Jean Keating, Foreclosure Defense Guru – Not Really
I’ve heard this stuff from Keating before (appended below) – a couple of years ago. The community of foreclosure defense of lawyers seems to have ignored it. I analyze his comments up to a point.
Keating does not mention Decades of Rules of Evidence Violations
Florida has one example of what courts seem to have ignored for years. Courts accepted a copy of a note and an affidavit of lost note as evidence that the note exists, but the evidence code denies the court the power to admit a copy of the note into evidence. By my reasoning, if the court cannot admit a copy of a note into evidence, then the copy cannot become evidence of a lost note, even with an affidavit. This could impose a hardship on the note holder, particularly if a house fire burned a cache of federal reserve notes. As I see it, these to statutes stand at odds with one another. If I held a copy of a note but could not find the original, any judge should rightly question why I protected the copy but not the original, and flatly deny me the right to enforce it. But here we see the commercial code allowing enforcement under certain circumstances.
90.953 Admissibility of duplicates.—A duplicate is admissible to the same extent as an original, unless:
(1) The document or writing is a negotiable instrument as defined in s. 673.1041, a security as defined in s. 678.1021, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.
(2) A genuine question is raised about the authenticity of the original or any other document or writing.
(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.
History.—s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379; s. 57, ch. 92-82; s. 29, ch. 99-2.
673.3091 Enforcement of lost, destroyed, or stolen instrument.—
(1) A person not in possession of an instrument is entitled to enforce the instrument if:
(a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, s. 673.3081applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.
History.—s. 2, ch. 92-82; s. 1, ch. 2004-3.
You are a Merchant at Law?
Keating says “under 2-104 you are considered a merchant at law because you use commercial paper.” 2.104 does not say that at all, but it categorizes as a merchant a person who hires a broker (real estate broker, mortgage broker). However, very few people who execute a note and mortgage have “knowledge or skill particular to the practices or goods involved in the transaction.” But I question whether a home buyer and mortgagor is actually a merchant at law, and if so, what importance that has in a foreclosure.
672.104 Definitions: “merchant”; “between merchants”; “financing agency.”—
(1) “Merchant” means a person who deals in goods of the kind or otherwise by occupation holds himself or herself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his or her employment of an agent or broker or other intermediary who by occupation holds himself or herself out as having such knowledge or skill.
(2) “Financing agency” means a bank, finance company or other person who in the ordinary course of business makes advances against goods or documents of title or who by arrangement with either the seller or the buyer intervenes in ordinary course to make or collect payment due or claimed under the contract for sale, as by purchasing or paying the seller’s draft or making advances against it or by merely taking it for collection whether or not documents of title accompany or are associated with the draft. “Financing agency” includes also a bank or other person who similarly intervenes between persons who are in the position of seller and buyer in respect to the goods (s. 672.707).
(3) “Between merchants” means in any transaction with respect to which both parties are chargeable with the knowledge or skill of merchants.
History.—s. 1, ch. 65-254; s. 556, ch. 97-102; s. 6, ch. 2010-131.
Note.—s. 2-104, U.C.C.
Bank Can Treat Your Note as a Draft?
Keating refers to 673.1041 (5) below when he says “in 3-104e when you give them the note they can treat it as a liability instrument or they can treat it as a draft.” That provision does not say what Keating alleges. It is a note if a promise or a draft if an order, and if both the person entitled to enforce may treat it as either. Look at the language of the typical mortgage note. The Freddie Mac Fixed Rate multi-state note http://www.freddiemac.com/uniform/doc/3200-MultistateFRNote.doc bears this language, and that makes it a note ONLY, not a draft, so Keating erred in this pronouncement.
“In return for a loan that I have received, I promise to pay U.S. $___ (this amount is called “Principal”), plus interest, to the order of the Lender. The Lender is _________. I will make all payments under this Note in the form of cash, check or money order”
673.1041 Negotiable instrument.—
(1) Except as provided in subsections (3), (4), and (11), the term “negotiable instrument” means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:
(a) Is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
(b) Is payable on demand or at a definite time; and
(c) Does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain:
1. An undertaking or power to give, maintain, or protect collateral to secure payment;
2. An authorization or power to the holder to confess judgment or realize on or dispose of collateral; or
3. A waiver of the benefit of any law intended for the advantage or protection of an obligor.
(2) The term “instrument” means a negotiable instrument.
