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.”
Unfortunately, neither the majority of the 4th DCA nor the Supremes agreed with this position and the use of fraudulent documents and false evidence in foreclosure cases is alive and well!
Nationstar v. Rita Lawhorn
While investigating the court file in this matter, we quickly and easily discovered evidence of fraud – a very poorly photoshopped note was attached to the amended complaint.
Copy of Note Attached to Amended Complaint Filed on 05/22/2011
We knew it was photoshopped for a few reasons. One, the original note, filed on May 29, 2009, almost two full years before the Amended Complaint, contained two indorsements, not one. Here’s a copy of the indorsements on the original.
Copy of Original Note Filed on 05/29/2009
Here’s the indorsement from the later filed amend complaint.
As once can plainly see, the copy of the note attached to the Amended Complaint filed on May 2, 2011 shed, from the previously filed original note, the Judy Faber indorsement from Residential Funding to Deutsche Bank Trust Company as trustee in its entirety. On the one remaining indorsement that exists on both the original and the “copies,” the words “Residential Funding Company LLC” are removed, leaving behind, on the “copy” only an apparent indorsement in blank from the original lender.
In addition to the indorsement issues, pages one and five, of both the original note and the copy attached to the Amended Complaint, bear unique markings. Page one has the word “cancel,” as well as “05-18-09” and “PA” written on the top right corner. On the original, this is all written in apparent “wet ink.” This can be easily explained. The original note first surfaces when it was surrendered to the Court on May 18, 2009, at the hearing on Plaintiff’s Motion for Summary Judgment. The judge at that time was the Honorable Peter Adrian. In Miami-Dade, when original notes are surrendered, they are often marked cancelled by the judge.
Amended Complaint Note
Also, the front of page five of both the original note and the copy attached to the Amended Complaint, bear a visible, inverse image of the Judy Faber/Residential Funding to Deustche Bank Trust Company as trustee indorsement. Apparently the ink of that indorsement, which is stamped on the back of page five, bled through the page, on to its front.
So while the front of page five of both the original note and the copy attached to the amended complaint show the “bleed through” of the Judy Faber indorsement, on the back of that page, on the version attached to the Amended Complaint, that indorsement is gone.
Clearly, the copy of the note attached to the Amended Complaint was doctored. The Plaintiff in this action was originally Deutsche Bank Trust Company as trustee. The original note apparently supported the ability of that Plaintiff to enforce the note. Via an amended complaint, filed by Elizabeth Wellborn, P.A., the predecessor to the Plaintiff’s current counsel, the Plaintiff became Aurora. This was all after the original note had already been surrendered to the court. A note indorsed in blank, which is what the “copy” of note attached to the Amended Complaint indicates, would apparently support Aurora’s ability to enforce that note.
As soon as the Plaintiff sought to introduce the note at trial, we jumped in:
MR. ROSEN: Judge, I have to object to this note coming into evidence. The plaintiff has sought to amend its complaint and had an order amending its complaint. The note attached to the amended complaint is different materially than what is here as the original note.
THE COURT: What is material?
MR. ROSEN: There’s an additional endorsement that is not on the note that’s attached to the amended complaint. This is the original complaint as was submitted to the Court for summary judgment. If there is a specific endorsement to Deutsche Bank as trustee not naming a trust. The note attached to the amended complaint, interestingly enough, has copies of every single page. It even has those notes, and, I believe, that’s the judge’s signature or initials that they were accepted into evidence at summary judgment. If you keep flipping the page, every page is identical, even the evidence of what I will call the endorsement to Deutsche Bank is noticeable on the amended complaint copy of the note, but, yet, if you look at that page, there’s the back of the Judy Faber endorsement that you can see right through here on this page, but yet on the amended complaint, when you flip to the next page, that’s the endorsement in blank. This was filed after this original was filed. Furthermore, the exhibits that we received today in response to trial order, we requested exhibits. We followed up with e-mails. The copy of the original note, which was listed, that’s how it was listed on the exhibit list, excuse me, on the copies of the exhibits that were provided, provided this note, and the parties are bound by their pleadings.
THE COURT: I’m very disturbed by this. What’s the explanation?
MR. DROSKY: I don’t have an explanation at this point, your Honor. We’re going to get into that with the witness. We’re just trying to seek to introduce it to the witness right now. The test is prejudice, so I don’t understand that there would be any prejudice to defendant. If there’s prejudice to anybody in this case, it would be to me in trying to prove my case.
