Crooked attorney Neil Garfield, ever concerned about public exposure to crooked or incompetent attorneys, writes to readers of his Living Lies blog:
Warning: Conduct your Due Diligence on ANY Attorney you Hire
by Neil Garfield Before you hire ANY attorney for a phone consultation, to conduct an analysis of your case, or retain them to represent you, please conduct your due diligence first. A simple google search with their name will usually suffice.
In fact, before you hire Neil Garfield for a consultation, case analysis, or other legal matter I suggest you conduct your due-diligence like you would when hiring any professional.
Always use caution if the Bar has publicly reprimanded an attorney.
JAX DAILY RECORD MONDAY, AUG. 1, 2016 12:00 PM EST
Supreme Court disciplines 32 attorneys
The Florida Supreme Court disciplined 32 attorneys — disbarring six, revoking the licenses of two, suspending 16 and publicly reprimanding eight.
Two attorneys were also placed on probation and another was ordered to pay restitution.
The attorneys are: […]
Neil Franklin Garfield, Parkland, to be publicly reprimanded. (Admitted to practice: 1977) In at least four instances, Garfield accepted money to represent clients and failed to follow through. In one case, Garfield did not perform the work and, when asked for a refund, denied knowing the client. In other cases, he failed to communicate, charged excessive fees, failed to return refunds upon request and failed to timely respond to Bar inquiries.
Frivolous Filings and Bogus Legal Theories
Neil Garfield’s frivolous filings and bogus legal theories have already cost at least one client, Zdislaw Maslanka, a wad of attorney fees in an utterly frivolous action to get his house free even though he remained current in his mortgage payments. As the docket entries below show, the Florida 4th District appellate panel affirmed the 17th Circuit’s dismissal of the case and ordered Maslanka to pay the attorney fees of the two mortgage creditors that he sued.
4D14-3015-Zdzislaw E. Maslanka v. Wells Fargo Home Mortgage and Embrace Home Loans
Affirmed Per Curiam Affirmed
Order Granting Attorney FeesUnconditionally
ORDERED that the appellee Embrace Home Loans Inc.’s September 2, 2015 motion for attorney’s fees is granted. On remand, the trial court shall set the amount of the attorney’s fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee
Order Granting Attorney FeesUnconditionally
ORDERED that the appellee Wells Fargo Home Mortgage’s September 3, 2015 motion for attorneys’ fees is granted. On remand, the trial court shall set the amount of the attorneys’ fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee.
Last but not least, here is the text of an 8-page report that Neil Garfield charged Vincent Newman THOUSANDS of dollars for, advising a foreclosure defense and TILA rescission strategy. Newman obtained a pick-a-pay loan in 2010 to purchase a home, then defaulted. Garfield idiotically suggested mailing a notice of TILA rescission in 2016, and then suing to enforce it, without regard to the fact that the TILA statute of repose of 3 years for conditional rescission had already tolled, and the creditor had not violated TILA. Garfield thereby illustrated his delusional misunderstanding of conditional TILA rescission which the law allows only for non-purchase-money loans like refinances and HELOCS in which the creditor failed to give the borrower required disclosures of the right to cancel and the cost of the loan not more than $35 understated. No such TILA violation occurred in Newman’s case. Thus, Neil Garfield’s incompetent advice, had Newman heeded it, would have caused Newman expense and embarrassment through a frivolous, failing TILA rescission effort.
Keirans propounded the same lame excuse as the Jesinoskis. They signed an acknowledgment of receipt of Right to Cancel disclosures, and later gave the court an affidavit claiming they only received one copy, instead of two, each. They appealed the judgment against them to the 8th circuit, then to SCOTUS which granted cert and remanded for consideration in light of Jesinoski. After trial and appeal, the 8th circuit affirmed the trial court’s denial of rescission and damages.
Keiran relied on the same false legal theory that you have espoused for years about TILA rescission, and yet, in the wake of Jesinoski, SCOTUS, the 8th Circuit, and USDC all agree that TILA rescission does NOT work the way you wish it did. The borrow gets NO 3-year right of rescission UNLESS a TILA violation occurred.
