The Foreclosure Trial That Continues Now Nearly 10 Months Later
When you defend homeowners in foreclosure, you get accustomed to putting up with abuses and slights and very real systemic and procedural abuses. When you defend consumers…when you dare to stand up and say that a homeowner in this state has a right to be properly defended and when you (GASP!) dare to insist that the judicial system assert some basic fairness and equity into the foreclosure process…you are going to be beaten up, attacked and abused. On a regular basis. This blog is a snapshot that documents these realities. I rarely give specific details, but every single one of us in this space can detail, in disturbing specificity case after case going on years, in which these statements are borne out.
As Americans, and especially as American lawyers, we harbored some delusions that there exists some opportunities for individuals…for real people, to stand up against the abuses of the ruling class and assert the right to be protected from their systemic abuses…those abuses borne largely out of their purchase, capture, extortion and blackmail of the entirety of the American political system. And with the purchase of the political system comes, by extension, the purchase of the judicial system. The utter and complete capture of the judicial foreclosure system in Florida is the undeniable expression of this capture. I’ve performed the autopsy of this over and over on this blog, but here’s the abbreviated version once again. The Banks got caught stealing and cheating the my taxpayer dollars from the federal government. The federal government, working in conspiracy with state attorneys general asked for a few dollars from the billions stolen to be returned, as detailed in the terms of the National Mortgage Settlement. Florida’s share of the National Mortgage Settlement money was distributed to Florida’s courts, but given the express condition that this money be used to,
“expedite the foreclosure process!”
And so, pursuant to the terms of Florida Senate Bill 1852, Florida’s political leadership (influenced heavily by the banking industry…remember the ones that stole the billions in our taxpayer dollars?) set up the foreclosure courts that currently operate across the State of Florida. And make no mistake…in fact it’s repeated explicitly over and over every day all across this state…those courts exist with the nearly singular goal in mind to
“expedite the foreclosure process!”
That little introduction provides the operational background into which this following story exists. Nearly 11 months ago, a case for a client of mine was set for trial. Now months before the case was set for trial, I did the kinds of things that every single lawyer in any case has to do….you’ve got to spend some time investigating the claims that are being lodged against your client. In any breach of contract case (that’s what a foreclosure case is), the absolute bare minimum of work that any attorney must do is investigate the claims lodged by the plaintiff. And let’s just start with one…..If someone is suing your client for breach of a money contract, at a bare minimum, the attorney representing the party being sued must seek discovery on the documents that support the amount of money your client is being sued for. Get that? So if Wells Fargo is suing my client for $200,000, I have an obligation to formally, through discovery, seek out the documents that support the amounts Wells Fargo claims my client is owed. We did that….we sought that information months before the trial. Well, in an example of the systemic unfairness that exists, defendants, by and large are not given the opportunity to force plaintiffs to produce such basic documents. Such was the case in this Wells Fargo case where I sought discovery and Wells Fargo said,
“We don’t think you’re entitled to get this information…you just wait till trial.”
Wells Fargo did what has become the standard operating procedure in foreclosure cases whenever discovery is sought from them…..Wells Fargo objected to nearly every single request and refused to provide nearly all the relevant information and documents in their possession. It’s infuriating now…as I look at these responses more than a year later to see what they are permitted to get away with. But they get away with it because the banking industry has been trained and conditioned that they can operate above the law, with impunity by courts and by the corporate owned political establishment in this country. But in this case, as in all others, I fought back. I fought and wrestled and convinced the court that Wells Fargo should not have a trial until they produced the information I sought. The court ordered Wells Fargo to produce documents and to answer the questions.
And what Wells Fargo did in this case is they got real cute. The court ordered them to answer, to respond to the interrogatories and they did….They doubled down on objections, obfuscation and bad faith non-responsive unresponses. Let me give a little example with some context. The banks are sending unlicensed and unaccountable individuals, some with extensive criminal records, all across this country to “inspect” the homes of Americans. This is dangerous, it’s illegal and worse, consumers are paying for these illegal, dangerous and unwarranted violations of their property rights. In the context of foreclosure, banks should not be permitted to charge consumers for such improper actions. And so we ask….and Wells Fargo objects:
23. Please provide the name of all individuals who performed property inspections on the subject property
“Wells Fargo objects that this interrogatory is overly broad, harassing, seeks confidential and proprietary information and is not relevant and not likely to lead to the discovery of admissable evidence”
That’s just a taste, but it gets worse….so, so much worse. As the trial in this particular case approached, the judge had ordered Wells Fargo to produce documents to support their case. Wells Fargo produced documents in what is the most grossly abusive and obscene game playing that I’ve ever seen. You see on the eve of trial, Wells Fargo’s attorneys got real cute and dropped a CD through my mail slot…a CD that contained more than 3000 pages of documents that show the most offensive, abusive and downright arrogant contempt for the due process rights of the consumer I am representing. As my motion details, Wells Fargo played games with discovery for months and then committed the final and most gross insult just before trial:
- On December 17, 2013, Defendant served a First Request for Production on Plaintiff.
