Comments on Amendments to Florida Rules of Civil Procedure

January 9, 2015




COMES NOW, Lynn E. Szymoniak, Director, The Housing Justice Foundation by and through the undersigned counsel and submits the following comments on behalf of herself and The Housing Justice Foundation, on the changes to the Florida Rules of Civil Procedure in foreclosure matters, as follows:

1. I am a member in good standing of the Florida Bar, admitted on November 10, 1981, and a Director of The Housing Justice Foundation, Inc., a non-profit organization in West Palm Beach, Florida.

2. I am a mortgage fraud whistleblower, having recovered $95 million for the Federal Housing Administration in a settlement with Bank of America Corporation, J.P. Morgan Chase & Co., Wells Fargo & Company and Citigroup, Inc. in March, 2012. The settlement was reached as part of the $25 billion dollar global resolution between the same defendants, the United States of America, the state attorneys general, and others.

3. I have reviewed mortgage documents in several thousand Florida foreclosure cases, as well as from cases from other states. I also have regularly observed courtroom proceedings in foreclosure cases for the past five years.

4. My work was featured on 60 Minutes in a story that won the Loeb Award in 2012, the most prestigious award in business journalism. The story exposed fraudulent document practices by certain mortgage servicing companies.

5. I have conducted extensive research on foreclosure-related issues and published articles on the Housing Justice Foundation’s website to assist those facing foreclosure in understanding foreclosure issues in general, and mortgage-backed securities in particular.

6. Based on my research, experience and courtroom observations, I believe that real change in the morass of foreclosure litigation will only be achieved by strict, meaningful regulation of mortgage servicers, as more fully set forth herein.

7. Since the Financial Crisis began in 2008, there have been over 10 million U.S. foreclosures filings.[i] Florida was the top state for new foreclosure filings in November, 2014, with one in every 462 housing units receiving a foreclosure filing, while the national average was one in every 1,170 units.[ii]

8. My extensive work with foreclosure cases in Florida, primarily as an expert witness on behalf of homeowners, has led me to conclude that much of the confusion and delay in foreclosure cases stems from the frequent sale of mortgage notes, particularly during the height of mortgage securitization, from 2004 to 2007. During this period, loan originators often sold their loans within a few days of the closings. These loans were sold to securities companies, and bundled into what has come to be known as Residential Mortgage-Backed Securitized Trusts, or more commonly, RMBS Trusts. These loan bundles often included over 5,000 loans with an initial value of over $1.5 billion per bundle. From 2004 to 2007, several trillion dollars in mortgage loans were securitized. Securitization of this magnitude was unprecedented and, in retrospect, largely unregulated and misunderstood.

9. Courts regularly struggle to even understand the nomenclature, not understanding, for example that “CWMBS – CHL Mortgage PT Trust 2005-4” is mortgage-industry jargon for Countrywide Mortgage Backed Securities – Countrywide Home Loans Mortgage Pass Through Trust” or that the “2005-4” designation indicates that this particular trust was created, registered with the Securities & Exchange Commission and sold to investors in 2005, and was the fourth in a series of such trusts created in 2005. Lawyers representing banks acting as trustees for these RMBS Trusts, and lawyers representing homeowners in default, seldom understood mortgage securitization, and the complex path that a mortgage traveled from origination to the foreclosure courtroom.

10. Mortgage servicers play a critical role in most foreclosure litigation. Mortgage servicers perform a range of mortgage-related services, including collecting monthly mortgage payments from borrowers. Mortgage servicing rights (MSRs) are a very lucrative segment of the mortgage industry. When many mortgage companies became insolvent and filed for bankruptcy from 2007 – 2009, the Mortgage Servicing Rights were the only substantial asset. These MSRs were often sold in the bankruptcy proceedings to outside bidders, including start-up companies. In retrospect, it has become apparent that many employees of mortgage servicing companies were inadequately trained and supervised.[iii]

