Florida HOA sale..Robo signers, Statute of Limitations

[Peter Farrell]

I am about to buy a HOA foreclosure Condo at auction in Florida and have some questions about an existing 1st mortgage. Involves Robo signing, Statute of Limitations, show me the note:

First a little background.

1. Borrower gets a $400K 1st from Greenpoint in Feb, 2005. (Mortgage held by Greenpoint, Note to MERS as nominee)

2. Borrower gets a 2nd for $50K from Greenpoint in Feb, 2005 (Mortgage held by

3. Greenpoint, Note to MERS as nominee)

4. Borrower defaults on both around Jan 2008.

5. Greenpoint files a Lis Pendens to Foreclose in Mar 2008

6. MERS assigns to Greenpoint in May, 2008 (Uses proven Robo signer Tina Jones)

7. Condo Assoc gets lien for $45K Dec 2009

8. Greenpoint assigns to BOA in Dec 2011

9. MERS satisfies 2nd mortgage Sept 2012

10. BOA assigns to HSBC as trustee for GSAA Home Eq Trust Asset Backed 2005 in Oct 2013

    My strategy is to buy it at the HOA auction understanding I have a clouded title. Let the dust settle and then file a Quit Claim suite against Greenpoint or MERS or HSBC to remove the lien.

    I believe I have grounds based on:

1. Florida 5 year statute of Limitations

2. Fraudulent assignment of mortgage.

3. Likely “Show me the note” problems.

I would appreciate any comments from knowledgeable forum members on the issues mentioned.

Regards,

Peter

[Wayne Brooks]

Peter, you've been reading too much propaganda.

1. The 5 year statute of limitations, is 5 years, from the actual acceleration of the note, to Start the foreclosure, not finish it.

2. The supposed "fraudulent" mtg assignment is irrelevant. Mortgages held by, and transferred 5 times by, MERS are upheld every day. In Florida, the mortgage "follows the note" anyway, no assignment of mortgage has be done to foreclose.

3. The "show me the note" Never was a defense, only an ineffectual theory by people who didn't know better, and by attorneys trying to lure in defendants as clients. Perhaps half of our foreclosure s do not have the "original" note. Copies of notes, with Lost Note Affidavits are the norm here, after the David Stern blow up.

The fraudsters tried the Quiet Title suits (Quit Claim is a type of deed) scam on the banks, and it went nowhere.

Oh, and by the way....when buying a property at an HOA auction, with or without equity....if the judgment is $30k, and they let it sell for $10k, the buyer is still responsible for the balance, plus whatever dues accrued after that judgment.

Good luck!

[Peter Farrell]

Hi Wayne,

Was hoping you might chime in. I may not have made it clear. The borrower went into default almost 6 years ago. No payments have been made for 6 years. The first mortgage holder (whoever that turns out to be) has not even started a foreclosure. Just the HOA assoc.

Also MERS has only made 1 assignment in 2011 using a Robo signer. I can't see how a Robo signed assignment would be valid. Correct me if I am wrong.

Peter

[Patrick L.]

If you really want to blow $50k get drunk and go to Vegas, you'll have more fun. I'd say there's a 0.001% chance your plan works out but more than likely you'll be foreclosed out by the 1st mortgage holder. People didn't get many free houses out of the robo signing scandals, what they did get were their cases delayed or dismissed and refiled with corrected documents. In the end if the original loan is legit the current note holder is going to have a valid case, all of the paperwork in between can be corrected.

[Wayne Brooks]

Peter,

You said Greenpoint filed an LP in 2008, was that on the second?

The statute clock starts running when "the loan is officially accelerated", not from the date of the last payment. When the LP is filed, the acceleration had to occur prior. Without an LP, you know when or if the loan was accelerated.

The ROBO signing issue, is irrelevant. As I said, when a note is sold you don't need an assignment of the mortgage to foreclose. In your original bullet points you noted the "Notes to MERS as assignee". MERS was the depository/assignee for the Mortgages, not the Notes. The notes went to Greenpoint.

[Peter Farrell]

OK Wayne,

Just checked the court records. The LP in 2008 was the first mortgage. The last action by Greenpoint was in Sept 2011 making a motion to delay a foreclose sale. But since that time the property have been assigned to BOA and HSBC.

Does that not mean HSBC would need to start a new foreclosure process?Would this new filing not be time barred?

Got it on the Robo signing...but does not seem very fair to me.

[Peter Farrell]

Also why would a $400K note that has been in default for almost 6 years be sold back to a HSBC as trustee for GSAA Investment Trust? Why have the banks waited almost 6 years to Foreclose?