The SCOTUS instructs you from the Jesinoski opinion:
“The Truth in Lending Act gives borrowers the right to rescind certain loans for up to three years after the transaction is consummated. The question presented is whether a borrower exercises this right by providing written notice to his lender, or whether he must also file a lawsuit before the 3-year period elapses.”
There you have the question before the court: does conditional TILA rescission written notice or notice plus lawsuit within 3 years after consummation? Now the fun part, where SCOTUS explains TILA’s extended, conditional right to rescind requiring a TILA violation:
“Congress passed the Truth in Lending Act, 82 Stat. 146, as amended, to help consumers “avoid the uninformed use of 792*792 credit, and to protect the consumer against inaccurate and unfair credit billing.” 15 U.S.C. § 1601(a). To this end, the Act grants borrowers the right to rescind a loan “until midnight of the third business day following the consummation of the transaction or the delivery of the [disclosures required by the Act], whichever is later, by notifying the creditor, in accordance with regulations of the [Federal Reserve] Board, of his intention to do so.” § 1635(a) (2006 ed.).[*] This regime grants borrowers an unconditional right to rescind for three days, after which they may rescind only if the lender failed to satisfy the Act’s disclosure requirements. But this conditional right to rescind does not last forever. Even if a lender never makes the required disclosures, the “right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever comes first.” § 1635(f).”
My point: Neil Garfield, you have bloviated that SCOTUS, when it gets a case like Jesinoski back, will agree with YOUR interpretation of TILA rescission law, that a TILA violation is not a condition of the extended right to rescind. Well, SCOTUS did get precisely such a case in 2015 (Keiran), and the justices and the 8th Circuit panel made it clear that NO 3- year right of rescission exists in the absence of a TILA violation.
But who needs the Keiran opinion when Justice Scalia explained conditional TILA rescission PERFECTLY in the Jesinoski opinion?
Mortgage loan borrowers Larry and Cheryle Jesinoski received Truth in Lending Act (“TILA”) disclosure documents at their loan closing. Pursuant to TILA and its regulations, borrowers may rescind their loan within three days of closing, but the rescission period extends to three years if the lender fails to deliver “the required notice or material disclosures.” 12 C.F.R. 1026.23(a)(3)(i); see also 15 U.S.C. § 1635(a), (f). Admitting that the lender delivered the required notice (the “Notice”) and material disclosures, but arguing that the lender did not provide the required number of copies, the Jesinoskis sought to rescind their loan on a date just shy of the three-year anniversary of loan execution.
The lender denied rescission, asserting the Jesinoskis had signed an acknowledgment indicating receipt of the required disclosures. The Jesinoskis sued more than three years after closing, alleging TILA violations. The district court dismissed the action as untimely, holding that, even if the three-year limitation period applied, borrowers must file suit and not merely provide notice within the three-year time period. On appeal, our court affirmed, recognizing that our circuit had already taken a position on this issue within an existing circuit split. Jesinoski v. Countrywide Home Loans, Inc., 729 F.3d 1092, 1093 (8th Cir. 2013) (per curiam). The Supreme Court granted certiorari and reversed, holding the three-year limitation period applied to the provision of notice rather than the filing of suit. Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790, 792 (2015).
On remand, the district court granted summary judgment, concluding the signed acknowledgment created a rebuttable presumption that the Jesinoskis had received the required number of copies. The court also concluded the Jesinoskis failed to generate a triable question of fact rebutting the presumption. We affirm.
I write in response to your comments at your blog article TILA RESCISSION: The Bottom Line for Now and to correct some of your misapprehensions about the Truth in Lending Act. First of all, your enumerations made some good points, But then it made some not so good. Your main baseless contention is that a borrower has the right to rescind under TILA for any reason or no reason at all after 3 days after consummation of the loan. That is dead wrong, for very good reason – it violates the stated purpose of TILA, AND it abuses honest lenders
Your first problem is myopia. You said TILA was enacted “to prevent unscrupulous banks from screwing consumer borrowers.” That is only partly true. Congress stated the purpose of TILA in 15 USC 1601:
“It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices.”
The first purpose of TILA is to enable consumers to compare credit terms.
