ms. Scott could not verify the facts alleged in paragraphs 2, 5, 6, 8, 10, 11 and 14, as well as in the “wherefore” clause of the Complaint, despite the fact that she signed the verification under penalty of perjury. In many instances, Ms. Scott just simply did not know if a fact was true and correct. She also did not know or understand very basic concepts of a mortgage and mortgage foreclosure that anyone verifying complaints, properly, would have to know and understand.

According to the admission of the Plaintiff’s deponent, the verification found in the Complaint is a sham and should be stricken pursuant to FLA. R. CIV. P. 1.150.

Today, we had our 2013 holiday office party.  After working in the morning, the best supporting cast in the business and I took some time off to share a meal and unwind a bit.  After eating at the Yard House in Gulfstream Park, we drove over to Holiday Bowling Lanes and bowled a couple games.

It is a yearly tradition that I share some thoughts via a poem.  Just after our drinks arrived, I read the following to everyone:

Welcome to the 2013 holiday party!

Foreclosure Fight Club: Another Trial, Another Win by The Law Offices of Evan M. Rosen (Part 2)

Part 1 here…

In part one of this series, we started to tell the story of one of our latest Foreclosure wins.

Foreclosure Fight Club: Another Trial, Another Win by the Law Offices of Evan M. Rosen (Part 1)

It all started a little over a year ago when a husband and wife contacted our firm about a foreclosure. They were, and still are, facing the same struggles as millions of other Americans in the aftermath of Wall Street’s financial game that ended with the bailout for them and busted home values and foreclosures for millions of citizens. Their mortgage loan was taken out in 2008.  Just like almost everyone else who took out a Wall Street housing bubble era mortgage, their loan was deeply underwater. After running out of options and getting the maddeningly familiar loan mod run around by their servicer they could no longer keep up with their payments. They came to us for help with the fear and dread of an impending foreclosure judgment looming in the near future. They were victims of sewer service, a practice in which parties to a lawsuit are never served but the case is moved forward based on an affidavit of a process server claiming the house was abandoned and the defendants cannot be found.  Upon learning about the lawsuit they acted immediately to get the situation rectified by hiring the Law Offices of Evan M. Rosen.

Shortly after filing our motion to quash service, we got the defaults vacated.  Then the case moved fast.  After all, it’s a Miami-Dade case. Our preliminary motion to dismiss was denied.  Then, we filed an answer and affirmative defenses. Shortly after that, what do you know, we received an Order from the Court Setting the Non-Jury Trial.

We have now reached the five year anniversary of the financial crisis.  It seems a lot longer than that.  I remember just before the collapse, stepping into a condo that had recently sold for over $400,000. It was so close to the train tracks that it shook when trains went by.  I knew what so many thought was reality, was not real.  The crash so many of us expected to happen seemed to take almost everyone by surprise.  Wall Street, left naked in the tub after the drain got pulled on their giant, approximately 7-year long treasure bath, scrambled for towels to cover up.  Instead, our leaders handed them heated silk robes, champagne, and caviar.

Pillars of our financial system came crumbing down.  Lehman Brothers, AIG, Bear Stearns, WAMU, and many more were shuttered.   According to the FDIC Failed Bank List, only 3 banks collapsed in 2007.  In 2008, that number rose to 24. Throughout 2009, the FDIC shut down @ 140 financial institutions and in 2010, @ 160!   It has slowed down but banks are still failing.  Approximately 22 have failed in 2013 already.  We are still a long way away from seeing the end of this.

Very often I find myself working harder than ever.   Extremely late nights in the office, getting out of bed at 5 am thinking of some new wrinkle to an argument or a new fact I can elicit on cross examination at trial.  My energy, passion and motivation seem almost never ending.  Thankfully, I have a young family.  A beautiful 4 and 1/2 year old little girl and a handsome 1 and 1/2 year old boy who both love their father so much, and an absolute angel of a wife, who does her best to care for us all.  I see them far less than is healthy for any of us but I am doing the best I can.  After all, I am an addict – addicted to fighting financial institutions.

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