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Our Newest Appeal

Foreclosure Defense May 8, 2013
Even with our recent foreclosure trial successes, we clearly do not and will not win them all.  Below is an excerpt from a recent trial that we lost.  However, today, May 8, 2013, we filed our Notice of Appeal.  The basis of the appeal can be summed up best from the following exchange copy and pasted from the trial transcript:


16 Q. Your knowledge of this loan is based upon a
17 review of documents, correct?
18 A. Correct.
19 Q. You don’t have any documents or records,
20 today, with you, in court, that gives the plaintiff —
21 excuse me, gives — that shows that the plaintiff is
22 giving to the servicer authority to collect payments for
23 the plaintiff, which is a trust; correct?
24 A. Correct.
25 Q. This plaintiff is a trust in this case,
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1 correct?
2 A. I’m not sure off the top of head, now, what
3 the plaintiff named in this case is.
4 Q. You don’t know the name of your plaintiff in
5 your case?
6 A. Not this particular case, off the top of my
7 head; no.
8 Q. I’m going to read from the pleading; the
9 plaintiff is the Bank of New York Mellon —
10 A. Okay?
11 Q. — formerly known as Bank of New York as
12 Trustee for the Certificate Holder Sewalt, Inc.
13 Alternative Loan Trust 2005-27 Mortgage Pass-Through
14 Certificate Series 2005-27; is that correct?
15 A. That’s correct.
16 Q. And you work for Bank of America?
17 A. That is correct.
18 Q. And do you have any — You don’t have any
19 records with you today, in court, that are from the
20 plaintiff authorizing Bank of America to foreclose this
21 mortgage; correct?
22 A. No, I do not have any documentation.
23 Q. You do not have any documents or records that
24 indicate that you’re authorized to testify or Bank of
25 America is authorized to testify on behalf of the
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1 plaintiff?
2 A. No, not present with me, in court, today.
3 Q. There is no one here, in court, with you today
4 from the trust; correct?
5 A. That is correct.
6 Q. And you have nothing, no records, to indicate
7 that the plaintiff has authorized Bank of America to
8 service the loan?
9 A. Not present with me in court today.
10 Q. And you have nothing, no records, with you, in
11 court, today, to indicate that Bank of America has the
12 right to possess the Note?
13 A. Not present with me in court. That is
14 correct.
15 Q. And nothing that indicates that Bank of
16 America has the right to enforce the Note on behalf of
17 the plaintiff, who is, actually, the holder?
18 A. Nothing present in court. That is correct.
19 Q. And you don’t have a record with you to show
20 that the plaintiff purchased the debt, correct?
21 A. That is correct.
22 Q. And you don’t have a record with you, in
23 court, today that the plaintiff purchased the debt at or
24 before the time the lawsuit was filed?
25 A. That is correct; I don’t have a record with me
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1 today.
2 Q. And you don’t have a record with you that
3 shows the plaintiff was entitled to foreclose the
4 mortgage at or before the time the foreclosure lawsuit
5 was filed?
6 A. That is correct; not present with me in court.
7 Q. And you don’t have a record with you,
8 presently, in court, that indicates the plaintiff is
9 entitled to enforce the Note at or before the time the
10 lawsuit was filed; correct?
11 A. That is correct; not present with me in court.


More cross examination continues on other issues, then the Plaintiff re-directs.  I recross and then the transcript continues.


2 MR. ROSEN: No further questions.
3 THE COURT: Okay. Are you ready to move for
4 judgment or what?
5 MR. COX: Yes, Judge. I assume the defense
6 has no witnesses.
7 THE COURT: Are you resting?
8 MR. COX: Plaintiff rests.
9 THE COURT: Don’t assume what he wants to do.
10 He may have God back there. I don’t know.
11 MR. ROSEN: Before I get to that, Your Honor,
12 I would move for involuntary dismissal on a number
13 of grounds. I’d like to state them on the record;
14 and, hopefully, for your serious consideration and
15 ruling.
16 THE COURT: I always seriously consider
17 anything argued in front of me.
18 MR. ROSEN: I believe you do, Your Honor.
19 Thank you.
20 Your Honor, first of all, the acceleration
21 letter was not mailed to the proper address. That
22 is a condition precedent. There is case law, an
23 enormous amount on that, as an express condition
24 precedent. He was not given notice to the address
25 that was, specifically, provided. Therefore, the
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1 plaintiff should not be able to foreclose.
2 Furthermore, the acceleration letter was
3 missing three keys elements, which I’ve elicited on
4 cross-examination as to what is supposed to be in
5 it and the language in paragraph 22 is in bold.
6 It’s the only one that’s in bold and it says shall.
7 It was not provided as per paragraph 22.
8 Under the Elston case, if a plaintiff is
9 servicing on behalf of — If a plaintiff is a trust
10 and there is a servicer who is, actually,
11 foreclosing, in that case, on behalf of a trust,
12 there must be something from the trust that
13 authorizes the servicer in writing. And, I have a
14 copy of the case.
15 THE COURT: Yes; I’m familiar with it.
16 MR. ROSEN: You’re familiar with Elston?
17 THE COURT: Yes.
18 MR. ROSEN: There has been no record evidence
19 of that, whatsoever.
20 Furthermore, under Green, a recent opinion
21 last week, and many others you have to demonstrate
22 at the time of the foreclosure that you had
23 standing at the time the lawsuit was filed.
24 Coming here with a Note endorsed in blank is
25 great. But, that’s not what standing is. Standing
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1 is at the time the lawsuit was filed. There is no
2 record evidence that they had the Note at the time
3 this was filed. There is no record evidence that
4 they had the right enforce the Mortgage at the time
5 the lawsuit was filed.
6 Under Johns v. Gillian, the Mortgage can
7 equitably transfer; but, they have to show either
8 that they had the assigned Mortgage, which they
9 haven’t done here or that there has been a purchase
10 of the debt, which they haven’t done here.


More argument on other issues, then….


14 We move for an involuntary dismissal.
15 THE COURT: That motion is denied.


This is a Judge who I very much respect and enjoy going before on hearings and trials.  However, here we believe his ruling was wrong.    So the appeal ensues…  Stay tuned!



If you are in South Florida and are looking for help with debtforeclosure, student loans, real estate or want more information about bankruptcy law, call us at (754) 400-5150 or fill out our online form for a FREE CONSULTATION.  Let the lawyers and staff at the Law Offices of Evan M. Rosen serve you!


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