Per the order below (hat tip Matt Weidner) a judge in Broward County appears to have cancelled all foreclosure sales in one of the foreclosure division from December 20 to December 31:
Broward County Judicial Order Canceling Foreclosure Sales
One might think this has something to with the Fannie and Freddie foreclosure halts, with run from December 20 to January 3. But the GSEs have made similar suspensions before, indeed, sometimes from Thanksgiving to New Year, so this seems unlikely to be the trigger.
Moreover, this action, at least based on the account of Florida foreclosure procedures per Lisa Epstein of ForeclosureHamlet, could not impact evictions that were due to take place over the holidays. It turns out that there is usually a significant lapse between the foreclosure sale and the loss of possession. Via e-mail:
The sale doesn’t throw families out on the street, the certificate of title has to be issued (Palm Beach County is 4-6 weeks behind the sale dates at least) THEN a writ of possession must be obtained, then the sheriff has to execute the writ.
Even though the motivation for this order is not clear, it may nevertheless be significant. Many judges have taken the view that they have no latitude to act on behalf of defendants who do not contest their cases, and some have taken the unusual step of expressing concern that procedural abuses have risen to a level where they feel the need to take a more active role, yet are not certain whether they can do so. From the Palm Beach Post:
Palm Beach County Chief Judge Peter Blanc is trying to decide whether judges can take a more active role in examining foreclosure cases after a meltdown in Ally Financial’s foreclosure proceedings last week.
Blanc said Monday that there has been an increase in requests by lenders and loan servicers to cancel foreclosure sales and vacate judgments following the disclosure that Ally was freezing portions of its foreclosure operation in 23 states, including Florida.
While judges granted those requests, Blanc said he was concerned about cases in which defective foreclosure affidavits aren’t being brought to the court’s attention, possibly because the borrower has given up or walked away from the home.
Also, he’s unclear on whether the court should scrutinize past cases for flaws.
“It puts us in an untenable position because we can’t both investigate and decide,” Blanc said. “We are supposed to act on things brought to our attention, but if no one files anything, I’m not sure what will or should happen.”
Blanc said he was looking at case law regarding the duties and responsibilities of judges to see whether there is precedent for the current situation. But he said Florida’s foreclosure crisis has brought many unique challenges to the courts and there is likely little historical guidance.
In other words, judges are also struggling to figure out what to do with the mess created by rampant abuses in the securitization industry.
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Judge must be getting scared for the asses. Some of the submissions in Florida are defective on their face. The judge has a ministerial duty to dismiss the case when the plaintiff has no standing. These judge’s are liable for following through with proceedings when they have no jurisdiction. No Standing = No subject matter jurisdiction = no immunity.
Judge’s at the very least have a ministerial duty to inquire into their own jurisdiction. There is no immunity for breach of a ministerial duty as well.
When a judge takes an oath of office it is a lien on all his property while he is executing the public trust. These judge’s have trespassed on so many people I think in the end it will be them without a house.
“Coram non judice proceedings will not divest one of the lawful possession of title to his property, is a very important rule involving procedure and Caveat emptor as well. Purchasers under execution and judicial sales are charged with knowledge of all the mandatory record shows. They must take notice of nullities or void proceedings but not formal defects or mere irregularities. The former are void ab initio,2′ and of this the nullity is wholly judged by the mandatory record.
The coram non judice proceeding is pregnable to collateral attack. To this it is always vulnerable; time or laches will not cure it.Collateral attack is the last stage of the application of the rule that the general demurrer searches the whole record and attaches to the first substantial fault, likewise of the motion in arrest of judgment. This rule of the general demurrer, the motion in arrest of judgment and of collateral attack is not waivable in character. It involves defects that cannot be waived. It involves grave jurisdictional defects that it is contrary to public policy to waive. The parties named upon the record cannot waive where they cannot contract or stipulate; they cannot dispense with the rule that a court is bound by its record; no court can lawfully proceed unrestrained. A court without a right record and bound thereby is without the pale of the law, and then its proceedings are coram non judice; such proceedings need neither objection nor exception in order to predicate objections thereto in .appellate procedure or elsewhere.1′ The coram non judice proceeding so appearing from the mandatory record is worthless for all purposes. It is a nullity, or a void thing. No title or right can be predicated thereon. It cannot be the basis of any substantive right.”
