Articles Posted in Foreclosure Defense

I know it; I teach it; but it’s still always so awesome to see the power of simply telling the truth.  Sometimes when I speak or think a profoundly true thought, I get a shiver up my spine. Recently, I had this experience in a trial.

There were a few legal issues on which we won this recent trial but the main ones were pertaining to an Elston/Leetsdale, LLC v. CWCapital Asset Management, LLC. 87 So.3d 14 (Fla. 4th DCA 2012) issue and paragraph 22 of the mortgage.  In Elston, the plaintiff alleged to only be the servicer, foreclosing on behalf of another entity, a trust.  Id.  The plaintiff was neither the holder nor the owner of the note or mortgage. Id.  The sole witness was an employee of the servicer.  Id.  Without the trust joining or formally ratifying the actions of the servicer, the servicer plaintiff could not prevail.  Id.  This is an extremely rare fact pattern.  Usually, when servicers are plaintiffs in foreclosure cases they allege to also be the holder.  In the case on which this blog post is based, the Plaintiff alleged their capacity to sue solely as servicing agent for a trust, just like the plaintiff in Elston.  Also, just like in Elston, the Plaintiff in our case offered no evidence to show that the trust joined or ratified the servicer’s actions.  This was still a winnable issue for the Plaintiff but, fortunately for our client, their evidence was lacking. In addition to this issue, we also won based on a paragraph 22 violation.   Those are the skimming-the-surface legal reasons why we won at trial.   However, it took hours and hours of preparation, keeping my cool, and making tons of legally valid objections combined with one opportune moment, in which I admitted a weakness in our case, to seal the deal.

As to the paragraph 22 issue, there was a business record admitted into evidence that showed the acceleration letter was mailed, by regular mail, the day after the date on the actual letter itself. Among other things, paragraph 22 in the mortgage specifies that the default letter must provide “…a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured….” Paragraph 15 defines given as “…when mailed by first class mail or when actually delivered to Borrower’s notice address if sent by other means.”  The letter in this case only stated that the borrower had to cure within “30 days of the date of this letter.”  Yet, through the plaintiff’s own evidence, the letter was mailed 29 days earlier, not 30, and by regular mail, not first class.  As a result, the letter was not “given” as required by the plain terms of paragraph 22 of the mortgage.  Since compliance with paragraph 22 is a “condition precedent” to acceleration of the mortgage and to foreclosure, and since we properly raised this issue in our pleadings, the Plaintiff could not prevail. This is a highly technical argument, which needs ample citing to Florida Supreme court caselaw regarding contract interpretation.   Without a deluge of strong case law, mixed with just the right amount of persuasion, this argument will go nowhere.  There were a few other things wrong with the letter as well, which helped.

Just minutes before the start of a trial the other day:

Me: Hi, Ian (Opposing Counsel). How’s things?

OC: Hi, Evan. I’m good thanks. You? Anything we can do to resolve this?

We did it again. The Law Offices of Evan M. Rosen crushed the competition in this 2 day foreclosure trial which had three different cases spanning over a period of 6 years. It started in 2008 when American Home Mortgage Servicing, Inc. (AHMSI) filed the first foreclosure. In paragraph 3 of its complaint, AHMSI claims that it “owns and holds the Note.” In December 2009, AHMSI voluntarily dismissed its 2008 case. Yet, prior to that dismissal, in October 2009, Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage-Backed Pass-Through Certificates Series 2006-1 brought suit to foreclose on the same subject property. For a period of time, there were two pending cases in Palm Beach County in which two different entities were claiming entitlement to enforce a note and foreclose a mortgage on the same property. Deutsche Bank National Trust Company eventually took an involuntary dismissal in the 2009 case in May of 2011 so they could clean up their case and refile. They filed a third foreclosure about a month later. Commentary and excerpts from our pleadings and transcripts of the trial will tell the story below.

The first part of the trial was held in January 2014. The Court continued trial, for a date to be determined, midway through our cross examination of Plaintiff’s one witness.  The plaintiff realized they had a major problem. The note was not in their possession because it was filed in the 2008 case which was brought by another party, AHMSI. They were in the process of having the 2008 file sent to the courtroom but, just in case, they had a lost note affidavit as well. How convenient.

