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DEFEATING FORECLOSURE:

IS YOUR BANK ACTING UNDER FRAUD?? MOST BANKS ARE

RECENT ADMINISTRATIVE ORDER - PASCO FLORIDA - CHIEF JUDGE - "NO NOTE, NO FORECLOSURE"

IN THE CIRCUIT COURT, SIXTH JUDICIAL CIRCUIT
IN AND FOR PASCO AND PINELLAS COUNTIES, FLORIDA
ADMINISTRATIVE ORDER NO. 2008081
PA/PICIR
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RE: MORTGAGE FORECLOSURE ACTIONS BY INSTITUTIONAL LENDERS
Mortgage foreclosure cases have increased at an unprecedented rate in the Sixth Judicial Circuit. In the Sixth Judicial Circuit in the last year alone, mortgage
foreclosure case filings increased approximately 118%. Frequently, attorneys who handle a large volume of mortgage foreclosure cases do not have their pleadings in
order or fail to appear at scheduled hearings, causing the court to reschedule or delay hearings in mortgage foreclosure cases. The volume of the cases and the resetting of
these hearings results in difficulties scheduling these summary proceedings. In light of the court’s finite resources, it is necessary to establish procedures for more efficient
handling of mortgage foreclosure cases.
Pursuant to Rule of Judicial Administration 2.215, the Chief Judge has the authority to adopt administrative orders necessary to administer the court’s affairs.
Therefore, it is

