A victory of sorts

The following is an article that appeared on September 23, 2005 in the Tampa Bay Business Journal. Mortgage Electronic Registration Systems, Inc. (MERS) has suspended all foreclosure activity in Florida after Judge Walt Logan of The Sixth Judicial Circuit In and For Pinellas County, FL entered an order dismissing 28 of its foreclosure cases with prejudice. MERS is appealing this order to the Second District Court of Appeals in Lakeland, FL. Judge Logan's ruling is significant in that MERS engaged in the same type of litigation activity that Ocwen has, and continues to, in conducting foreclosures. I think the exact similarities between the MERS cases and those filed by companies such as Ocwen, Wells Fargo, Fairbanks, etc., is proof positive that the entire mortgage industry is thoroughly corrupt and long past due for a reckoning. The question is, how much more of evidence of this is necessary before those with the political and regulatory power do something? For example, MERS's attorneys filed suits naming the company as the plaintiff, when it has no beneficial interest in the promissory note and mortgage; in fact, MERS has no idea who actually owns, or holds a beneficial interest in, the promissory note in many of its cases. I have personally seen Ocwen's attorney flunkies file foreclosure petitions that do not mention Ocwen by name, but instead name other corporations that only have a merely tangential connection, and non-beneficial interest, in a promissory note. MERS has also filed petitions in which it sought to re-establish 'lost' promissory notes, and later filed the original copy of the note when it moved for summary judgment, even though the note contains no endorsement to MERS. I have seen Ocwen and other mortgage companies like it do the same. Additionally, in the cases where MERS sought to re-establish a lost promissory note, Judge Logan's ruling noted that each of the petitions contained boilerplate language, which copied nearly word-for-word the Florida Statutes on this subject, and contained no case-specific allegations of fact that would support MERS had standing to proceed with a foreclosure, nor did it provide evidence supporting the allegations made. I haven't seen the MERS complaints, but I would bet they closely resemble, or are exact duplicates, of the complaints Ocwen files, which I have read. However, I can tell you in two complaints from Ocwen I have seen like this, made by different law firms no less, the complaints were extremely similar. In any event, something I think we can do now is write to Judge Logan thanking him for his tenacity in following the MERS cases, which led to his dismissal order, and for his professionalism as a jurist to question the foreclosure cases MERS's attorneys were trying to slide by him. It will also show him that MERS is not an isolated case, but instead there are other mortgage companies which also require his vigilance. Too many Florida judges, especially in my county, see complaints with a corporate plaintiff and automatically assume everything in the complaint must be true without holding the plaintiff to its burden of proving the allegations. Some judges in my county are so lazy they don't bother to even read the record and just hand down arbitrary decisions in favor of the plaintiff. For attorneys out there, and those who feel comfortable representing themselves pro se, I think this is a tremendous opportunity to file a motion for leave to submit an amicus curiae brief to the Second District on behalf of the appellees in the MERS cases; you can bet the mortgage industry will have its attorneys do so. See Florida Rule of Appellate Procedure 9.370 for instruction. In fact, I will be working with a party in an Ocwen foreclosure case, whose fact pattern is similar to at least one of the MERS cases, and whose case was also before the Sixth Judicial Circuit Court in Pasco County and appealed to the Second District, do just that. The information for the MERS cases on appeal are: Second District Case No.: 05-4541, Date of Notice of Appeal: 09/19/2005, Styling: MORTGAGE ELECTRONIC v. CHERYL JO ECKHARDT, ET AL., Sixth Judicial Circuit In and For Pinellas County, Lower Tribunal Case No.: 05-2665-CI; 05-4544; 09/19/2005 MORTGAGE ELECTRONIC v. GEORGE AZIZE, ET AL Pinellas 05-1295-CI; 05-4546 09/19/2005 MORTGAGE ELECTRONIC v. CARL E. BOUDREAULT, ET AL Pinellas 05-602-CI; 05-4548 09/19/2005 MORTGAGE ELECTRONIC v. JOSE MONTALVO, JR., ET AL Pinellas 04-1919-CI. I am not sure how the Second District would respond, but I don't think it could hurt for the victims of Ocwen to write the Second District, with the above case information referenced, and explain to them the funny business Ocwen and its attorneys have pulled when it filed foreclosures in their situations. Hopefully, the Second District will see the similarities between the tactics of these two companies and know that this is not an isolated problem.Finally, I have found a copy of Judge Logan's decision online; however, it's posted in .jpg format. While I know links to other websites are not permitted here, I will attempt to find a way to get it posted here. If you would like to read it before then, though, simply type in the words 'Florida Debt Relief,' 'Order Regarding Standing of MERS' and 'Judge Walt Logan' in a search engine and the link to his opinion should come up in the search results.In any case, here's the article from the Tampa Bay Business Journal:September 23, 2005MERS suspends foreclosure activity in FloridaMortgage Electronic Registration Systems has asked its members to cease foreclosure actions in the name of MERS in Florida pending an appeal of a ruling in the Sixth Judicial Circuit Court in Pinellas County. In his ruling on Aug. 18, Judge Walt Logan ruled that MERS does not have standing to act as a plaintiff in a mortgage foreclosure suit if it is not the owner of the beneficial interest in the note. MERS is appealing that decision. Judge Logan challenged the pleadings filed by local foreclosure attorneys due to a lack of clarity in those pleadings regarding ownership of the promissory note. Vienna, Va.-based MERS is an electronic loan registry created by the real estate finance industry to eliminate assignments when trading mortgage loans. Borrowers name MERS as mortgagee and nominee for the lender on deeds of trust and mortgages that are recorded in the county land records. Lenders then register the loans on the MERS System and electronically track changes in servicing and beneficial ownership rights over the life of the loan.