Grounds and Rudiments of Law under Collateral Attack
Please don’t publish gibberish like this on this site. Yves and her contributors (like Matt Weidner) and her commenters work too hard combatting extremely complex and devious frauds by inordinately powerful global financial institutions to have their (our) time wasted with this kind of nonsense. You posted this same jargon on Matt’s site in August purporting to quote or paraphrase William Taylor Hughes as the author. Who is William Taylor Hughes and why are you plaguing Matt Weidner with his fulminations?
http://mattweidnerlaw.com/blog/2010/08/void-foreclosure-judgments-everywhere-theyre-subject-to-collateral-attack-forever/
The purported textbook supposedly authored by this random individual was published in 1915. There is not a single citation in a commonly-used online legal research database to his name or to that textbook in a single decision of any federal court or the Supreme Court of the U.S. or any state appellate court of last resort in the last 55 years, except for this possibly related order suspending an attorney by that name for non-payment of Ohio bar association dues in 2005:
“The Supreme Court of Ohio
“2005-Ohio-6408, 2005.OH.0006751
“December 5, 2005
“IN RE ATTORNEY REGISTRATION SUSPENSION [ATTORNEY NAME] RESPONDENT.
“The opinion of the court was delivered by: Chief Justice Thomas J. Moyer
“CASE ANNOUNCEMENTS AND ADMINISTRATIVE ACTIONS
“MISCELLANEOUS ORDERS
“On December 2, 2005, the Supreme Court issued orders suspending 13,800 attorneys for noncompliance with Gov.Bar R. VI, which requires attorneys to file a Certificate of Registration and pay applicable fees on or before September 1, 2005. The text of the entry imposing the suspension is reproduced below. This is followed by a list of the attorneys who were suspended. The list includes, by county, each attorney’s Attorney Registration Number.”
Similarly, neither his name nor his publication were cited by any U.S. federal court or the highest appellate court of any state since the tome was published in 1915, according to versuslaw(dot)com. It’s just crap. It’s not law.
“In other words, judges are also struggling to figure out what to do with the mess created by rampant abuses in the securitization industry.”
Given the unprecedented scope of the abuses, as well as its systemic character, judges don’t exactly have the luxury of thinking inside the box here.
Modest proposal:
1) Stop all foreclosures, no time frame provided. *very evil grin*
2) Tell all parties involved that courts shall take their freaking sweet time to make sure EVERYTHING is in PERFECT order, all “t” crossed, and “i” dotted and-btw-are-there-any-questions?
3) Judges should talk to all their colleagues and explain what and why they’re doing that. (Hint: It’s about the rule of law guys and gals…any problem with that?)
4) Pool resources so that the judges who have expertise in real estate law can help their peers.
5) As an added bonus, make sure Congress knows how extremely helpful it would be for everyone that the Senate stop wanking and screwing around about nominations of judges so that the bench could work faster. Wouldn’t it be nice…Senator?
It goes without saying that lots of interest groups would raise holy hell, and then some. To that we say: “Snif!”
Too many people in position of authority have abdicated their basic responsibilities; hence, others will assume them, and if those who abdicate do not like it, well, let it be known that certain periods in life may suck to no end.
One thing is absolutely certain; the status quo cannot hold, so pena of witnessing ugly social unrest.
I keep asking in comments for the real adults to come forward and bring some reality back to this scene. I had given up on the courts to provide that level of sanity given some of the outcomes at various levels but maybe there is still a vestige of ethics and social morality in the the American legal system yet.
I will hold my breath waiting for other reasons…..
Yes, very interesting that the judges consciences have stirred from sleep. They are, in fact, waking up in cold sweats.