ORDERED:
1. Filing of Initial Mortgage Foreclosure Complaint: An institutional mortgagee lender that after January 19, 2009, files a complaint to foreclose a mortgage
on homestead property must provide the following to the Clerk of Circuit Court with the initial filing:
a. A Notice to Homeowner, a copy of which is attached to this Administrative Order as Attachment A.
b. A Plaintiff/Lender’s Contact Information Sheet, a copy of which is attached to this Administrative Order as Attachment B.
Homestead property is property designated as “homestead” by the property appraiser’s office on the date of filing the complaint. The plaintiff must include the Notice to
Homeowner and Plaintiff/Lender’s Contact Information Sheet with each summons serving a complaint on the owner of residential homestead property.
2. Certificate Filed Prior to Requesting Summary Judgment Hearing Dates: Prior to requesting a mortgage foreclosure summary judgment hearing date
from the court, the attorney of record for the plaintiff must file a uniform certificate titled “Certification of Compliance with Foreclosure Procedures” with the Clerk. The
uniform certificate is
Attachment C to this Administrative Order. The uniform certificate provides the attorney’s certification of the completion of requisite actions and the dates on which they
were completed.
3. Foreclosure Judgment Packet Prior to Hearing: Unless the presiding judge provides otherwise, the plaintiff’s attorney must deliver a foreclosure
judgment packet to the presiding judge’s office at least five (5) business days prior to the scheduled hearing date for a motion for summary judgment. The foreclosure
judgment packet consists of the following documents:
a. Proposed Uniform Final Judgment. Include sufficient copies for conforming and stamped, addressed envelopes for all parties;
b. Original Promissory Note (unless previously filed);
c. Notice of Sale;
d. A copy of the Certification of Compliance with Foreclosure Procedures; and
e. A copy of the Notice of Hearing.
4. Uniform Final Judgment: All proposed final judgments of foreclosure shall be in the format of the Uniform Final Judgment of Foreclosure for the Sixth
Judicial Circuit as provided in Attachment D unless otherwise specifically approved by the judge entering the final judgment. Any changes to the Uniform Final Judgment
of Foreclosure from that prescribed in Attachment D shall be brought to the attention of the presiding judge at the final judgment hearing.
5. Cancellation of Foreclosure Sale by Clerk upon Suggestion of Bankruptcy: If the Clerk of Circuit Court receives, prior to the commencement of a
foreclosure sale, a mailed or faxed suggestion of bankruptcy on behalf of a named defendant in a pending foreclosure action, the Clerk is directed to cancel the foreclosure
sale. The Clerk shall not cancel the sale if subsequently directed otherwise by the presiding judge or a United States Bankruptcy Judge. The plaintiff is responsible to
separately file with the Clerk any order from a United States Bankruptcy Judge that would preclude the Clerk from canceling a foreclosure sale; such filing must not be an
attachment or exhibit.
6. Additional Procedures: The judicial practice preferences of each judge, which may contain a judge’s individualized procedures for mortgage foreclosure
cases, may be found on the Circuit’s Internet site at http://www.jud6.org/LegalCommunity/PracticeRequirementsofJudges.html. The Chief Judge may update or make
other amendments to the attachments of this Administrative Order without further amendment to this Administrative Order.
7. Application: This Administrative Order applies to all mortgage foreclosure actions by institutional lenders except that paragraph one only applies to
homestead property.
8. Effective Dates: All mortgage foreclosure complaints filed after January 19, 2009, and all mortgage foreclosure summary judgment hearings scheduled to
occur after January 19, 2009, must comply with this Administrative Order.
A plaintiff, who as of the date of this Administrative Order, has filed a mortgage foreclosure complaint and already has a foreclosure summary judgment hearing
scheduled to occur after January 19, 2009, may keep the scheduled date and time. However, the plaintiff’s attorney must file the Foreclosure Judgment Package, as
prescribed in paragraph 3 of this Administrative Order, including the “Certification of Compliance with Foreclosure Procedures” with the Clerk of Circuit Court at least
five (5) business days prior to the scheduled hearing date. The presiding judge may cancel a schedule hearing that does not have the Foreclosure Judgment Package filed
by that day.
A plaintiff, who as of the date of this Administrative Order, has filed a mortgage foreclosure complaint and has yet to schedule a foreclosure summary judgment
hearing, must comply with paragraph 2 of this Administrative Order and file a “Certification of Compliance with Foreclosure Procedures” prior to requesting a hearing
hearing, must comply with paragraph 2 of this Administrative Order and file a “Certification of Compliance with Foreclosure Procedures” prior to requesting a hearing
date. Additionally, the plaintiff must file the Foreclosure Judgment Package, as prescribed in paragraph 3 of this Administrative Order, with the Clerk of Circuit Court at
least five (5) business days prior to the scheduled hearing date.
A plaintiff who files a mortgage foreclosure complaint after January 19, 2009, must comply with all requirements of this Administrative Order.
DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of December 2008.
_____________________________
Robert J. Morris, Jr., Chief Judge
Attachment:
cc: All Judges
The Honorable Ken Burke, Clerk of the Circuit Court, Pinellas County
The Honorable Jed Pittman, Clerk of the Circuit Court, Pasco County
Paula O’Neil, Chief Deputy, Pasco County Clerk’s Office
Debbie Gay, Assistant Court Services Director, Pasco County Clerk’s Office
Carol Heath, Executive Director, Pinellas County Clerk’s Office
Gay L. Inskeep, Trial Courts Administrator
Bar Associations, Pasco and Pinellas County
Law Libraries, Pasco and Pinellas County
(A) Notice to Homeowner (html)
(A) Notice to Homeowner (word version)
(B) Plaintiff/Lender’s Contact Information Sheet (html)
(B) Plaintiff/Lender’s Contact Information Sheet (word version)
(C) Certification of Compliance with Foreclosure Procedures (html)
(C) Certification of Compliance with Foreclosure Procedures (word version)
(D) Uniform Final Judgment of Foreclosure for the Sixth Judicial Circuit (html)
(D) Uniform Final Judgment of Foreclosure for the Sixth Judicial Circuit (word version)

Florida has one of the highest foreclosure rates in the country.

Is your bank operating under fraud?? MOST OF THEM ARE

I can’t tell you how many calls that I get from homeowners asking me if there is any way that they can prevent foreclosure. One very important issue is normally in the complaint that is filed by the plaintiff (bank) in a case.

Typically what I have seen is that most of the foreclosures are based on blatant, premeditated fraud by the banks and mortgage companies. In their complaint, there may be a paragraph that states "the original note has been lost or misplaced" this may be true or maybe a blatant lie but it is the real issue to challenge the plaintiff's complaint by filing a petition for discovery and/or deposing the bookkeeper for the bank and getting down the "brass facts" of what really happened to the original note.

There has been more and more federal cases surfacing in which some (honest) federal judges are dismissing the plaintiff cases for lack of standing or jurisdiction because they cannot produce the original mortgage note.

In Florida, Florida’s best evidence rule “requires that when the contents of writing … are being proved, an original must be offered unless a statutory excuse. 

The Florida Evidence Code provides that Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording or photograph. § 90.952, Fla. Stat. The requirement of an “original” ensures that the evidence presented is an accurate transmittal of the critical facts contained within it. See McKeehan v. State, 838 So. 2d 1257, 1260 (Fla. 5th DCA 2003). the “original writing is required because oral testimony may be inaccurate [or] fraud may result.” C. Ehrhardt, Fla. Evid. § 952.1. See also U.S. v. Howard, 953 F.2d 610, 613 (11th Cir. 1992).

