Here are the reports:

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as complete as possible.

Our South Florida law firm helps people with estate planning, mortgage foreclosure defense, real estate closings, probate and trust administration, and accidents and injuries. Based in Hollywood, Florida but serving clients throughout the state. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Here are the reports:

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as complete as possible.

Our South Florida law firm helps people with estate planning, mortgage foreclosure defense, real estate closings, probate and trust administration, and accidents and injuries. Based in Hollywood, Florida but serving clients throughout the state. Let the Law Offices of Evan M. Rosen, P.A. serve you!

Here are the reports:

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as complete as possible.

Our South Florida law firm helps people with real estate closings, foreclosure defense, personal injury, probate, and estate planning. Based in Hollywood, Florida but serving clients throughout the state. Let the Law Offices of Evan M. Rosen, P.A. serve you!

From the Broward Single-Family Homes report:

From the Broward Townhouses and Condos report:

We welcome your comments about what you see in these reports and what you think this means for the future of our real estate market.

Here are all the reports:

Due to listing data being uploaded sometimes weeks after a transaction closes, these reports are often released a few weeks behind. The delay is required to make sure the reports are as complete as possible.

Our South Florida law firm helps people with real estate closings, foreclosure defense, personal injury, probate, and estate planning. Based in Hollywood, Florida but serving clients throughout the state. Let the Law Offices of Evan M. Rosen, P.A. serve you!

From our very first meeting, our client was adamant about his claims. He’s a retired businessman, having worked his way up from being a car washer to owning several car dealerships. He could afford his payments and kept damn good records of the entire history of his dealings with the banks and insurance companies.

We needed some time to review multiple issues in the case so our first filing was a motion for enlargement of time. After filing an answer, we propounded request for admissions, request for production, and interrogatories. Two months later, the bank responded late to our request for admissions and filed a motion to enlarge the time for them to respond to all our discovery. A few days later, we asked the other side how much time they needed to respond. They immediately propounded their own discovery and filed a notice that the case was ready for trial! The following day, we agreed to thirty-five days for them to respond to our discovery. They obtained a trial date of June 1, 2016, and Plaintiff set the deposition of our client for May 9th.

In April 2016, we worked closely with our client to respond to the bank’s discovery. During this time, we carefully reviewed several thousand pages of documents we received from our client in a large box. While the box was organized with folders labeled by entity, the contents of those folders were not organized chronologically. It took some time to go through everything and come up with a chronology of events. In all, we extracted 186 pages which evidenced many timely, full payments had been rejected. It also showed Bank of America was on notice that adequate insurance was in place. And, most strikingly, several documents showed egregiously over-priced insurance had been force-placed by Bank of America more than once, with its wholly-owned subsidiary, Balboa. For example, in May 2012, Bank of America force-placed windstorm insurance retroactively from February 23, 2011 to February 23, 2012 with Balboa. The policy had a premium of $46,784.93. But, our client already had a policy with comparable/adequate limits during that time period with Citizens, for a premium of $3,250.

On Sunday, May 1, 2016, I sent a lengthy email to opposing counsel explaining that the deposition of our client was coming up and I had still not received Plaintiff’s discovery responses as promised. For that and other reasons, we agreed to postpone our client’s deposition and seek a continuance of the June 1st trial. On May 4th, the parties appeared before the court and obtained a new trial order for August 22, 2016. The bank re-noticed our client’s deposition for July 26, 2016.

Since our client’s records appeared to substantiate his claims, I had a few strategy meetings with our team. We charted a course going forward and immediately started setting up depositions duces tecum for all the insurance companies our client used during the critical time frame. We also set up a deposition duces tecum for Bank of America (our client’s personal bank) to show evidence of his timely, full payments. During the time period in question (2008 to the present), our client had insurance with Citizens (windstorm), Homeowners’ Choice (windstorm), Hartford (flood), Lloyds of London (homeowners’), Universal Property and Casualty (homeowners’), and Orchid Underwriters (homeowners’). The logistics of coordinating these depositions, and getting subpoenas issued and served, required more work than usual. We also sought leave to amend our answer. While this was underway, the bank responded to our request to produce, serving us with 491 pages of documents.

By late June 2016, we served subpoenas and deposition notices on Citizens, Bank of America, Hartford, Homeowner’s Choice, Orchid Underwriters, and Universal Property and Casualty. All the depositions were set for July 6, 2016. Almost immediately after the subpoenas were served, we started receiving calls from attorneys on behalf of those entities. They wanted to know what the depositions and case were about. We explained and offered to cancel the depositions upon receipt of self-authenticating business record certifications containing the requested records.

