Smoking Gun graphic by jcoterhals via Flickr

For those of you who thought me paranoid when I said you should demand to see the wet ink original of the mortgage documents when somebody is trying to foreclose on your house; for those of you who thought me a persnickety fussbudget when I said you should demand to see every assignment in the chain from the originator down to the entity that is plaintiff in the foreclosure case against you…

I’m vindicated.

Debbie and Frank Visicaro, a couple in a foreclosure case in Florida, tried to do just that. The judge was evidently rather curt in his treatment of their lawyer and brushed off their entirely lawful application to see the documents proving that the plaintiff had standing to foreclose. Instead he granted summary judgment in the bank’s favor based on an “assignment” from a document mill law firm.

A short time later, the judge asked them to return to court, so he could apologize and reverse his prior decision. Why did he do this? Because in the interim period, he found out that in another two cases two different banks were trying to foreclose first mortgages on the same piece of property.

It gets even better; the signer of the assignments in the two different cases was the same name.

From the transcript:

I’ll give you an example of that. I have one case that was called up for a summary judgment hearing, and I thought it was going to be a typical granted situation, and then a lawyer showed up for the defendant homeowner.

I was beginning to recite to the lawyer what I typically recited, that there were no affidavits in opposition. And the lawyer said, “Well, I thought you might be interested in this,” and handed me some documents that were out of another file in our circuit, and as it turned out, it was the same note and mortgage that was in a separate and independent file.

There was a different plaintiff pursuing a foreclosure proceeding on the same note and mortgage as the one that was being proceeded on. Both the cases contained allegations in the original complaints that the separate plaintiffs were the owners and holders of the note. Both of them had a count to reestablish, and both of them had gone so far as to have affidavits filed in support of a summary judgment whereby an individual represented to the court in the affidavit that the separate plaintiffs had possessed the note and lost the note while it was in their possession.

Interestingly, both affidavits, although they were different plaintiffs, purported the same facts and they were executed by the same individual in alleged capacity as a director of two separate corporations. [emphasis added]

As you can imagine, the judge in the Visicaro case, Judge Anthony Rondolino, is going to be a bit more interested when defense counsel make arguments about Plaintiff’s standing to sue going forward.  And good on Judge Rondolino for his intellectual honesty in correcting this mistake.

Another judge in Florida, Judge Tepper, dismissed a foreclosure when she found:

U.S. Bank National Assoc., as Trustee v. Ernest E. Harpster Sl-2007-CA-6684-ES

7) The Assignment, as an instrument of fraud in this Court intentionally perpetrated upon this court by the Plaintiff, was made to appear as though it was created and notarized on December 5, 2007. However, that purported creation/notarization date was facially impossible: the stamp on the notary was dated May 19, 2012. Since Notary commissions only last four years in Florida (see F .S. Section 117.01 (l )), the notary stamp used on this instrument did not even exist until approximately five months after the purported date on the Assignment.

8) Confirming this, the Notary Bonding Company’s representative, Erika Espinoza, stated in a sworn affidavit that the Notary Stamp used by Terry Rice, the Notary, did not exist on the purported date is was notarized. Specifically, Espinoza testified in her affidavit that the notary stamp didn’t come into existence until sometime in April 2008, five months after the date on the Assignment.

9) The affidavit of Erika Espinoza was un-rebutted by any pleading, testimony, or affidavits of the Plaintiff.

10) The Motion for Rehearing alleged proper legal grounds for rehearing the Defendant’s Motion to Dismiss, based on newly discovered evidence and discovery of fraud on the Court.

11) The court specifically finds that the purported Assignment did not exist at the time of filing of this action; that the purported Assignment was subsequently created and the execution date and notarial date were fraudulently backdated, in a purposeful, intentional effort to mislead the Defendant and this Court. The Court rejects the Assignment and finds that is not entitled to introduction in evidence for any purpose. The Court finds that the Plaintiff does not have standing to bring its action. (See BAC Funding Consortium, Inc. ISOAIATIMA v. Genelle Jean-Jacques, Serge Jean-Jacques, Jr. and U.S. Bank National Association, as Trustee for the C-Bass Mortgage Loan Asset Backed Certificates, Series 2006-CBS (2ndDCA Case No. 2f)~08-3553) Feb. 12, 2012.)

12) The Motion to Strike is moot.

13) The Court finds that the Defendant is the prevailing party in this litigation and is therefore entitled to an award of attorney’s fees and costs to be determined in a future evidentiary hearing before this Court.

Judges in every state need to be alerted to this systemic problem; they need to see a complete paper trail and not risk allowing an entity that does not own the note or mortgage to take someone’s house.

[Earlier posts in this series and related links at Kouril's Foreclosure Fraud Resources]