The Florida Attorney General's office is now investigating Fidelity National Financial, Inc. a/k/a Lender Processing Services d/b/a DOCX for their possible involvement in creating and manufacturing "bogus assignments" of mortgage in order that foreclosures may go through more quickly and efficiently.
If a homeowner stops making mortgage payments, the investor can sue the borrower to take the home, a foreclosure. But the investor must have the necessary paperwork proving the original lender sold the mortgage.
And many don't
.
Florida Foreclosure Defense Attorneys
have questioned the authenticity of some assignment paperwork prepared by DOCX. Court records show that since 2008 at least ten (10) DOCX assignments have been filed in Florida courthouses naming the new owner of the mortgage only as "BOGUS ASSIGNEE FOR INTERVENING ASMTS [assignments]," On at least three (3) of those ten (10) assignments the initial owner of the mortgage is listed as "A BAD BENE" - seemingly, for a false beneficiary.
Like a deed, assignment forms carry notarized signatures of people listed as officers of the company transferring the mortgage to the new owner. But a number of forms prepared through DOCX carry signatures of the same people listed as officers of different companies. One signer was listed as a vice president at three different mortgage companies, based in different parts of the country, over a six-month period.
The Attorney General's consumer-related investigation site states in part "These documents appear to be forged, incorrectly and illegally executed, false and misleading. These documents are used in court cases as "real" documents of assignment and presented to the court as so, when it actually appears that they are fabricated in order to meet the demands of the institution that does not, in fact, have the necessary documentation to foreclose according to law."
In short order, What many homeowners don't know is the bank has to prove it has standing to bring a foreclosure action. Standing is the constitutional right for a party to appear to bring a case in court. Without standing, a party has no right to be in court. But in reality, the bank must prove that they in fact own and hold both the mortgage and promissory note, and thus have the right to foreclose.
Why is this a problem for banks? Because they are so disorganized that the documents are often lost or misplaced. An even bigger problem occurs when the original mortgage lenders sell the mortgages and notes and convert them into a securitized trust. When these mortgages are assigned to another bank or a securitized trust, the assignment of mortgage must be executed and notarized. Within these assignments, foreclosure defense attorneys are finding all kinds of problems that are leading to foreclosure cases being thrown out of court.
The Fourth District Court of Appeal, which covers South Florida,
adopted the Second District Court of Appeals ruling. A problem found in an assignment of mortgage that was recently thrown out by the court was especially astounding. The Plaintiff, U.S. Bank, filed a foreclosure action on December 6, 2007, based on an alleged assignment of mortgage dated as of December 5, 2007.
However, during the course of the litigation, the homeowner's attorney noticed that the Notary's commission was dated to expire on May 19, 2012. Pursuant to Florida law, notary stamps are only valid for 4 years. So, the notary that signed the assignment back on December 5, 2007 could not have had a notary stamp that expired in May of 2012.
This fact was confirmed by a sworn affidavit by the Notary Bonding Company's representative, confirming that this Notary's stamp was not issued until April 2008, five months after the purported date of assignment on the mortgage.
Based on this evidence, the judge found that the assignment was "fraudulently backdated in a purposeful, intentional effort to mislead the defendant and this court."
On these grounds, the Judge found the defendant homeowner was the prevailing party because the Plaintiff lacked standing to file the lawsuit on December 6, 2007, and granted the Defendant' attorney's fees as well.
Defending is Better - Don't Walk Away!
News such as this brings hope to many Florida homeowners and shows that defending a Florida foreclosure action is better than doing nothing at all. Additionally this teaches us we should never accept anything on its face and scrutinize every document produced by the banks to support their foreclosure complaint.
An argument can be made that Judges should be examining the authenticity of the documents produced by the Plaintiff before entering default and granting summary judgment against homeowners. However, in all likelihood, mistakes such as these are slipping through the cracks with the unprecedented number of foreclosure actions each judge has on their docket.
It's exactly these sort of problems that truly exemplify why it is in every Florida homeowner's best interest to defend their Florida foreclosure and not assume the court system will automatically protect their interests.