(3) An order that meets all requirements of subsection (1), except paragraph (a), and otherwise falls within the definition of “check” in subsection (6) is a negotiable instrument and a check.
(4) A promise or order other than a check is not an instrument if, at the time it is issued or first comes into possession of a holder, it contains a conspicuous statement, however expressed, to the effect that the promise or order is not negotiable or is not an instrument governed by this chapter.
(5) An instrument is a “note” if it is a promise and is a “draft” if it is an order. If an instrument falls within the definition of both “note” and “draft,” a person entitled to enforce the instrument may treat it as either.
(6) The term “check” means a draft, other than a documentary draft, payable on demand and drawn on a bank or a cashier’s check or teller’s check. An instrument may be a check even though it is described on its face by another term, such as “money order.”
(7) The term “cashier’s check” means a draft with respect to which the drawer and drawee are the same bank or branches of the same bank.
(8) The term “teller’s check” means a draft drawn by a bank:
(a) On another bank; or
(b) Payable at or through a bank.
(9) The term “traveler’s check” means an instrument that:
(a) Is payable on demand;
(b) Is drawn on or payable at or through a bank;
(c) Is designated by the term “traveler’s check” or by a substantially similar term; and
(d) Requires, as a condition to payment, a countersignature by a person whose specimen signature appears on the instrument.
(10) The term “certificate of deposit” means an instrument containing an acknowledgment by a bank that a sum of money has been received by the bank and a promise by the bank to repay the sum of money. A certificate of deposit is a note of the bank.
(11) A warrant of this state is not a negotiable instrument governed by this chapter.
History.—s. 2, ch. 92-82.
Keating claims “And if they endorse it on the back pay to the order of, that’s a commercial draft. And if you deposit that in a bank account it becomes the equivalent of cash or money under 1813L1 of Title 12.”
The indorsement of the person entitled to enforce the note does not convert the note into a draft. It merely assigns the beneficial interest in the note to another entity or to no one, making it a bearer instrument. The law (http://uscode.regstoday.com/12USC_CHAPTER16.aspx – Federal Deposit Insurance Act) in 12 USC 1813 shows definitions. Subsection L to which Keating refers uses the word “note,” but not in the context Keating seems to imply:
12 USC 1813(l) Deposit
The term "deposit" means –
(1) the unpaid balance of money or its equivalent received or held by a bank or savings association in the usual course of business and for which it has given or is obligated to give credit, either conditionally or unconditionally, to a commercial, checking, savings, time, or thrift account, or which is evidenced by its certificate of deposit, thrift certificate, investment certificate, certificate of indebtedness, or other similar name, or a check or draft drawn against a deposit account and certified by the bank or savings association, or a letter of credit or a traveler’s check on which the bank or savings association is primarily liable: Provided, That, without limiting the generality of the term "money or its equivalent", any such account or instrument must be regarded as evidencing the receipt of the equivalent of money when credited or issued in exchange for checks or drafts or for a promissory note upon which the person obtaining any such credit or instrument is primarily or secondarily liable, or for a charge against a deposit account, or in settlement of checks, drafts, or other instruments forwarded to such bank or savings association for collection.
(2) trust funds as defined in this chapter received or held by such bank or savings association, whether held in the trust department or held or deposited in any other department of such bank or savings association.
(3) money received or held by a bank or savings association, or the credit given for money or its equivalent received or held by a bank or savings association, in the usual course of business for a special or specific purpose, regardless of the legal relationship thereby established, including without being limited to, escrow funds, funds held as security for an obligation due to the bank or savings association or others (including funds held as dealers reserves) or for securities loaned by the bank or savings association, funds deposited by a debtor to meet maturing obligations, funds deposited as advance payment on subscriptions to United States Government securities, funds held for distribution or purchase of securities, funds held to meet its acceptances or letters of credit, and withheld taxes: Provided, That there shall not be included funds which are received by the bank or savings association for immediate application to the reduction of an indebtedness to the receiving bank or savings association, or under condition that the receipt thereof immediately reduces or extinguishes such an indebtedness.
