Judge's gavelOver the holidays, I wrote about judges in Lee County, Fla., and how they appear to prioritize completing foreclosures over the rule of law. The most extreme example was an order in one case by Judge James R. Thompson that specifically exempted banks from a rule on affidavits that all other Florida litigants must follow -- specifically, part (e), which requires claimants to provide legally valid documents to back up their claims.

Now, Judge Thompson has disowned the original order, replacing it with an order that claims banks do have to follow the rules. The problem? Even though he says the rules of evidence do apply to banks, the judge allowed the bank in that case to use an affidavit that obviously breaks the rule.

Apparently, the judge merely changed his public position: Rather than admit the fact that foreclosing banks don't have to follow the rules on affidavits and loan documentation, he'll say they do, then fail to make them comply. That smells like a cover-up, not a correction. Indeed, the clerk of the court told a Florida TV station that the court never makes the banks comply with the rules on documentation.

A Defense Against the Hazards of Robo-Signing

The rule at issue goes to the heart of the robo-signing crisis.

When a party in any kind of Florida lawsuit wants to submit an affidavit as evidence, rather than getting testimony from a witness, the rule requires the party to attach to it any documents the affiant (the person who's swearing to the affidavit) reviewed in order to make the sworn statement. The attached documents give the court confidence that the affiant did in fact know that what he's swearing is true, and they allow the other side a kind of "cross examination" of the affidavit.

By definition, robo-signers don't review any documents when they sign affidavits, which in the foreclosure context are routinely used to "prove" the amount the homeowner owes, and that the homeowner is behind on payments. Despite numerous claims by banks that their paperwork is always accurate, plenty of evidence shows that in many cases, the amounts affidavits allege homeowners owe are wrong. That means robosigning isn't merely a "technical" violation. Indeed, the homeowner in the Judge Thompson case reportedly has bank statements documenting payments the bank accepted but didn't credit her with making.

For evidence that the amounts and facts in the affidavits are frequently wrong, consider that in the Bogar case (about which I reported earlier), Bank of America's records were wrong in every detail about four payments the homeowners made.

Consider further that JPMorgan Chase's (JPM) serial bank acquisitions produced a poorly integrated database of credit card accounts made worse by Chase's internal practices, according to whistleblower Linda Almonte (read her letter, starting at bottom of page 2).

How likely is it that the parallel databases for homeowner indebtedness were integrated with 100% success at Chase -- or any of the other too-big-to-fail banks like Bank of America (BAC) and Wells Fargo (WFC) that grew through rapid acquisitions? Or that their related record-keeping practices are more sound than those Almonte describes?

What About Actual Malice?

Or consider all the homeowners in mortgage modification plans or seeking to get into them who are constantly told that their papers have been lost and need to be resubmitted, even while they are making modified payments. If a bank can't even keep track of basic paperwork, is it reasonable to presume its records are so accurate that no one need ever check them?

And this is merely questioning banks on competence, ignoring the possibility of active malice: At least one lawsuit has alleged the banks are deliberately playing nefarious games with homeowners .

Add to that the extreme stories of banks foreclosing on homes bought with cash and other nightmares showing that the banks' records -- and their attorneys' files -- are a mess.

Finally, the infamous Law Offices of David Stern routinely foreclosed in Florida with substantively incorrect documents according to the sworn testimony of former employees.

Blindly Believing the Banks in Lee County

In spite of all this, in Lee County, banks aren't being required to attach the records that document the debt. In the Judge Thompson case, the relevant part of the affidavit says: "I am Vice President of Loan Documentation for Wells Fargo" (no, that's not the kind of vice president who gets a corner office -- or even an office -- or a paycheck, or anything else from Wells Fargo). And it says:
"...I am familiar with the books of account and have examined all books, records, and documents kept by Wells Fargo...concerning the transactions in [this foreclosure case.] ...The books, records and documents which Affiant has examined are managed by employees or agents whose duty it is to keep the books accurately and completely. Furthermore Affiant has personal knowledge of matters contained in the books, records and documents kept by Wells Fargo ... I have personal knowledge of the facts contained in this affidavit. Specifically, I have personal knowledge of the facts regarding the sums of money which are due and owing ..."
The bank didn't attach copies of any of those "books, records or documents," despite the requirements of the rule. Moreover, the affidavit was signed by known robo-signer Xee Moua (see pages 28-29). So, Todd Allen, the homeowner's attorney, asked Judge Thompson to reject the affidavit. Judge Thompson declined that request.