11. Many mortgage servicers employees also served as signing officers for the Mortgage Electronic Registration Systems, Inc. (“MERS”) an entity that did not own any mortgages or loans, and was (and is) only a registry for mortgages. The majority of mortgages in RMBS Trusts were “MERS” mortgages – where the mortgagee was identified as MERS as nominee for the actual lender. Thus, in the majority of foreclosures in Florida, there is a third-party vendor, the servicer, that often acts on behalf of another third-party vendor, the MERS registry, making representations to the Courts, most often based on records from prior servicers, defunct mortgage companies and non- existent banks.[iv] Employees of major mortgage servicers continue to act as “attorney in fact” for mortgage companies that ceased to exist many years prior. In 2014, many Ocwen employees, for example, signed mortgage Assignments as attorney-in-fact for Ameriquest Mortgage, Argent Mortgage and New Century Mortgage, companies that had ceased operations. Servicing company employees also continue to transfer properties for mortgage companies after these companies file for bankruptcy, without seeking leave of the bankruptcy court to make such transfers or even reporting such transfers to the bankruptcy courts.

12. The problem of the lack of first-hand knowledge was made even more complex when foreclosures are filed by RMBS Trusts, because the claim of ownership by the trusts is almost always unsubstantiated except by documents prepared by mortgage servicers acting as MERS officers. Almost all trust documents specifically stated that no mortgage assignments would be required assigning any MERS mortgages to the trusts, but that, in place of Assignments, the MERS Registry would show that the mortgage had been transferred to the trust. Assignments were to be prepared and filed for MERS mortgages held by RMBS trusts in the event of a default by the borrower. The MERS system, however, was plagued with inaccuracies.[v]

13. When defaults became widespread, many servicers incorrectly prepared the Assignments, showing that the mortgages had not been assigned to the trusts until the approximate time of the default, or after the foreclosure was commenced. Servicers also outsourced the preparation of assignments to third-party vendors who also incorrectly prepared the assignments showing the wrong dates.[vi] In most cases, servicers then began preparing and using these incorrect assignments for all mortgages, including non-MERS mortgages.

14. In tens of thousands of cases in Florida, these incorrect assignments were prepared and signed by law firm employees, including attorneys, paralegals and clerks, who used MERS titles when signing.[vii] These Assignments caused tremendous confusion and misunderstanding in foreclosure cases.

15. In the majority of foreclosure cases, there is no finding as to when the trust that is seeking to foreclose actually acquired the mortgage because the only documents presented to the Court are 1) a Note with an undated endorsement, or without any endorsement, and 2) an Assignment with an incorrectly stated date of the transfer of the mortgage.

16. The mortgage Assignment problem was exacerbated because many mortgage servicers also prepared and filed mortgage assignments when only the servicing rights to the mortgage – and not the mortgage itself – were being transferred. In the vast majority of cases, RMBS Trusts were not transferring defaulted mortgages to servicers, despite the statements in the Assignments that such transfers had occurred.

17. In addition to wrongly stating the date of transfer, and wrongly stating the grantor, on Assignments of MERS mortgages, many Assignments state that the transfer is from MERS, instead of MERS as Nominee for the particular lender. Still other Assignments wrongly use industry shorthand or jargon, identifying the grantor, for example, as “ABC” when the grantor was actually American Brokers Conduit. In other cases, the person signing as a MERS officer has never been authorized by MERS or the lender to sign.

18. After the misconduct of mortgage servicers was exposed, and multi-billion settlements were made, many banks no longer wanted to participate in the mortgage servicing business. Many major banks sold their mortgage servicing subsidiaries, or major portions thereof.[viii] In 2013, over $1 trillion in home loan servicing rights were transferred from traditional banks to non-bank companies.[ix] When such transfers occurred, many servicers again filed erroneous Assignments wrongly stating that the mortgage itself had been transferred when, in fact, only the servicing rights had been transferred.

19. In addition to wrongly stating the dates that the trusts acquired the mortgages, many of these Assignments incorrectly identified the grantor as the loan originator when, in fact, there had been intervening transfers. In every RMBS Trust, for example, the loans are transferred to the trusts from an entity called the “Depositor,” an entity responsible for acquiring the loans and transferring the loans in bulk to the trust on a particular date, known as the trust closing date. The Depositor is usually a subsidiary company related to the securities company that is creating the trust. The Depositor is identified in the Prospectuses, the Pooling and Servicing Agreements, the Mortgage Loan Purchase Agreements and the Bills of Sale for each trust as the entity that acquires the loans and transfers the loans to the trusts. On the Assignments prepared by the mortgage servicing companies, the Depositor is never named, and instead the Assignments incorrectly state that the mortgages went directly from the loan originators to the trusts.

