Attorney Opinion Statement of Jennifer Englert, The Orlando Law Group, P.A.
December 28, 2014
Clerk of the Circuit Court Osceola County, Florida
2 Courthouse Square Kissimmee, Florida 34741
Dear Mr. Ramirez:
I have been a member of the Florida Bar since 1999. I have defended over one hundred home owners in foreclosure matters and I have seen first-hand how the banks and their servicers have harmed home owners in Florida. I have taken foreclosure cases to trial in Osceola County.
I have been following the actions of Attorneys General of other states with interest to see if they will take any action against those taking homes without the proper paperwork in place. Further, I have been following any cases that address foreclosures to see if there is any relief for homeowners.
While there has not been much in Florida in the way of legislation to assist homeowners in foreclosure matters there are indications and the Legislature does want foreclosures to be done honestly.
Rule 1.110(b), Florida Rule of Civil procedures was amended to require verification of mortgage foreclosure complaints involving residential real property. The primary purpose of this amendment is clearly to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note and the ability to foreclose on it. It also shows the need to conserve judicial resources that are currently being wasted on inappropriate foreclosures and to avoid harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note.
Rule 1.110(b) requires a clean, plain statement of accuracy by the person who actually verifies the truth of the claims made, and who is identified as being in a position to actually do so. It would seem that the investigation set forth in the report illustrates many cases in Osceola County alone where the individuals who verified Complaints and supporting affidavits were not qualified to do so or lacked the pertinent knowledge to do so. This alone warrants further investigation.
Throughout the report the Examiner found a clear pattern where “users” of the MERS® System used it to benefit corresponding (originating) lenders, interim funding lenders and warehouse aggregate lenders, who make use of investor money through the pass-through exchange without perfecting the transactions in a timely fashion. Borrowers as well as the applicable government regulatory agencies were unaware notes and mortgages would be converted into image files, to be manipulated and traded within the MERS® System so that no one would know their ultimate path (or whether the loans were fractionalized over multiple trust pools in deviation of GAAP) in the securitization system. MERS appears to have been utilized in RICO-style fashion to coverup the chain of title to make it “fit” into a pattern where the real property records were used to show the path of the mortgage, while the bearer paper (manufactured and manipulated by computer) has been used as evidence in court time after time to foreclose on homeowners. In no other litigation scenario has such unreliable evidence been used on such a regular basis.
Unfortunately members of the bar have been complicit in the efforts of MERS and its users. I am sure the reader is aware of the several attorneys and law firms which have been disciplined and closed due to their behavior in foreclosure litigation as well as the abatement of foreclosure cases due to their behavior. In my fifteen years as a bar member this is unprecedented.
As someone who has dealt with these firms for the past five years I can say that many do their best to hide discovery document, sell notes prior to trial and do whatever else they can to keep defense attorneys from being able to talk to needed witnesses and review the pertinent documents until trial. As Judges have mandates to move these cases along, continuances to get the needed information are virtually non-existent.
The attached report exists to bring light to the abuses of MERS and the court system to improperly foreclose on homeowners. The Examiner found evidence of several statutory violations which will be outlines in the remainder of my letter.
First, in order to perpetuate the scheme of robo-signing and the creation of false affidavits,Florida Statute § 817.15 was violated in that false entries were made to add corporate officers to the books of banks and services with intent to defraud which is a felony of the third degree.These false entries were to create new officers so that they could sign assignments and other documents to allow foreclosures to sail through. Creating false officers also violates FloridaStatutes §817.155 and §817.16.
These statutory violations are minor compared to the actions the “fraudulent officers”perpetrated. A highlight of the report is violations of § 817.535 of the Florida Statutes which prohibits filing of false documents or records against real or personal property.A person who files or directs a filer to file false documents with the intent to defraud or harass another commits a felony of the third degree. Repeating this act is a felony of the second degree.
There are also obvious civil penalties which could be addressed with the findings of any criminal investigation which would be a further deterrent to this type of behavior.
The report includes many examples of fraudulent documents which purport to claim under oath that the signor had personal knowledge of the facts attested therein which contained false and misrepresentative information with the intent to deprive the property owner of their property in violation. The “MERS® System” then utilized fraudulent documents to manipulate data in third-party computer software platforms generated and utilized by document manufacturing plants and foreclosure mill law firms to create, manufacture and file documents containing questionable and potentially false and misrepresentative information under the direction of the servicers and title companies to bring fraud on the court.
These actions also consist of forgery in violation of Florida Statutes § 831.01 as MERS, the banks and servicing companies falsely made, altered and counterfeited thousands of public records, in matter wherein such certificate, return or attestation was received as legal proof; with intent to injure or defraud any person, which is a felony of the third degree. By publishing the forged instruments including false deeds, instruments or other writings mentioned in § 831.01knowing the same to be false, altered, forged or counterfeited, with intent to injure or defraud employees of MERS, its users and the applicable law firms were guilty of a felony of the third degree in violation of § 831.02.
The report also outlined statutory violations pursuant to § 117.105 for all the evidence of false and fraudulent notary work based on false acknowledgment on the written instrument which are each felonies of the third degree.
It is clear in the report there is vast evidence of violations of several Florida criminal statutes byMERS, its users and some law firm personnel. From there it is easy to establish under RICO,Florida Statute § 895, an “Enterprise” (a corporation, business trust, or other legal entity)engaged in a “pattern of racketeering activity,” (at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or that otherwise are interrelated by distinguishing characteristics and are not isolated incidents.)The Examiner has documented several hundred pages of incidents where documents were falsely created in order to foreclose on homeowners which is a clear pattern of activity. The sole purpose of generating the documents was to have “evidence” to use in a Court of law at summary judgment and trial.
It is practically impossible to poke holes in these documents as they are verified by witnesses who clearly had no role in creating them who simply testify that according to a computer system they can see in their office the documents are genuine.
As a member of the Bar I do hope that action is taken against the manufacturers of false documents as they have been so extensively used to the detriment of so many citizens in ourCourts. Had these documents not been so easily available then there would not have been nearly as many foreclosure cases which cluttered dockets and prevented so many from getting a fair trial. All of this is incongruous with our legal system.
Jennifer A. Englert, Esq.