We were able to cancel the Orchid depo on July 5th. The following day, Bank of America hand delivered their certification and records. So that deposition was immediately canceled. During the day on July 6th, none of the other four entities appeared for their depositions but we had multiple conversations with their attorneys to make arrangements for them to get us certifications and records. We obtained certificates of non-appearances for the entities that did not show up, and eventually obtained and reviewed all the records we requested.

In all, we acquired approximately 2,200 pages of evidence. And most importantly, these proved what our client had been saying all along! He had adequate coverage and he made payments for three years after the alleged default date. He only stopped making payments because he reached a breaking point after over a year’s worth of timely payments were rejected. What reasonable person keeps sending money to a bank that sends the money back, and keeps trying to foreclose based on a lie anyway?

We have numerous letters from Bank of America and Bayview showing that those entities were rejecting payments. Some checks were cashed and sent back via their own check. Other times, they’d just mail our client’s checks back.

We also have letters and fax receipts showing our client provided copies of insurance policies to the servicers. These include letters from servicers acknowledging receipt and indicating that they canceled force-placed policies. But soon after, the servicers sent more letters, once again threatening to force-place due to our client “not having coverage.” It was bizarre but it made a lot more sense once we discovered that Bank of America was force-placing insurance with its own subsidiary for obscene profits. Bayview was also sending conflicting letters showing they placed, canceled, and re-placed insurance policies. This was taking place all the way up to trial.

In late July, I prepared for one of our client’s depositions. This included a lengthy meeting with him. But, on July 26th, the day the deposition was supposed to take place, the bank’s lawyer abruptly canceled. On that same day, the Court granted us leave to amend our answer and struck the trial set for August 22nd.

The plaintiff propounded more discovery. They asked for our documents related to the property insurance and “trial documents.” In all, they propounded four requests for production for “trial documents.” We responded to each request providing thousands of pages. Rather than providing duplicates, we referenced service of prior responses but not once, did they ask only for an update or supplement. Going through this quantity of documents in order to respond to each request took a significant amount of time.

In September 2016, the bank reset our client’s deposition for October 17, 2016. This was the third time it had been set.

In October, we filed a Notice of Intention to Offer Evidence Under sections 90.902(11) and 90.803(6)(a) and (c), Florida Statutes. This allows us to use business record certifications to admit evidence instead of having to call record custodians to the witness stand. We also served six certifications with their attachments on opposing counsel and spent more time preparing for our client’s deposition. Based on all the evidence we acquired, we realized it would be best to amend our response to interrogatory seventeen, which asked us to describe what actions our client took to retain the property.  So, we created and served a spreadsheet to provide a better answer. Our client’s deposition finally went forward as scheduled. But despite all our preparation, and despite the bank’s lawyer knowing that this case centered on unclean hands and improperly force-placed insurance, their lawyer did not ask a single question about the insurance and payment issues. The deposition took less than an hour.

In November 2016, the bank filed a bizarre objection to our notice of intent to offer evidence via self-authenticating business records certifications. We later filed a Second Notice of Intent (for an amended certificate from Orchid Underwriters), a Motion to Special Set Trial, a Supplemental Response to Plaintiff’s Request for Production Regarding Property Insurance, and a Request for Judicial Notice. The judicial notice request was for a press release from Bank of America which evidenced that Balboa was a subsidiary during the critical time frame. We planned to make this our first exhibit to help show the bank’s motive to force-place was based on its desire to make outrageous profits. On November 22nd, a case management conference and hearing on the bank’s objection to our notice of intent was heard. The objection was overruled and the motion to special set was denied due to the Court not being able to schedule a special set foreclosure trial at that time. But, the Judge did set trial on a regular foreclosure docket for May 31, 2017.

Around this time, we realized it would probably be best if we retained an expert general contractor to opine on the replacement value of the home. We wanted to be able to prove that our client’s coverage was adequate. We also began our efforts to prepare for trial. (Getting through over 2,200 pages of exhibits with our elderly client was no easy task.) By mid-May, we found our expert witness. We had a couple of phone calls and two face-to-face meetings with him.

In May 2017, we prepared extensively for trial and had several conferences with our client. We filed a supplemental witness list listing our general contractor expert, and we asked the Court to take judicial notice of the county property appraiser records to further support the adequacy of our client’s insurance coverage. Despite our prior requests, Plaintiff served us with 385 pages of trial exhibits the day before trial.