The second purpose of TILA is to protect consumers from inaccurate and unfair billing and credit card practices.
Let us review 15 USC 1635, Rescission. (a) explains the borrower’s 3-day right to cancel and the creditor’s obligation to provide disclosures of that right and rescission forms to each borrower. (b) explains the loan unwinding or rescission process of lien release and mutual tender. (c) acknowledges the rebuttable presumption of disclosures in the event the borrower signed a receipt. (d) empowers the CFPB to modify or waive rights in a borrower financial emergency. (e) exempts purchase money and certain other loan activities from TILA rescission. (f) extends the rescission window to 3 years after loan consummation, or until sale of property or one year after final disposition of a rescission dispute by the court. (g) empowers the courts to award the borrower with relief in addition to rescission for creditor violations of TILA. (h) limits rescission on the basis that creditor supplied imperfect forms that still comply with regulations. (i) allows the borrower to rescind in connection with foreclosure.
It is just plain common sense that the 15 USC 1635(a)(b) TILA 3-day right to cancel a consumer loan that puts the family home at risk does not presume that the creditor is trying to screw the borrower. Rather, it allows the borrower to change his mind if he finds a more attractive loan deal or just gets “buyer remorse.” That comports with and fulfills the first purpose of TILA above.
The 3-year right to rescind fulfills purpose #2 above. Thus, the right to rescind under 15 USC 1635(f) gets triggered ONLY by a creditor breach of TILA through failure to give the borrower the requisite, timely, and accurate disclosures. The regulation at 12 CFR 1026.23(a)(3)i cements the principle in the following language:
“The consumer may exercise the right to rescind until midnight of the third business day following consummation, delivery of the notice required by paragraph (b) of this section, or delivery of all material disclosures, whichever occurs last. If the required notice or material disclosures are not delivered, the right to rescind shall expire 3 years after consummation, upon transfer of all of the consumer‘s interest in the property, or upon sale of the property, whichever occurs first. In the case of certain administrative proceedings, the rescission period shall be extended in accordance with section 125(f) of the Act.”
You see, ONLY failure to deliver the required notice of material disclosures TRIGGERS the right to rescind within a repose window of 3 years following loan consummation, as above.
THIS is where Neil Garfield’s humbug TILA rescission theory blows a gasket and hits the skids. HE thinks the borrower may rescind after 3 days even if the creditor perfectly complied with TILA disclosure requirements.
Thus, Neil Garfield is DEAD WRONG in his assessment of TILA rescission law. Every court in the land that has ruled in a related TILA rescission case has allowed post-3-day rescission ONLY in the face of a TILA breach.
Neil Garfield confesses to that reality, of course. But he says all of those judges got it wrong, and that some day the SCOTUS will vindicate him with an opinion that supports Garfield’s Don Quixote Windmill Tilting Theory of TILA Rescission against creditors who did no wrong.
I have to burst your bubble here, Neil. THAT will NEVER HAPPEN. NOT EVER. Only a BOZO judge would ever agree with your Don Quixote Windmill Tilting TILA Rescission Theory.
Neil Garfield doesn’t stop there. He seems to think that TILA rescission applies to purchase money loans, and that borrowers get the right to rescind by mailing a rescission notice way after the 3 year repose window slammed shut, such as 8 years after consummation. Why? Because, he asserts that nobody really knows when the loan was consummated because nobody really knows who the lender was, and consummation can happen months or years after the borrower signed the loan documents.
To make it worse, he maintains that the outside-the-window, unjustified rescission deprived the court of jurisdiction because it voided the note and security instrument.
I’m bursting your bubble again, Neil, so take note. A controversy over a rescission gives the court jurisdiction. Furthermore, TILA rescission statutes 15 USC 1635(b) and (g) BOTH mention court involvement:
“(b) Return of money or property following rescission. …The procedures prescribed by this subsection shall apply except when otherwise ordered by a court.”
“(g) Additional relief. In any action in which it is determined that a creditor has violated this section, in addition to rescission the court may award relief under section 1640 of this title for violations of this subchapter not relating to the right to rescind.”
“The procedures outlined in paragraphs (d)(2) and (3) of this section may be modified by court order.”
