On November 13, 2012, Florida’s Second District Court of Appeals will hear oral arguments in a most interesting and extraordinary case.
All the superstars that have faded from memory a bit over the last several months will be returning to our collective conscience for renewed consideration…..
A Linda Greene Assignment of Mortgage will be front and center. The plaintiff filed the assignment, then when I objected, filed discovery, tried to talk about it at trial, they screamed wildly that it didn’t matter at all….didn’t mean a thing….how dare I even speak of it! What an outrage!
Well, maybe the Linda Greene Assignment matters after all.
Next, this case might be referred to as American Home Mortgage Servicing and the Curious case of the Danielle Sterling “endorsement”…but there’s more of that…..
The moment defense counsel knew an AHMSI representative would be deposed and could testify at trial, he sought out information in preparation for deposition and to impeach this witness at trial.
- On or about January 28, 2011, this preparation led counsel find an affidavit filed in another case by DANIELLE STERLING (hereinafter ” Sterling”), the individual who purportedly signed the endorsement in this case. It should be noted that this Affidavit was only executed on January 12, 2012, but that AHMSI had been aware of the allegations contained within the Affidavit for many months in advance of its execution. Accordingly, AHMSI would have been aware of the facts contained therein and would have been required to disclose said facts to Defendants in this case. See Sterling’s Affidavit is attached hereto as Exhibit ” 5″.
- Just so that the record, and this motion are clear, the following are the two alleged endorsements of Danielle Steele that are at issue first in this case and then in the affidavit filed and marked as Exhibit ” 5″:
- The point to be made clear from this visual depiction of the exhibits filed in this case is the similarity in both the endorsements at issue. It should further be noted that one of the problems with the Riggs case cited below is the exact nature of the mark or signature used in the Riggs endorsement was not clearly framed before the trial or appellate courts, an important fact that will be discussed below. See Footnote 6, infra, for a further discussion regarding the questionable endorsement in Riggs.
- This affidavit becomes extremely important in this case because under Riggs (to be discussed in detail below) and the applicable section of the U.C.C., Defendants are required to produce some evidence that an endorsement is either forged or unauthorized to shift the burden to prove authenticity to Plaintiff. Defendants have clearly done this through the filing of the Sterling affidavit.
- In this affidavit Sterling admits that while she did endorse certain notes on behalf of American Home Mortgage, the parent company of AMERICAN BROKER’S CONDUIT (hereinafter ” American Broker’s), the original lender at issue here, from time to time, her employment with ended in 2007 once American Broker’s parent filed bankruptcy. See ¶11 of Sterling Affidavit.
- This is extremely important because the note filed by Plaintiff bears an execution date which is mere days before the bankruptcy filing of the payee on the note. The simple issue thus presented is, ” Was the note at issue in this case properly endorsed by Sterling in the mere days between when it was received by American Broker’s and when American Home filed bankruptcy?”
- Even more startling has been Steele’s reaction to the discovery of her affidavit by Defendants.
- More exactly, after discovering the affidavit last week, Defendants’ counsel had extensive conversations with Steele’s attorney, Mr. Hamlim O’Kelley, III. While Mr. O’Kelley was quite helpful and communicative at first, he cut off all communication when he read that websites had caught wind of Steele’s endorsement problems and that Defendants were in possession of the Steele Affidavit that he helped create on behalf of his client.[1]
- Finally, both Plaintiff and its alleged predecessor-in-interest AHMSI have consistently evaded answering Defendants questions regarding who Sterling was, whether Sterling had the authority to endorse the note, and the date when the actual endorsement occurred.[2]
Additionally, Defendants’ deposition of Plaintiff’s corporate representative produced the following exchange between the corporate representative and Defendants’ counsel:
Q. ” When was the note endorsed?”
A. ” The blank endorsement, I do not know.”
Q. ” Do you know who endorsed it?”
A. ” Danielle Sterling, assistant secretary.”
Q. ” Do you know who she is?”
A. ” I do not.”
Q. ” Do you know if she had the authority or power to do that at the time she did it?”
A. ” I did not.
PLAINTIFF’S COUNSEL MUST DIVULGE TO THIS COURT THE EXACT CIRCUMSTANCES SURROUNDING THE NOTICE OF NON RELIANCE
- a. Legal Standards
Florida Bar Staff Opinion 29977, which is attached hereto and incorporated as Exhibit ” 8″, stands for the long-held proposition that an attorney has affirmative duty to disclose to the court the facts and circumstances surrounding the filing of documents of a questionable nature.