Many judges have taken the view that they have no latitude to act on behalf of defendants who do not contest their cases, and some have taken the unusual step of expressing concern that procedural abuses have risen to a level where they feel the need to take a more active role, yet are not certain whether they can do so. From the Palm Beach Post:
Palm Beach County Chief Judge Peter Blanc is trying to decide whether judges can take a more active role in examining foreclosure cases after a meltdown in Ally Financial’s foreclosure proceedings last week….
Also, he’s unclear on whether the court should scrutinize past cases for flaws.
“It puts us in an untenable position because we can’t both investigate and decide,” Blanc said. “We are supposed to act on things brought to our attention, but if no one files anything, I’m not sure what will or should happen.”
Blanc said he was looking at case law regarding the duties and responsibilities of judges to see whether there is precedent for the current situation. But he said Florida’s foreclosure crisis has brought many unique challenges to the courts and there is likely little historical guidance.
In other words, judges are also struggling to figure out what to do with the mess created by rampant abuses in the securitization industry.
I doubt this is anything like as novel as they’re representing. Maybe this varies somewhat from state to state, but don’t judges have equitable and/or other kinds of responsibilities to see that justice is done, and to prevent obvious frauds on the court and trampling of the rights of defendants and society?
Especially where there’s such a massive imbalance of information and resources between non-rich individuals and huge entities which we all know are criminal enterprises, how could a conscientious judge be content to sit passively? Hoe could not be morally content to do so, and his personal morality shouldn’t come into it anyway, as he has a professional obligation to be active.
But we know why this is alleged to be novel – because under kleptocracy, the government wants judges to be pro-bank goons. The system does indeed want them to be as proactive as necessary – but against the people, against equity, against justice.
You always penetrate the veil: —“…we know why this is alleged to be novel – because under kleptocracy, the government wants judges to be pro-bank goons… as proactive as necessary – but against the people, against equity, against justice.”
The evidence of fraud and dubious title custody is now publicly undeniable—so well documented that any savvy judge would pause in prudent (fearful) self-interest to pretend to consider the merits of standing as indio points out above. When the SHTF, it’s every vermin for himself.
And sorry for further spoiling the hopey-changey mood (like matt weidner below), but is it too cynical to suppose that this 11-day reprieve for widows and orphans is simply Judge Ebenezer giving himself and his buddies a break during the holidays?
God bless us, every one!
I don’t think they would dare to make this an indefinite stay because that would put all property transfer into limbo and really throw a wrench into the economy.
Put back as many unused houses onto banks as possible so they can pay the property taxes and maintenance out of bailout monies. Nobody else wants these houses with a stalled economy and rising unemployment. The banks and Fed can be our super-SIV toxic dumping ground for crap-assets. Let the foreclosures resume.
I guess they think their self-interest lies in being good little flunkeys of organized crime.
And yet I still think of what worthless dregs the “retired”, i.e. unemployed, Rocket Docket judges must be, that even the revolving door spit them back out when they previously tried to enter it.
They must think this is finally their big chance to show their “talent”. That’s why they’re so zealous, to the point that they keep openly bragging about their crimes.
http://www.msnbc.msn.com/id/40728284/ns/business-us_business/
The real question is why, in the face of a system that has absolutely collapsed, our judges still feel compelled to go forward signing judgments that are far beyond being just questionable anymore…there are just too many questions or just flat out blatant errors. This is a gross and systemic breakdown of our courts. And what’s the point of all these foreclosures anyway? Counties are reporting thousands of vacant and abandoned bank owned properties…after about a year of no AC in Florida the mold makes them toxic…the only option is to tear down. In the absence of some rational economic explanation we’re only left with some dark, unseen but purposeful reasons or it’s just mass economic irrationality. (The same can be said of the entire subprime boom.) God Help Us All.
