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:
THE COURT: Let’s go ahead and get started. Counsel, state your appearances on the record, and introduce your clients, and we’ll go ahead and get started.
MS. SUMACEWSKI: Amy Sumacewski, on behalf of the Plaintiff, Deutsche Bank.
MR. ROSEN: Evan Rosen, on behalf of the Defendants.
THE COURT: All right. Very well. And you are?
MS. CHILDS: Shannon Childs. I’m a witness for the bank.
THE COURT: C-H-I-L-D?
MS. CHILDS: S.
THE COURT: Very well. You may proceed.
MS. SUMACEWSKI: Your Honor, Amy Sumacewski, on behalf of Deutsche Bank. We’re here on a mortgage foreclosure action.
This is a standard mortgage foreclosure where the Note and Mortgage were executed by the “defendants” in the amount $250,500 on February 28th, 2006.
There was a default on the payments on November 1st, 2010. The borrowers were notified of the default.
They have not cured the default. A foreclosure action was bought on June 15, 2011 which attached a copy of the Note with a blank endorsement. There is a count for a lost Note and a Lost Note Affidavit was filed in this action. However, in reviewing a prior complaint filed against the borrowers there appears that the original Note may have been filed in the prior action.
I have ordered that file. I was told it may be here by 2:00 o’clock this afternoon. But we do have a Lost Note Affidavit filed in this action and the possibility of the original Note actually being filed in Case 2008-XXXX.
I then argue about the Plaintiff not responding to our Request for Admissions, which are then deemed “conclusively established.” However, the Judge let them off the hook on that.
THE COURT: Is there any reason this wasn’t addressed before today at trial?
MR. ROSEN: I can’t speak for the Plaintiff, Judge. I don’t know. We propounded; they didn’t respond. It should have been addressed by now, I agree.
MS. SUMACEWSKI: Your Honor, I believe this is trial by ambush because if there was Requests For Admissions that were not responded to I’m sure it’s out of excusable neglect.
We certainly if it had been raised to us, and we were put on proper notice, we would have immediately responded. Certainly Florida has a policy against ruling on technicalities and not on the merits.
My evidence today will be contrary to any of the admissions. There is no judicial admission because there’s been no notice, there’s been no Motion in Limine to give me notice.
This is a violation of my due process right to be able to defend this motion.
Trial by ambush? Violation of her due process rights? I can’t believe what I am hearing. We propounded the admissions; they didn’t respond. It was on the docket, it was served. We knew it was not responded to by a review of the docket. Something that the plaintiff should have done before the trial!
Next up, while the witness was struggling with the payment history, the 2008 case file with the note arrives in the courtroom.
THE COURT: While she’s doing those calculations, the Clerk has just handed me the file American Home Mortgage Servicing, Inc. vs. (Redacted), Case No. 2008-CA-XXXX, that has the original Adjustable Rate Note.
MR. ROSEN: Can I take a peek at that?
THE COURT: Sure. There is a note of voluntary dismissal December 3rd of 2009.
MR. ROSEN: Judge, I’ll stipulate that the file from 2008 from American Home Mortgage contained an original Note; and it was filled – – the date the Note was filed, according to this, was January 6th, 2009.
THE COURT: That’s the date it was filed?
MR. ROSEN: Allegedly filed; correct. Do you concur?
THE COURT: Obviously you’re not going to object to that?
MS. SUMACEWSKI: No, Your Honor.
THE COURT: The Court will accept the stipulation.
MR. ROSEN: Judge, on that basis, while the witness continues to calculate the figures there is a glaring standing problem.
There was a lost Note in the 2008 case. There was a subsequent case and that was a lost Note for 2009. There is a 2011 case that was a lost Note up until about five minutes ago.
Standing is proven at inception. American Home Mortgage Servicing possessed that Note when this lawsuit was filed and gave it to the Court to hold it; filed it with the Court.
Plaintiff in this case did not have the Note. And I have other evidence to prove that, Judge, and I’ll be happy to go through that with the witness.
There is Assignments of Mortgage that we have that was listed and we have certified copies of them to show that the Plaintiff did not have the note at the time of the suit.
