Real Estate Attorney with THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY

Most of you have been reading about "phony documents" or "fraudulent documents" from lenders in the foreclosure process. Those documents are the affidavits used to obtain a judgment from a court so a foreclosure sale can occur.


If a material document relied upon by the court in making its decision to render a foreclosure judgment (and have a foreclosure sale) is knowingly false, it is a "fraud upon the court" and attackable at any time by any party affected by the court order.  This can happen years later.  The result could be a setting aside of the foreclosure sale and foreclosure judgment by the court.

Many properties sell either to the lender or to third party bidders at the foreclosure sale, and if there is later a set aside judgment, the title to the lender or third party becomes invalid.

Title insurance underwriters naturally do not want to place insurance where they know there is a high likelihood that there will be litigation over the matter being insured.  As a result at least one major title insurer has announced today that it will not insure REO sales until further notice.  Old Republic just announced issued the following statement (shortened for brevity by this writer):

Recently, officials at GMAC Mortgage, a division of Ally Financial, Inc., JP Morgan/Chase, and most recently Bank of America announced that they are halting evictions of foreclosed borrowers and are halting REO sales in 23 states, including Florida.  In fact, several agents have reported receiving written cancellation of pending transactions involving these lenders.    Accordingly, Old Republic policies may not be issued insuring REO sales after completion of foreclosure by these two lenders.    There is no prohibition on writing title insurance on short sales or following a deed-in-lieu of foreclosure involving these lenders or any prohibition against insuring titles where a mortgage foreclosure by Ally Bank/GMAC, JP Morgan Chase or Bank of America appears in the back chain of title.   We are continuing to monitor this situation and expect to be able to resume insuring REO sales by these lenders as soon as the objectionable issues have been resolved.

To understand the reason for this you need to understand the problem.

Deposition testimony has uncovered that there are two defects in many - perhaps hundreds of thousands - of affidavits of amounts due and similar statements signed by bank representatives.  There may also be defects in assignment of mortgage documents.

In the affidavits, the testimony revealed that the signor was, contrary to the assertion in the affidavit, unfamiliar with the loan file.  Further, the affidavits were signed not in the presence of a notary and the notary may have not known the affiant.  If these affidavits are relied upon by the court in granting the final judgment, and they are false, then they become a "fraud upon the court".  Likewise, if the Assignment of Mortgage is defective, it too becomes attackable. 

The reason these documents are attackable is because the fraud is intentional and undertaken for the purpose of obtaining the judgment in the lawsuit.  Another viewpoint is that rather than "extrinsic fraud", the documents are "intrinsic fraud", meaning they were used for the purpose of obtaining the judgment.

If a property is sold where title to the property was obtained directly from intrinsic fraud, the judgment is not automatically void or invalid.  Instead, it is "voidable", meaning it can be set aside upon the request of a party that can show to the court the intrinsic fraud and why that fraud was material to the judgment.

A big question is whether the intrinsic fraud was material to the judgment being granted. If all the facts contained in the otherwise fraudulent document are correct, a judge could decide that, yes the judgment was obtained through intrinsic fraud, but none the less, the judgment will still stand since the underlying facts contained in the affidavit were correct and true.

We need to continue to closely monitor this issue as it affects hundreds of thousands of real estate sales that have and have yet to occurred.

Copyright 2010 Richard P. Zaretsky, Esq.

Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make.  This article is for information purposes and is not specific advice to any one reader.

Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660  RPZ99@Florida-Counsel.com - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide!  Shortsales@Florida-Counsel.com  New Website www.Florida-Counsel.com

See our easy to understand articles at:



Re-Blogged 10 times:

Re-Blogged By Re-Blogged At
  1. Lenn Harley 10/04/2010 10:43 AM
  2. Judy Chapman 10/04/2010 11:20 AM
  3. Dan Rosenberger 10/04/2010 12:04 PM
  4. Lynn Pineda 10/04/2010 02:45 PM
  5. D B 10/04/2010 04:08 PM
  6. Gabe Sanders 10/05/2010 12:08 AM
  7. Michael Lissack 10/05/2010 04:35 AM
  8. Mike Jaquish 10/05/2010 09:54 AM
  9. John Pusa 10/05/2010 11:05 AM
  10. Joe and Molly Murphy 10/05/2010 01:05 PM
  11. Sandy Shores FL Realtor®, Melbourne Real Estate 10/07/2010 05:02 AM
  12. Dan Edward Phillips 10/11/2010 03:26 AM
ActiveRain Community
Florida Realtor® Network
Dedicated Bloggers
Silent Majority
short sale lawyer
west palm beach real estate attorney
foreclosure defense
short sale attorney florida
reo title insurance