MR. ROSEN: Just, this has nothing to do with prejudice. This is what’s been deemed as a judicial admission by Erhart, parties are bound by their pleadings. That’s the note that’s coming in. Furthermore, I appreciate why you’re disturbed about this…
Despite Defendant’s counsel making Plaintiff’s counsel aware, prior to trial, of the uncontrovertibly, verifiable chronological facts of this situation, Plaintiff’s counsel struggled to acknowledge or comprehend the magnitude or truth of the situation. When this issue was presented at trial, rather than quickly and overtly admitting the factually obvious and the possible implications of this situation, the following exchange occurred:
MR. DROSKY: It’s a nice theory, Judge, but there’s nothing to support this. This appears to be a second action, and what happens in a lot of cases when you have the case is that the original note is sent back and then it is endorsed by the owner because Deutsche Bank is the owner of this note. They’re not the servicer.
MR. ROSEN: Judge, if the owner wanted to endorse it, then they should have done that, and that’s the way it’s properly done, not removing endorsements after the fact to support a cause of action, if that was done or not. I don’t want to make allegations here, but something certainly seems wrong.
THE COURT: How can that endorsement have disappeared?
MR. DROSKY: No, nothing disappeared, your Honor.
THE COURT: Isn’t that the amended complaint has something without this?
MR. ROSEN: Is missing; correct.
MR. DROSKY: The amended complaint, this endorsement is the same, your Honor, except now it’s specific, the blank endorsement is now a specific endorsement to residential and a second endorsement was added from residential to Deutsche as the owner.
MR. ROSEN: But what’s most disturbing about the amended complaint is the prior page of the note. The prior page that shows Judy Faber’s endorsement is there on their copy of this last page, so they copied — someone copied pages one through four or five, and then the endorsement which is supposed to be on the back suddenly got substituted for something else.
THE COURT: Do you see what we’re talking about?
MR. DROSKY: No, I do, Judge.
MR. ROSEN: I printed out an overhead clear projector sheet to help.
MR. DROSKY: This endorsement, this is going to be really tough for the court reporter. I apologize. This endorsement here, your Honor, is the exact same one here.
THE COURT: Right.
MR. DROSKY: Now, on the original note, the blank now has the residential line there.
THE COURT: Right.
MR. DROSKY: The second endorsement was added from residential to Deutsche, which is the owner.
MR. ROSEN: Which this was filed before that.
MR. DROSKY: So there’s nothing —
THE COURT: Yes, but my problem is that this was filed in 2008. Yes?
MR. ROSEN: 2009, actually. It was a lost note count subsequently filed to support summary judgment.
THE COURT: So in 2008/2009; right?
MR. DROSKY: Yes, Judge.
THE COURT: This was filed — when was the amended complaint filed?
MR. ROSEN: 2010, if I’m not mistaken, Judge. Motion to amend was…
THE COURT: That’s why I asked you.
MR. ROSEN: 2011, April 2011.
THE COURT: So two years later. How is it Mr. Drosky, and the reason I asked you why did this disappear is that this disappeared.
MR. DROSKY: Nothing disappeared, Judge. I mean, when it was amended, somebody obviously took the copy of the note from the original complaint and attached it to the amended complaint.
MR. ROSEN: There’s no note attached to the original complaint. Todd, sorry to cut you off. It’s just not true.
MR. DROSKY: There was one in the court file. I saw it.
MR. ROSEN: On the original complaint there was no note. It was with Stern, and they attached a sheet of paper that says what the —
THE COURT: Can you find it in here?
MR. ROSEN: Sure.
THE COURT: Listen, this is going to take more than the time I have today. Listen, if something gets filed, it’s got two stamps on it.
MR. DROSKY: Yes, Judge.
THE COURT: Okay. Two years later, one of the stamps in the amended complaint that’s allegedly a true copy has one of those stamps that is disappeared. Don’t you see the problem?
MR. DROSKY: I see it as the reverse, your Honor. The reverse situation happened. The note had one endorsement, and then the second one was added. He’s trying to say that you went from two to one; I’m saying we’re going from one to two.
THE COURT: That’s what he’s — what Mr. Rosen, not he, Mr. Rosen is telling me is that originally there were two stamps on the back of that note, and all of a sudden the amended complaint sheds one of those stamps.
MR. DROSKY: No.
