Foreclosure Decision By Massachusetts Supreme Court Could Effect Florida
On January 7, 2010 the Massachusetts Supreme Court issued a foreclosure ruling that has allready had far reaching effects from Wall Street to Main Street. In reaching its conclusion that the Plaintiffs (mortgage company) did not conduct a proper foreclosure sale due to deficiencies in the chain of title, the Court brought additional scrutiny to the mortgage epidemic and the inability of lenders to show that the operated with even the most basic of accepted practices in their frantic attempt to generate revenue at the expense of the American homeowner.
It must be stated that this case will have no direct impact on the plight of the homeowner in Florida, as the decision was based on the application of Massachusetts law and procedure. Furthermore, the basis for denying one of the Plaintiffs arguments is in direct conflict with currently accepted law in Florida.
So if this case is based in Massachusetts law which is different than Florida law, actually in direct conflict with Florida law, why am I blogging about the potential effects on Florida law? I believe that the decision sets forth some very damning statements about missing documents that do affect every foreclosure case in the Nation and at the very least should be required proof before a foreclosure is granted. We have been making the same arguments and demanding these documents for years now and hopefully now someone will listen.
The Court in analyzing two cases before it identified in one instance no fewer than six alleged transfers which should have occurred before the Plaintiff had standing to sue, while identifying no less than four transfers which should have occurred with regards to the second loan.
With regards to the first loan, the Court identified that in the agreement sent to investors for their review the private placement memorandum (PPM) made representations that the mortgages “will be” assigned to the trust, and even more important that “[e]ach Mortgage Loan will be identified in a schedule appearing as an exhibit to the Trust Agreement.”
With regards to the second loan, the Court identified the pooling and servicing agreement (PSA) and by attachment and exhibit to the PSA which stated that,, “Bank of America, as seller, ‘does hereby agree to and does hereby sell, assign, set over, and otherwise convey to the Purchaser, without recourse, on the Closing Date . . .all of the right, title, and interest in and to each Mortgage Loan.”
The agreement then made reference to a schedule listing the assigned mortgages, yet no schedule was produced for the record. In fact when presented with a document purported to a representation of the loans assigned in the PSA, the Court noted it did not contain property addresses, names of mortgagors, or any number that corresponds to the loan number or servicing number.
Why aren’t Judges requiring the Plaintiffs to produce the very documents which their own agreements state they should have? The lack of a document that should be present should be proof of a lack of standing, rather than relying on documents endorsed in blank, robosigned, or worse yet forged by the banks in an attempt to hide their own failures to follow even the most basic of accepted protocol. What ever happened to the best evidence rule?
This blog was written by David Lampley, Esq. of the Dellutri Law Group, P.A. Mr. Lampley focuses his practice on Consumer Law Issues where he helps consumers through the Bankruptcy Process, and litigates Credit Reporting Issues, Unfair Debt Collection Issues, Mortgage Foreclosure Issues and other Consumer Law Issues.