(4) outstanding draft (including advice or authorization to charge a bank’s or a savings association’s balance in another bank or savings association), cashier’s check, money order, or other officer’s check issued in the usual course of business for any purpose, including without being limited to those issued in payment for services, dividends, or purchases, and
(5) such other obligations of a bank or savings association as the Board of Directors, after consultation with the Comptroller of the Currency, Director of the Office of Thrift Supervision, and the Board of Governors of the Federal Reserve System, shall find and prescribe by regulation to be deposit liabilities by general usage, except that the following shall not be a deposit for any of the purposes of this chapter or be included as part of the total deposits or of an insured deposit:
(A) any obligation of a depository institution which is carried on the books and records of an office of such bank or savings association located outside of any State, unless –
(i) such obligation would be a deposit if it were carried on the books and records of the depository institution, and would be payable at, an office located in any State; and
(ii) the contract evidencing the obligation provides by express terms, and not by implication, for payment at an office of the depository institution located in any State;
(B) any international banking facility deposit, including an international banking facility time deposit, as such term is from time to time defined by the Board of Governors of the Federal Reserve System in regulation D or any successor regulation issued by the Board of Governors of the Federal Reserve System; and
(C) any liability of an insured depository institution that arises under an annuity contract, the income of which is tax deferred under section 72 of title 26.
The above definition uses the term “promissory note” in the context of one which the taker of money has a liability to pay. But the mortgagor’s note obligates only the mortgagor to pay it. Thus only the mortgagor could deposit in accordance with the foregoing definition. I believe Keating has misconstrued the law. I would like to see proof of the deposit of a mortgage note into a bank account before I believe Keating’s allegation.
Bank Can Treat Your Note as Cash?
Keating says “the Financial Accounting Standard Board, number 95, statement of cash flow. …treat it as a note, it’s cash.” Now he asserts that the mortgage note becomes cash, even though he must also know that a note is a promise to pay in the future according to schedule, and it does not constitute today-money except in some dramatically discounted form. http://www.fasb.org/cs/BlobServer?blobkey=id&blobwhere=1175820920892&blobheader=application%2Fpdf&blobcol=urldata&blobtable=MungoBlobs shows FAS 95, Statement of Cash Flows. Note that this document does not magically convert a promissory note into cash. It merely establishes a means of accounting for the flow of notes as investments and means of payment, and the flow of payments on those notes. This creates a muddiness that cash flow statements exist to clear up, and the statement has caused dissent in the accounting industry. See pages 12 and 13 of the article. They bear this text:
“Messrs. Lauver, Leisenring, and Swieringa also dissent to this Statement’s requirement to classify certain cash receipts and payments according to the nature of an earlier transaction rather than according to the nature of the cash receipts and payments. Under this Statement, an enterprise that sells merchandise in one year for an installment note receivable and receives principal payments on the note in subsequent years will classify those principal payments as operating cash inflows. They believe that those principal payments should be classified as cash inflows from investing activities because they represent a return of the enterprise’s investment in the installment note. Classifying those principal payments as operating cash inflows denies receipt of the installment note as a noncash investing activity, is inconsistent with the enterprise’s recovery of its investment in that note, and is inconsistent with the treatment of the receipt of principal payments on other investments in debt instruments as cash inflows from investing activities. They also note that this Statement will result in similar inconsistencies for the purchase of inventory in exchange for a note payable.”
It seems clear to me that Keating does not understand the true nature of a promissory note as separate from actual cash because the true value of a promissory note diminishes with the character of the maker, and the US Government has a more reliable character than any individual or bank in the mind of the public.
Keating refers to 12 USC 24 text empowering national banks to lend money, but not credit.
Seventh. To exercise by its board of directors or duly authorized officers or agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking; by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt; by receiving deposits; by buying and selling exchange, coin, and bullion; by loaning money on personal security; and by obtaining, issuing, and circulating notes according to the provisions of title 62 of the Revised Statutes. The business of dealing in securities and stock by the association shall be limited to purchasing and selling such securities and stock without recourse, solely upon the order, and for the account of, customers, and in no case for its own account, and the association shall not underwrite any issue of securities or stock; Provided, [blah blah blah – okay to buy gov’t securities]
Banks Lend You Credit?