In his most recent order allowing the Wells Fargo affidavit, Judge Thompson explains that his earlier order -- which said banks don't have to attach the records -- was a mistake. He attributes the error, in effect, to "counsel," or the attorney who prepared the order for him to sign. (Having other attorneys prepare judge's orders is a common practice nationally.)

Besides, Judge Thompson notes, he didn't even have a chance to look at the order because
a different judge actually signed it. Then comes the meat of the second order: "It is and was the court's ruling and position that all parties are required to comply with [the rule.] The court ruled that Plaintiff's Affidavit of Indebtedness complied with [the rule]."

Note: When I first wrote this article, I mistakenly believed the bank's attorneys had authored the proposed order. They did not; however, they did review and sign off on it. Todd Allen, the homeowner's attorney, inserted the language in the original order because the statement had been made by the judge, but a court reporter had not been there to document it.

"Due Process Is Irrelevant and in Grave Danger"


Judge Thompson's second order and his explanation raise two key questions: Why did the first judge sign the order, if it's not Lee County's policy to exempt banks from the rules of evidence? Second, since no records were attached to the presumably robo-signed affidavit, why did Judge Thompson rule that the affidavit complied with the law?

Allen commented:
"I almost think this is worse than the first order. At least he was on record saying that banks are not required to comply. But now, instead of being "on the record," he's just looking the other way when banks submit their affidavits.
Now, you have to ask what is the point of the rules of civil procedure if the Judge is not going to follow them? Due process is irrelevant and in grave danger when Judges take action like this. Unfortunately, Lee County homeowners will continue to suffer unnecessarily under this judicial system. They will continue to suffer until the Florida Supreme Court takes a long look at what's happening here."
To its credit, the Florida Supreme Court, like its counterparts in New York and New Jersey, has been trying to defend the rule of law. Sadly, a more robust action seems necessary.


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robert.beron

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July 18 2013 at 2:06 PM Report abuse rate up rate down Reply
seeker4179

Actually I see a lot of bias here! pro and con -but the fact remains,the court system should be neutural and decide the case on actual rules and procedures, establish by the court system and not be concern about real estate or who's paying and not paying -- the fact that a judge turns his head to speed the process and clear his court dockut does not justify the outcome, as you canthe lawyers onboth sides of the fence ,lean towards the ease way out and now the results of both sides is becoming more apparent, the system is going into chaos, if you mind map all previous items -- you can see the fraud by the banks the attempt to bypass all establish rules of real estate laws, the cutting of corners, the robo signing, the none proof of Standing, the Servicers making up charges, the courts bypassing rules of evidence,laywers withdrawing their complaints when caught lieing (Stern) example. would youbuy a foreclosure if you could not find the owner, those who did stand a chance of losing their buy, they have no proof of Title , why because the title law was by-pass to save money -- modification offered only to find its a stall tactic to foreclose on your home --
THE BOTTOM LINE IS THOSE WHO PROFIT FROM SHORTCUTS ARE LEGALLY SAVED FROM ANY ACTION EXCEPT BOUNUS AND AGAIN WHERE DOES THE MONEY COME FROM TO SAVE THESE MONSTERS THE TAX PAY -- ITS JUST COMING TO LIGHT A ABOUT SHEMES (DOUBLE INS. INCREASE FEES FOR NON-EXISTEN BILLING ,NO DOCUMENTED PROOF ETC THE LIST COULD GO FOR PAGS AND PGS -THER IS NO EXCUSE FOR THE MISCONDUCT BY THE BANKS,COURT SYSTEM AND THE REALATORS OR ANYONE WHO KNEW AS WELL AS THE STATES, GOVERMENT AND GREENPAN FOR TURNING THEIR HEADS FOR PROFIT-- THE COUNTY HAS BEEN BROUGHT DOWN BY GREED--AND FOR LEE COUNTY IN FLORIDA-- THE GOD LIKE CHARLIE GREEN OR KING! HOW DO YOU LIKE YOUR RESULTS SIR? THE EMPERIOR ,YOUR LORD JUGE THOMPSON -- ARE YOU RUNNING WITH YOU HEAD DOWN IN SHAME? MAKING EXCUSES? I THOUGHT THAT WAS ONLY FOR THE GUILTY OH EXCUSE ME -- YOU TAKE EVERYTHING ON FACE VALUE-- THE SYSTEM IS BEING DESTROYED BECAUSE TOO MANY PERSONAL ARE ALLOWED BY THOSE IN POWER! FOLLOW THE GUIDE LINE AND THE RULES AND THE ESTASBLISH RULES OF LAW -- AND THE GAVEL WON'T HIT YOU IN THE HEAD -- I HOPE YOUR DOCKET IS CAUGHT UP TO -THANK CHARLIE-- HE'S PROUD OF THE MESS AND MORE OF IT TO COME