20. On many other Assignments and frequently in foreclosure litigation involving RMBS trusts, the trust is often not identified at all or is incorrectly identified or an incorrect entity is named as trustee. In thousands of cases, for example, the Plaintiff is identified only as “U.S. Bank as Trustee” or “Deutsche Bank Trust Company Americas as Trustee.” A review of deeds filed in official records shows that after the foreclosing entity completes the foreclosure and acquires the home at the clerk’s auction, that entity often transfers the deed to a different bank/trustee or trust that was the actual proper party. Frequently in foreclosure cases, the plaintiff will move to substitute an entirely different bank and trust as plaintiff, not because of an actual transfer, but because the wrong plaintiff was initially named. Most often, the banks blame “scrivener’s errors” for wrongly identifying the bank and/or trust that is the proper plaintiff.

21. Incorrect mortgage assignments are the mortgage servicing industry norm, not the exception. The majority of Assignments to Trusts prepared and filed in Florida and throughout the country in 2014 included one or more of the errors discussed above.

22. Thousands of “Corrective Mortgage Assignments” have been filed throughout Florida from 2010 through 2014, usually correcting the name of the grantor or grantee or both. These corrective assignments are never brought to the attention of the Courts, or even the homeowners. In most counties, Assignments are filed under the name of the grantor and the grantee, and a homeowner never discovers that an assignment of his or her mortgage has been made.

23. Even when mortgage servicing companies reach settlements with the Justice Department or state attorneys general, these settlements have not ever required the servicers to notify Courts – even in pending cases – that the Assignments previously filed in the case were erroneous. In settlements, mortgage servicers pay a fine and then continue the same practices, largely unchecked.

24. In many cases, the same problems exist with note endorsements. These endorsements were wrongly created by mortgage servicers and often show an incorrect date or an incorrect grantor, grantee or both.

25. Affidavits of employees of mortgage servicing companies are also unreliable. In most cases, employees are swearing to facts without any personal knowledge of the accuracy of their statements.[x] In other cases, the individuals were never authorized affidavits although they had never been authorized to execute such documents.[xi]

26. Because of the mass confusion created by the surge in RMBS Trusts from 2004 – 2007 and the subsequent financial crisis of 2008, the mortgage assignments, note endorsements and affidavits submitted to Courts in foreclosure cases should be considered unreliable. An expedited process for foreclosures should not be used in cases where the mortgage has been transferred to an RMBS Trust, or where the mortgage has been sold multiple times and the entity seeking to foreclose has never previously disclosed its purported ownership of the loan and mortgage.

27. In all cases where the Trustee of an RMBS Trust seeks to foreclose, the trust documents should be presented to the Court at the inception of the case. The Mortgage Loan Purchase Agreement with the Schedule of Loans showing the subject loan and Bill of Sale should be filed with the verified Complaint showing that the Trust identified as the plaintiff in the filing actually acquired the subject loan.[xii] If the Trust has been claiming to own the loan since inception, and the borrower has been making mortgage payments to the servicer for that trust, there is a much greater likelihood that the loan was transferred to the trust. There will still be cases where a loan is listed in a loan schedule, but was later rejected by the trustee or document custodian as deficient. There will also be cases, as many courts have discovered, where there was never any actual delivery of the loan documents to the Trustee, but this does not seem to have been a widespread problem, except, perhaps, with loans made by Countrywide Home Mortgage, New Century Mortgage Corporation and American Home Mortgage, particularly in the few months prior to the collapse of those companies, when failure to deliver loan documents to trust custodians seems to have been widespread.[xiii]

28. To expedite foreclosures and reduce delay and confusion, in all cases where foreclosure is sought by an entity other than the loan originator, the plaintiff could be required to include an allegation in the Complaint identifying each owner of the mortgage loan from the date the loan was originated to the date of the filing of the Complaint, the dates on which the loan was transferred to and by each interim owner, and the location of the original note and mortgage at the time of the transfer to the foreclosing entity. This loan history summary should also include the history of the mortgage servicers of the loan, giving the Court a useful resource to determine whether an employee of a mortgage servicing company has first-hand knowledge of the loan history. Examples of such loan histories are set forth below:


The loan history is as follows:

a) Option One Mortgage Corporation originated this loan on February 3, 2006.

b) The mortgage and note were sold to Financial Asset Securities Corporation, the trust Depositor, on a date prior to April 7, 2006, the trust closing date. The mortgage was assigned and the note was endorsed to Deutsche Bank National Trust Company as Trustee for Soundview Home Loan Trust 2006-OPT 2 on April 7, 2006.

c) At the time of the transfer, the loan documents were delivered to Wells Fargo Bank, N.A., Minneapolis, Minnesota, document custodian for the Soundview trust.

d) When the loan was originated, Option One Mortgage Corporation was the servicer of the loan. Option One Mortgage Corporation continued to service this loan when it was transferred to the Depositor and to the Trust. On May 30, 2008, Option One sold the servicing rights to this loan to American Home Mortgage Servicing, Inc. in Coppell, Texas. American Home Mortgage Servicing, Inc. changed its name to Homeward Residential, Inc. in February, 2012. Ocwen Financial Corporation acquired Homeward Residential in December, 2012.


The loan history is as follows:

a) Long Beach Mortgage Company originated this loan on January 30, 2006.

b) The mortgage and note were sold to Long Beach Securities Corporation, on a date prior to February 7, 2006, the trust closing date. The mortgage was assigned and the note was endorsed to Deutsche Bank National Trust Company as Trustee for Long Beach Mortgage Loan Trust 2006-1 on February 7, 2006.

c) At the time of the transfer to the trust, the loan documents were delivered to Deutsche Bank National Trust Company in California, document custodian for this Long Beach Mortgage Loan Trust in Santa Ana, California.

d) When the loan was originated, Washington Mutual Bank was the servicer. On September 25, 2008, Washington Mutual bank was deemed a failed bank. JP Morgan Chase Bank (“Chase”) acquired the servicing rights to this loan. On January 15, 2012, Chase sold the servicing rights to Select Portfolio Servicing, a division of Credit Suisse Bank, and Select Portfolio has serviced this loan since that time.


The loan history is as follows:

a) Argent Mortgage Co., LLC originated this loan on August 2, 2006.

b) The mortgage and note were sold to Ameriquest Mortgage Securities, Inc. on September 27, 2006, the trust closing date. The mortgage was assigned and the note was endorsed to Deutsche Bank National Trust Company as Trustee for Ameriquest Mortgage Securities Trust 2006-M3 on September 27, 2006.

c) At the time of the transfer to the trust, the loan documents were delivered to Deutsche Bank National Trust Company in California, document custodian for this Long Beach Mortgage Loan Trust in Santa Ana, California.

d) When the loan was originated, Ameriquest Mortgage Company, a division of ACC Capital Holdings, was the servicer. On September 1, 2007, Citigroup, Inc. purchased the servicing rights and the loan was then serviced by Citi Residential Lending Group, a division of Citigroup, Inc. On February 10, 2009, Citigroup sold the servicing rights to this loan to American Home Mortgage Servicing, Inc. in Coppell, Texas. American Home Mortgage Servicing, Inc. changed its name to Homeward Residential, Inc. in February, 2012. Ocwen Financial Corporation acquired Homeward Residential in December, 2012.

29. In conclusion, the undersigned suggests that the best way to expedite foreclosures is to require those seeking to foreclose to produce the trust documents where a trust is involved, particularly the schedule of loans showing the loan that is the subject of the foreclosure action; and, in all cases, to produce a brief history of the entities that have claimed to own the loan, showing a complete chain of title from the originator to the entity seeking foreclosure, and the mortgage servicers that have serviced the loan. Verifications by an officer of the actual plaintiff, and not an employee of the servicer or law firm, should be required. Florida’s goal should be maximizing justice, not expediting foreclosures.