Keating says “And if you read your credit application it says that they’re loaning you credit.” Fannie Mae Residenial Loan Application form 1003 http://www.freddiemac.com/uniform/doc/form_65_urla_7_05.doc contains NO language indicating the borrower seeks to borrow or the lender seeks to lend “credit.” It refers to credit in the traditional sense of borrowing money. It bears this text:
“Uniform Residential Loan Application – This application is designed to be completed by the applicant(s) with the Lender’s assistance. Applicants should complete this form as “Borrower” or “Co-Borrower,” as applicable. Co-Borrower information must also be provided (and the appropriate box checked) when the income or assets of a person other than the Borrower (including the Borrower’s spouse) will be used as a basis for loan qualification or the income or assets of the Borrower’s spouse or other person who has community property or similar rights pursuant to applicable state law will not be used as a basis for loan qualification, but his or her liabilities must be considered because the spouse or other person who has community property or similar rights and the Borrower resides in a community property state, the security property is located in a community property state, or the Borrower is relying on other property located in a community property state as a basis for repayment of the loan. If this is an application for joint credit, Borrower and Co-Borrower each agree that we intend to apply for joint credit (sign below):
“(2) the loan requested pursuant to this application (the "Loan") will be secured by a mortgage or deed of trust on the property described in this application;”
When You Can Rescind Your Mortgage Under TILA Reg Z
Keating says 12 CFR226.23 Truth in Lending Act Regulation Z provides that borrowers cannot rescind a mortgage loan “Go to 226.23, Right to Rescind. Now, it will tell you in there that it doesn’t apply to mortgage loan transactions. And the reason it doesn’t is because they can’t loan credit. But if you go down to Section H it says, when a loan goes into foreclosure—and a lot of you are in foreclosure—you could rescind the loan transaction.”
Regulation Z does indeed look weird at 12 CFR 226.23 Rescission
§ 226.23 Right of rescission.
(a) Consumer’s right to rescind. (1) In a credit transaction in which a security interest is or will be retained or acquired in a consumer’s principal dwelling, each consumer whose ownership interest is or will be subject to the security interest shall have the right to rescind the transaction, except for transactions described in paragraph (f) of this section. 47
(f) Exempt transactions. The right to rescind does not apply to the following:
(1) A residential mortgage transaction.
(h) Special rules for foreclosures —(1) Right to rescind. After the initiation of foreclosure on the consumer’s principal dwelling that secures the credit obligation, the consumer shall have the right to rescind the transaction if:
(i) A mortgage broker fee that should have been included in the finance charge was not included; or
(ii) The creditor did not provide the properly completed appropriate model form in appendix H of this part, or a substantially similar notice of rescission.
So, a home mortgage makes the principle dwelling into a security interest, thus owner has right to rescind, but it’s a mortgage, so now owner doesn’t have right to rescind, except it’s a foreclosure, so now owner does have right to rescind. Some mortgage circumstances justify Rescission, but it has nothing to do with lending credit.
Your Mortgage Note Becomes YOUR Investment?
Keating says a mortgage is an investment, citing 328 US 293 http://supreme.justia.com/cases/federal/us/328/293/case.html : “And what you’re dealing in is a security and not a promissory note. What’s the difference between a promissory note—ok, here’s the cite. It’s 328 US 293 and that’s volume 328, US Reports, page 293. The name of the case is SEC. It means Securities Exchange Commission v. Howey. It’s a 1946 US Supreme Court decision. And I had cases clear up to 2010. What you’re dealing in is not a mortgage loan, it’s an investment contract. What’s the proof of that? I can prove this as a matter or law. And what’s the proof? All of your mortgage payments are going to the investors under a pooling and servicing agreement as cash flow claims. They’re using them as cash flow claims to pay the investors.”
The case law he cited refers to an investment contract from the perspective of the investor (lender/assignee/indorsee), not from the perspective of the borrower.