I’ll be happy to go through those quickly, if you’d like, or if you want to rule just on that issue alone that conclusively establishes they didn’t have the Note and standing at the beginning of this case? It was some place else, obviously.
THE COURT: Yes, Ma’am?
MS. SUMACEWSKI: Your Honor, actually there was a lost Note count filed in the present action. Apparently it was found now. So, first of all, I would like to make an ore tenus motion to amend the Complaint to conform with the evidence that the original is now found. We no longer have a lost Note count. That Complaint was dismissed. It was an unverified Complaint. That case was dismissed so that case is irrelevant. There was a blank endorsement on the original note. It was by AHMSI which this witness has testified, and she can reclarify, that American Home Mortgage was the predecessor to Homeward Mortgage which merged in to Ocwen. So we can show the change – –
MR. ROSEN: Objection. Plaintiff is testifying. There’s been no evidence of a merger before this Court.
MS. SUMACEWSKI: She testified as to Homeward’s merger in to Ocwen.
THE COURT: I’m sorry, what was that?
SHANNON CHILDS. American Home Mortgage did a name change and then Ocwen became effective servicer as of 2013.
THE COURT: So there wasn’t a merger; there was a name change?
SHANNON CHILDS. A name change. I apologize.
THE COURT: I’ll overrule the objection.
MR. ROSEN: Judge, if I could – –
THE COURT: Let her finish.
MR. ROSEN: I’m sorry.
MS. SUMACEWSKI: The original – – I would like to reserve this for argument because I do have case law that shows that as long as we have a copy of the Note with the blank endorsement attached to the Complaint and with our lost Note count that case is moot because it has been dismissed.
Ms. Childs has testified that the Plaintiff is the owner since 2006 and has been the owner since the filing of this Complaint.
So I don’t think there is a standing issue at all. In fact, now we have better standing because now that the original was found.
MR. ROSEN: Judge, the Note found now is not the point. Anyone can show up – – I can grab that Note out of the file and say I’m the holder, yay, let me foreclose.
That’s not the relevant time frame, obviously. It’s when the suit was filed.
In 1.260 of the Rules of Civil Procedure you can transfer actions. So who has it now is not the issue. It’s who had it at the time of filing. And let me supplement the argument.
There are two – – we’ve listed these in our witness and exhibit list – – there are two Assignments of Mortgage. We have certified copies of both of them, the first of which on this issue from February 13, 2008 shows an Assignment of the Mortgage and the Note specifically from the original lender to American Home Mortgage Servicing. And this references again the Mortgage and the Note, to have and to hold the Mortgage and the Note.
Just before this lawsuit was filed, in June of 2011, I think about two days before this was filed, there was another Assignment of Mortgage in the public records again certified.
Here we have a copy, self-authenticating. that is evidence, exception from hearsay, a record reflecting an interest in land which shows that only the Mortgage transferred was from AHMSI to Deutsche Bank.
So they didn’t transfer the Note. Why? Because the Note stayed in the 2008 case. And AHMSI made a judicial admission in their Complaint that they had the right to enforce the Note, and then it was with AHMSI all the time.
The fact that Ocwen might have it, or there is testimony that Ocwen might have it, or that there’s been a merger, again, wonderful. But Ocwen is not the Plaintiff in this case. So we have a real standing problem, Judge.
THE COURT: Counsel?
MS. SUMACEWSKI: Your Honor, the Plaintiff is Deutsche Bank. But, again, the two Complaints were not verified. These are Assignments of Mortgages.
The Note, the original of which is now found, has a blank endorsement.
The Mortgage follows the Note. There is the Williams case, the Aurora case, the Riggs case. It’s whoever has the Note, who has the equitable ownership of the Note at the time the complaint is filed.
There is a verified Complaint that hasn’t been questioned in this case saying that Deutsche is the owner of the Note. A copy of a blank endorsement is attached to the Complaint.
I’ve got case law that says even erroneous Assignments of Mortgage have no bearing and are completely irrelevant to the ownership when we have the original blank endorsement; that even fraudulent Assignments of Mortgages have no bearing on the original Note with a blank endorsement.
I’ve got a case that says any issue between Deutsche Bank and any transfers of the Assignment of Mortgage have no bearing once the Complaint i filed with the blank endorsement. I can give you those cases now.