Just checked the court records again. The Foreclosure proceedings by Greenpoint was DISMISSED in April 2012 due to no action. Surely they must start again from scratch.

Any thoughts?

[Wayne Brooks]

Dismissed cases get reopened all the time. Peter, you are apparently new to all this. Trust me, the pros are bidding at the auctions, and they knowledgable RE attorneys working for them. You are Not going to find a trick they didn't know about ten years ago. You're still figuring out how to read the court records, get a local attorney wherever you want to try something like this. The foreclosure has probably already been refiled with perhaps a slightly different defendant name case style (sometimes the wife's name is first). If you really, really think you found something, pay $125 for a title search first. I've seen buyers buy at an HOA auction on Tuesday, and it went to bank foreclosure auction on Friday.

[Peter Farrell]

Yes I am new to this. But learning fast. I have ordered a title search should have results shortly. Although I expect it will confirm a lien for a 1st mortgage.

Can I trust a local attorney with my research? Will I be bidding against his best friend on auction day?

Any recommendations for an honest attorney in the Tampa area?

I don't understand how lack of activity by a plaintiff that causes the court to make a motion for dismissal would toll the statute of limitations. Sure as hell doesn't here in Virginia.

[Sherman Balch]

Peter,

1) The County where your fighting will indicate likelihood of success. 

2) Statute of Limitations clock starts upon last cause of action (last payment). Some counties have allowed banks to refile dismissed cases based on installment payment theory - Florida Supreme will probably take this up

3) Assignment of Mortgage is meaningless - mortgage follows note. If fraudulently filed then bank is injured party.

4) Show me the note is the strongest offense - it is not a theory as some have indicated. Even if Circuit Courts don't get the DCA's do - endorsement required on filing is the law of the land.

[Wayne Brooks]

An update, since this got revived.

The 5th DCA has essentially eliminated the 5 year statute issue, as ongoing missed payments are a new cause for acceleration.  Let alone non payment of property taxes and maintaining insurance.

The "show me the note" argument is still a useless delusion.  I see it every day in foreclosure court.

[Peter Farrell]

After almost a year I am now a lot wiser with the issues.

1. The statute of limitations defense is NOT dead at all. Currently the Florida Supreme Court is hearing oral arguments on the Bartram ruling. We have a conflict between appeals courts at the moment with the recent 3rd DCA Beauvais ruling upholding the SOL. The Supreme Court should make SOL clear soon.

2. Without exception the Plaintiff must prove they have the original wet ink Note or can prove all the elements for a lost note affidavit at the time they file the complaint. This must be certified under the penalty of PERGURY by the bank to have standing to foreclose.

Many cases have been dismissed without prejudice because of this.

[Wayne Brooks]

Feel free to bet your money on these concepts, many here have, but I decided it was a fool's errand, right or wrong.  So, I'm not betting my money or that of my friends and investors on it.

[Benjamin Cowles]

How do all these assignments work? MERS has the note, what interest do the rest have? What role do they play?

[Benjamin Cowles]

Originally posted by @Wayne Brooks:

Peter, you've been reading too much propaganda.

1. The 5 year statute of limitations, is 5 years, from the actual acceleration of the note, to Start the foreclosure, not finish it.

2. The supposed "fraudulent" mtg assignment is irrelevant. Mortgages held by, and transferred 5 times by, MERS are upheld every day. In Florida, the mortgage "follows the note" anyway, no assignment of mortgage has be done to foreclose.

3. The "show me the note" Never was a defense, only an ineffectual theory by people who didn't know better, and by attorneys trying to lure in defendants as clients. Perhaps half of our foreclosure s do not have the "original" note. Copies of notes, with Lost Note Affidavits are the norm here, after the David Stern blow up.

The fraudsters tried the Quiet Title suits (Quit Claim is a type of deed) scam on the banks, and it went nowhere.

Oh, and by the way....when buying a property at an HOA auction, with or without equity....if the judgment is $30k, and they let it sell for $10k, the buyer is still responsible for the balance, plus whatever dues accrued after that judgment.

Good luck!

 You mean 20k left over after the sale price of 10k? Is that to say that regardless of the judgement amount the debt left over remains and can be sought after in other ways? If so is that standard and are there scenarios where the debt gets wiped away?

[Wayne Brooks]

MERS does Not have the note, the lender does.  MERS was set up as a "parking place" for the mtg.s, to avoid the mortgage transfer fees (from a few hundred to thousands of dollars)  each time an assignment is recorded in the county records.