Quite apparently, the lawyers of Congress and the Executive Branch both anticipated that controversies will arise when a borrower tries to rescind without justification well into the loan period.
Neil Garfield seems to think that the creditor bears the onus of suing to prevent the rescission. That is not true either. If, after the borrower mails a rescission notice, the creditor who did no wrong refuses to release the lien or tender, the borrower has no choice but to sue or wait till the creditor forecloses to raise the rescission issue. And the borrower must do that timely, within a year after mailing rescission notice or initiation of foreclosure. Usually, the borrower stops making payments after mailing the rescission notice, and in due course the creditor forecloses, giving the borrower a chance to bring the rescission to a head.
If the creditor breached TILA and balks at releasing the lien after receiving the borrower’s rescission notice, the borrower can sue for statutory and actual damages. That is just, for a failure to release the lien prevents the borrower from refinancing in order to tender. Neil Garfield gets that part right. And enabling the borrower to refinance for tender constitutes the reason that Congress, in crafting TILA rescission law, reversed the common law tradition requiring the borrower to tender first in a rescission.
Take note, Neil Garfield. The courts do not punish creditors who can prove perfect compliance with TILA and yet refused to release the lien or tender upon receipt of the notice of rescission more than 3 days after consummation. The courts punish borrowers, just as the trial court punished the Jesinoskis, by denying their rescission effort because the creditor proved compliance with TILA.
Remember the SCOTUS Jesinoski opinion. The trial court had not reached the question of a TILA violation because it heeded 8th Circuit precedent that the borrower had to sue within 3 years after consummation, and more than 3 years had passed. THAT was the question for SCOTUS: must the borrower sue within 3 years IN ADDITION to mailing notice of intent to rescind within 3 years? SCOTUS answered NO, and remanded with this language:
“The Jesinoskis mailed respondents written notice of their intention to rescind within three years of their loan’s consummation. Because this is all that a borrower must do in order to exercise his right to rescind under the Act, the court below erred in dismissing the complaint. Accordingly, we reverse the judgment of the Eighth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. “
The bank filed a motion for summary judgment, and the court opined:
“Because Plaintiffs have failed to point to evidence creating a genuine issue of fact that they could tender the unpaid balance of the loan in the event the Court granted them rescission, their TILA rescission claim fails as a matter of law on this additional ground… For the reasons discussed above, Plaintiffs’ TILA claim fails as a matter of law. Without a TILA violation, Plaintiffs cannot recover statutory damages based Defendants refusal to rescind the loan. 1. Defendants’ Motion for Summary Judgment (Doc. No. ) is GRANTED. 2. Plaintiffs’ Amended Complaint (Doc. No. ) is DISMISSED WITH PREJUDICE.”
You see, Neil, courts have very good REASON for disagreeing with your Quixotic theory of rescission: it makes no sense to allow borrowers to rescind loans after disbursement of funds in the absence of a TILA violation or fraud in the transaction. Anyone understands this who has read the TILA opening statement of purpose which I recited above.
Let’s get to the real bone of contention here. I flat don’t care whether you ballyhoo foolish, frivolous, and failing legal theories such as your notions about unjustified TILA rescission. If you were an old farmer yakking about it with other farmers over a game of dominoes as you pass around a jug of cider, it wouldn’t matter at all.
But, Neil, YOU are not ME! I could get away with such nonsense, but YOU CANNOT!
You pass yourself off as an authority in the LAW, a learned man, someone whose legal opinions people should heed. And yet you know that because courts rule against your quixotic idea of TILA rescission, anybody who propounds your delusional theory will LOSE, at the cost of many thousands of dollars in fees (his own and his adversaries’), and then will lose his house to foreclosure if he tried to rescind wrongfully, such as after 8 years or in the face of no TILA violation.
Here’s the shame of your method. You shamelessly promote your TILA Rescission Package for $3000 or thereabout. After reading your theory a person would have to be an idiot to pay 25 cents for it, much less three grand. Sadly, such idiots abound, I guess. Otherwise, why do you continue to promote the package.
Don’t you worry that someone might report you to the Florida Bar for knowingly violating competence, diligence, and candor requirements?