THE COURT: I’m going to deny your request, I guess, to dismiss on the basis – –
MR. ROSEN: I was going to get to that while the witness was still trying to calculate. But I’m going to reraise this and I want to go through it.
THE COURT: How much do we have with this case? We are now at four o’clock. Do you have other questions – – well, no, you want – –
Shortly thereafter the case was continued to a future date.
After that first trial day, the Plaintiff filed a Motion for Transfer of Original Loan Documents. This was the second time they had done this… According to paragraph 3 of Plaintiff’s motion, “[t]he original note and mortgage were filed on or about January 6, 2009 in the 2008 case. The plaintiff in that action was American Home Mortgage Servicing, Inc. (AHMSI) In paragraph 3 of its complaint, AHMSI claims that it “owns and holds the Note.” The problem for the bank now was that the plaintiff in the current case was Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage-Backed Pass-Through Certificates Series 2006-1 and not AHMSI. Since the plaintiff is not a party to the 2008 case, it cannot request the return of the original note and mortgage.
According to the Fifteenth Judicial Circuit’s Administrative Order No. 3.311-4/12
Parties can seek a Court Order for the return of those original notes and mortgages which were placed in the court file in accordance with this Administrative Order. The Clerk will replace returned original documents from court files with a photocopy. (Emphasis added)
Plaintiff, Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage-Backed Pass-Through Certificates Series 2006-1, was not a party in the 2008 case where the note was located.
Plaintiff’s request to have this Court “transfer” the original documents from 2008 case is asking this Court to return the documents to a non-party; a non-party, that at one point in time, had an adverse and directly competing interest to the plaintiff in that case.
Allowing the Plaintiff to obtain an order transferring the note violates the Fifteenth Judicial Circuit’s Administrative Order No. 3.311-4/12.
THE COURT CANNOT GIVE THE PLAINTIFF AN ASSET TO WHICH IT HAS NOT PROVEN ITSELF ENTITLED.
Now, it isn’t like the Plaintiff did not know of these issues years prior to setting the case for trial.
On or about April 11, 2012, Plaintiff filed a Motion to Transfer Original Loan Documents.
On or about June 25, 2012, Plaintiff filed a Notice of Withdrawal of Motion to Transfer Original Loan Documents.
Plaintiff’s failure to bring this motion until after trial has started, over four years after filing suit, is not only a complete and utter failure to exercise any reasonable diligence in its preparation for trial, but it also shows a complete disregard of this Court’s Trial Order.
In the case at bar, after many years have passed since filing suit in what should be a simple foreclosure case, trial has commenced. The Plaintiff has already presented its case, and the Defendant is in the middle of cross-examination of the Plaintiff’s one witness. The issue of whether or not the Plaintiff had the note or whether or not it is allegedly located in another file, is certainly one that should have been discovered and dealt with well before trial. We went down to the courthouse and obtained certified copies of both of the complaints from the prior suits. We got certified copies of the alleged original note from one of those two prior cases. We did some basic due diligence. The Plaintiff did not.
Compound this with the fact that on March 27, 2013, Plaintiff filed “Plaintiff’s Notice of Readiness For Trial.”
One would think that if Plaintiff was ready for trial and pushing this Court to set a trial date, they would have finalized all preparation for trial, including securing critical pieces of evidence like a Note, or at least have plans underway to secure them before trial started.
Ultimately, the motion to transfer the note was set down and heard before the continuation of trial. The sitting judge granted their motion to transfer the note over our objections. However, based on our insistence that transfer of the physical note now has nothing to do with who had the right to enforce it at the time suit was filed, we pleaded with the court to include in the order that, “This order does not affect the burden of proof regarding standing.” The court eventually capitulated to this sentence being added.