Then, on the day of trial, opposing counsel asked for a continuance. First, he objected to our late witness disclosure. And I’ll never forget what he said next: “Additionally, Your Honor, the Plaintiff is reviewing the Defendant’s records that have been provided in discovery regarding lender-placed insurance and there is a possibility that there is a significant adjustment in what we’re claiming is the debt. And, rather than go forward on potentially–well, we’ll just call it stale information, not wrong, Plaintiff would ask, given that the Court has trial, and it appears to be special set, and Mr. Rosen and I will take at least a day, but efficiency would ask that you just roll us to the [next] docket. . . .” (emphasis added). The Judge interjected and continued the trial to December 12, 2017.

Stale, by definition, is outdated. The debt was not outdated like an old check. It was just flat out wrong. It seemed opposing counsel admitted his client wrongfully force-placed insurance, which wreaked havoc on the accuracy of the pay history. (Reviewing the pay history, in this case, was very challenging. We have seen hundreds of pay histories and this one was like no other. There were giant unspecified credits and debits. Our client’s payments were added and subtracted, as were entries for insurance payments. It was impossible to follow.) I added the bank lawyer’s comments to my notes and prepared to use it at the next trial.

What happened next—or rather what didn’t happen—is indicative of how banks and their lawyers often handle foreclosure cases. Despite acknowledging in open court that the Plaintiff had a “significant” problem in its case, the bank and its lawyers did not dismiss, seek to withdraw, or eagerly try to settle. They just kept pushing forward for over a year more in an effort to take our client’s house. (Of course, this caused him to incur significantly more attorneys’ fees and costs as well.)

In November 2017, we again sought leave to amend our answer. We fixed two standing affirmative defenses to clarify that we are not attacking whether there is a contractual relationship but only whether the bank is in possession of a properly indorsed note. We also withdrew numerous affirmative defenses, amended our request for relief, and fixed a typo. The bank moved for a continuance of trial by claiming, among other things, that the parties were working on loss mitigation and a deed-in-lieu. This was not true. So, we filed a verified response to dispute their claims. On November 20, 2017, the Court granted our motion for leave to amend and struck the December 12, 2017 trial. The next month, trial was reset for June 19, 2018.

In February 2018, we filed an objection to the bank’s notice to use a summary trial exhibit and an objection to their request for judicial notice of court filings. By mid-June, we were gearing up for trial again. In addition to preparing to admit a large number of exhibits, we had to outline the direct examination for our client and expert witness. The bank noticed two witnesses, one from each servicer. So we had prep and research to do on that too.

During my trial prep meeting with our client on Thursday, June 14th, a serious problem revealed itself. Our client’s eyesight had gotten much worse. He was struggling to see and his memory had lapsed a bit too. So a few days later on Saturday, June 16th (which happened to be Father’s Day weekend), I put in almost a full day revamping the approach to our client’s direct examination. I spread out all the exhibits over the floor in my office, grouping them into logical composites. When I met with our client again on Monday, June 18th, we were breezing through his examination and the admission of evidence with a new approach. He also got some new glasses, which helped a ton. Not surprisingly, the new approach also made the presentation to the Court much more efficient and persuasive. Preparation continued that Monday, and I worked for about an hour to review everything the following morning.

When we showed up to trial on Tuesday, June 19th, the bank’s lawyer immediately pulled me aside. He whispered to me that he told his clients that he would not prosecute this case any further. His clients understood and agreed. He then told me that if the case was called, he would take a voluntary dismissal. Which is what he did, both on the record and in writing. A witness from one of the servicers approached me in open court and told me that he told the higher-ups to dismiss this case for months, but they would not listen.

We timely filed a motion to seek fees and costs so that our firm and our client could be made whole. When we asked the bank’s lawyer if they would agree to an order granting entitlement, I was not that surprised to find out that they wanted a special set hearing to contest this. Once again, as a result of their over-litigious tactics, our client incurred more fees and costs. We gathered numerous certified copies, filed a request for judicial notice, and prepared extensively for the hearing. The bank’s main contention was that we were not the prevailing party. As part of that preposterous argument, the bank’s lawyer misrepresented the law and facts. The Court granted entitlement and set a hearing for a later date to determine the amount. (We ended up settling the fees and costs just before that hearing.)

The bank’s lawyers, in this case, are what we consider “escalation counsel.” They generally do not get involved in cases unless the bank has some concerns. And from what I can tell based on the way they operate, their lawyers are expected to be extremely litigious and difficult. To give some context on this point, this particular firm has sought to take my clients’ depositions in every foreclosure case I’ve had with them even though there is almost never a good-faith basis to do so. They always propound the same ridiculous discovery. For example, some of the interrogatories they propounded here (and in every other case I’ve had with them) ask:

“Are you paying your attorney a monthly fee to remain in the property during this action?”