MR. ROSEN: That’s correct. That’s absolutely correct, Judge. What was filed in the Court in 2009 has two endorsements as an original. The prior plaintiff’s counsel files an amended complaint with one of them missing, but yet again, evidence of it there on the page in front of it, a bleed through, if you will; then I get a copy of an original note today as an exhibit, or last night, yesterday sometime, despite the fact we asked for exhibits well in advance, et cetera, get it yesterday, and the — it’s the exact same copy that has just the one endorsement stating that’s an original note, which I know that’s not an original note. That’s a misstatement to me. That’s a misstatement to the Court. I can show you that filing as well as from this counsel, from this counsel’s firm, as well as what we see from Wellborn’s firm. The amended — the complaint from Stern was — as far as I know, had no note, and what it had was a sheet of paper. It has just a mortgage, has a sheet of paper to say what the note terms were. It was a lost-note count. So that the first time a note shows up at summary judgment with two stamps on it supporting a right for some other person to foreclose.
THE COURT: In 2009?
MR. ROSEN: 2009; correct. Then there’s an amended complaint filed with a different note or different endorsements, although pages one through five are identical, has the Judge’s initials, has the date.
THE COURT: I don’t care about the first five pages. My problem is with the back, page five.
MR. DROSKY: Somebody obviously used the incorrect copy of the note to attach to the amended complaint.
THE COURT: But you’re bound by what you file.
MR. DROSKY: The original is in the court file, your Honor. The original cures whatever defects may have been in the previous filings.
MR. ROSEN: Judge, no way —
THE COURT: The original is in the court file?
MR. DROSKY: Yes, it is.
MR. ROSEN: Prior to the amended complaint. The amended complaint is — their exhibits control our attachments for purpose thereof under the rules.
THE COURT: I’m going to set you for a couple hours. I don’t have time to do this. I really am concerned about this.
Further, Florida Rule of Professional Conduct 4-3.3(a) states, in pertinent part:
A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(4) offer evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
Where false evidence has already been offered, the Comment to Rule 4-3.3 provides the following guidance:
“If perjured testimony or false evidence has been offered, the advocate’s proper course ordinarily is to remonstrate with the client confidentially if circumstances permit. In any case, the advocate should ensure disclosure is made to the court. It is for the court then to determine what should be done…”
The Florida Bar has opined:
“As the rule indicates, if an attorney knows that any material false representations have been made on the record by a client to any court or tribunal, then the attorney must follow the instructions in the Comment to Rule 4-3.3 and ask the client to correct these false statements on the record. … If the Client refuses to give consent to theattorney to disclose, then the attorney must make these disclosures him/herself, preferably in an in camera proceeding if possible. Disclosure should be made to the presiding judge … and guidance should be requested from the court.”
Florida Bar Staff Opinion 29977 (January 7, 2011).
As defined in the Preamble to the Rules of Professional Conduct, “‘[k]nowingly,’ ‘known,’ or ‘knows’ denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances.” Preamble to the Florida Rules of Professional Conduct. Further, “[l]egal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal.” Comment to Rule 4-3.3.
Also, Florida Rule of Professional Conduct 4-3.4 states,
A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act;
(b) fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness, except a lawyer may pay a witness reasonable expenses incurred by the witness in attending or testifying at proceedings; a reasonable, noncontingent fee for professional services of an expert witness; and reasonable compensation to reimburse a witness for the loss of compensation incurred by reason of preparing for, attending, or testifying at proceedings;
At the continuation of the trial on April 28, 2013, Judge Cueto was visibly upset, even more so than he previously was when this was originally presented to the Court. Just as he was beginning to sternly address the Plaintiff’s lawyer and their bank representative, expressing how serious of an issue this was and how the evidence presented to him was undoubtedly false and doctored, the Plaintiff’s counsel cut him off and voluntarily dismissed their case. I have always found Judge Cueto to be an incredibly even tempered and consistent jurist. He has a job to do and he does it well. It seemed to me that he would have liked to push this issue further, holding an evidentiary hearing to investigate Elizabeth Wellborn’s office but to what end? Won’t it be too easy for Wellborn to dismiss this as the work of some rogue underling in their giant mill of an operation? Moreover, thanks to Pino, who knows if this is even sanctionable conduct anymore!?!
While our client got a dismissal, it was a sad day for those of us who still believe, “[t]he system cannot tolerate even an attempted use of fraudulent documents and false evidence in our courts.”
Copy of the full trial transcript and our Memorandum of Law in Support of Defendant’s Objection to the Note’s Admissibility into Evidence below.
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!
Memorandum of Law