A few months later, we headed back to trial to determine whether or not the plaintiff’s evidence is sufficient to enter a foreclosure judgment against our client and take their home…
Trial: Day Two
Day two of the trial is where the real fun begins. Even though we coordinated the continuation of trial with the judge and opposing counsel, the plaintiff failed to bring back their witness, Shannon Childs, from day one of the trial. The Court has already heard extensive testimony from this witness. Plaintiff has already rested but I was in the middle of Cross-Examination when the trial was continued. Plaintiff brought another witness in her place but I objected due to the fact that I was in cross examination of the first witness when the trial was continued and was entitled to complete that examination. On top of that, I was emailed the day before the trial was to resume to see if our client wanted to “settle”. What they mean by “settle” is to accept a judgment without having to go to trial. Sometimes these “settlements” include a wavier of deficiency or a few thousand bucks but the client gets a judgment and loses the property. Being the client was not interested in their “settlement”, I asked if the witness, Shannon Childs, was going to be available for trial. She wrote back I’ll find out. Which we never heard back. At 8:24 the morning of trial I received an e-mail with a motion for continuance not signed or dated by anyone.
Then this is how the trial resumed.
MS. BONDER: Judge, we unfortunately have to present a motion for continuance, another motion for continuance of this trial. As the Court may recall, this Court has already heard extensive testimony from one witness, Shannon Childs. I believe that Plaintiff has already rested but counsel was in the middle of Cross-Examination when this trial was continued.
Unfortunately, Ms. Childs is unavailable to testify today. She’s appearing in Monroe County in other trials…
Apparently it appears opposing counsel knew this when they called us to “settle” but decided not to let us know.
MR. ROSEN: …Rule 1.460 in the Rules of Civil Procedure is very clear that a motion for continuance, and I’m reading from the rule, shall be in writing and shall be signed by the party requesting the continuance. Furthermore, if the continuance is sought on grounds of non-availability of a witness, the motion must show when it’s believed the witness will be available.
Their motion does neither. It’s not signed by the party, it’s not even signed by counsel. Furthermore, it does not state when the witness will be available.
MR. ROSEN: The Court should not reward this lack of diligence and negligence is the quote from that case. And, to grant or uphold otherwise would only grant just that. It will only — ultimately grant unsuccessful litigants a second crack or litigants who haven’t properly prepared.
Judge, due process requires a meaningful opportunity to be heard and fair notice. The Plaintiff has received both. This is a three year old case, almost three years old. They’ve had their opportunities. They’ve come today willfully unprepared.
I would ask the Court — and, what’s interesting is I had this exact situation Monday of this week in Dade County and I know this isn’t binding remotely, at all, but I just want to make the statement for Your Honor. In Dade County, this particular Judge didn’t even entertain the motion for continuance. The witness wasn’t there, sorry, take a dismissal. We’re either going forward or you take a dismissal, especially in light of how long the case had been sitting.
And, the last thing I say, Judge, is please consider how you would feel if the Defense came here today and did the same thing. If we came here after our case was going down in flames, our witness didn’t show up and I said — and, our witness was already done testifying anyway on Direct and I said, Judge, please give me a continuance, our witness isn’t here.
In light of that, Judge, I ask you to deny their motion for continuance, let the trial go forward without — only with the witness that was here to testify because I have a right to continue my cross examination of that witness. Thank you.
THE COURT: All right. Yes, ma’am?
MS. BONDER: Judge, I completely understand counsel’s frustration in this situation.
THE COURT: I don’t have a copy of your motion for continuance, by the way.
MS. BONDER: I’m sorry.
MR. ROSEN: I don’t have a paper copy either. I got an e-mail at 8:24 a.m.
MS. BONDER: May I approach?
THE COURT: Sure. And, do you have a copy for counsel?
MR. ROSEN: It was e-mailed to me. I’ll assume it’s the same thing.
MS. BONDER: It is the same thing.
THE COURT: Thank you.
MS. BONDER: Judge, the difference between the situations that counsel was describing and the instant cases, embarrassingly enough, when our office advised the client of this continuance and explained that we needed a witness to be present for today’s trial, we did not specifically explain that we needed Shannon Childs to appear.
When we did realize that this case was a continuance and that Shannon Childs did need to appear and we advised them of that, it was already too late and we could not rearrange the schedule. We couldn’t get the client to rearrange the schedule as she was already listed as a witness in the Monroe County Cases.
In this instance, it is not the client’s poor planning, it is not the client’s fault. This is on our office. This is our office’s fault and we just ask that the Court not punish our client for our wrongdoing. They’re an innocent party in this in that they were not made aware that Shannon Childs needed to appear today.