“What do to [sic] feel is the best result you could achieve in this lawsuit?” (The same typo is in every single interrogatory I’ve seen from them. Even though I once pointed this out, they have still not fixed it.)

“Has your attorney guaranteed any result in this lawsuit? If so [sic] what was that result?”

“What triggered your decision to purchase the subject property?”

“Did you hire a realtor to assist to purchase the property?”

“Did you hire an attorney to review the loan documents? If not [sic] why?”

“Did you have the opportunity to review the loan documents?”

As usual, they made mountains of extra work in this case. They made numerous requests for the same documents. They set three depositions of my client but never asked him a single question about the merits of the case when the deposition finally took place. They litigated the case for over a year after the bank lawyer admitted in open court that their client’s position had significant problems. And, due to the bank’s lawyer not telling me a few days before trial that his client was going to voluntarily dismiss, I had to work through a lot of Father’s Day weekend. Even the way the bank’s lawyer voluntarily dismissed was troubling. He was only going to dismiss if the case was called to trial. He waited to announce until he was sure we were going to get reached. If the case was passed that day for any reason, he would have continued to litigate.

In most cases, these bank lawyers take numerous outlandish positions, not supported by law. But unfortunately, in foreclosure courts, they have gotten away with this in hundreds of cases.

In another case with this firm, one of their lawyers took a blatantly frivolous position to try to deny my client’s entitlement to fees. That too resulted in a ton of unnecessary work. The bank eventually lost their argument. During the hearing to determine the amount of fees, the presiding judge quoted Roco Tobacco (USA), Inc. v. Florida Div. of Alcoholic Beverages, 934 So. 2d 479, 482 (Fla. 3d DCA 2004) stating, “[b]ecause [the bank] and its counsel took legal positions and actions to be litigious and, in effect, ‘invited [my client] to dance,’ they should now be bound by the consequences of those actions.” The judge found I was entitled to every penny of the hourly rate I was seeking in that case.

Thankfully, we helped this client save his home and helped him recover his attorneys’ fees and costs. And, since this case I am pleased to report that this particular firm, and another “escalation” firm we had a similar case with, have been less litigious, more reasonable, and more eager to cut deals to help our clients achieve their goals.

If you or someone you know is facing foreclosure or improper debt collection, feel free to give us a call at 855-55-ROSEN.

Let the Law Offices of Evan M. Rosen serve you!

Our client has lived in her condominium for over 20 years. She’s had a full-time job with the same company for over 23 years, making approximately $63,000 per year. Her mortgage payment is $662.56 per month. Underwriting standards dictate that housing debt is generally affordable so long as it does not exceed 28% of a person’s income. Our client’s housing debt is 10% of her income. For many years, until the incidents leading up to this case, our client’s mortgage payments were auto debited from her checking account without issue. She had no issue affording this loan, ever.

And, she has always paid her taxes and her association dues, which includes insurance. There were no escrows.

In March of 2015, the servicing of the loan transferred. After years of timely auto debits in the correct amount, the new “servicer” auto debited $1,006.72 on March 28, 2016. (Servicer is just a fancy sounding term that banks created. They are really just “debt collectors.”) This new amount was $344.16 more than her fixed monthly payment. The servicer did not give any advance warning and our client never authorized them to take more than her fixed payment.

As revealed in the servicer’s comment log, which we obtained and admitted into evidence at trial, our client called in the day this happened. The representative advised that the increase was due to force-placed insurance. Our client stated that she already faxed over proof of insurance and that this should be adjusted as her condo carries adequate coverage. She relayed the phone number for the company that provides insurance information for the association.

The following day, our client once again faxed over proof of insurance showing coverage from June 2015 to June 2016. She also stopped all future auto debits. The evidence admitted at trial included insurance declaration sheets, proof of payments from her bank account, and numerous e-mails between our client, the condo, the insurance agents, and the servicer. This, as well as our client’s testimony, established that she was on top of this issue. She sent in proof of adequate insurance numerous times. The servicer would either ignore our client or their agents would request the same thing over and over.

The evidence and testimony also established that our client repeatedly pleaded with the servicer to take her money. She tried to pay via their website but the system refused to let her log in. (She had logged in prior to them force-placing insurance without issue.) She also tried to make payments over the phone, but they refused to accept. There was an August 9, 2016 note in servicer’s comment log that states their representative advised our client, who was trying to pay by phone, that they were refusing to accept her payments.

Defense Trial Exhibit #1, Bates 000034.

