The “A,B,C’s” of playing the odds and probabilities…by crooks, plaintiffs, and their foreclosure mill fraudsters

June 2nd, 2010 ·

What follows below is another excellent essay by a normal, everyday guy who’s getting hammered in this foreclosure process.  The thing that bothers me so much is he’s pointing out major, fatal assaults that my beloved courts are suffering every day at the hands of the Plaintifff’s mills.  I certainly care about my clients, but my much larger concern is how this entire system has degraded and defaced our courtrooms as painstakingly detailed in the essay that appears below:

Thieves are pretty slick, slicker than we often give them credit for. In deciding whether to commit a certain crime, many play the odds. They take a mathematical approach using probabilities. There have been interviews with career criminals in which they explain how they look at crime. They weigh the odds. For example, let’s look at a car theft. They know that if the steal a car, the probability of actually being caught is “A”, a certain percent of all stolen car crimes. If caught, they know that there is a high probability that their case will be dismissed over a “technicality”, call it “B”. If they actually go to trial, they know the probability that the prosecutor will be able to prove, beyond a reasonable doubt that they are guilty, is say “C”. If convicted, they know the probability of actually serving jail time is say “D”. If they receive jail time, the probability of serving their full sentence, remembering that the jails are overcrowded and budgets are strained, is “E”. They analyze these probabilities to determine the risk /reward ratio for committing any give crime. If the reward is far greater than the risk, they go for it.

I maintain that a similar thing is happening in the foreclosure process. The plaintiffs and the fraudsters that represent them play the odds and probabilities, just as the criminals described above. How so you might ask. Here is how.

It all begins with the state of the arena, the court system. The Court dockets are jammed. The Courts are overworked and unstaffed. There is little or no oversight regarding the legal sufficiency of foreclosure filings. Many Judges do not even have the time to review the file prior to hearings. In many cases, the first time the Judge even looks at the file is at the start of the hearing.  The plaintiff’s and the fraudsters from the foreclosure mills know this and they use it to their advantage, filing complaints that within their four corners are legally insufficient to even show standing to bring the cause of action.

They know that in the vast majority of the complaints they file, they will be unopposed, no one will even check their complaint or challenge the legal sufficiency of this. They know that in the vast majority of foreclosure cases, the defendants just walk away. Many do not have the financial resources to hire competent defense counsel, or the time, or wherewithal to mount a defense pro se. Many do not even answer the complaint. The fraudsters know this and they know that there is a low probability that they will even be opposed. Call this probability “A”.

They also know that even if opposed, it is highly improbable that most Judges will rule in a defendant’s favor on a valid motion to dismiss under the Florida Rules of Civil Procedure. They are so confident of this that when attending a hearing on a Defendant’s Motion to Dismiss, they often come to the hearing with a motion, ruling in their favor already prepared for the Judges’ signature.  They also know that even if a Judge should rule in the defendant’s favor, most Judges will cut them some slack and allow them to “correct” their complaint thus avoiding the dismissal. Call this probability “B”

Here is an interesting aside. It is common knowledge the Court budgets are strained, in fact all state and local governments’ budgets are strained. State and local governments are doing everything possible to cover their budget deficits. Filings fees have been increased, license tag fees have been increased, they have increased any an every fee possible. We have police officers hiding behind trees on almost every corner, trying to generate revenue from issuing traffic violations. With that in mind, perhaps the Courts could begin to reduce their case backlog and increase revenue by dismissing the complaints that are legally insufficient on their face in violation of the Florida Rules of Civil Procedure and the law. Maybe if the Courts started doing this and requiring the plaintiffs and the fraudsters representing them to re-file their complaints properly, paying a new filing fee to do so, they could kill two birds with one stone, clearing their backlog and increasing revenues as well. It would also force the plaintiffs and the fraudsters to be more careful in their filings in the future.  That being said, I will get back to the point I was making regarding the odds and the probabilities.

The plaintiffs and the fraudsters are also aware that if their record keeping has been sloppy, all they need to do is to “manufacture” the documents, such as assignments, in many cases fraudulent, that they need. They also know that in many cases these legally insufficient and even fraudulent documents will not even be challenged, especially by a pro se defendant. Call this probability “C”.

There are other odds they play with their “tricks on the Court” as well. They will file a request for default with the Court, claiming the defendant has not responded to the complaint, that the defendant has not filed any response with the Court or sent them any responses even though the Court docket and the physical file show that this is untrue and is in fact a lie. Personally, though expensive, this is why I send everything to opposing counsel certified mail, return receipt requested. They hope the Clerk will not check the docket or the physical file and will enter a default. Then the defendant will have to fight to undo the default. Hey, what does the plaintiff have to lose? If they get lucky and get a default great, if not, they won’t be sanctioned or penalized. Call this probability “D”.