The term "investment contract" is undefined by the Securities Act or by relevant legislative reports. But the term was common in many state "blue sky" laws in existence prior to the adoption of the federal statute, and, although the term was also undefined by the state laws, it had been broadly construed by state courts so as to afford the investing public a full measure of protection. Form was disregarded for substance, and emphasis was placed upon economic reality. An investment contract thus came to mean a contract or scheme for "the placing of capital or laying out of money in a way intended to secure income or profit from its employment." State v. Gopher Tire & Rubber Co.,146 Minn. 52, 56, 177 N.W. 937, 938. This definition was uniformly applied by state courts to a variety of situations where individuals were led to invest money in a common enterprise with the expectation that they would earn a profit solely through the efforts of the promoter or of some one other than themselves. [Footnote 4]
By including an investment contract within the scope of § 2(1) of the Securities Act, Congress was using a term the meaning of which had been crystalized by this prior judicial interpretation. It is therefore reasonable to attach that meaning to the term as used by Congress, especially since such a definition is consistent with the statutory aims. In other words, an investment contract, for purposes of the Securities Act, means a contract, transaction
Page 328 U. S. 299
or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical assets employed in the enterprise. Such a definition necessarily underlies this Court’s decision in SEC v. Joiner Corp., 320 U. S. 344, and has been enunciated and applied many times by lower federal courts. [Footnote 5] It permits the fulfillment of the statutory purpose of compelling full and fair disclosure relative to the issuance of "the many types of instruments that, in our commercial world, fall within the ordinary concept of a security." H.Rep. No.85, 73rd Cong., 1st Sess., p. 11. It embodies a flexible, rather than a static, principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.
The borrowed money to buy a house might or might not constitute an investment, and the borrower totally controls the house within the scope of the mortgage security instrument. But the investment contract language in the cited case refers to the fact that the investor (bank, assignee, indorsee, and related investors in any mortgage-backed securitization trust) does NOT manage the target of the investment, but totally trusts someone else to do it, as did the investors in Howey, Company’s Florida orange grove acreage. Therefore, mortgage lenders to home buyers have no obligation to register the loan as a security with respect to the borrower, but they have an obligation to register it with respect to any MBS investor. Here again, Keating seems to get his wires crossed.
Relation of Statute of Frauds to Loan Mod
Keating tries to draw a connection between California mortgages entering default and loan mods thusly: “All of your mortgage payments are going to the investors under a pooling and servicing agreement as cash flow claims. They’re using them as cash flow claims to pay the investors. That’s why California passed 2923.6 into the California Civil Code. …try to do a loan modification, that’s to protect the investment contract that you’re involved in as an undisclosed third party under the statute of frauds. That’s why you have to raise the statute of frauds because it’s evidentiary and if you don’t waive it at the trial court level you waive it. You cannot be made a party to a contract unless it’s memorialized or subscribed to by you. But if you don’t raise the issue, you waive it.”
To address these claims, we look first at the cited code.
Legal Research Home > California Laws > Civil Code > California Civil Code Section 2923.6
(a) The Legislature finds and declares that any duty servicers may have to maximize net present value under their pooling and servicing agreements is owed to all parties in a loan pool, or to all investors under a pooling and servicing agreement, not to any particular party in the loan pool or investor under a polling and servicing agreement, and that a servicer acts in the best interests of all parties to the loan pool or investors in the pooling and servicing agreement if it agrees to or implements a loan modification or workout plan for which both of the following apply:
(1) The loan is in payment default, or payment default is reasonably foreseeable.
(2) Anticipated recovery under the loan modification or workout plan exceeds the anticipated recovery through foreclosure on a net present value basis.
(b) It is the intent of the Legislature that the mortgagee, beneficiary, or authorized agent offer the borrower a loan modification or workout plan if such a modification or plan is consistent with its contractual or other authority.
(c) This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2013, deletes or extends that date.
This law clearly shows the duty of the servicer to maximize the return on the pool investors’ investment by offering a loan modification in lieu of foreclosing, if within its legal power. This has nothing to do with maximizing the homeowner’s return on investment. Many loan mods actually cheat the borrower, resulting in the borrower owing double the value of the mortgaged house, and having a whopping balloon which most mortgagors will not have the ability to pay, making foreclosure inevitable. The loan mod just drags out the process and maximizes the return to the pool investors. However, it does leave the victim in the home the victim so ardently and stupidly craves.
