New foreclosure lawsuit rules require plaintiffs’ mills to tell the truth -and boy, are they mad!
On February 11, the Florida Supreme Court amended the rules of foreclosure proceedings in a radical way: they want someone to swear that the allegations in the complaint are actually true. (Buncha bomb-throwers, aren’t they?)
The amended rule says:
When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement:
“Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”
Plaintiffs’ foreclosure mills can’t handle the truth
For the plaintiffs’ law firms, the foreclosure mills filing all these lawsuits, the new rule is a disaster – because they can’t possibly confirm the truth of what they file with the courts. How do we know this?
One of them actually told the Florida Supreme Court so. Shapiro & Fishman, one of Florida’s largest foreclosure mills, has asked the Court to back down from the verification requirement, with the astonishing reason that it’s impossible to get anyone to swear to the truth of a foreclosure complaint.
Plaintiffs’ lawyers don’t know the truth
In their “Motion for Rehearing,” [PDF] Shapiro explained that their lawyers cannot ethically swear to the truth of the papers they file with the court, because they rely on information from others:
It is also unclear whether an attorney or law firm representing a lender can verify a mortgage foreclosure complaint based upon information he/she/it obtained from the client or other parties, including the holder of the note and the servicer.
Plaintiffs don’t know the truth
Well, ok…. If the lawyers can’t do it, how about their clients, the plaintiffs who claim to own the loan? Nope, says Shapiro:
[W]hile the holder of the note may have some limited knowledge in order to verify portions of the complaint, it may not have the necessary knowledge to verify the remainder of the complaint. For example… it may not have personal knowledge of when the last payment on the note was made or if a default notice was mailed to the client.
No one knows the truth!
So… the supposed owner of the note ordinarily has no idea when or if they’ve been getting paid? That may sound crazy, but many lender hire “servicing agents” – in essence, bag men – to collect their money for them from borrowers. So, why couldn’t the servicing agents swear to the truth of the complaint? Shapiro says, it’s because they don’t know enough, either…. and what they don’t know will surprise you: who these bag men work for.
The loan servicer would, presumably, have that knowledge [about payment status of the loan]… but likely would not have personal or direct knowledge of other factual allegations.
What “other factual allegations”? Simple things, like who owns the note – the very people these bag men are supposedly collecting for. (If they don’t even know, then who does?)
Ripping the mask off foreclosure plaintiffs’ lies
There’s one giant, gaping hole in Shapiro’s argument to the Supreme Court. In every foreclosure action, these law firms submit to the court evidence in the form of affidavits – sworn written statements – which are supposed to swear to the truth of all the elements of the plaintiffs’ claim. These affidavits are the basis for judgment in more than 99% of all foreclosure cases where the house is sold.
And Shapiro has just admitted that they are false. Because the one person signing them cannot possibly have “personal knowledge” of all the facts of the case – at least, that’s what Shapiro has said.
And for the first time in a long time, I believe them.