From the transcript:

We won another foreclosure trial recently based on an unqualified witness.  This was not the first win from this type of issue and hopefully not the last. In a recent case, the business records which the Plaintiff sought to admit through their witness, were primarily business records of other separate entities who were neither parties to the action nor called as witnesses at trial; to wit: EMS, Chase & Aegis. The witness did not even qualify to admit the records of her own employer, SPS.

“A witness may not testify to a matter unless evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter.” FLA. STAT. §90.604 (emphasis added).  “Testimony must be based on matters perceived by the senses of the witness.”  C. Ehrhardt, Florida Evidence §604.1 (2014  Edition). Additionally, when introducing the business records of a company, which are hearsay, Plaintiff must meet the requirements of the business records exception in Florida Statute §90.803(6). Business records may be admitted, by a records custodian or other qualified witness, if the proponent of the evidence demonstrates the following: (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record. Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008). A business record may not be admitted into evidence by someone who is not a records custodian or other qualified witness. See Specialty Linings, Inc. v. B.F. Goodrich Co., 532 So. 2d 1121, 1122 (Fla. 2d DCA 1988); Pickrell v. State, 301 So. 2d 473, 474 (Fla. 2d DCA 1974).

Because the business records exception requires personal knowledge, it is widely accepted that “[n]ormally, a record custodian of one business cannot lay a foundation for business records of a second business, even in possession of the first business because the witness would not have personal knowledge of how the second business kept it[s] records and could not testify to the foundation requirements.” C. Ehrhardt, Florida Evidence §803.6 (2014 Edition).

Angelo Mozilo is in the news again.  The U.S. gov is gearing up for another civil suit against him.  With all the zombie references we’ve heard during the crisis, “zombie debt,” “zombie homes,” “zombie borrowers,” and “zombie foreclosure,” the real zombie behind the crisis and every other major problem in our country, is GREED.

Countrywide and Mozilo got caught red handed committing all kinds of crimes, immoral and unethical acts, including saddling people with inflated interest rates just because of the color of their skin or the country they are from, giving NINJA loans to people with the only underwriting requirement being that they have a pulse (and I’m sure there were exceptions to that too), the “hustle” program to rip off our government, Fannie and Freddie and so much more, including deceptive mortgage practices, insider trading and the newest settlement just announced the day of this posting.  The state of California sued them, and so did Connecticut.  Then once caught, charged and on the brink of conviction, Mozilo and Co. paid a very small fraction of their profits as a fine.  Mozilo paid $67.5M in fines but made $535M during just 9 years.  For them, crime pays.  How could this be?!?

Apparently, greed is as intoxicating as any other vice and Mozilo and the other sociopathic criminals that run Wall Street (and our country) are able to peddle this “drug of choice” to the highest levels. It’s as if they are no different that the drug dealers and pimps who I’m sure make small fortunes peddling their vices on Capitol Hill.  Only, in a battle of the vices, it’s not even debatable which is most harmful to our country.  Rather than delivering dime bags and escorts, Mozilo kept his customers well supplied through one of the most notoriously well-known, insidious relationships with our government, the “Friends of Angelo” program.  The result, like lab rats choosing cocaine over food, our government power players, by and large, choose greed, money and power over the job they were sent to Washington to do, serve and represent their constituents.  We now see the devastating consequences of this exponentially escalating addiction.  “Financial institutions” are not only too big to fail and too big to jail, they, and almost every single politician in DC, have become the greatest impediment to our right to “Life, Liberty and the pursuit of Happiness.”

Just recently finished up a trial in Broward County, Florida.  The Plaintiff’s witness was very qualified, at something, as an employee for eight years with Seterus, only I’m not sure at what….

After a lengthy direct examination on her general background and “qualifications” in which my relevance objections started to be sustained, Plaintiff goes to move the note into evidence.  I offer to stipulate to the note coming in, if Plaintiff agrees to stipulate that the original was first filed in this case on 2/26/14.  Suit was filed on 12/27/11.  Opposing counsel agrees.  The Plaintiff then asked background questions on the note.  I object relevance, cumulative, we can let the evidence speak for itself. SUSTAINED

Next, copy of mortgage, I stipulate to its admission into evidence.

