Posted on January 8, 2010 by livinglies

See AOSC09-54_Foreclosures.

A good step in the right directions.

I would add that you should be very careful that you don’t get trapped into the “lender narrative.”
The Judges are going to very receptive and even enthusiastic about
referring these cases to mediation, so don’t annoy them with motions,
pleadings or hearings that attempt to circumvent the mediation process.
As for whether the order will be applied to existing cases, it remains
to be seen how Florida Judges react to this Administrative Order.

CAUTION: The “Lender narrative” tries to focus attention
exclusively on when you made your last payment and whether the
obligation was created when you purchased the financial product
(Mortgage Loan). It avoids all issues as to who is the creditor and how
you could get a FULL accounting of all financial transactions in the
securitization chain that either were or should have been allocated to
your loan or the pool to which your loan was assigned. (Their tactic
has been to keep the focus on the small window in which one servicer
was receiving payments from the homeowner, ignore payments made on
behalf of the homeowners, and to effectively bar you from inquiring as
to whether they received any money from bailouts, AIG, or even if they
turned over the payments you DID make to the creditor).

In order to avoid getting trapped into the “Lender
narrative” I would suggest a number of possible steps. First, of course
is get all your information together. There is an intake form on this
blog that gets you to create a narrative of your own mortgage
transaction. Second, get a forensic audit or review/analysis or TILA
audit. Third, get a declaration from an “expert witness”. Consult with
local counsel as this administrative order might be augmented by local
rules. Several Circuits have issued their own administrative orders
that have not yet been revoked or suspended.

If you are permitted to do so by the Judge, file a motion to
dismiss the foreclosure suit and if that is denied then file your
defenses, affirmative defenses and counterclaims. You don’t want to put
yourself in the position where you are are effectively in default and
give the plaintiff an opportunity to petition the court for entry of a
default final judgment.

Lastly, in ALL events, I would seek answers to the basic
questions: the identity of the creditor and the full accounting for ALL
transactions allocated or could be allocated to your loan or the pool
that your loan was alleged assigned. The QWR and DVL ought to
accomplish this but it is rarely regarded seriously by the Plaintiff
and Judges seem reluctant to enforce it because of their unfamiliarity
with RESPA, TILA, UCPA etc. So you might need to file interrogatories
that are limited to (I think) 25 questions including sub-parts. A
Request to produce would also be needed.

Preliminary discovery (Interrogatories, Request to Produce,
possibly Request for Admissions) should be directed at the single issue
of identifying the decision-maker who could attend mediation for the
“lender” side of the case.

Your position should be that as a result of the forensic
review and the advice of your expert, an issue of fact exists —
conflicting representations between those proffered or plead by
Plaintiff’s counsel and the information you have obtained from experts.
At this stage you should not try to win your case by having the Judge
agree with you that the foreclosure is a fraud. Stay away from that
assertion until you can really back it up.

point is simply that an issue of fact exists that affects the
mediation. Only true parties  to the dispute can be decision-makers.
Only the creditor is a true party with that power unless it has been
legally and irrevocably delegated to another party. Either way you need
the idenity of the creditor(s), their contact information and the
documentation that shows that the Plaintiff is empowered to make final
decisions regarding this loan.

You need to conduct limited EXPEDITED discovery
to either confirm the Plaintiff as the creditor or identify the
creditor. Recent news reports of suits against intermediaries by
bondholders and instructions from bondholders to fire servicers and
other intermediaries who breached their fiduciary duties to the
investors indicate a question of fact as to whether the party who filed
this suit is a creditor, representing a creditor with authority to do
so, whether they have decision-making authority and even whether the
attorney appearing represents the Plaintiff or any other party.

point is that there is a question of fact that must be answered in
discovery in order to proceed with compliance with the Supreme Court’s
Order and that you are only asking for information the Plaintiff should
already have
if they properly field the foreclosure
suit. You want the creditor’s name and contact information so you can
(a) attempt to settle privately (b) comply with Federal mandate on
seeking modifications, and (c) comply with Florida mandate on
mediation. How can you do this if the creditor is not present? How can
you enter into any agreement with a party whose authority to bind the
creditor is in question?

You might need to file a motion with the Court and notice it for
motion calendar. The motion would simply ask that you be permitted to
conduct expedited limited discovery to facilitate the mediation process.

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