Probably the main fallacy of the people who say that TILA Rescission is not possible or viable is that they project the outcome of a lawsuit to vacate rescission. Based upon their conjecture, they assume that Rescission is no more than a technicality. Congress, and SCOTUS beg to differ. It was enacted into law 50 years ago in an effort to prevent unscrupulous banks from screwing consumer borrowers.
Let us help you plan your TILA RESCISSION narrative and strategy: 202-838-6345. Ask for a Consult.
Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
I keep getting emails from non lawyers who have a “legal opinion” that not only differs from mine, but also the opinion of hundreds of lawyers who represent the banks and servicers. They say that because disclosures were probably made that rescission is nothing more than a gimmick that will never succeed and they point to the many case decisions in which courts have ruled erroneously in favor of the banks despite a rescission that eliminated the subject matter jurisdiction of the court, since the loan contract, note and mortgage no longer exist. The debt, however, continues to exist even if it is unclear as to the identity of the party to whom it is owed.
First the courts ruled erroneously when they said that tender had to be made before rescission was effective. Then the courts said that no rescission could be effective without a court saying it was effective. That one put the burden on proving the figure to make proper disclosure on the homeowner. The Supreme Court of the United States, (SCOTUS — see Jesinoski v Countrywide) after thousands of decisions by trial and appellate courts, told them they were wrong. As of this date, no court has ever ruled that the rescission was vacated — the only thing that could stop it.
The lay naysayers keep harping on how wrong I am about rescission. Unfortunately many people believe what they read just because it is in writing. In my case I simply instruct the lawyers and homeowners to simply read the TILA Rescission statute and the unanimous SCOTUS decision in Jesinoski. What they will discover is that I am only repeating what they said — not making it up as some would have you believe.
To the naysayers and all persons in doubt, i say the following:
As I have repeatedly said, in practice you are right, for the time being.
But the legal decision from SCOTUS will undoubtedly change the practice. The law is obvious and clear. SCOTUS already said that. So no interpretation is required or even permissible. SCOTUS said that too. TILA Rescission is mainly a procedural statute, not a substantive one. SCOTUS said that too. On the issue of when rescission is effective, it is upon mailing (USPS) or delivery. SCOTUS said that too. On the issue of what else a borrower needs to do to make TILA rescission effective, the answer is nothing. SCOTUS said that too.
Hence the current argument that you keep making is true “in practice” but only for the moment. SCOTUS will soon issue another scathing attack on the presumptuous courts who defied its ruling in Jesinoski. There can be no doubt that SCOTUS will rule that any “interpretation” that contradicts the following will be void, for lack of jurisdiction, because the loan contract is canceled and the note and mortgage are void:
No court may change the meaning of the words of the TILA Rescission statute.
Rescission is law when it is mailed or delivered.
Other than delivery no action is required by the borrower. That means the loan contract is canceled and the note and mortgage are void. They do not exist by operation of law.
Rescission remains effective even in the absence of a pleading filed by the borrower to enforce it.
Due process is required to vacate the rescission. That means pleading standing and that proper disclosure was made, an opportunity for the borrower to respond, and then proof that the pleader has standing and that proper disclosures were made.
Pleading against the rescission must be filed within 20 days or it is waived.
At the end of one year both parties waive any remedies. That means the borrower can no longer enforce the duties imposed on the debt holder and the debt holder may no longer claim repayment.
The only claim for repayment that exists after rescission is via the TILA Rescission statute — not the note and mortgage. This is based upon the actual debt, not the loan contract or closing documents.
Any claim for repayment after rescission is predicated on full compliance with the three duties imposed by statute.
A court may — upon proper notice, pleading and hearing — change the order of creditor compliance with the three duties imposed upon the debt holder. This does not mean that the court can remove any of the duties of the debt holder nor summarily ignore the rescission without issuing an order — upon proper notice, pleading and proof — that the rescission is vacated because the proper disclosures were made or for any other valid legal reason that does not change the wording of the statute.
The three duties, which may not be ignored, include payment of money to the borrower, satisfaction of the lien (so that the borrower might have an opportunity to refinance), and delivery of the original canceled note.