The answer is: the Canons of Judicial Conduct. Check the Florida version, known as the Florida Code of Judicial Conduct. I don’t have a citation for you, and the enforcement arm (FL Judicial Qualifications Commmission) does not appear to provide the judicial conduct rules, but a legal forms company gives this rough-and-ready version of the canons:
http://ablelegalforms.com/canons/judicialcode.html
Here is just one example of the broad language of the canons that could enable a judge to take an activist role in searching out and eliminating foreclosure fraud:
“Canon 4B. As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law. Judges may participate in efforts to promote the fair administration of justice, the independence of the judiciary and the integrity of the legal profession and may express opposition to the persecution of lawyers and judges in other countries because of their professional activities.”
Here is the rules page of the less-helpful “official” site of the JQC which went live in March 2010:
http://www.floridajqc.com/rules.html
Similarly, check the Florida version of the rules of professional conduct governing the conduct of attorneys as officers of the court. See also Rule 8 of generic Rules of Professional Conduct, subsection applicable to reporting professional misconduct. In D.C., Rule 8.3(a) requires lawyers to report professional misconduct by other lawyers.
Rule 8.3(b) requires the same reporting of misconduct by judges: “(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.”
A comment to that rule provides as follows:
“[1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.”
For the Florida counterparts, see Rule 4-8.3 of the Florida rules of professional conduct which are essentially identical:
http://www.floridabar.org/divexe/rrtfb.nsf/FV/C77FC6BD3365174D85257172004B0FBC
The solution is easy — dismissal with prejudice. Throw some unsubstantiated documents in your pleadings, plaintiff gets the house. How many times do you think Marshall Watson would watch this go down before he changed his approach?
Judge Blanc’s problem is the previous judge in charge of foreclosure bent over backwards to serve the banks. Now he has to decide whether to investigate the decisions of one of his own. Once we get them to break ranks, we’re on track toward winning.
I just don’t understand why the judge’s wouldn’t err on the side of caution. Now let’s imagine the plaintiff bank’s submission is completely valid and legit. A judge dismisses the case for lack of standing. The injury to the plaintiff is a denial of access to the courts even that claim would be tenuous unless there is rock solid complaint because of the judicial discretion factor.
On the other hand,
That potential injury is far less than the potential injury to the defendant if the plaintiff bank does not have standing to sue. The defendant is basically robbed at gun point with a continuing liability and exposure to another party that would have the standing to sue.
I’m waiting for claims for money judgments to start after foreclosure that has yet another party(actual note holder).
There are already multiple instances where there are 2 parties suing for foreclosure on a single note. I’m sure you will have multiple parties suing on the same note for the residue of money owed not covered by the foreclosure sale.
This is just the beginning of the mess. Real Estate is going to be screwed up for 10 years.
I think every owner subsequent to the original fraudulent origination would have some standing to sue, and those started in the first half of the 2000’s. So after that origination every time a house was flipped, in some instances dozens of times, you have a party who was damaged in some way and could seek compensation from the bank.
Then you have all the wrongs to the MBS buyers, pensions and such, due to some kind of fraud by the bank, either in the loan origination, or not transferring the note to the trust, or just plain selling the same note to multiple trusts.
All this amounts to liabilities to banks which are so large they’ll swamp the whole system. We may need a Constitutional Convention to create the laws necessary to deal with this kind of problem. The last time we had such a convention we got a new Constitution. Once enough people realize what we’re up against, it opens the door for a-political solutions.
Funny Obama spent so much time and effort to prevent any out of the box thinking on how to fix these problems, and this after they prevented the market from correcting its own imbalances. He literally wasted his entire term in specifically disallowing any fix to the problem. I’m sure he’ll be duly rewarded by the history books.
Besides Congress initiating this scheme then continually ignoring the results, I thought contract law was the basic premise here for the mortgage payer’s defense. If the payer is not told the note transferred/was attached to/underwent modification/was lost, how does one know or held responsible for non-payment whether paying or not?
Looks like the sharks fight it out and the little fish goes free.
The note typically has a “waiver of presentment” so they don’t have to show it to you. They’ve been prepping for this scam for years. It just took them along time to figure out a mechanism to circulate the private notes. There is literally no difference between negotiating a promissory note endorsed in blank and without recourse and tendering Federal Reserve Note.
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