As to the Statute of Frauds, it exists to make important oral agreements unenforceable in court, owing to the fact that people generally have faulty memories. Here I present Florida’s TWO Statutes of Frauds, the first from the UCC:
672.201 Formal requirements; statute of frauds.—
(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within 10 days after it is received.
(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable:
(a) If the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement; or
(b) If the party against whom enforcement is sought admits in his or her pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or
(c) With respect to goods for which payment has been made and accepted or which have been received and accepted (s. 672.606).
History.—s. 1, ch. 65-254; s. 557, ch. 97-102.
Note.—s. 2-201, U.C.C.
STATUTE OF FRAUDS, FRAUDULENT TRANSFERS, AND
725.01 Promise to pay another’s debt, etc.
725.03 Newspaper subscription.
725.04 Voluntary payment; pleading.
725.05 Satisfaction for less than amount due.
725.06 Construction contracts; limitation on indemnification.
725.07 Discrimination on basis of sex, marital status, or race forbidden.
725.08 Design professional contracts; limitation in indemnification.
725.01 Promise to pay another’s debt, etc.—No action shall be brought whereby to charge any executor or administrator upon any special promise to answer or pay any debt or damages out of her or his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements or hereditaments, or of any uncertain interest in or concerning them, or for any lease thereof for a period longer than 1 year, or upon any agreement that is not to be performed within the space of 1 year from the making thereof, or whereby to charge any health care provider upon any guarantee, warranty, or assurance as to the results of any medical, surgical, or diagnostic procedure performed by any physician licensed under chapter 458, osteopathic physician licensed under chapter 459, chiropractic physician licensed under chapter 460, podiatric physician licensed under chapter 461, or dentist licensed under chapter 466, unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.
History.—s. 10, Nov. 15, 1828; RS 1995; GS 2517; RGS 3872; CGL 5779; s. 10, ch. 75-9; s. 933, ch. 97-102; s. 60, ch. 97-264; ss. 227, 294, ch. 98-166.
725.03 Newspaper subscription.—No person shall be liable to pay for any newspaper, periodical or other like matter, unless the person shall subscribe for or order the same in writing.
History.—s. 1, ch. 379, 1851; RS 1997; GS 2519; RGS 3874; CGL 5781; s. 934, ch. 97-102.
725.04 Voluntary payment; pleading.—When a suit is instituted by a party to a contract to recover a payment made pursuant to the contract and by the terms of the contract there was no enforceable obligation to make the payment or the making of the payment was excused, the defense of voluntary payment may not be interposed by the person receiving payment to defeat recovery of the payment.
History.—ss. 1, 2, ch. 21902, 1943; s. 1, ch. 29737, 1955; s. 41, ch. 67-254.
Note.—Former s. 52.24.
725.05 Satisfaction for less than amount due.—When the amount of any debt or obligation is liquidated, the parties may satisfy the debt by a written instrument other than by endorsement on a check for less than the full amount due.
History.—s. 1, ch. 71-94.
725.06 Construction contracts; limitation on indemnification.—
(1) Any portion of any agreement or contract for or in connection with, or any guarantee of or in connection with, any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance, including moving and excavating associated therewith, between an owner of real property and an architect, engineer, general contractor, subcontractor, sub-subcontractor, or materialman or any combination thereof wherein any party referred to herein promises to indemnify or hold harmless the other party to the agreement, contract, or guarantee for liability for damages to persons or property caused in whole or in part by any act, omission, or default of the indemnitee arising from the contract or its performance, shall be void and unenforceable unless the contract contains a monetary limitation on the extent of the indemnification that bears a reasonable commercial relationship to the contract and is part of the project specifications or bid documents, if any. Notwithstanding the foregoing, the monetary limitation on the extent of the indemnification provided to the owner of real property by any party in privity of contract with such owner shall not be less than $1 million per occurrence, unless otherwise agreed by the parties. Indemnification provisions in any such agreements, contracts, or guarantees may not require that the indemnitor indemnify the indemnitee for damages to persons or property caused in whole or in part by any act, omission, or default of a party other than:
(a) The indemnitor;
(b) Any of the indemnitor’s contractors, subcontractors, sub-subcontractors, materialmen, or agents of any tier or their respective employees; or
(c) The indemnitee or its officers, directors, agents, or employees. However, such indemnification shall not include claims of, or damages resulting from, gross negligence, or willful, wanton or intentional misconduct of the indemnitee or its officers, directors, agents or employees, or for statutory violation or punitive damages except and to the extent the statutory violation or punitive damages are caused by or result from the acts or omissions of the indemnitor or any of the indemnitor’s contractors, subcontractors, sub-subcontractors, materialmen, or agents of any tier or their respective employees.
