DEFEATING FORECLOSURE: IS YOUR BANK ACTING UNDER FRAUD??
homestead services
Florida has one of the highest foreclosure rates in the country.
Is your bank operating under fraud??
I can’t tell you how many calls that I get from homeowners asking me
if there is any way that they can prevent foreclosure. One very
important issue is normally in the complaint that is filed by the
plaintiff (bank) in a case.
Typically what I have seen is that most of the foreclosures are based
on blatant, premeditated fraud by the banks and mortgage companies. In
their complaint, there may be a paragraph that states "the original
note has been lost or misplaced" this may be true or maybe a blatant
lie but it is the real issue to challenge the plaintiff's complaint by
filing a petition for discovery and/or deposing the bookkeeper for the
bank and getting down the "brass facts" of what really happened to the
original note.
There has been more and more federal cases surfacing in which some
(honest) federal judges are dismissing the plaintiff cases for lack of
standing or jurisdiction because they cannot produce the original
mortgage note.
In Florida, Florida’s best evidence rule “requires that when the
contents of writing … are being proved, an original must be offered
unless a statutory excuse.
The Florida Evidence Code provides that Except as otherwise provided
by statute, an original writing, recording, or photograph is required
in order to prove the contents of the writing, recording or
photograph. § 90.952, Fla. Stat. The requirement of an “original”
ensures that the evidence presented is an accurate transmittal of the
critical facts contained within it. See McKeehan v. State, 838 So. 2d
1257, 1260 (Fla. 5th DCA 2003). the “original writing is required
because oral testimony may be inaccurate [or] fraud may result.” C.
Ehrhardt, Fla. Evid. § 952.1. See also U.S. v. Howard, 953 F.2d 610,
613 (11th Cir. 1992).
The Evidence Code, however, does permit the introduction of duplicates
under certain circumstances:
A duplicate is admissible to the same extent as an original, unless:
….
(2) A genuine question is raised about the authenticity of the
original or any other document or writing.
(3) It is unfair, under the circumstance, to admit the duplicate in
lieu of the original. § 90.953, Fla. Stat. Thus, for the copies of the
purported Holder paper to be admissible, (a) the copies must be
“duplicates,” (b) no genuine question can exist regarding
authenticity; and (b) it must be fair to admit the paper in lieu of
the original. When there is insufficient proof to establish that the
photocopy is the same as the original, the evidence must be excluded.
A duplicate may not be admitted into evidence if there is “genuine
question is raised about the authenticity of the original or any other
document or writing.” § 90.953(2), Fla.
Stat. As a leading treatise on Florida evidence explains,
If there is a genuine question concerning the authenticity of the
duplicate, the duplicate is not admissible under section 90.953(2).
For example, if a defendant alleges that he did not sign a contract
upon which the plaintiff sued, but rather signed a different contract,
a genuine question is “raised about the authenticity of the original”
and the duplicate is not admissible under section 90.953(2). The
original must be offered unless an adequate excuse for its non-
production is demonstrated under section 90.954.” See: C. Ehrhardt,
Fla. Evid. § 953.1 (2004).
The bottom line is "proof of claim" , the burden of proof falls back
into the lap of your bank - if your bank cannot provide prima facie
evidence that they do not have standing or jurisdiction to sue you in
a foreclosure action. Furthermore, it makes your bank subject to
counter-claim under false claim act 31 U.S.C. § 3729 (federal) or
Florida False Claims Act 68.081-68.09, not to mention, violations of
FDCPA, FTC "deceptive business practices" and "fraudulent
presentments", SEC, and mail fraud, etc.
The court recognized that the debtor had the necessary motive to
fabricate the “letter” to serve his own self-interest. Some banks have
sold the original note in asset backed trust pool to international
investors. Similar to "factoring" where the note is sold for a
discounted price or cash to a new owner.
The biggest hurdle that any pro-se litigant or non-attorney faces
today is the corruption of our courts but don’t give up - winners
never quit and quitters never win. Fight for your rights and for your
home.
Ten Tips for Success in Court: by Fredrick graves, Esq.
1. Deserve the Judgment You Seek
2. Follow the Rules
3. Make Everyone Follow the Rules
a. Rules of Civil Procedure
b. Rules of Evidence
c. General Legal Principles
d. Common-Sense & Reason
4. Allow No Monkey-Shines!
5. Demand the Truth
a. Require Sworn Testimony
b. Verify Pleadings & Motions
6. Make an Effective Record
c. Use Well-Paid Court Reporters
b. Do Not Go Off-the-Record
7. Use Simple Sentences
8. Manage Your Own Case
a. Don't Allow Opponent Control
b. Don't Allow Court Direction
9. Expect a Favorable Judgment
10. Demand Your Right to Win!
NEVER GIVE IN AND NEVER GIVE UP!
If anyone has any questions, feel free to contact us at:
(941)822-4663 OR IN...@HOMESTEADSERVICESFLORIDA.COM
www.homesteadservicesflorida.com
Respectfully Submitted,
Darren Michaels
PRIVATE ATTORNEY GENERAL: 42 U.S.C. 1988
QUALIFIED CRIMINAL INVESTIGATOR: 18 U.S.C. 1510
FEDERAL PROTECTED WITNESS: 18 U.S.C. 1512-13
AMBASSADOR/ORDAINED MINISTER 18 U.S.C. 112
FLORIDA NOTARY F.S. 117
FLORIDA INSURANCE BROKER: LIC. 215,216,218,240,266, ASSET PROTECTION/
ESTATE PLANNING
LEGAL RESEARCHER/WRITER
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