They play other “tricks” as well such as “shifting counsel” periodically to maintain plausible deniability if case they are called on their “tricks”. They also fail to notice the defendant on selective filings with the Court and communicate ex parte with the Court more than anyone cares to admit. Call these probabilities “E”, “F”, and “G”.

Getting back to the manufactured and often fraudulent documents they create and file with the Courts, they also play the odds on these. They know that the defendant, especially one that is pro se probably will not challenge them, and even if they do, it is very difficult to prove they are fraudulent. This is especially true in that the plaintiff and their fraudsters often will not honestly and fully comply with discovery requests such as requests for admissions, for production, and interrogatories. They respond with legalese, refusing to comply, making it very difficult for the defendant to prove fraud or prepare a defense. They also know that even if caught red-handed, few judges will sanction them or dismiss the case with prejudice for unclean hands and fraud. Call these probabilities “H”, “I”, “J” and “K”.

I could go on but I think you get the picture. I will say one final thing. The big prize that the plaintiffs and their fraudsters seek is the “holy grail” of a summary judgment. They press on in this goal, acting as if the defendant and the defenses they have raised are irrelevant. If they can just obtain that “holy grail” then the defendant right to due process is immediately severed. They know that the average defendant, especially a pro se defendant, probably will not have the financial resources or the wherewithal to file an appeal, even when there are valid grounds for an appeal. They do not want to go to trial. Call these probabilities “L” and “M”.

The reality is, many of the plaintiffs in foreclosure do not have legal standing, they are deceiving and tricking the Court in believing they do using any means to the end they seek. There are many issues of law and fact that are virtually being ignored by the Courts and thousands and thousands of homeowners have lost and are losing their homes, often to a plaintiff that lacks standing and in reality has not suffered any loss and quite possibly is being unjustly enriched. The issues are very complex, even discounting the fraud being perpetrated on the defendant and the Courts. In the world of securitized mortgages, multiple undisclosed third parties, credit default swaps, pool loss insurance, TARP bailouts, Fannie Mae (FNMA) and Freddie Mac (FHLMC) bailouts, the toxic asset program, sloppy record keeping by the plaintiffs, bifurcation of mortgages from the notes they secure through improper endorsements and legally insufficient or even fraudulent assignments, etc., and these plaintiffs do not want to go to trial. They are counting on the Court to “trust what they say” and grant them that “holy grail” a summary judgment. After all, the fraudsters that represent them are “Officers of the Court” and we all know they are “sanctified”, “beyond reproach”, “bastions of truth” and would never do anything dishonest or unethical in violation of their Creed of Professionalism and Oath of Admission to the Florida Bar. They also know that if they do, no one will probably even know or if they are exposed with unclean hands, no one will likely do anything about it. In many cases, the Courts will even “wash their hands” for them.

They also play the odds regarding appeal as well as the many tricks and traps they often set along the away. The fraudsters know that if they can trick the Court into giving them a default or summary judgment. The likelihood of a defendant, especially a pro se defendant, having the financial resources or wherewithal to appeal is highly unlikely. They know the Court dockets are swamped and the Judges do not have the time to review in detail the documents in the file. They count on this. I have been to hearings in which the Judge has not even looked at or reviewed the file prior to the hearing. The fraudsters count on a fast track, often acting if the defendant is not even a party to the proceedings, counting on the Judges to do their bidding.

Personally, I feel that it is imperative that our Courts must implement some sort of independent review of every single foreclosure file, carefully examining the files for fraud and legally insufficient documents, with a report back to the Judge in the case their findings. Retired Judges, retired attorneys, law students, legal interns, pro bono attorneys, etc. could be a source of manpower for this effort. If this were to be done, and more Judges issued sua sponte rulings, dismissing these legally insufficient cases and those in which fraud has been committed, sanctioning the appropriate parties, the Court backlog could be reduced. In addition there would be many other benefits, the defendants’ Constitutional rights would be better protected and the fiscally stressed Court systems could increase their revenue stream by forcing the plaintiffs to pay additional filing fees to re-file their cases as verified complaints in compliance with the law and the Florida Rules of Civil Procedure.

This is not rocket science; something must be done and can be done. Every day that the Courts neglect addressing the current situation and allow the fraud to continue, is another day in which a mockery is being made of our justice system , while many people are losing their homes without due process, in violation of their Constitutional rights.  Who will stop this madness?

Grady Sykes

Pro se defendant