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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.

It’s been a few days now since the oral argument was completed in an appeal of one of our foreclosure cases.  Legal issues are rarely cut and dry and while this case seemed to be, it invariably was not.  Months and months of preparation boiled down into 16 minutes of argument and as the buzz from the excitement wears off, I can begin to get a clearer picture of how I feel about this one.

Of course, initially, my mind repeated an internal loop of things I could have said or done differently. Mentioning the Boultbee case which stands for the proposition that a denial along with raising the specific statute, similar to the specific paragraph in the mortgage, in an affirmative defense, without more, is enough to adequately deny the general allegation that conditions precedent have been met to shift the burden back to the Plaintiff to prove that element of their case, is one example.  We did cite that case in our brief but this point is in a footnote.  I sure hope the Judges see that.  There were others but that was the one that bothered me most. This may or may not have made a difference and second guessing your performance as a lawyer is part of the job.  However, overall, I knew the law and was proud of the way things went.  I received a number of calls and emails from trial and appellate lawyers whom I respect and admire and the feedback was positive.  Especially since appellate law sets precedent, this was reassuring. As much as my focus is on serving my clients, I know that many others can be affected by this ruling.

Taking a further step back, I can’t help but wonder whether or not this case would have even needed to be appealed if it were not a foreclosure case.  A few years ago, just before the foreclosure crisis, I was in the middle of a 5-day jury trial.  In the case, like in almost all others, the Judge was called upon to rule as to whether or not a document could be admitted into evidence for the jury to consider in its deliberations.  It was a small, one of many, physical therapy bill.  Rather than seek someone from the physical therapist’s office to admit the bill in a case that involved major surgeries, we sought to admit it through the testimony of a doctor.  The doctor knew the bill was fair and accurate, and even knew that the services were ordered, reasonable, and necessary.  However, as required by Florida Statutes 90.803(6), he could not testify as to when the bill was made, how it was made, how it was kept, and whether or not it was made by a person with knowledge. We had admitted similar evidence in other cases usually by agreement but this opposing lawyer would not stipulate.  Because the doctor couldn’t truthfully testify to the issues or “prongs” required by 90.803(6), the judge properly excluded the bill from coming into evidence.  We had our client later testify based on her personal knowledge as to the amount of that bill so no harm was done.

HB 87: Henry Trawick, the Godfather of Civil Procedure and the Rule of Law Speaks…

“The enactment of §702.015 is useless, unnecessary and will not expedite the foreclosure process. It gives inadequate remedies to persons who may be seriously injured. It does not give any consideration to existing law on several points. The real problem faced in the foreclosure crisis has been the unwillingness of trial courts to insist on plaintiffs properly preparing the pleadings under existing law, enforcing existing law on the standing of plaintiffs; the refusal of appellate courts to properly enforce existing law on standing in foreclosures; and the unwillingness of banks to promptly push foreclosures to judgment to avoid paying real property taxes, condominium assessments and maintenance for the foreclosed property.”

Copy of the letter below…

Must read highlights of this incredibly well written piece below:

“Everyone knows that he is fantastically rich, having scored great success, the legend goes, as a “turnaround specialist,” a shrewd financial operator who revived moribund companies as a high-priced consultant for a storied Wall Street private equity firm. But what most voters don’t know is the way Mitt Romney actually made his fortune: by borrowing vast sums of money that other people were forced to pay back. This is the plain, stark reality that has somehow eluded America’s top political journalists for two consecutive presidential campaigns: Mitt Romney is one of the greatest and most irresponsible debt creators of all time. In the past few decades, in fact, Romney has piled more debt onto more unsuspecting companies, written more gigantic checks that other people have to cover, than perhaps all but a handful of people on planet Earth.”

“The result has been a brilliant comedy: A man makes a $250 million fortune loading up companies with debt and then extracting million-dollar fees from those same companies, in exchange for the generous service of telling them who needs to be fired in order to finance the debt payments he saddled them with in the first place. That same man then runs for president riding an image of children roasting on flames of debt, choosing as his running mate perhaps the only politician in America more pompous and self-righteous on the subject of the evils of borrowed money than the candidate himself. If Romney pulls off this whopper, you’ll have to tip your hat to him: No one in history has ever successfully run for president riding this big of a lie. It’s almost enough to make you think he really is qualified for the White House.”

Let’s recap a few of the summer’s bank-related headlines.  We’ve heard about top financial industries laundering money in order to arm America’s adversaries, employing racist lending practices  (see growing list of DOJ settlements with BoA, Wells, and GFI), colluding to fix a key interest rate (LIBOR), and mistreatment of financial fraud whistle blowers by government agencies (here and here).

Yesterday’s a Chicago Tribune article highlighted Citigroup’s settlement where Citigroup will pay $25 million dollars to placate tens of thousands of workers and senior citizens in Ann Arbor, MI and Kansas City, MO whose pension funds were stolen in a massive Citigroup investment scheme.  While $25 million sounds like a lot of money, the scheme was a $1.88 billion dollar fraud, so that works out to a penalty of $13.25 per $1,000 of financial fraud.  The article mentions several other cases that have recently been settled in a similar fashion.

This is what has happened to the retirement savings of tens of millions of Americans across the nation.  Our hard earned pension funds and 401k investments have been exposed to and depleted by a massive Wall Street scheme.  Stay tuned for news of more of these settlements.

A recent article published in Rueters informs us that Wall Street is now securitizing rental income streams from post foreclosed properties now being rented out by Wall Street hedge fund types.  Only now, instead of just buying off the rating agencies to rate securities as “AAA”, as good as gold investements, when Wall Street was privately calling their securities “sacks of s–t!” and buying “insurance” so they could make even more money when they failed, this time around the gambling addicts of high finance/criminal enterprises aren’t even bothering to rate the securities!  For more on securitization, the process of bundling mortgages into trusts and selling fractions of the income stream (bonds) in these trusts, see the chart on our site here.  For more on the article about this newest form of housing securitization, you can read here.

If you want help with debt, foreclosure, real estate or want more information about bankruptcy law, call us at (754)400-5150 or fill out our online form for a FREE CONSULTATION.  Let the lawyers and staff at the Law Offices of Evan M. Rosen serve you!

We are a debt relief agency.  In addition to other legal services, we help clients file for bankruptcy relief under the Bankruptcy Code.

Still think the shadow inventory isn’t a problem?  According to a recent article in Housingwire, “only half of the previously foreclosed homes owned by Fannie Mae are either on the market or being prepared for sale. The remaining properties are currently locked away in some step of the foreclosure system.

The National Association of Realtors said in its existing home sales report Wednesday that its officials were pressuring government agencies to release more of their REO in markets short of inventory.

Many market participants long claimed the government – including Fannie, Freddie Mac and the Department of Housing and Urban Development – are deliberately holding these homes off the market in order to get more for them when home prices recover.

All across Florida foreclosure filings are on the rise. A recent article regarding Lee County, on the west coast of Florida which includes the city of Fort Myers, illustrates this point. The Clerk of the Court there, the infamous Charlie Green, known from his disparaging remarks against “deadbeat” homeowners, stated that filings are about double this year as compared to last year. For more on the article, read here.

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