On a side note, the purported default letter/opportunity to cure was dated on July 13th and gave our client until August 17th to cure. But for the servicer, not only would our client have remained current, she could have “cured” the problem they created. (Our client swore in her testimony at trial that she never got that letter and as detailed below, the servicer’s witness apparently committed perjury on the issue of whether the letter was even mailed.)

In September 2016, the comment log starts showing refunds and cancellations for forced-placed insurance. The servicer sent our client two letters, both dated September 14th, acknowledging that it canceled two different insurance policies. Still, one of those letters stated the servicer was charging our client $746.06 for “the time [their force-placed] policy was in force.” During this same time, the log also reveals that the servicer was contacting its attorneys, sending them documents and telling them who the named plaintiff for the case should be. In October, the servicer ran title searches and projected foreclosure and sale dates. Meanwhile, our client was continuing to call and e-mail, trying to resolve this and pay. She was told more than once by a particular servicer representative not to pay until the servicer fixed this. She kept trying anyway.

On December 7, 2016, the servicer’s log reveals:

Defense Trial Exhibit #1, Bates 000052.

Despite this, two days later, the log also reveals:

Defense Trial Exhibit #1, Bates 000052.

So on December 7th, the servicer finally figured out that it wrongfully forced-placed insurance. Still, two days later it finalized preparing a lawsuit. Then, eleven days later, a bank (who my client had never dealt with before) and its servicer, filed suit to foreclose on our client’s home.

The bank and servicer could have easily fixed this situation numerous times. The prior servicer never had an issue getting proof of insurance. The condo association uses a company called “EOI Direct.” EOI stands for evidence of insurance. This company’s function was to make sure all lenders and servicers get evidence of insurance. The servicer here should never have forced-placed or overcharged our client in the first place. But when our client sent in the proof of insurance the day after the servicer wrongfully took too much money out of her checking account, it should have immediately remedied this. Instead, the servicer took approximately nine months to figure out that they wrongfully force-placed insurance. During that time, it refused payments and created a snowball of bogus charges. Then, after finally recognizing that it should never have done any of this, the servicer did not contact our client. It did not call or write. It did not credit the account, nor did it give our client a reinstatement quote. The bank and its servicer did not try to work this out in anyway. Instead, these financial institutions ran to the courthouse to try to take our client’s home.

Our client was served with the complaint during the day on new years’ eve 2016. She contacted our office in early January. We got in the case and asserted these critical affirmative defenses:

TENTH AFFIRMATIVE DEFENSE

UNCLEAN HANDS

Plaintiff’s claims are barred in whole or in part by the doctrine of unclean hands, equitable estoppel or both. Specifically, and without limitation, Plaintiff should not be permitted to obtain a judgment, foreclose or seek a deficiency judgment when it caused Defendant to “default” by improperly charging force-placed insurance on the subject property despite having knowledge that said the property was already covered by an adequate insurance policy. The defendant would have remained current but for Plaintiff’s improper charges.

ELEVENTH AFFIRMATIVE DEFENSE

UNCLEAN HANDS

Plaintiff’s claims are barred in whole or in part by the doctrine of unclean hands, equitable estoppel or both. Specifically, and without limitation, Plaintiff should not be permitted to obtain a judgment, foreclose or seek a deficiency judgment when it caused Defendant to “default” by improperly charging for force-placed insurance on the subject property. This insurance caused improper charges to accrue and caused Defendant to “default.” Despite having knowledge that said property was already covered by an adequate insurance policy and that the force-placed charges were improper, Plaintiff refused to credit the account and communicate to Defendant the amount needed for her to regain current status on the loan. But for these inequitable actions, Defendant would have remained current at all times.

TWELFTH AFFIRMATIVE DEFENSE

UNCLEAN HANDS

Plaintiff’s claims are barred in whole or in part by the defense of unclean hands. Specifically, and without limitation, Plaintiff should not be permitted to obtain judgment, foreclose or obtain a deficiency judgment as it informed Defendant, numerous times, not to pay. Defendant relied on those representations and eventually did as Plaintiff informed her to do. Yet, Plaintiff’s representations only harmed Defendant. Had Plaintiff not made those representations, Defendant would have remained current.

We prepared a proposed evidence chart and started issuing subpoenas for depositions. We ultimately subpoenaed and gathered evidence from the condo’s insurance agents and from our client’s bank. This showed adequate insurance was in place at all times. It also showed our client’s regularly and timely auto-payments. In all, there were 465 pages of insurance records and 682 pages of records from our client’s bank. This had to be studied, cataloged, tabbed, and redacted for filing.

