... Herein of When The Fraud and False Swearing was first Unleashed.
Events in Florida do not always make the news outside of our State's borders. The Florida Bankers Association has proposed that the Florida Legislature remove judicial oversight of Florida Foreclosures. The Governor and people in key positions in the Florida Legislature reportedly agree, at least in principle. There is no concrete proposal at this time for the next sitting of the Florida Legislature. See Editorial, St. Petersburg Times, Monday, September 26, 2011: "Effort to Cut Courts Out of Foreclosure Process Could be Costly to All Floridians". (In contrast, the Florida Bankers Association unsuccessfully proposed legislation in 2010 which would neuter Florida's Judicial oversight of Foreclosures, proposed legislation which apparently was so specific that it ran over some 56 pages. The proposed legislation was named by a George Orwell character or a moral equivalent. Try this link to view a copy of it: Download The-Florida-Consumer-Protection-and-Homeowner-Credit-Rehabilitation-Act proposed in 2010.)
Here is the scope of the Foreclosure problem. Florida mirrors the United States in these features:
- Affidavits: Affidavits are submitted reportedly based on fraud and false swearing. The subjects reportedly include the basics of any Foreclosure lawsuit:
- Indebtedness of the Homeowners-Defendants. Frequently, the affidavits are just plain wrong. The Defendants either owe nothing, or they owe far less than the amount attested in the Affidavit. See Glarum v. Lasalle Bank Nat'l Ass'n (Fla. 4th DCA September 7, 2011; STATED NOT FINAL): Download Glarum v. Lasalle Bank Nat'l Ass'n (Fla. 4th DCA Case No. 4D10-1372, Opinion Filed September 7, 2011).
- An allegation that the Plaintiff has possession of the note, a crucial element of an ordinary Foreclosure action, is often simply wrong. Reportedly, the Plaintiffs do not have possession, and they do not know who does.
- The original or some other evidentiary substitute of the Mortgage Note cannot be accounted for so that the Plaintiff should not be required to produce it although the Plaintiff would be the proper party to pursue the Foreclosure if the note were available: This particular allegation, which is often accepted by Florida Courts as a legal substitute for possession of the note, is also reportedly often simply untrue.
- Personal knowledge vs. "robosigning": All Affidavits including those filed by Plaintiffs in Foreclosure Actions are required to be made on personal knowledge of the contents by the person signing the Affidavit. In many Foreclosure Cases, the personal knowledge requirement has reportedly been replaced by "robosigning," a practice in which lots of Affidavits are executed by the same person who apparently has little or no time to read any of them -- or even to try. Yet they sign their own names to the Affidavits anyway and swear or affirm the truth of the Affidavits under oath.
- Homeowners-Defendants are without legal representation for the most part.
- Proof of the Mortgage note is required, of course, in any action to Foreclose on the Mortgage. Which brings us back to the matter of "Affidavits," discussed above.
- Motions for Summary Judgment are the Foreclosure Plaintiffs' preferred method of disposing of the case. Until recently, granting those motions was seemingly also the preferred method of the Florida Foreclosure Courts in rapidly disposing of Foreclosure cases, too. The motions and the resulting Summary Judgments are based on the Affidavits in the Court File. When Affidavits are submitted based on nothing more than fraud and false swearing, and there is no adversary in the adversarial process to point that out to the Court, Summary Judgments are entered when in actual fact there are at bottom genuine issues of material fact -- including the right of the Plaintiff to bring the Foreclosure action in the first place, i.e., it is often at best a fact issue whether the Foreclosure Plaintiff in a given Foreclosure case even has standing to sue in the first place.
Part 1 Continues ... So Does the Fraud and the False Swearing.
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