In early 2013, the Florida Supreme Court in Pino, told us that fraud, in a lawsuit, is defined by a person or entity actually getting away with deceiving the court.  Flat-out lying or attempts to deceive is not “fraud.”  The Court even went out of its way to avoid stating whether or not monetary sanctions would be warranted in Pino, because that issue was not before it.

Before reaching the Supremes, the 4th DCA addressed the case.  Justice Polen, adopting the written opinion of Justice Gary M. Farmer, wrote that:

“Decision-making in our courts depends on genuine, reliable evidence. The system cannot tolerate even an attempted use of fraudulent documents and false evidence in our courts. The judicial branch long ago recognized its responsibility to deal with, and punish, the attempted use of false and fraudulent evidence. When such an attempt has been colorably raised by a party, courts must be most vigilant to address the issue and pursue it to a resolution.”

The other night my wife and I saw the movie “300: Rise of an Empire.” It’s an expansion of the story behind the movie “300,” part prequel, part sequel.  The first of the two movies focuses on the Battle of Thermopylae.  In 480 BC, at the narrow coastal pass of Thermopylae, known as “The Hot Gates,” King Leonidas of Sparta and 300 men held off an advancing Persian army, rumored to be 1,000,000 strong. Not only did the Spartans hold off the Persians for three days, they inflicted huge losses on their massive army. As legend has it, Xerxes I, of Persia, demanded that the Greeks lay down their arms and surrender. King Leonidas responded, “MOLON LABE,” which translates to, come and take it!  Ultimately, all of the 300 were killed but the Greek states united and avenged them, decimating the mighty Persian army in two subsequent battles, the Battle of Salamis and the Battle of Plataea.

What has grown into an iconic statement of defiance, bravery, patriotism, loyalty and an unyielding commitment to never surrender, the saying “Molon Labe,” has been used many times since. “Come and take it” was a slogan in the Texas Revolution. The phrase is on the emblem of the Greek First Army Corps.  It is also the motto of United States Special Operations Command Central (“SOCCENT”). Headquartered in Tampa, SOCCENT, among other roles, has the distinct honor of running wartime special operations missions. The fact that the people responsible for coordinating and assisting our nation’s most elite warriors chose “Molon Labe” as their motto tells you all you need to know about the intense meaning of this phrase. There are many other examples as well.

However, for me the phrase Molon Labe defines the state of minds of so many of our clients, myself, our incredible team, and many of my fellow foreclosure defense attorneys and other consumer advocates of all kinds. We all know the facts behind the historic foreclosure crisis the world is still facing.  Banks gave out money with reckless abandon. They pooled enormous amounts of loans to form investment trusts. Then, they bought off ratings agencies to dupe both insurance companies and investors all over the world.  When the house of cards collapsed, the reckless, greedy sociopaths, who call themselves Wall Street executives, were allowed to fly off into the sunset on their private jets, fortunes intact with millions in new bonuses to boot, while so many of us got wiped out and are still struggling to put the financial pieces of our lives back together.

Another great depo of a Robo Verifier who knows pretty much nothing about a foreclosure case…

The deposition of Victoria Scott took place on November 20, 2013, during which time Evan questioned Ms. Scott about her knowledge of the truth and accuracy of the facts in the Complaint, which she allegedly verified. During the deposition, Ms. Scott could not verify the facts alleged in paragraphs 2, 5, 6, 8, 10, 11 and 14, as well as in the “wherefore” clause of the Complaint, despite the fact that she signed the verification under penalty of perjury. In many instances, Ms. Scott just simply did not know if a fact was true and correct. She also did not know or understand very basic concepts of a mortgage and mortgage foreclosure that anyone verifying complaints, properly, would have to know and understand.

According to the admission of the Plaintiff’s deponent, the verification found in the Complaint is a sham and should be stricken pursuant to FLA. R. CIV. P. 1.150.