(2) A construction contract for a public agency or in connection with a public agency’s project may require a party to that contract to indemnify and hold harmless the other party to the contract, their officers and employees, from liabilities, damages, losses and costs, including, but not limited to, reasonable attorney’s fees, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of the indemnifying party and persons employed or utilized by the indemnifying party in the performance of the construction contract.
(3) Except as specifically provided in subsection (2), a construction contract for a public agency or in connection with a public agency’s project may not require one party to indemnify, defend, or hold harmless the other party, its employees, officers, directors, or agents from any liability, damage, loss, claim, action, or proceeding, and any such contract provision is void as against public policy of this state.
(4) This section does not affect any contracts, agreements, or guarantees entered into before the effective date of this section or any renewals thereof.
History.—s. 1, ch. 72-52; s. 935, ch. 97-102; s. 31, ch. 2000-372; s. 10, ch. 2001-211.
Note.—Former s. 768.085.
725.07 Discrimination on basis of sex, marital status, or race forbidden.—
(1) No person, as defined in s. 1.01(3) shall discriminate against any person based on sex, marital status, or race in the areas of loaning money, granting credit, or providing equal pay for equal services performed.
(2) Any violation of this section may be brought in the courts of this state by the individual upon whom the discrimination has been perpetrated in a civil action, and said individual shall be entitled to collect, not only compensatory damages, but, in addition thereto, punitive damages and reasonable attorney fees for a violation of this section.
History.—ss. 1, 2, ch. 73-251.
725.08 Design professional contracts; limitation in indemnification.—
(1) Notwithstanding the provisions of s. 725.06, if a design professional provides professional services to or for a public agency, the agency may require in a professional services contract with the design professional that the design professional indemnify and hold harmless the agency, and its officers and employees, from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorneys’ fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the design professional and other persons employed or utilized by the design professional in the performance of the contract.
(2) Except as specifically provided in subsection (1), a professional services contract entered into with a public agency may not require that the design professional defend, indemnify, or hold harmless the agency, its employees, officers, directors, or agents from any liability, damage, loss, claim, action, or proceeding, and any such contract provision shall be void as against the public policy of this state.
(3) “Professional services contract” means a written or oral agreement relating to the planning, design, construction, administration, study, evaluation, consulting, or other professional and technical support services furnished in connection with any actual or proposed construction, improvement, alteration, repair, maintenance, operation, management, relocation, demolition, excavation, or other facility, land, air, water, or utility development or improvement.
(4) “Design professional” means an individual or entity licensed by the state who holds a current certificate of registration under chapter 481 to practice architecture or landscape architecture, under chapter 472 to practice land surveying and mapping, or under chapter 471 to practice engineering, and who enters into a professional services contract.
(5) This section does not affect contracts or agreements entered into before the effective date of this section.
History.—s. 1, ch. 2000-162; s. 11, ch. 2001-211.
Thus, the Courts will not enforce certain contracts unless the parties have executed them in writing, and the Legislature considers certain provisions in contracts unenforceable as a matter of law because they prejudice or violate people’s rights. Frankly, I do not see what this has to do with loan modifications unless a lender idiotically imposes one upon a borrower without the borrower’s signature.
I am not a lawyer, but as I see it, the court takes mandatory judicial notice of all laws including the statute of frauds, and a judge’s failure to apply it to the other facts of the case constitutes reversible error. So I don’t know why Keating threw out this red herring. As a matter of history, many people have become incredibly stupid in managing inability to pay mortgages timely. They fall for servicer suggestions that they not pay the mortgage for three months in order to qualify for a loan mod. This violates the mortgage note terms and justifies initiation of the foreclosure process. Servicers have foreclosed on many notes in this crooked manner. Servicers or lenders or mortgage brokers have also forged borrower signatures on many loan modification documents and stuck borrowers with a loan to which they did not agree. Borrowers have no choice but to capitulate or challenge the forgeries and breaches of good faith in court, and most haven’t the money to raise such a challenge.
