The first thing the entire world needs to understand is that there are two (count ’em) TWO versions of American Home Mortgage Servicing….
The first American Home Mortgage Servicing is a Maryland corporation. That corporation was the subject of a bankruptcy proceeding. When American Home Mortgage Maryland filed bankruptcy, that American Home died. (queue up the music, play the funeral dirge)
BUT WAIT, THINGS ARE GONNA TURN AROUND!
Next, a brand spanking new American Home Mortgage Servicing was born and incorporated in the fine state of Delaware. That new American Home Mortgage Servicing of Delware, while it may sound the same thing as American Home Mortgage of Maryland, is a completely new person, a brand new entity…as different as night and day from the old, dead American Home Mortgage Servicing of Maryland. (I wonder why they kept the same exact name…just a new state of incorporation? More importantly, has anyone ever advised a court that the old American Home died?)
One more thought…the Fair Debt Collection Practices Act mandates that changes in servicer and notices to borrower accurately describe when a debt is sold and to what entity a debt is due….regardless of the whole linguistic switcharoo, might this notice dynamic be an issue?
But I digress. My point is a rose by any other name may not in fact be a rose but may in fact be something that looks very much like a rose, but not actually a rose. Or mighten it be a rose in name only? But really, does any of this matter anyway.
Well, I’m certain that it should.
Let’s put it this way. Let’s say John Smith sued Matt Weidner for $100. After filing suit, John Smith died. John’s attorneys, rather than tell the court that John died allowed his twin brother Jim Smith to come in court and testify against Matt Weidner and John Smith wins the case. Should Jim Smith have been able to provide the testimony that the dead John Smith needed to win the case?
John Smith accuses Matt Weidner of a violent crime. John Smith isn’t able to testify at trial against Matt, but his evil twin brother Jim Smith knows all the facts (they are twins after all) so Jim comes in court and provides the critical testimony that is used to convict Matt of the horrible crime. If, while sitting in his jail cell, Matt realizes that he’s been convicted of a crime by John’s evil twin brother, should Matt continue to sit in a jail cell convicted of a crime by this testimony?
If Jane Weidner the poor identical twin sister of the rich but incompetent and hidden away Joan Weidner dies and Jane’s will provided that Matt Weidner got all her money should we allow Jane’s dead body and death certificate be substituted for Joan’s (she’s on her deathbed anyway after all)?
I could go on and on and on….but the real question is…..
Why should foreclosure court be any different?
Now, I just hope Wilbur Ross and all the members of the Dark Side who are reading this know…I’m not a Free House Attorney. Every attorney on the other side knows, I am deeply committed to negotiation, to cooperation, to settlement and reasonableness.
I preach the gospel of reasonableness and only go the distance when they force me to take the Red Pill. And so, I cannot understand why in God’s name anyone of the people in the chain of command would take a case like this to trial, knowing the facts that are revealed in the following transcript and appeal….
Here’s where the trial picks up:
Q. And who is your employer?
21 A. American Home Mortgage Serving —
22 MR. WEIDNER: Objection, your Honor.
23 THE COURT: Your objection?
24 MR. WEIDNER: Yes, we need some
25 clarification on who that entity is.
1 MR. ZAKARIAN: Your Honor, I just asked
2 her who the employer is, and I didn’t ask
3 another question. May I proceed?
4 THE COURT: Mr. Weidner, explain to me
5 what is the basis of your objection.
MR. WEIDNER: Thank you, Your Honor.
7 Raised in our motion to dismiss and
8 specifically raised as an affirmative defense
9 in our answer in affirmative defenses, we
10 challenged the capacity of the plaintiff
11 that’s named in the lawsuit. This case is
12 going to illustrate for the Court very clearly
13 why capacity is no important.
14 We’ll note in this lawsuit that they know
15 that American Home Mortgage Servicing, Inc.,
16 without saying anything more. There are at
17 least two separate and distinct American Home
18 Mortgage Servicing Inc.’s that existed at one
19 point in time. The witness has stated that’s
20 she’s here to testify on behalf American Home
21 Serving Inc. Before she goes any further, she
22 needs to make clear which she’s testifying on
23 behalf of.
Q. Okay. Does that indicate that — well,
22 let’s make this clear — is it clear in your mind
23 that there was an American Home Mortgage
24 Corporation, a Maryland Corporation?
25 A. Correct.
1 Q. And it’s clear in your mind that there is
2 a separate corporation, American Home Mortgage
3 Corporation, a Delaware Corporation?
4 A. Correct.
5 Q. Do you know what computer operating
6 system was maintained by American Home Mortgage
7 Servicing, Inc., a Maryland Corporation?
8 A. No, I’ve never worked for that company.
9 Q. Do you know anything about how the
10 records of American Home Mortgage Servicing, Inc.,
11 a Maryland Corporation were maintained?
12 A. I know the records were kept in the regular
13 business industry standards.
14 Q. How do you know that, what’s the basis
15 for your knowledge?
16 A. Because they’re kept the same way they are
17 kept within our company today.
18 Q. Did you travel back in time to American
19 Home Mortgage Servicing, a Maryland Corporation?
20 A. Specifically to —
21 MR. WEIDNER: Objection. Argumentive,
22 Your Honor, travel back in time.
23 THE COURT: Mr. Weidner, if you could
24 reword your question.
Q. Do you know when American Home Mortgage
3 Corporation, a Maryland Corporation ceased to
4 function as a business?
5 A. I don’t know.
6 Q. Do you know when they ceased to function
7 as a business prior to when you — do you know if
8 they ceased to function as a business prior to when
9 you started working for American Home Mortgage
10 Servicing, Inc., a Delaware Corporation?
11 A. I don’t know.
12 Q. Okay.
13 MR. WEIDNER: Your Honor, I’d like to
14 approach the witness.
15 THE COURT: Would you like to show
16 Mr. Zakarian?
17 MR. WEIDNER: Yes.
18 MR. ZAKARIAN: Okay. Are you asking the
19 Court to take judicial notice?
20 MR. WEIDNER: I was.
21 MR. ZAKARIAN: And if you are, we don’t
22 have any objection. It’s part of the public
24 MR. WEIDNER: Okay. Your Honor, what I’m
25 showing the witness here are the corporate
1 records that establish that American Home
2 Mortgage Servicing, a Delaware Corporation
3 came into existence.
4 BY MR. WEIDNER:
5 Q. Could you read that right there
7 A. As of the 13th day of November, AD 2007.
8 Q. Okay. The date of filing of this
9 lawsuit — are you familiar with the date of this
11 A. Uh-huh.
12 Q. And what was that date?
13 A. I don’t know exactly, but it was
14 September 2007.
15 Q. Okay. So it was before the corporation
16 you’re testifying on behalf of came into existence;
17 is that correct?
18 A. Correct.
19 Q. Okay. Now, you testified previously that
20 you knew generally about the books and records of
21 the Massachusetts Corporation, correct?
22 A. The Maryland?
23 Q. I’m sorry, the Maryland Corporation, yes.
24 But do you have any personal knowledge of how those
25 records were entered in?
Q. Do you have any knowledge, personal
16 knowledge, of the business activities that existed
17 in that corporation that existed prior to the
18 Delaware, Maryland Corporation?
19 A. No, I don’t have any personal knowledge.
20 Q. Okay.
21 MR. WEIDNER: Your Honor, I’m going to
22 object to this witness testifying to the
23 records that are being entered into this case.
24 She has no knowledge of records that we
25 entered in.
And now the trial transcript and the Motion to Dismiss the Appeal……
Motion to Dismiss