Virtually 100% of lawyers for the banks and servicers agree with the above. They have advised their clients to file a lawsuit challenging the TILA Rescission because such a lawsuit could be easily won and would serve as a deterrent to people attempting to use TILA rescission as a defense to collection or foreclosure efforts. Yet their clients have failed to follow legal advice because they know that they have no debt holder to whom funds can be traced. If they did identify the debt holder(s) they would be showing that they played just as fast and loose with investor money as they have done with the paperwork in foreclosures.
Does this mean a free house to homeowners? Maybe. Considering how many times the loans were sold directly and indirectly, and how many times the banks received insurance, bailout and purchases from the Federal Reserve, that wouldn’t be a bad result. But the truth is that everyone knows that won’t happen unless the courts continue their decisions with blinders on.
In the end, the homeowners do owe money to the investors whose money was used too fund the loans, directly and indirectly. Whether it is secured or not may depend upon state law, but as a practical matter very few borrowers would withhold their signature from a valid mortgage and note based upon economic reality.
Please pass my comments below on to J. Guggenheim, author of the recent screed at the LivingLies blog complaining about the Florida’s 3rd DCA opinion ordering the foreclosure in HSBC v Buset.
Florida’s 3rd Circuit panel echoed similar rulings all over the country as it trounced the specious arguments of the amateur litigators of HSBC v Buset.
“Amateur?” you ask. “Really? You mean Florida attorney Bruce Jacobs, and his muse attorney Neil Garfield?”
Yes, I mean EXACTLY THAT. Those attorneys are AMATEURS. Why? Because they lodged arguments that foreclosure pretense defense attorneys across the land have lodged in their failing efforts to buck against a rightful foreclosure of a mortgage loan that the borrower breached by failing to make timely payments. Only amateurs do something so stupid that has such predictable results.
Oh yes, the amateur did a fake Easter Egg hunt and found the colorful, fake eggs in the form of robosigning, fake “legal” expertise from an out-of-state attorney witness, fake unclean hands, fake inadmissibility of legitimate business records, irrelevant violations of the PSA, irrelevant broken chain of note ownership during securitization, and fake application of UCC article 9 non-negotiability of the note. He somehow got the trial court judge to embrace those absurdities, and send HSBC forth without day, forgetting the 1872 SCOTUS opinion in Carpenter v Longan that the mortgage follows the note. But the 3rd district panel sent that judge back to foreclosure law school for a much needed lesson, and ordered her to deliver a final judgment of foreclosure.
And here’s the ultra-bad news for the borrowers, the Busets: HSBC will demand and get legal fees because the Florida uniform mortgage security instrument says the borrower must pay costs of collecting the debt, and those costs include legal fees.
Guggenheim complains, “The court is methodically eroding every resource and tool a homeowner has and interfering with due process… The court is basically telling loan servicers to perfect their crime before they file to foreclose and the court will facilitate their crime spree.”
No, the court is NOT doing that. It is explaining what was never a resource or tool to begin with, and is making these points:
The note holder or his agent has the right to enforce the note;
The convolutions of robosigning and securitization have no bearing on the foreclosure process, especially when the note was endorsed in blank; and
If you want to beat the bank, show how the borrower got INJURED in the loan transaction.
One might mistakenly think that an attorney who specializes in foreclosure defense would become competent at item 3 above. In reality, such attorneys never develop that expertise because they prefer to bilk the client for a losing foreclosure defense than to do the study and work required to find and prove injuries in the appraising, mortgage brokering, lending, closing, and servicing processes.
For that, the borrower needs a competent MORTGAGE EXAMINER. And then maybe some adventurous attorney will develop the evidence of injuries from the examination report into cogent causes of action with which to hammer the injurious parties into a settlement, or competently argue them before a court of law and obtain monetary awards for the injured borrower.
THAT is what borrowers want from their foreclosure pretense defense attorneys. And strangely, that is what none of them seem inclined to deliver.
Meanwhile, let’s set the record straight. the 3rd District panel did not abuse the Busets. Their attorney did. He, in his blind and Quixotic arrogance, charged ahead with frivolous arguments and cost his clients a small fortune for the privilege of losing their home to foreclosure when, had he done as I recommend above, he might have won money damages for them.