Dated: January 9, 2015


i– According to the RealtyTrac Year-End 2013 U.S. Foreclosure Market Report, there were foreclosure filings on 1,361,795 U.S. properties on 2013; 1,836,634 in 2012; 1,887,777 in 2011; 2,871,891 in 2010; 2,824,674 in 2009 and 2,330,843 in 2008.

ii– RealtyTrac November 2014 Foreclosure Market Report.

iii– See, e.g. Von Hoffman, Constantine “Mortgage Servicer Abuses Still Plague Homeowners.” CBS Moneywatch, February 21, 2014; Pyke, Alan “Consumer Watchdog Finds Rampant Abuse In The Mortgage Industry.”, August 22, 2013; Lipka, Mitch “Major Mortgage Servicer Accused of Abuses.” CBS Moneywatch, October 21, 2014; Corkery, Michael and Eavis, Peter “Mortgage Servicer’s Ties Raise Regulatory Concern, New York Times, February 27, 2014; Douglas, Danielle “CFPB Says Mortgage Servicing Still Riddled with Problems.” The Washington Post, August 21, 2013; Weinberger, Evan, “Ocwen Must Appoint Monitor To Oversee Mortgage Servicing.” Law360, December 5, 2012; Harney, Kenneth, “Consumers Lodge Thousands of Complaints About Firms That Service Mortgages.” The Washington Post, February 4, 2014; Cohen, Bryan, “LPS/DocX Agrees To $120 Million Multi-state Settlement.” Legal NewsLine, February 4, 2013.

iv– Some of the banks that no longer exist were the most active mortgage lenders including Washington Mutual Bank, Countrywide Bank, LaSalle Bank, IndyMac Bank and Lehman Brothers Bank.

v– In 2012, Delaware Attorney General Beau Biden filed a lawsuit against Merscorp. Holdings, Inc. accusing the company of engaging in deceptive practices. At the time the suit was filed, Attorney General Biden said, “MERS’ inaccurate and unreliable records raised serious questions about who owned what in America. The lawsuit was settlement with an agreement by MERS to audit its records, report the results, and to not foreclose in the name of MERS for the next five years in Delaware. By 2012, MERS halted all foreclosures in its name. New York’s Attorney General Eric Schneiderman also sued MERS for deceptive practices.

vi– In the Consent Order (FDIC Docket #11-204b) between the Federal Reserve, the FDIC and mortgage servicer Lender Processing Services, a Jacksonville, Florida company, for example, one of the allegations against Lender Processing Services stated in the Order was that employees of LPS:

(b) Executed assignments of mortgages containing inaccurate information pertaining to matters including the identity and location of the assignee and beneficiary and the effective date of the assignment. LPS recorded or caused to be recorded these assignments of mortgages in local land record offices, or executed them on behalf of Examined Servicers, knowing they would be filed in state courts or in connection with bankruptcy proceedings in federal courts.

vii– In the deposition of Tammie Lou Kapusta, a paralegal, formerly an employee of the Law Offices of David Stern, taken by the Office of the Florida Attorney General, (AG #L10-3-1145), Ms. Kapusta testified that Mr. Stern’s former office manager, Cheryl Samons, executed approximately 500 mortgage documents daily, without reading them or having any knowledge of the truth of the matters set forth therein. Other law firms regularly using their own firm employees to execute thousands of mortgage documents included the Law Offices of Marshall Watson. In March, 2011, Marshall Watson paid two million dollars to settle a Florida Attorney General investigation into questionable foreclosure practices and suspicious document execution policies.

viii– Florida-based Ocwen Financial Corp. acquired the mortgage servicing rights from Litton Loan Servicing, LP in 2011 for $263 million, as well as the servicing rights from Saxon Mortgage Services, Inc. and a large portion of the servicing rights of JPMorgan Chase. In 2010, Ocwen acquired the servicing rights of HomEq Servicing from Barlcays Capital. In 2012, Ocwen acquired the servicing rights from Homeward Residential, formerly known as American Home Mortgage Servicing, Inc. (“AHMSI”) and Residential Capital, LLC (ResCAP”) (GMAC/Ally). Prior to the AHMSI acquisition, AHMSI itself had acquired the servicing rights from American Home Mortgage, Option One Mortgage Corporation, and Citi Residential. Citi had previously acquired the servicing rights to the Ameriquest and Argent loans. In January, 2013, Bank of America sold servicing rights on $215 billion of mortgages for $1.2 billion to Nationstar. In November, 2014, a sale of servicing rights on $39 billion in loans from Wells Fargo to Ocwen was blocked by New York Attorney General Eric Schneiderman. ix Nuiry, Octavio, “Mortgage Servicing Shifts to Nonbank Firms.” RealtyTrac, March 20, 2014.
x In the Consent Order (FDIC Docket #11-204b) between the Federal Reserve, the FDIC and mortgage servicer Lender Processing Services, referenced in the footnote VI above, for example, one of the allegations against Lender Processing Services stated in the Order was that employees of LPS:

(a) Executed numerous affidavits and similar sworn statements (collectively, 14 “Affidavits”) making various assertions such as the ownership of the mortgage note and mortgage (or deed of trust), the amount of principal and interest due, and the fees and expenses chargeable to the borrower, in which the affiant represented that the assertions in the Affidavit were made based on personal knowledge or based on a review by the Affiant of the relevant books and records, when, in many cases, they were not based on such knowledge or review. LPS executed these Affidavits on behalf of Examined Servicers knowing they would be filed in state courts and in connection with bankruptcy proceedings in federal courts.

xi– In the Consent Order (FDIC Docket #11-204b) between the Federal Reserve, the FDIC and mortgage servicer Lender Processing Services referenced in footnote VI, for example, one of the allegations against Lender Processing Services stated in the Order was that employees of LPS:

(c) Executed Affidavits, assignments of mortgages, and other mortgage- related documents (collectively, “Mortgage Documents”) on behalf of Examined Servicers without authority to execute the Mortgage Documents, specifically without having been duly appointed as an agent or officer of the Examined Servicers to execute documents on behalf of the Examined Servicers.

See, also, Corrective Assignment of Mortgage, Instrument #2010000210065, Official Records, lee County, FL, stating the reason for the “corrective mortgage” as, “…the said Assignment was executed by Linda Green, Vice president, who at that time did not have signing authority on behalf of (MERS).” Assignments in this matter had been filed with the name Linda Green as Vice President of MERS as Nominee for American Brokers Conduit and as Linda Green as Vice president of American Home Mortgage Servicing. Green was at all times actually employed by mortgage servicer DocX, a company that later closed and entered a Consent Judgment with the Federal Reserve and the FDIC.

A Corrective Assignment, Instrument 3658224 was also filed in St. Lucie County Official Records “to reflect the full legal name of the assignee.” On the Corrective Assignment, the assignee was identified as Liquidation Properties, Inc. On the previous assignment, Instrument 3334250, the assignee was identified as “Bogus Assignee for Intervening ASMTS.”

From January 1, 2010 through October 1, 2012, Deutsche Bank National Trust Company and American Home Mortgage Servicing filed 236 Corrective Assignments in Palm Beach County, Florida. In many cases, the Corrective Assignment was not filed until several months after the foreclosure sale.

The lawsuit by New York Attorney General Eric Schneiderman against MERS and several major banks discussed in footnote viii above, alleged that employees and agents of Bank of America, J.P. Morgan Chase and Wells Fargo, acting as “MERS certifying officers” repeatedly submitted court documents containing false and misleading information that made it appear that the foreclosing party had the authority to bring a case when in fact it may not have. According to a Press Release on February 3, 2012 from Attorney General Schneiderman: “The banks created the MERS system as an end-run around the property recording system, to facilitate the rapid securitization and sale of mortgages.Once the mortgages went sour, these same banks brought foreclosure proceedings en masse based on deceptive and fraudulent court submissions, seeking to take homes away from people with little regard for basic legal requirements or the rule of law.”

xii– Where a pool of mortgages is assigned to a securitized trust, the executed agreement that assigns the pool of mortgages, with a schedule of the pooled mortgage loans that clearly and specifically identifies the mortgage at issue as among those assigned, may suffice to establish the trustee as the mortgage holder. However, there must be proof that the assignment was made by a party that itself held the mortgage. See In re Samuels, 415 B.R. 8, 20 (Bankr. D. Mass. 2009).

xiii– Gopal, Prashant and Shenn, Jody, “BofA Mortgage Morass Deepens After Employee Says Notes Not Sent.” Bloomberg, November 30, 2010; Thompson, Cadie, “Defunct Mortgage Lenders Seek to Destroy Thousands of Boxes of Loan Documents.” CNBC, January 24, 2011; Paltrow, Scot, “Judges To Weigh Mortgage Documents Destruction.” Reuters, January 23, 2011; White, Alan M., “Losing the Paper – Mortgage Assignments, Note Transfer and Consumer Protection.” Loyola Consumer Law Review, Vol. 24:4, May 4, 2012.