In April of 2017, the servicer sent our client a check for $344.16, the exact amount of money improperly taken from her checking account in March of 2016. There was a memo on the check stub that states “FPI REFUND.” This check was issued four months after suit was filed and serves as additional evidence that the servicer, the bank and its lawyers knew they were proceeding with foreclosure, even though insurance was improperly forced-placed.

Of course, during all of this, our client was upset and confused about how this could happen. She is a genuinely nice person who really wanted to resolve this, pay, and move on with her life.

During the case, we filed two different motions for sanctions. One alleged that the bank knew or should have known that the facts and law did not support its case. Another motion for sanctions was the result of the bank not timely complying with a prior sanction order.

There were also numerous hearings due to the bank being evasive in its discovery responses. The bank and its servicer representatives even refused to sign interrogatory responses under penalty of perjury, like everyone else has to.

I think my comments just before I called our client to the stand at the October 30, 2018 trial best summarized Plaintiff’s discovery responses on the forced placed insurance issue:

Evan Rosen: The request for production was propounded on June 6, 2017. Number 19 says: Copies of all forced placed – this is requesting the production of copies of all forced placed insurance policies that have been ordered on defendant’s property from the inception of this account to the present date. After first giving us a response that was non-responsive, they eventually amended their response, the plaintiff, to assert that the answer to that on a March 16, 2018 response is none. There was, then, a response to interrogatory that was an amended response. Also, there were four motions to compel in this case. There is a sanction order for failure to comply, and there’s a pending motion for sanctions… So there is an amended interrogatory response to second set of interrogatories. Again, after multiple requests, they had said that there was no force-placed insurance. And then, when asked if insurance has ever been force placed on the subject property during the pendency of the subject loan, describe the relationship between any of the following entities: the owner of the loan, servicer and insurance carrier. [ ] — and this is the response from the plaintiff and their amended response, and this was from April 25th of this year, 2018. Response: Insurance was at one point placed on the loan account, which is the subject of the action — excuse me, of this action, in early 2016 [], the current loan servicer, detected there was a lapse in the insurance coverage. As a result of that, [] purchased a lender-placed hazard policy that increased borrower, []’s, loan payment. Subsequently, borrower, [], provided proof that she had insurance coverage that caused the current loan servicer, [], to issue two separate refunds to borrower, [], which as a result cleared and rectified the escrow account out completely with regard to the insurance-related aspect of the default at issue and returned it to just a default due to nonpayment of principal and interest.

October 30, 2018 Trial Transcript, P.  L.  – P. 75 L. 23.

The bank, its servicer, and their lawyers thought reversing the force-placed insurance six months after adding it, made everything just fine. But as the servicer’s September 2016 letter indicated, they were still charging our client a partial premium. And throughout the case, Plaintiff was claiming late fees and attorneys’ fees. Just before the date of the reconvened trial, they filed affidavits indicating they were seeking $24,788 in attorneys’ fees. Further, the evidence (testimony, e-mails, and comment log) all showed the servicer rejected her payments during and after all this was going on. We tried to resolve this numerous times but Plaintiff refused to remove the bogus charges and fees. Plus, after they filed suit, our client incurred attorneys’ fees and costs which the servicer refused to account for.

Prior to trial, I consulted with Jose Mitrani, a professor at FIU’s school of construction. I was exploring retaining an expert to opine on the replacement cost of the condominium so I could show the condo’s insurance coverage was always adequate. But I eventually decided not to pursue this. One, Plaintiff never raised an “avoidance” or sent any correspondence indicating they claimed the coverage was inadequate. And two, the condo rider in the mortgage contained strong wording that the condo’s coverage is almost always adequate.

In late October, trial prep kicked into high gear. I had to prepare the outline for our client’s direct examination, which included walking through numerous comment log entries while admitting into evidence various correspondence and documents to recreate a chronological history from when the servicer created this mess to the date of trial.

On October 30th, we showed up for trial in the morning but we had to wait until the afternoon to start. We got through Plaintiff’s case in chief, during which the bank’s witness likely committed perjury.

On direct, the witness claimed the servicer sent the breach letter. The bank’s lawyer, asked: “And who sent the breach latter?” October 19, 2019 Trial Transcript, P. 19 L. 17. And the witness responded, “[the servicer].” Id. at L. 18.

But later the witness completely changed her testimony:

Bank Lawyer: Are you familiar with [the servicer]’s practices for sending out breach letters?

Witness: Yes, I am.

Bank Lawyer: And what is that practice?

Witness: We use a third-party to send out our breach letters.

…..

We use a third-party to send out our breach letters.

October 30, 2018 Trial Transcript, P. 24 L. 18 – P. 25. L. 1.