- Because Plaintiff’s initial “response” to Defendant’s first request for production was facially insufficient, Defendant filed and served a motion to compel a better response to that discovery request.
- A hearing on Defendant’s motion was held on February 25, 2014. In an order dated that day, the Court denied Defendant’s motion as “moot” upon Plaintiff’s counsel’ representation that additional documents would be served on Defendant.
- On February 27, 2014 the additional “documents” were served on Defendant. While Plaintiff may attempt to impress upon the Court that the sheer number of documents provided shows that they have responded to Defendant’s request, even a cursory review of the documents reveals otherwise. Indeed, many of the documents are duplicative and most, if not all, are non-responsive to the 21 very specific requests made by Defendant.
- As demonstrative of how facially insufficient Plaintiff’s responses are, nearly 200 of the first 475 pages of documents produced were completed blacked out for reasons cited as “proprietary documents” and “attorney work product.” As a specific example, Defendant has attached the first ten pages of documents produced as Exhibit “A” to this motion. As can be seen from this Exhibit, nine of the first ten pages are completed blacked out, and the one page that was not blacked out was a “service excellence award” given to Bobbie Steele. The relevancy of Ms. Steel’s customer service has yet to be determined by this Court.
- Furthermore, the production revealed for the first time on the eve of trial that the underlying contract sued upon has been modified at least twice.
- As a result, Plaintiff has failed to comply with the Court’s February 25th order which rendered Defendant’s motion to compel moot upon Plaintiff’s representation that a supplemental response would be forthcoming.
You really have to see the documents to understand just how offensive this is….and most infuriating the fact that Wells Fargo pops in a little award for their employee that was part of their little game:
(EVERY TIME I SEE THESE DOCUMENTS….MY BLOOD BEGINS TO BOIL!)
Well the good news is this…while Wells Fargo was busy playing games, they were concealing from me and from the court the most essential elements of their case….and that was just one of the things that led to judgment in our favor:
5 Q I’m asking you, you just identified both
6 documents. I’m asking you why these two documents that
7 you’ve just identified were not disclosed to the Court and
8 were not disclosed to me and were not disclosed to my party
9 despite the fact that Wells Fargo has been suing my client
10 since 2010.
11 The question is, why did Wells Fargo not disclose
12 to the Court these two modification agreements?
20 The witness can answer it, if he can.
21 A Sir, these are legal pleadings. I’m not a lawyer,
22 I don’t understand Florida law, I can’t give you an answer.
23 We hired an attorney to file these. Why that
24 attorney made that call, I don’t know.
And so where does the case stand today? Well, Wells Fargo appealed the good trial judge’s judgement in our favor and the Appeal drags on and on. Wells Fargo, with all their billions of dollars and teams of lawyers asks for extension after extension to comply with the very clear deadlines imposed by the appellate court. Think about that for a moment. Courts impose deadlines, lawyers are expected to comply with those deadlines, but over and over Wells Fargo refuses to comply with those deadlines. The ironic thing is, had Wells Fargo merely refiled the case immediately after they lost the trial in March 2013, they could have that new case completed by now. And God only knows just how much is being spent on their appeal of this prior case. It just defies good sense…but then when you’re a behemoth corporation that’s perfectly accustomed to abusing consumers and the law, that’s just Situations Normal.
One parting shot here. After the trial ended, with a judgement in our favor, Wells Fargo packed up their papers, all their evidence and….TOOK THEM AL OUT THE COURTROOM! The import of this little nugget is so important and clearly recognized by attorneys and jurists.
If you claim that a trial judge did something wrong in a trial, you cannot take all your evidence out of the courtroom and then later ask the appellate court to examine what the trial court did wrong. When the party that lost the trial takes all their evidence out of the courtroom, they deprive the appellate court of any ability to know just what evidence actually was in that courtroom!
So just how exactly is a panel of appellate judges ever going to find that the judgement of the good and honorable trial judge with decades of experience handling trials was incorrect when the appellate court has no way of seeing what his good judgment was based upon?
(The appellate court cannot. The trial judge’s ruling must be respected and will stand.)
More Foreclosure Resources from Weidner Law