upside_down

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About upside_down

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  1. I filed a motion to reconsider. I hope the judge is kind to me.
  2. OK, I am now 3 months post discharge, and I filed BK7 6 1/2 months ago. My credit scores are not THAT bad. EQ 600 TU 574 EX 634 (FAKO) So, my EQ was 698, TU 699, EX 734. That means that I have dropped an average of 107 points. So far I have not accomplished a whole lot where rebuilding is concerned, except tally violations. I have enough FCRA violations at this point to start being a little tough. I got one of my two mortgages deleted from EX. One credit card had no balance, so I did not include them in the BK. I made a small purchase on it in March, and paid it off as soon as I got the statement. There are 9 negative TLs on TU and EQ, and 8 on EX. RTS letters are going out this week.
  3. One of my defenses is that they didn't attach the note to the complaint (which they still haven't done) and they have not produced the note OR mortgage. The only copy of the mortgage that they have produced is the one from the land records division of the county clerk, and that mortgage is not written in their name, and they have produced no assignment of mortgage, either.
  4. The court's order says: THIS CAUSE, having come before the Court without hearing upon the Defendant, and the Court having reviewed the motion and the file and finding that the Defendant, having made an answer to the Complaint, makes a request for dismissal of this action moot, and the Court being otherwise fully advised in the premesis, it is therefore ordered and adjudged that the Defendant's Motion to Dismiss is hereby DENIED. (That is the entire order) It looks like she is saying that I cannot file a motion to dismiss because I have already answered the complaint. (I filed my answer the same day) Here is the motion: Defendant's Motion to Dismiss a. Legal Standards 1. Fla. R. Civ. Pro. 1.420( provides, in pertinent part, that "[a]ny party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court." Thus, any judgment which is not in compliance with the Florida Rules of Civil Procedure is null and void. 2. The Florida Constitution gives the Florida Supreme Court complete authority to promulgate or rescind the Florida Rules of Civil Procedure. Specifically, Article V, Section 2(a) of the Florida Constitution provides that "[t]he supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought." See also Ser-Nestler, Inc. v. General Finance Loan Co. of Miami Northwest, 167 So.2d 230 (3d DCA 1964) ("Supreme Court is vested with sole authority to promulgate, rescind and modify the Florida Rules of Civil Procedure, which remain inviolate until changed by Supreme Court"), appeal dismissed 174 So.2d 35; State v. Battle, 302 So.2d 782 (3d DCA1974) ("language of the rules promulgated by the Supreme Court of Florida are binding upon the trial and appellate courts"); State v. Lyons, 293 So.2d 391 (2d DCA 1974) ("Supreme Court has right to adopt a rule at variance from its own precedents"). 3. On February 11, 2010 the Florida Supreme Court amended Fla. R. Civ. Pro. 1.11O( to read: [w]hen filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document shall include an oath, affirmation, or the following statement: Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief. Emphasis added. Thus, any mortgage foreclosure action filed after February 11, 2010 must be verified. The Supreme Court noted that: [t]he primary purposes of this amendment are: (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded "lost note" counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. In re: Amendments to the Florida Rules of Civil Procedure, No. SC09-1579, (Feb. 11, 2010). Furthermore, Fla. Stat. ยง92.525 provides that: (l) When it is authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner: (a) Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths; or ( By the signing of the written declaration prescribed in subsection (2). (2) A written declaration means the following statement: "Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true," followed by the signature of the person making the declaration, except when a verification on information or belief is permitted by law, in which case the words "to the best of my knowledge and belief' may be added. The written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration. See also Muss v. Lennar Florida Partners I, L.P., 673 So. 2d 84 (Fla. 4th DCA 1996). b. Argument 5. Here, the Plaintiff has failed to file a verified complaint. The instant action is one for foreclosure of residential real property which was initiated when the Plaintiff filed its Complaint on or about March 15, 2010 and therefore squarely comes within the authority of the revised Florida Rule of Civil Procedure. Nevertheless, the Plaintiff's Complaint does not contain an oath, affirmation, or the verification statement as required by Fla. R. Civ. Pro.1.110(. Because the Plaintiff's Complaint fails to contain any of these things, the Plaintiff's Complaint frustrates the purposes given by the Florida Supreme Court for the amendment to Rule 1.110(. WHEREFORE, because the Plaintiff has failed to file a verified complaint, the instant case must be dismissed.
  5. On February 11, 2010, the Supreme court of Florida ordered that all complaints for residential foreclosure had to be made under oath (FRCP rule 1.110(), and must contain the following statement, to be signed and notarized by the attorney filing the complaint: Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief. We were sued for foreclosure on March 15. We filed a motion to dismiss, because the complaint was no verified (made under oath). We just got the order in the mail, that our motion to dismiss was moot, and therefore denied. How can the judge simply ignore the Supreme court of the state like that? Is that grounds for appeal?
  6. Believe it or not, my BK attorney IS a NACBA attorney.
  7. They were listed, and my attorney said she is not interested in pursuing it, because she is too busy with new filings.