Post a Comment
Spam prevention
Spam prevention
Show All Comments
Richard Riley
RE/MAX Properties SW - Orlando, FL

Thanks for another timely and informative post Richard.  Should we now expect more buyer's agents to embrace short sales and fewer agents trying to become REO listing agents?

Oct 04, 2010 04:35 PM #26
Christine Donovan
Donovan Blatt Realty - Costa Mesa, CA
Broker/Attorney 714-319-9751 DRE01267479 - Costa M

The mess just keeps getting bigger and bigger.  Why on earth would anybody want to read documentation when signing affidavits, probably under penalty of perjury? 

It will be interesting to see how all of this settles out.  Is there no statue on this?

Oct 04, 2010 05:12 PM #27
John Walters
Frank Rubi Real Estate - Slidell, LA
Licensed in Louisiana

This is the gift that keeps giving.  This mess will take years to sort out in my opinion.  Glad i have only done short sales.  Maybe the mortgage companies will be more accommodating for short sales.

Oct 04, 2010 06:14 PM #28
Leslie Ebersole
Swanepoel T3 Group - Saint Charles, IL
I help brokers build businesses they love.

Features abound...mine was much simpler and probably a bit more alarmist that yours. It was written overnight Saturday when I thought no one was taking me seriously. I was at our state convention last Wed-Fri and I swear, no one knew what I was talking about. Amazing. Like Florida, IL is a judicial foreclosure state. We have a barely functioning state government and it's an election year. Ancient Chinese curse is in full swing. 

Oct 04, 2010 07:37 PM #29
Gabe Sanders
Real Estate of Florida specializing in Martin County Residential Homes, Condos and Land Sales - Stuart, FL
Stuart Florida Real Estate

Interesting stuff Richard.  Great post as always and I will re-blog this one.

Oct 05, 2010 12:05 AM #31
Jim Shaw
Premiere Plus Realty Co. - Naples, FL
Real Estate Sales Associate, Naples Luxury Real Estate

Another good post Richard!

The real estate black hole gets deeper.

Guess this new train wreck won't make much of a difference with over 14 million people unemployed and unable to buy a home anyway.

Oct 05, 2010 01:04 AM #32
Neal Bloom
eXp Realty - Weston, FL
Realtor CRS-Weston FL Real Estate

It seems like more crap to clog up our already clogged up system.

Oct 05, 2010 01:13 AM #33
Keith Lawrence
RE/MAX Properties - Mahwah, NJ
ABR, CDPE, SFR, 203K Specialist

Great blog.  I look forward to more from you.

Oct 05, 2010 01:32 AM #34
Missy Caulk
Missy Caulk TEAM - Ann Arbor, MI
Savvy Realtor - Ann Arbor Real Estate

Thanks for the clarification Richard. Voidable is not Void.

I was surprised Mi was not on the list, but we are a state for 6 month redemptions so maybe that is it.

Oct 05, 2010 03:15 AM #35
Joetta Fort
The DiGiorgio Group - Arvada, CO
Independent Broker, Homes Denver to Boulder

Thank you. Any idea how long this will drag on before we get some decisions? It seems the ones getting hurt now are the buyers - there goes 'consumer confidence' again.

Oct 05, 2010 05:12 AM #37
Richard Zaretsky
THE ZARETSKY LAW GROUP - Board Certified Real Estate Atty and AUTOMATED LAND TITLE COMPANY - West Palm Beach, FL
Florida Real Estate Attorney

Ok - I am going to go down the list and address as many questions as possible:

Last first - Joetta. Who knows, but this can be a big problem and it is because as stated in the end of the article the foreclosure judgments (and sales) could be voided.  The lenders are now "reviewing" their documents for these old cases, but what will that do? They cannot "declare" them clean - only a judge can do that based on each file being reviewed not just as to the paper itself, but testimony from those that signed those affidavits in each case.