As to verifying the prior servicer records for accuracy, to try to comply with the judicially created financial institution hearsay exception:

Bank Lawyer: Are you familiar with [the servicer’s] boarding process?

Witness: I am.

Bank lawyer:  And what is that process?

Witness: Well, when we have loans that come over from prior servicers, they go through a boarding process where the information received is vetted into our system. It’s put into a trial mode to ensure that all of the needed items are there. And once it is verified for accuracy, if there are no issues, we board the item to a live file.

October 30, 2018 Trial Transcript, P. 8 L. 2-12.

Yet, on cross examination she stated otherwise:

Evan Rosen: If [the servicer] boards a loan and they check upon receipt that what’s shown in the prior servicer’s records are accurate, that the prior servicer’s records shows a payment was sent to [our client], how would [the servicer] know that that is accurate?

Witness: We would trust that if there’s a credit on prior servicer’s history that a credit was given.

…

Witness: We wait for the borrower to ask us about it, if there’s a discrepancy. … Witness: then the borrower would let us know there — well, because the borrower would say to [the servicer] there’s an error.

Evan Rosen: So you rely on the borrower to tell you if there’s an inaccuracy?

Witness: If we receive documents from a prior servicer with a credit on it, as you have proposed, we [accept] that prior servicer issued a credit. If a credit was not given, the only way [the servicer] would know would be for a borrower to say I never received that or for there to be some question come into play.

…

Evan Rosen: Of course, the same thing, [the servicer] is not looking at [the prior servicer’s] records to see if a check was actually sent for taxes, right?

Witness: We’re trusting the information that comes over from prior servicer.

October 30, 2018 Trial Transcript, P. 58 L. 11 – P. 59. L. 7.

Like in the above discovery admissions, the bank witness admitted at trial that insurance was improperly forced-placed: “Yes, there were escrow advances made for insurance, and those were found to be done in error, and that was corrected, and those advances were refunded.” October 30, 2018 Trial Transcript, P. 58 L. 8 – 11.

After the Plaintiff rested, our client was sworn. I read some discovery into the record, started into the direct examination, and admitted the comment log into evidence. But we adjourned early because the bank lawyer had a scheduling problem.

On February 18, 2019, trial reconvened. Our client took the stand. I tried to start by reading her opening testimony about the case from the prior transcript, but the judge told me I did not need to. He had complete notes and had already reviewed them. I then started walking our client through our well-thought-out direct examination. It was a chronology of events supported by the comment log, testimony, e-mails, and insurance declaration sheets. We also admitted all the condo’s insurance records that we obtained.

Our client covered how much this all affected her and how, but for the servicer, she would still be paying her loan and this case would not exist. She also covered how she did not get the breach letter and if she had, she would have paid. Based on the above critical comment log entry from August 9, 2016, her payment would have been rejected anyway. The amount on the letter was wrong to boot. The servicer added $9,000 for insurance charges. But the bank’s discovery responses and trial witness admitted that was added in error. Our client testified that she had continued to pay her taxes and condo dues throughout. She also said that if judgment was entered in her favor she would resume making her payments immediately. There was no reason she could not afford to do so.

To start my closing, I walked through some great quotes on the equitable doctrine of “unclean hands.” I reiterated the highlights from our client’s opening testimony while on direct examination in the first trial. I talked about the harm caused and that equity does what ought to be done. The court had to weigh the equities between foreclosing for the bank or entering judgment for our client. Taking her home was not what “ought to be done.”

The bank lawyer argued that they proved their case and our client just could not afford to pay. She then wrongfully claimed the comment log supported that our client could not afford the payments but did not point to a single entry that supported her argument. Because, there is no entry that supports this. In fact, there was no evidence whatsoever to support her argument. It was improper closing argument. I objected and raised this in my rebuttal. I also argued that if the bank wanted to rebut our affirmative defenses, they should have pleaded an avoidance and put on evidence in rebuttal to disprove it.

After leaning towards entering judgment for the bank, the judge started to come around after my rebuttal. He thought the fact that our client stopped trying to pay after suit was filed required him to rule for the bank. I explained that she had to hire a lawyer, and she could not afford to pay me and her mortgage. And, what reasonable person continues to try to make payments after all this. She tried many times via different methods. She was told several times, by the servicer representatives, not to pay. And her payments were rejected when she tried. They locked her out of her online account as well.

I also reminded him of the bank’s own comment log from August 2016 which evidenced the rejected payments. I asked him to take another look at it, which he did. And, after all this, the bank filed suit, added almost $25,000 in legal fees, more in costs, and is still trying to take her home. Who would continue sending payments to an entity that treated them this way? And more importantly, no reasonable financial institution should treat people like this. This was not the conduct of “honest and reasonable men.” Cong. Park Office Condos II, LLC v. First-Citizens Bank & Tr. Co., 105 So. 3d 602, 609 (Fla. 4th DCA 2013)(internal citations omitted). A court of equity must bar the relief Plaintiff seeks.