  8. My BK7 was discharged in Feb of this year. One of my creditors has continued to contact men, and even had a collector pull my CR from EX in March (3 and half weeks after discharge) with the listed PP of "Collection Purposes" I am looking for any sort of a sample that would be available so I can see how to word a request for sanctions against the creditor
  9. My point here is this: 1 SunTrust Mortgage states during the BK proceedings that THEY are the owner and holder of the note. 2 SunTrust then states 3 months later, during foreclosure proceedings that Federal National Mortgage Association is the owner of the note. 3 A month after I filed my MTD for lack of standing and claiming that SunTrust wasn't the owner, SunTrust then claims in filings through their MERS attorney that SunTrust is the owner of the note. 4 They still have people knocking on my door, asking me to call SunTrust Mortgage. 5 They still have it listed as a Chargeoff on my CR, even though I was never late on the mortgage until I filed BK. We will see what the court has to say.
  10. I don't want to reaffirm on the house. It is worth about $100K and I owe $235K. All I want is to make sure that the right lender (the one with the right to foreclose) is the one getting the house, so I don't have some other bank come after me a year from now.
  11. Isn't it illegal to leave anything in a mail box that has not actually been mailed?
  12. 1. Attorney files motion in BK case, claiming his client is the "owner and holder of the note and mortgage" and along with it, files an affidavit on the law firm's letterhead, supposedly signed by an employee of the creditor, claiming to support the same. The motion is granted, based upon the filing. 2. Attorney then files a complaint for foreclosure, stating that the very same client is not the owner, but has been authorized by the owner to file the action. There was no note or authorization attached to the complaint. After research, it is my belief that there are only three possible outcomes: 1 That the note was sold prior to my BK filing (or the affidavit). This means that the attorney knowingly filed a false affidavit on behalf of his client -OR- 2 That the note was sold AFTER the affidavit, but before the motion was granted. This is a violation of the automatic stay -OR- 3 The note was sold AFTER the motion allowing in Rem remedies was granted, which may be a violation of the permanent injunction. (and wouldn't make sense- who would buy a discharged debt?)
  13. The Plaintiff's attorney, an officer of the court, filed the papers. Remember that the attorney stated in the motion in the BK that the note belonged to his client so that his client would be granted the relief from stay, then in the foreclosure stated that the note DIDN'T belong to his client.
  14. and is it admissible? I filed BK7 in October, discharged in Feb. During the BK, my mortgage bank filed a relief from automatic stay, stating that they were the owner and holder of the note. They attached copies of the note and mortgage, along with an affidavit from a mortgage spec ialist at the bank, stating how much I owed, and stating that they were the owner and holder of the note. In march, the mortgage holder filed a foreclosure action with an unverified complaint, attaching the mortgage (naming MERS as the mortgagee, acting as nominee for the original lender) but not the promissory note. They also stated (in disagreement with their affidavits in the BK proceedings) that they are not the owner of the note, Federal National Mortgage Association is. There are only three possibilities here: 1. They lied in the BK affidavit and relief from stay motion, and committed a fraud upon the court. 2. They sold the note after the affidavit was written, but before the relief from stay was granted. Isn't that a violation of the automatic stay? or 3. They sold the note AFTER the relief from stay was granted. Since the relief from stay was for In Rem remidies only, this is also a violation of the automatic stay.
  15. I am posting this in case it helps someone who is going through a foreclosure. I filed BK7 in October, discharged in Feb. During the BK, my mortgage bank filed a relief from automatic stay, stating that they were the owner and holder of the note. They attached copies of the note and mortgage, along with an affidavit from a mortgage spec ialist (<----why is that word filtered?) at the bank, stating how much I owed, and stating that they were the owner and holder of the note. My wife did not declare BK, nor is she on the note or mortgage. In march, the mortgage holder filed a foreclosure action with an unverified complaint, attaching the mortgage (naming MERS as the mortgagee, not the bank) but not the promissory note. They also stated (in disagreement with their affidavits in the BK proceedings) that they are not the owner of the note, Federal National Mortgage Association is. In response, today I filed a motion to dismiss on the following grounds: 1. Plaintiff's failure to file a verified complaint as per FRCP rule 1.110( as modified 2/11/2010 2. Failure to attach all necessary instruments (the promissory note) to the complaint per FRCP rule 1.130(a) 3. Plaintiff lacks standing as they are not the owner of the note, and have not supplied documents to show they are a holder in due course. Plaintiff is only the servicer of the note, and as such merely collects and disburses payments to the true owner and holder, and derives no financial benefit from payments on the loan. 4. Plaintiff lacks capacity to bring the action, as they did not properly aver the identity of themselves or the purported owner of the note to bring an action in this court. My wife filed a separate answer and MTD arguning that she owes them no money, and that the Plaintiff has not established any cause of action against her, and further that the complaint should be dismissed for lack of the plaintiff to file a verified complaint.