End of My Keating Comments Analysis
At the above point I have stopped in my analysis of Jean Keating’s comments on the Ralph Winterrowd radio show. I find Jean personable and affable, and I like him. But he’s a fast talker who quotes and cites laws the way he might his teenage memories, and most people cannot keep up with him OR vet his assertions. So I have spent my morning doing just that, and I have found them erroneous or red herrings lacking in substance, up to the point where I ended my analysis. I encourage extreme caution when listening to Jean Keating. I have shown above how he has made misleading assertions. Possibly everything he propounds suffers from similar problems.
Why Foreclosure Defense Makes ZERO Sense
Foreclosure defenders, whether non-lawyer free-lance self-appointed gurus like Jean Keating, or the attorneys who pay for glitzy ads, border on committing legal malpractice, in my non-lawyer opinion. They merely take the foreclosure victim’s money (which the victim should have paid to the lender/servicer) and drag out the foreclosure while running up legal fees, interest, and related costs which the foreclosure victim will have to pay ultimately. Meanwhile, the foreclosure defender does not bother examining the mortgage and underlying documents and circumstances for evidence showing the lender or lender agents cheated the client. And therein lies the malpractice. Someone goes to a lawyer saying “BOA accused me of breach of contract and wants to foreclose.” What should the lawyer do? Examine the note, mortgage, loan application, appraisal, and every single paper associated with that deal so as to build a case for the client against the lender.
Instead, the pretender defender only looks at flaws in the FORECLOSURE, not in the mortgage. But the defender knows well that disputing foreclosure flaws only delays the inevitable, and the foreclosure always goes through, and the client always loses the house. Meanwhile, the pretender defender pockets $10,000 to $30,000 while the foreclosure slogs its way to completion. No foreclosure pretender-defender ever got the client’s house free and clear. Well, it has happened, but only with extreme rarity.
Why a Competent Mortgage Fraud Examination Makes PROFOUND Sense
In many if not most cases, the victim should get the mortgage examined for torts, breaches, and legal errors (including mortgage broker fraud and appraisal fraud), and then hammer the lender for a cash award or house free and clear in a lawsuit or settlement. Failing the discovery of causes of action, the victim should negotiate a keys for cash deal, deed in lieu of foreclosure, or short sale, and RUN from the overvalued house. Why? Because most houses have collapsed to an “under water” value lower than the loan balance. The homeowner’s investment has gone bad and the homeowner with good sense will abandon it if the lender won’t forgive the debt.
Securitization Audits: WORTHLESS for Foreclosure Defense – Get a Mortgage Exam Instead.
If you have a mortgage, whether or not you face foreclosure, CALL OR WRITE ME for guidance as to HOW to get the examination done. And for GOD’s sake, DON’T waste your precious money on a securitization audit.
|WARNING: No, I’m not a lawyer, don’t have a law license, don’t practice law, don’t give legal advice. I’m just a student and commentator. Consult a competent attorney on any questions of law. Be sure to demand a competence guarantee, and strict accounting of all charges, fees, and work done. Pay money on account only against services, NOT for a retainer of any kind. Consider everything I have written above as an academic exercise, and not advice for you or anyone else.
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From: warrior7 [mailto:firstname.lastname@example.org]
Sent: Wednesday, November 21, 2012 5:47 PM
To: Bob Hurt
Subject: Bob, I attached a transcript Al 3 AUDIOS AVAILABLE HERE ARE VERY INTERESTING REGARDING LAND PATENTS, ALLODIAL TITLES, ABSTRACTS OF TITLE, MORTGAGES ETC ETC.
On 11/21/2012 5:28 PM, Bob Hurt wrote:
I’d love to read an executive summary. I don’t have the patience to listen to them.
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From: warrior7 [mailto:warrior7]
Sent: Wednesday, November 21, 2012 11:05 AM
Subject: Fwd: THE 3 AUDIOS AVAILABLE HERE ARE VERY INTERESTING REGARDING LAND PATENTS, ALLODIAL TITLES, ABSTRACTS OF TITLE, MORTGAGES ETC ETC.