And, you know, as far as the comments about our case going down in flames, I mean, that’s all subjective and that — I don’t think that that’s been decided whether or not we were on the losing side here. This was not — this motion is not being made for the purpose of delay. The note has been transferred into this Court file.
Counsel was, I believe, in the middle of cross examination on the payment history and all of our evidence had been accepted — I’m sorry, all of our exhibits have been accepted into evidence. We would have no problem proceeding if Ms. Childs was available today. We’re not asking for another four month continuance. We’re not asking for anything but to give obviously counsel the opportunity to cross-examine the correct witness.
THE COURT: Okay. I’ve considered your motion for continuance, which just I guess was filed just last evening and I’m just receiving a copy of it. I understand it wasn’t signed but it looks like you may have signed it now. It’s not signed by your client.
This matter has been set for trial for at least the last two or three months. You all were at a calendar call that set it for a date certain for today. Based on that I’m going to deny your motion for continuance.
Counselor does have the right to cross-examine the witness that you presented as a witness on direct and you’re advising that that witness is not available. Someone else would not be a suitable substitute for him now.
So, with that being said, we can go ahead and proceed or what are you suggesting?
MS. BONDER: Can I have just a moment to confer with my client?
THE COURT: Sure. The Court will be in recess for about five minutes.
MS. BONDER: Thank you.
THE BAILIFF: The Court’s in recess.
(Thereupon, a brief recess was held.)
THE BAILIFF: All rise. The Court is now in session.
THE COURT: All right. Go ahead and please be seated. Yes, ma’am?
MS. BONDER: Judge, the Plaintiff has already submitted testimony. All of its evidence has been accepted and at this point we rest.
THE COURT: All right. Very well. Yes, sir?
MR. ROSEN: Judge, at this time we move for an involuntary dismissal and I’m going to walk the Court through why I believe the Plaintiff has not proved the elements of a prima facia case to obtain a judgment in this matter.
At this point, I go into an hour plus long argument stating all the reasons the plaintiff did not prove the elements of their case, entering evidence without objection from opposing counsel and providing case law to the judge. I argue standing at inception, since the note was in another file with a different plaintiff. I cover the insufficient evidence on acceleration of the debt. And, the evidence regarding damages that was admitted into evidence is wholly inadequate. Once I finished my argument, there was a brief rebuttal from the plaintiff’s attorney, and a brief response from us, then the ruling from the judge.
THE COURT: All right. Thank you for providing the Court with the transcript from the prior hearing. I have considered the evidence that’s been submitted and the arguments made by both parties.
I’m going to grant the motion for involuntary dismissal. I’m finding that the Plaintiff has not established standing. They have not presented sufficient evidence regarding the acceleration. And, the evidence regarding damages that was admitted into evidence is wholly inadequate.
MR. ROSEN: Thank you, Judge.
THE COURT: If you’ll prepare an order of final judgment for me. I’ll review that and sign it if it’s appropriate. I have taken the liberty of going ahead and I’m requiring that the transcript from the prior hearing be at least a part of the Court record in the event there is some appeal that will all be here.
MR. ROSEN: I’ll file a notice of filing with the original transcript, if that’s okay, Judge?
THE COURT: Sure. I stamped this one but just stamp this one for filing with the Court file.
MR. ROSEN: Okay. Thank you.
THE COURT: So, prepare an order of final judgment for the Court, get it to me. Share it with opposing counsel and then I will review it if it’s appropriate. These are some envelopes that were left with me last time. I don’t know if you want to take those back.
MR. ROSEN: Thank you, Judge. I can prepare it right now if that’s okay?
THE COURT: Sure. That’s fine with me.
MR. ROSEN: With a separate order on the motion for continuance, as well?
THE COURT: Yeah. Why don’t you go ahead and do that so the record is abundant. All right. Thank you. That concludes our hearing. The Court’s in recess.
Unfortunately, we are not comfortable posting the complete transcript of this trial as it contains numerous and detailed arguments on which we continue to successfully use to represent our existing clients and hopefully, many future clients. While the law is the law, we rather not give the banks any extra help in their preparation.
If you are in Florida and are looking for help with debt, foreclosure, real estate or want more information about bankruptcy law, call us at (855) 55-ROSEN 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!