Over the course of our blog we've written about several instances where people simply misstated their incomes who were subsequently arrested and convicted of various frauds, so why should it be any different for banks? Considering the robo signing epidemic that's plagued the courts recently where foreclosure attorneys representing banks have been fabricating and forging documents to help their foreclosure cases along, shouldn't these attorneys and the banks who they represent have their feet held to the fire for perpetrating these frauds on the court? Up till now the attorneys and their clients have been able to avoid any repercussions from these frauds by simply dropping the foreclosure cases, isn't that nice?
Imagine committing a crime then simply backing off midway and having the government not prosecuting you? I've always been told that even if you didn't go through with the crime, it's simply the intent that's enough to get you prosecuted, so why are these attorneys and their clients being let off the hook for committing the very same type of frauds that many of the people who've been prosecuted for mortgage fraud have committed? Doesn't seem fair does it?
Now comes a foreclosure defense attorney who isn't satisfied with the status quo, attorney Enrique Nieves III has filed an appeal with the Florida supreme court which will decide if the banks can simply walk away from these nefarious fake robo signed documents without having to deal with the consequences. From the Daily Business Review article...
At 31, Nieves is assigned to argue a case that may decide the fate of thousands of mortgage foreclosures similar to his case, Roman Pino v. Bank of New York Mellon.
The question before the court seems straightforward: Can banks escape fraud claims in foreclosures by simply dropping their case?
But the ramifications are potentially severe, and with its decision the state's high court will likely decide what consequences lenders will face for the robo-signing scandal and allegedly fraudulent assignment-of-mortgage documents that has affected thousands of cases.
In Nieves' case, the 4th District Court of Appeal ruled Feb. 3 that BNY Mellon legally avoided a claim that it committed a fraud on the court by voluntarily dismissing a foreclosure action against Pino, a Lake Worth resident. The claim was dismissed after Pino's counsel scheduled depositions and asked for an evidentiary hearing to determine whether BNY Mellon used a fraudulent mortgage assignment.
On appeal is an 8-1 en banc decision saying courts have no authority to rescind voluntary dismissals and that no harm was done. Judge Mark Polen disagreed, saying the allegation of a systemic fraud was the very thing the Supreme Court addressed in its 2010 rule change giving courts greater latitude in sanctioning plaintiffs who make false allegations.
If the Supreme Court agrees with Polen, a host of homeowners may get a chance to seek sanctions from their lenders. Those are the stakes for Nieves.
On July 1, the Supreme Court granted BNY Mellon's motion for extension of time. It has until Aug. 4 to answer Nieves' brief. No date has been set for oral arguments.
Best of luck to Mr. Nieves, we'll have to wait till August to see how this pans out, the outcome of this case could have huge repercussions for homeowners embroiled in this mess.
The bigger question that's left unanswered is why haven't any of the attorneys and banks that have committed these frauds been prosecuted or at the very least been disciplined by the Bar? Why haven't any prosecutors summoned up the balls to go ahead and make a case against these guys? Seems like a slam dunk, open and shut case to me. Maybe when they're through prosecuting people who misstated their incomes on mortgage applications or lied about where they worked, they'll get around to going after these guys.
Here's another question to ponder, perhaps a question that can be answered by simply looking at two photos. Why is property in the City of Miami worth significantly less than property in Coral Gables? Let's try to answer that question by looking at two photos taken as you go down 37th Avenue which is the border between the two cities, the first photo is on the east side of 37th which is the Gables side...
Here you have nicely manicured landscaping, some palm trees, clean sidewalks, etc. Now, from the very same position, look across the street to the City of Miami side and you'll find this...
Isn't that sweet? Check out the three huge billboards on a tiny 8,000 sqft lot. Funny how eyesores like this have a detrimental effect of property values, isn't it? Doesn't this look like the visual pollution people from the north east want get away from when they come to sunny Florida for vacation?
The worst part of all this is that if the people running our beloved city have their way, the entire city is going to look like this mess and considering how the city commission is in the billboard industry's pocket, I guess we're fcuked!