Clearly you don’t understand the American Rule, or you wouldn’t complain. That rule provides that each party is responsible for paying its own attorney fees unless specific authority granted by statute or contract allows assessment of fees against the other party.
The Florida uniform mortgage security instrument does provide the creditor with the right to recover from the borrower all costs of collecting the mortgage debt, including attorney fees. If Sabidos wanted the same right, they should have written it into the security instrument before signing it.
Florida Statute 57.105 provides for sanctions and recovery of attorney fees by a party that raised unsupported claims. You know about that law first hand because the appellate court awarded recovery of fees to the creditors you sued in the Maslanka case because you lodged unsupported (some might say delusional) claims on behalf of Zdzislaw Maslanka.
The Sabido court based its opinion on the following:
“The borrowers’ motion for fees is denied because the Bank of New York Mellon was not a party to the note and mortgage, and because the borrowers successfully argued that the Bank of New York Mellon was not entitled to enforce the instrument containing the attorney fee provision.”
Ooops. Maybe the Sabidos should have asked the court to sanction Bank of New York Mellon for lodging an unsupportable claim. In this case, the borrower stuck his hand in the wrong cookie jar.
A few months ago, attorney Neil Garfield wrote a glowing endorsement of the Florida 11th Circuit trial opinion in HSBC v Buset sending forth HSBC without day for a variety of reasons, none of them sensible. The Stop-Foreclosure blog echoed Garfield’s sentiment. In due course the Florida 3rd District Court of Appeals overturned all of the holdings of the Buset opinion, and remanded the case back to trial court for a final judgment of foreclosure, holding the following:
The trial court erred in accepting expert testimony on legal issues;
The note is not merely a secured interest under UCC Article 9, but rather a negotiable instrument under UCC Article 3 and Florida law, in spite of its reference to the mortgage without incorporating it, and the definition of Note Holder does not destroy negotiability of the note;
HSBC, as note holder and “PETE” (Person Entitled To Enforce the note under the UCC) or agent of the PETE, had standing to foreclose, irrespective of the incomplete or broken chain of ownership of the note during its securitization, and does not need to prove ownership or an unbroken chain of ownership of the note, AND the trial court erred by focusing on the irrelevant chain of ownership of the note instead of the relevant PETE;
Purported violations of the Pooling and Servicing Agreement (PSA) are irrelevant to the PETE status of the note holder and did not destroy HSBC’s standing to sue for foreclosure because borrowers are not parties to or beneficiaries of the PSA, and therefore borrowers may not raise PSA violations as defenses to foreclosure
Assignment of the mortgage did not destroy HSBC’s standing to foreclose because the mortgage always follows the note and the PETE always has authority over the mortgage.
The servicer’s business records were admissible, and the trial court erred by blocking admission of borrower payment history, default letters, and payoff printout.
HSBC did not have unclean hands justifying dismissal
What does this prove?
Well, to begin with, borrowers facing foreclosure cannot trust attorneys like Bruce Jacobs and Neil Garfield to save them from foreclosure. They will just make failing arguments, and waste a lot of money while leading their victim into the hungry jaws of foreclosure.
Second, it suggests that borrowers must find out how the creditor, servicer, lender, mortgage broker, loan officer, title company, or appraiser injured them in the loan transaction, and then GO ON THE ATTACK.
Where do we find such a strategy in action?
In foreclosure activities across the land every business day. The borrower injures the creditor by breaching the loan agreement, so the creditor files a foreclosure lawsuit or takes the case to the trustee, and a foreclosure and sale of the property follow in due course.
Of course, creditors and their allies in the loan transaction make a host of errors in most loans, and if the borrower hires a competent examination firm like Mortgage Fraud Examiners to look for tortious conduct, legal errors, contract breaches, or violations of law, the examination will turn up injuries (typical of 95% of the loans in the past 15 years). Some of the injuries might justify huge compensatory and punitive damages.
Don’t expect a foreclosure pretense defense attorney to look for causes of action in a loan transaction. Such attorneys usually bilk their clients and withdraw from the case just in time for foreclosure.