The Evidence Code, however, does permit the introduction of duplicates under certain circumstances:
A duplicate is admissible to the same extent as an original, unless:
….
(2) A genuine question is raised about the authenticity of the original or any other document or writing.

(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original. § 90.953, Fla. Stat. Thus, for the copies of the purported Holder paper to be admissible, (a) the copies must be “duplicates,” (b) no genuine question can exist regarding authenticity; and (b) it must be fair to admit the paper in lieu of the original. When there is insufficient proof to establish that the photocopy is the same as the original, the evidence must be excluded. A duplicate may not be admitted into evidence if there is “genuine question is raised about the authenticity of the original or any other document or writing.” § 90.953(2), Fla.
Stat. As a leading treatise on Florida evidence explains,

If there is a genuine question concerning the authenticity of the duplicate, the duplicate is not admissible under section 90.953(2). For example, if a defendant alleges that he did not sign a contract upon which the plaintiff sued, but rather signed a different contract, a genuine question is “raised about the authenticity of the original” and the duplicate is not admissible under section 90.953(2). The original must be offered unless an adequate excuse for its non-production is demonstrated under section 90.954.” See: C. Ehrhardt, Fla. Evid. § 953.1 (2004).

The bottom line is "proof of claim" , the burden of proof falls back into the lap of your bank  - if your bank cannot provide prima facie evidence that they do not have standing or jurisdiction to sue you in a foreclosure action. Furthermore, it makes your bank subject to counter-claim under false claim act 31 U.S.C. § 3729 (federal) or  Florida False Claims Act 68.081-68.09, not to mention, violations of FDCPA, FTC "deceptive business practices" and "fraudulent presentments", SEC, and mail fraud, etc.

The court recognized that the debtor had the necessary motive to fabricate the “letter” to serve his own self-interest. Some banks have sold the original note in asset backed trust pool to international investors. Similar to "factoring" where the note is sold for a discounted price or cash to a new owner.

The biggest hurdle that any pro-se litigant or non-attorney faces today is the corruption of our courts but don’t give up - winners never quit and quitters never win. Fight for your rights and for your home. 

Ten Tips for Success in Court: by Fredrick graves, Esq.

1. Deserve the Judgment You Seek
2. Follow the Rules
3. Make Everyone Follow the Rules

a. Rules of Civil Procedure
b. Rules of Evidence
c. General Legal Principles
d. Common-Sense & Reason

4. Allow No Monkey-Shines!
5. Demand the Truth

a. Require Sworn Testimony
b. Verify Pleadings & Motions

6. Make an Effective Record

c. Use Well-Paid Court Reporters
b. Do Not Go Off-the-Record

7. Use Simple Sentences
8. Manage Your Own Case

a. Don't Allow Opponent Control
b. Don't Allow Court Direction

9.   Expect a Favorable Judgment
10. Demand Your Right to Win!

     NEVER GIVE IN AND NEVER GIVE UP!

 

If anyone has any questions, feel free to contact us at:

(941)822-4663 OR INFO@HOMESTEADSERVICESFLORIDA.COM

www.homesteadservicesflorida.com

Respectfully Submitted,

Darren Michaels

PRIVATE ATTORNEY GENERAL:                 42 U.S.C. 1988

QUALIFIED CRIMINAL INVESTIGATOR:     18 U.S.C. 1510

FEDERAL PROTECTED WITNESS:               18 U.S.C. 1512-13

AMBASSADOR/ORDAINED MINISTER        18 U.S.C.   112 

FLORIDA NOTARY                                      F.S. 117

FLORIDA INSURANCE BROKER: LIC.  215,216,218,240,266, ASSET PROTECTION/ESTATE PLANNING

LEGAL RESEARCHER/WRITER

DISCLAIMER: we are not a law firm or attorneys. Nothing in this message should be considered legal or tax advice. If you need legal advice, please consult an attorney licensed by your state bar association and for tax advice please consult a CPA or qualified accountant.

KNOW WHAT YOUR RIGHTS ARE - DONT EVER LET ANYONE TELL YOU WHAT YOUR RIGHTS ARE.

Comments (1)

Anonymous
Insurance Sample Cancellation Letter
Feb 23, 2009 08:23 PM
#1