The judge finally saw the light and entered final judgment in our client’s favor. He specified that all payments through the date of trial were deemed paid and that the bank and servicer were required to accept all future payments.

Here is the final judgment: Final Judgment February 21, 2019

And a few months later, we helped our client recover every dime of the attorneys’ fees and costs that she paid during the case.

Ten days later the Judge ruled – Case Dismissed! 2018-10-25 Signed Order on D’s Mtn for Involuntary Dismissal

Another trial, another win!

If you or a loved one are facing foreclosure in Miami-Dade, Broward or Palm Beach, contact us now for a Free Consultation.

Before the case reached the highest court in our state, Justice Polen relayed the words of Justice Farmer, writing 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.

Pino v. Bank of New York Mellon, 57 So. 3d 950, 959 (Fla. 4th DCA 2011), approved sub nom. Pino v. Bank of New York, 121 So. 3d 23 (Fla. 2013). Unfortunately, these words of wisdom were part of the sole dissent in Pino when it was before the lower level, Fourth District Court of Appeal.

Ever since the Supreme Court handed us the Pino decision, I have been very reluctant to mentioned the word “fraud” in a foreclosure case.  It’s not because I don’t believe fraud exists or because I agree with the Supreme Court over Justices Polen and Farmer. But rather because, for numerous reasons, raising fraud most often only hurts our cause. I will go so far as using “false documents,” when warranted but when it comes to “fraud,” I believe it is far more effective to lead the judge up to that without saying it. Pointing out the facts and law, as a devoted professional, with limited ire, is far more effective. With this approach, I have recently watched two judges raise fraud all on their own – one of which was the impetus for this post.

During a recent trial, I published the following evidence to the Court:

From Note attached to complaint and provided to me in 5 sets of pre-trial exhibit disclosures (Note 1):

Top of page 1:

Signature Page:

From Note attached to the Bank’s 6/4/15 Response to Request for Production and lost note affidavit filed on 7/13/15(Note 2):

Top of Page 1:

Signature Page:

Clearly, these two copies of “originals” are different in major ways. Even if there are two notes, which there should never be, the notes should not be enforceable by two different entities.

I also informed the court that the Bank’s Request for Admissions response #10 says that Note 1 is a true and accurate copy. The Complaint is verified to be “true and accurate” and the bank pleads that they are the holder (i.e. in possession and payable to blank or to the Plaintiff). Yet, the Plaintiff is CitiMortgage and the Note attached to the complaint (“Note 1”) was specially indorsed to a trust. Meanwhile, the Lost Note affidavit states Note 2 is a true and accurate copy and Bank’s Response to Interrogatory #7, filed in early June, claims the note is at HSBC in New York City and is not lost!

Despite my and the Judge’s clear warning of where this was headed, opposing counsel failed time and time again to recognize the severity of the situation. Finally, after the Court threatened the bank’s attorney and bank with an evidentiary hearing on the Court’s own motion for fraud on the court to dismiss the case with prejudice so that the bank could never sue again, the bank took a voluntary dismissal.

THE COURT: You know, you’re saying that. Are you thinking about the ramifications of that also, because it seems to me like it would almost be a Motion for Fraud upon the Court, in which to dismiss this case with prejudice and it never being brought back to Court…. So, if you wish to have an evidentiary hearing on the matter, I think it should be set up as a Motion for Fraud upon the Court, truly at this point in time if you wish to move forward.

BANK LAWYER: Your Honor, at this point the Plaintiff will voluntarily [dismiss] the action so we can clean the issues and refile the case.

I can only imagine what he means by “clean the issues”…

Full Transcript of Pre-Trial and Trial here: 2015-07-14 – Transcript – Pre-Trial and Trial

“The enactment of §702.015 is useless, unnecessary and will not expedite the foreclosure process. It gives inadequate remedies to persons who may be seriously injured. It does not give any consideration to existing law on several points. The real problem faced in the foreclosure crisis has been the unwillingness of trial courts to insist on plaintiffs properly preparing the pleadings under existing law, enforcing existing law on the standing of plaintiffs; the refusal of appellate courts to properly enforce existing law on standing in foreclosures; and the unwillingness of banks to promptly push foreclosures to judgment to avoid paying real property taxes, condominium assessments and maintenance for the foreclosed property.”

Copy of the letter below…

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