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  • Discovery Tactics

Servicer Foreclosure Analysis Part II: Circumventing the Rules of Civil Procedure To Bring Suit In Another Parties Name!
| November 29, 2010

DISCLAIMER: THE CONTENT IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE MISCONSTRUED AS LEGAL ADVICE! Anthony Martinez is a Discovery Expert.  Neither Anthony Martinez nor his firm AMA engage in the practice of law and only work in conjunction with licensed practicing attorneys.  AMA will provide public information only and will not provide any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms or strategies.

In Florida, Rule 1.210(a) of the Florida Rules of Civil Procedure state:

(a) Parties Generally. Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought

The activation of this rule must be supported by – in effect - complying with Rule 1.130(a) of the Florida Rules of Civil Procedure that state:

(a) Instruments Attached.All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading

According to attorney’s, there is a misconception that the note and/or mortgage attached to the complaint is the operative document in support of the allegations in the pleading.  The note and mortgage are attached to the pleading because it is a foreclosure action and all foreclosure actions require such.  However, to sustain that a Plaintiff has standing to bring the action is very much separate and apart if that party’s name is not the name mentioned on the note/mortgage attached to the complaint.  Hence, in cases where the Plaintiff is not the name mentioned on the note/mortgage attached to the complaint, the “contract or document” granting such authority must be attached.  This is why people began seeing those bogus assignments surfacing all over the place.

For a Servicer who is bringing the action on behalf of the “real” owner however, the operative document is the “contract” between the Servicer and the “real” owner.  This is a document that NO ONE is seeing attached to the Complaints.  The newest of Complaints being filed are actually alleging “Plaintiff is the Servicer for the owner and holder of the note and mortgage is authorized to bring this action.”  Without the “servicer contract” being attached to the complaint, Plaintiff’s have failed to state a cause of action and lack standing as they have not shown they are the “authorized” party as they have alleged in the complaint.  US Trustees and now doing this in their responses to Motions for Relief from the Automatic Stay pretender lenders are filing in bankruptcy claims.  US Trustee’s are simply saying in their pleadings:

“If Wells Fargo seeks to enforce the note and deed to secured debt as a servicer/agent of the holder of the note and security deed, Wells Fargo has failed to allege sufficient facts from which the Court can conclude that it is in fact the authorized agent of such holder and entitled to recover attorneys’ fees for its actions.”

The magic trick here is that it was ALWAYS the Servicer from the very beginning that was bringing these foreclosure actions in the name of another party – the trustee.  In a number of Bank of America cases where the caption reads the Plaintiff as Bank of America, NA and does not mention a trustee, you will sometimes see that the note and mortgage actually name Bank of America, NA as the lender.  You automatically think, “wow” they have the right to foreclose…not so fast!  90% of the time you will see the allegations read “Plaintiff is the Servicer for the owner and holder of the note and mortgage is authorized to bring this action.”  That might cause you to scratch your head.  What the complaint is really saying is that this loan was sold some time ago by us but we are the Servicer for the current owner.  That’s great…where’s the operative document that supports that claim?  In most if not all instances where you see that the Plaintiff’s name matches the name of the lender on the note and mortgage, do a Fannie Mae search on the address.  Chances are you will find that the loan is owned by Fannie Mae and the Plaintiff has simply chose to omit that fact from the Court.  This is a great tool for attorneys to submit a very brief Request for Admission asking the critical re-affirmance “Admit you are the actual owner and holder of the note and mortgage.”  Get a yes back on that one while you have proof that Fannie Mae owns the note and you just uncovered a good fraud position to be supported by sanctions for attorney’s fees and costs.

As a rule of thumb attorneys should always assume it is the Servicer that is foreclosing until you can rule that theory out.  If it is the servicer filing the action on behalf of a third-party then get the “documented facts” to support the Plaintiff is the servicer and move to dismiss using the failure to submit the “servicer agreement” between the servicer and the alleged “real” owner and holder of the note and mortgage.  The truth is they don’t want to disclose these documents because of the “other” information contained in them in addition to the fact that a “servicer agreement” would open the door for other operative documents subject to confidentiality.  They don’t want to disclose them even under a Protective Order.  These operative documents are at the very heart of the fraud and what plaintiff’s are hiding.  Also, remember that just because a “servicer agreement” that may actually be produced does state that they are the servicer for Fannie Mae for example doesn’t necessarily mean they are the Servicer for YOUR loan.  Make them prove it.  Move out of the complexity of conspiracy theories and move back to the statutory and rule requirements of the court.

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