Hearsay Practice Hints: Meeting Intimidation with Facts

Livinglies's Weblog

I went to a hearing yesterday on the Bank’s Motion for Summary Judgment. The Motion had the usual deficiencies and the affidavit was, as usual, worthless because the witness failed to state any basis for personal knowledge. The attachments to the motion were absent. The Bank avoided the allegation that it ever made a loan and avoided any allegations that there was financial injury and if so, to whom. The Foreclosure Mill was rotating coverage attorneys who knew little about the case. We quickly agreed to drop the motion for summary judgment and move forward to a status conference in 120 days, allowing time to explore modification and discovery.

The interesting thing is that the Bank’s attorney actually said to me that we should not conduct discovery because it would only add to the attorneys fees that the homeowner would owe. This rolled out of his mouth in a manner…

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Even if You Win, Homeowners Must Quiet title and Clear the Negative Report on Their Credit

Livinglies's Weblog

This is a nice question to answer for people who have already won their cases successfully defending against a wrongful foreclosure. It is nice because homeowners are winning more and more cases. But it is equally relevant to those who are not in litigation and who think they have clear title and are out of the woods because they are current on their payments. The plain truth is that virtually everyone who has a mortgage lien filed against their property which is subject to claims of securitization, sales into the secondary market, assignments, or other transfers have a problem with title. The time to clear that up is now — not when you are trying to sell or refinance or mortgage the home. The quiet title suit could take several months to resolve.

As for the issue of whether the home can still be subject to foreclosure even after the…

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As Courts Become Friendler to Homeowners, Now what? — Quieting Title

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The turning point has arrived as I noted a few articles ago. Courts are acknowledging that the so-called lenders are evading discovery and not making a prima facie case. The Banks are slowing the filing of the foreclosures because it is obvious they have no basis for collection or foreclosure. But the homeowners who are winning these cases are being faced with a problem: the mortgage is still on record, they can’t get title insurance, they can’t get a new loan, and their credit is ruined by the wrongful foreclosure that was filed. They also can’t sell their homes because of the unenforceable mortgage that is in the county records.

The answer appears to be a lawsuit to quiet title which really can be met with little opposition. And a…

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Fla 4th DCA: Original Note Must Be Sequestered with Court

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From Katherine

Editor’s Note: I almost passed on this. Then I started thinking. If the original note must be sequestered with the Court to prevent further negotiation of the note, it locks in the other side pretty early. If you can convince the court that tendering the original note to the court is a condition precedent to getting judgment, then they must come up with it immediately. It also underscores the issue of the burden of proof in a “lost note” situation, which is to prove the entire path that the note took, how it came to be lost, and what assurance you can give to the court that it is not in the hands of someone who could negotiate it.

Once they offer the “original” it can be examined for authenticity. And in discovery you can find out if there are other “originals” that were used in other transactions…

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