I think instead, some insurance indemnity will be created by the lenders themselves, which indemnity will be accepted by the insurance underwriters and then we will be good to move forward.

In the meantime, yesterday was the first foreclosure sale day of the week here in Palm Beach County and fully half of the sales were cancelled by the lenders.

Oct 06, 2010 01:57 AM #39
Rich Bail

Interesting blog i enjoyed reading!




Free Real Estate Lead Generator

Oct 06, 2010 09:52 AM #40
Renée Donohue
Savvy Home Strategies Realty, LLC-REALTOR®-Estate-Probate - Las Vegas, NV
Las Vegas Real Estate Broker - www.urLVhome.com

Short sales are now going to become easier!

Oct 06, 2010 04:30 PM #41
Pamela Seley
West Coast Realty Division - Murrieta, CA
Residential Real Estate Agent serving SW RivCo CA

Richard, thanks for the great explanation.  It will be interesting to see how this problem will show itself in non-judicial states, such as California (because you know fraud was committed by the banks in non-judicial states, too).

Oct 06, 2010 08:08 PM #42
Lenn Harley
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate - Leesburg, VA
Real Estate Broker - Virginia & Maryland

"the judgment will still stand since the underlying facts contained in the affidavit were correct and true."

That is my vote.

The provisions for foreclosure are agreed to by the buyer when they accept the deed, deed of trust and note.

Unless the mortgagor can make a showing that they did not default, the rest is technical.  While this is an inconvenience and clearly the banks and service companies took short cuts to effect the repossession of the security, the "system" will find a way to cover the banks' butts. 

Just my opinion, but I believe that a mass of foreclosed folks are grabbing at straws. 

This mess has cause the spread of a new cottage industry of "we can sue the mortgage company to help you keep your home", entities.  I hear the advertisements throughout the day on the radio and TV.  I believe that they are selling pipe dreams to folks who lost their home and their hope.  They're selling hope to a population that has lost all of theirs.


Oct 06, 2010 11:53 PM #43
Gary L. Waters, Broker Owner, Waters Realty of Brevard, LLC
Waters Realty of Brevard, LLC - Rockledge, FL
... a small office, delivering big service!

Sounds like this is all the result of poor record keeping and expediency! I wonder how many of these could have been sold as short sales with a whole lot less legal expense!

Oct 07, 2010 12:50 AM #44
Eric Michael
Remerica Integrity, Realtors®, Northville, MI - Livonia, MI
Metro Detroit Real Estate Professional 734.564.1519

It's like that giant springy snake that pops out of the fake can of peanuts! I can't wait to watch this whole fiasco unfold.

Oct 07, 2010 02:38 AM #45
Randy Landis
Retired in Samar - Tupelo, MS
Overseas Retirement Consultant

Nonetheless, how does an agent exercise cautionary measures with their clients when representing a potential foreclosure sale. Especially if title insurance is becoming ever so elusive?

Oct 17, 2010 04:04 AM #47
Vito Boscaino
Parker Realty Associates - Dublin, OH

Deception, fraud and greed from the Wall Street crowd, banks, mortgage brokers and dishonest purchasers are what started this fiasco.


Deception, fraud and greed is the continuing theme with the Wall Street crowd and banks still playing the same game. 


They always get their upfront fees and their bonuses.  Everyone else gets left holding the bag. 



Oct 17, 2010 04:31 AM #48
Tony and Suzanne Marriott, Associate Brokers
BVO Luxury Group @ Keller Williams Arizona Realty - Scottsdale, AZ
Serving Scottsdale, Phoenix and Maricopa County AZ

The one two punch of the moratorium on Trustee Sales (no new inventory) coupled with the freeze on closing REO transactions that were already in contract with a Buyer (no closing, no revenue) can't make for a pretty picture for large REO teams with a large fixed overhead - and who knows when things will start moving again?

Oct 23, 2010 01:58 AM #49
Post a Comment
Spam prevention
Show All Comments

What's the reason you're reporting this blog entry?

Are you sure you want to report this blog entry as spam?


Richard Zaretsky

Florida Real Estate Attorney
Ask me a question
Spam prevention

Additional Information