FRAUD ON THE COURT RUNS RAMPANT IN FLORIDA

There are no “Do-Overs” for Fraud

Pursuant to FRCP 1.10(b) as amended by the Florida Supreme Court on February 11, 2010, to wit; 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.”

The Supreme Court’s intent noted that: [t]he primary purposes of this amendment are: (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded “lost note” counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.  In re: Amendments to the Florida Rules of Civil Procedure, No. SC09-1579, (Feb. 11, 2010).

Upon the disclosure of Robo-Signers a number of “Re-Verified Affidavits” in foreclosure cases with the “foreclosure-mills” have begun to appear.  The fact-pattern goes like this.  Bank files fraudulent affidavit.  Bank’s lawyers realize it.  Bank files “re-verified affidavit,” asking the Court to ignore the first affidavit, use the second affidavit, and proceed with the foreclosure lawsuit as normal. 

Does anyone else find this to be an insult to the homeowners, the courts, the justice system, and the public as a whole?  The banks are essentially saying “yes, I committed fraud, but I want the court to ignore that, sweep the fraud under the rug, and proceed with foreclosure.”  The term “re-verified” in itself is a blatant contradiction and a strongly implied fraud. This act of “re-verifing” is basically recanting, and defined as : To make a formal retraction or disavowal of a statement or belief to which one has previously committed oneself.  To make a formal retraction or disavowal of a previously held statement or belief.  This action falls under the statutes of perjury, see Florida Statute below regarding perjury: 

Luckily, in Florida, the courts have a legal doctrine called fraud on the court as do many states.  The concept, essentially, is that when a party, particularly a plaintiff, commits a fraud in the perpetuation of a lawsuit, that party should not be able to use the court system (upon which it just committed a fraud) to obtain relief.  Essentially, the party is slapping the court in the face with one hand while sticking out the other hand asking for relief – and that’s not allowed.  As I see it, this is totally reprehensible and should never be permitted. 

Below is some of the case law utilized in Motion For Fraud on the Court*:

1. An attorney’s “loyalty to the Court, as an officer thereof, demands integrity and honest dealing with the Court. And when he departs from that standard in the conduct of a case he perpetrates a fraud upon the Court.” Kupferman v. Consolidated Research & Manufacturing Corp., 459 F.2d 1072, 1078 (2d Cir.1972) [citing 7 Moore, Federal Practice, Par. 60.33 at 513]. Fraud on the court is a “species of fraud which does or attempts to, subvert the integrity of the court itself….” 7 Moore’s Federal Practice ¶ 60.33  at 515 (1971 ed.) See Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 702 (2d Cir.1972). A court has “inherent authority to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction.” Figgie International, Inc.v. Alderman, 698 So.2d 563, 567 (Fla. 3^rd DCA 1997) (quoting Anderson v. State, 267 So2d 8 (Fla. 1972).
2.  The remedies available for misrepresentations made to the Court include striking pleadings, entry of default, dismissal, and monetary sanctions. See, Hanono v. Murphy, 723 So.2d 892, 895 (Fla. 3^rd DCA 1998)
3. ([A] party who has been guilty of a fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve [their] ends”).
4.  In the instant case, as was the case in Cabrerizo v. Fortune International Realty, 760 So.2d 228 230 (Fla. 3^rd DCA 2000), BSPA have “mindfully undermined the integrity of this Court by creating a mockery of the principles of justice through [their] deceitful misconduct. Such underhanded tactics in full derogation of our legal processes should be met with swift measures. Total expulsion from the category of persons who may avail themselves of the benefits of our court system should not be an afterthought, but should instead be the direct result of such egregious misconduct.” Id.
5. The Court has many alternatives for punishing the conduct of the Plaintiff and their counsel, including rendering judgment in favor of Defendant(s)
6. An attorney may commit fraud on the court not only through misrepresentation, but also through omission. See Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 246, 64 S.Ct. 997, 1001, 88 L.Ed. 1250 (1944)(“It is a wrong …which … cannot complacently be tolerated consistently with the good order of society….involv[ing] two victims: the individual litigant … and the court itself, whose integrity is compromised by the fraudulent behavior of its officers.) “The very temple of justice [is] defiled.” Universal Oil Products v. Root Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 1179, 90 L.Ed. 1447 (1946). Here, the conduct on display before this Court “fails to comport with the standards of integrity required by the judicial system [and] [s]uch misconduct must be discouraged in the strongest possible way.” Andrews v. Palmas DeMajorca Condominium, 898 So.2d 1066,1070 (Fla. 5^th DCA 2005).

*Legal definition of Fraud on the  Court by U.S Legal.com:

Fraud on the court occurs when the judicial machinery itself has been tainted, such as when an attorney, who is an officer of the court, is involved in the perpetration of a fraud or makes material misrepresentations to the court. Fraud upon the court makes void the orders and judgments of that court

Feel free to utilize our research in your defense of foreclosure.

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