February 09 2011 at 12:27 PM Report abuse rate up rate down Reply
Den

If the people have not made a payment for 6 mos or more why should we pay further to support these lawyers that are getting rich who want to help people continue to live in their homes and not pay for them. Stop promoting the idea that those of us that pay have to continue to carry those that don't. This is what continues to prevent the housing maket from hitting the bottom. Doesn't anyone see this is not working? Another good example of what's wrong with government. It got us in here by failing and now it keeps us here from failing. Gosh what a job they do. Get Barney and Frank on the phone and thank them!

January 20 2011 at 12:10 PM Report abuse rate up rate down Reply
katehall123

How do you find good refinance rates? I like "123 Mortgage Refinance". They gave me the option of selecting various rates with different problems. I choose the lowest rate of 3.29% BTW Remember to call and verify the loan rate. Search online to find them.

January 06 2011 at 12:12 AM Report abuse rate up rate down Reply
Wayne

Arizona here: Two years ago and 6 months before Bank of America took over Countrywide Home Loans, I found out through just asking a simple question, I wanted to know who owned my Loan. I never knew about anything regarding mortgages. I just wanted my Modification that seemed to be in Limbo. Since I was not getting anywhere with Countrywide I thought I would go to the source and ask the person who actually owned my Loan. Seemed like a simple request and I really did not know that it was that complicated. When I found out they could not answer my simple request I started to investigate this entire process. A few months later I filed a complaint with the Attorney Generals Office in Phoenix after I sent Bank of America a QWR and I wanted Bank of America and Countrywide charged with Racketeering.
I have kept up with all the details from around the Country and it seemed like this should be a slam dunk for the Justice Department to Charge them with Criminal Activities. Well when I found out they could not tell me who owned my Note and nothing was recorded for me to acknowledge who owns my note I have not paid anyone. I truely believe that no one should pay anyone who is not holding the Note. I have no contract with Bank of America, none what so ever, yet they keep sending me a bill and they keep threatening me with foreclosure. Oh well, from my stand point and from what I gather from Law on this matter, Country wide owes me two years of payments. My loan was paid off according to my Original Lender yet nothing was recorded. My Original Lender is now out of business due to being charged with corruption from the State of California and the State of Arizona. Bank of America tried to get me into a contract with them through a fraudulent modification at 9.5%. How can a Bank offer a modification of a contract on a contract they don't have?
If this is not orginized crime I don't know what it is. Still seems like a Slam Dunk to me .... Time will Tell.

January 05 2011 at 7:05 PM Report abuse +1 rate up rate down Reply
1 reply to Wayne's comment
Dear MoonWolf

I'd like to know how I can jump on this bandwagon and LEGALLY stop making mortgage payments! I wouldn't put it past the banks to forge docs and try to screw me over, in the process, though...

January 07 2011 at 3:44 PM Report abuse rate up rate down Reply
keepergo

My home has been put on foreclosure "hold" three times. I have contacted everyone possible during this foreclosure nightmare. Every foreclosure should be looked at long before foreclosure is even an issue. In my case, a simple audit would have caught this servicers' mistake before a sheriff knocked at my door. Now I'm listening to a servicer who wants to make a "good faith gesture". They want me to move back into the property for a "possible" arrangement. Maybe the Supreme Court is the answer...

January 05 2011 at 6:22 PM Report abuse rate up rate down Reply
pyps

Welcome to Florida where the law is allowed to be broken with no remorse whatsoever from the law breakers, especially those on top. The only way to deal with law breaking judges is to recall them or remember election day. Kick them out. I am surprised that no one within the Florida legal system is not taking this up aggresively. By the time it is over with as the saying goes "it is too late too bad."

January 05 2011 at 4:02 PM Report abuse rate up rate down Reply
boowah

In cases as in Florida, the resident has a right, providing that his or her payments are up to date, to defend the taking of their property with deadly force! It's part of the Castle Doctrine provided for in the Constitution. If faced with a forceable eviction, it's your right as an American to resist!

January 05 2011 at 3:19 PM Report abuse rate up rate down Reply