- The disclosure of information contained within a lawsuit filed by the Nevada Attorney General (see State of Nevada v. Lender Processing Services, Inc., et al., Case No. A-11-653289-B) and a lawsuit currently pending between to parties in this action, namely American Home Mortgage Servicing and Lender Processing Services (see AHMSI v. Lender Processing Services, Inc. and DOXC, LLC, Case No. 11-10440 (District Court of Dallas County, Texas)) demands further inquiry and disclosure by this current plaintiff and counsel. It should also be noted that just yesterday, a similar lawsuit was filed against the DOCX, LLC by the Attorney General of Missouri. See State of Missouri v. DOCX, LLC (Circuit Court of Boone County, Missouri).
On or about December 8, 2008 AHMSI caused to be filed in the official records of Pinellas County an assignment of mortgage purporting to transfer an interest in the documents which are the subject matter of this litigation. This assignment bears the execution name ” Linda Green”. See Exhibit ” 9″.
- Moreover, on or about October 11, 2011 Plaintiff filed its ” Notice of Non-Reliance” on this assignment. See Exhibit ” 10″.
- Thereafter, Defendants filed their Notice of Reliance to alert Plaintiff, its counsel, and the Court that this document could not simply be ignored away. At a hearing on October 24, 2011 counsel for Defendants demanded that Plaintiff’s counsel explain the circumstances surrounding the document.[1]
- Even more significantly, at the corporate representative deposition, the corporate representative evaded answering why the notice was filed by claiming that ” the mortgage follows the note.” See Exhibit ” 7″, pg. 116.
- When specifically questioned by your undersigned regarding the facts and circumstances surrounding the Plaintiff’s Non-Reliance, the corporate representative claimed to have no knowledge of the facts and circumstances surrounding this document. See Id.
- It must also be noted that the documents which bear an Official Records Book and Page Number cannot simply be ” non-relied upon,” ignored, or swept under the rug. Indeed, because these documents are ” Official Records” they are relied upon, not just by the parties to this underlying lawsuit, but by the general public, title agents, and anyone who examines the public record. This ” non-relied upon” assignment, especially now that it is placed at issue, must be disposed of in some fashion, probably by being named, disclosed, and foreclosed.
- After this Court ordered that an AHMSI representative would be permitted to testify at trial, counsel for Defendants discovered documents that have previously been under seal in the case filed by the Nevada Attorney General’s Office that have a direct impact on this case and involve LINDA GREEN (hereinafter ” Green”), the assignor of the assignment of mortgage which Plaintiff claims it is non-relying on.
- Specifically, on January 28, 2011 undersigned counsel came into possession of a document filed under seal by the Nevada Attorney General which detailed a corporate policy wherein Green’s purported ” signature” was not, in fact, signed by Green. See Exhibit ” 11″.
- This exhibit attached to the Nevada lawsuit reveals that it was the practice of parties in this lawsuit to allow so called ” surrogate signers” to execute documents. A surrogate signer, according to the exhibit, is defined as ” a signature by someone other than the person named.”
- It should be noted that Defendants have made repeated attempts discover Green’s ability to assign the subject mortgage but have been rebuffed at every turn by Plaintiff’s evasive and dilatory answers and objections. This appears to be an active concealment of information that was exculpatory to Defendants.[2]
- It is also of critical importance that this Court notes that neither Plaintiff nor AHMSI has ever disputed that the assignment was surrogate signed. Rather, it has attempted to avoid the subject in whole through the filing of its purported ” non-reliance” on the assignment and through its evasive answers and objections to Defendants’ numerous discovery requests.
- Certainly, if there was nothing inappropriate with Green’s signature in the assignment at issue, Plaintiff would have readily ” relied” upon it.
- Plaintiff ” non-reliance” on the assignment therefore speaks volumes and makes it more likely than not that the assignment was surrogate signed, a clear violation of Florida notary law.
- Because of this, counsel for Plaintiff should be required to detail the specific facts and circumstances which exist that caused Plaintiff to file its ” non-reliance” notice in accordance with Florida Bar Staff Opinion 29977.
[1] The following exchange occurred at the hearing:
MR. WEIDNER: The problem is there is a DOCS, LLC, and a Linda Green assignment of mortgage. These are the infamous assignments of mortgage which are very similar to the facts that were pled in the Florida Bar Ethics opinion which dealt with this.
MS. KENEFIC: And, Your Honor, I have made it very clear by filing on the docket and filing with the Court a Notice of Non-Intent to rely upon that assignment of mortgage. We have no intent to rely on the assignment of mortgage from Linda Green or that was created by DOCS after the fact.
MR. WEIDNER: The very curious motion which brings this all to attention is the Notice of Non-Reliance on Assignment of Mortgage. I’m not aware of any Rule of Civil Procedure which allows a party to introduce evidence in a case and then when they’re subsequently determined to be problems with that evidence, to then say to the Court, ” We don’t want to rely on that.” I want to draw the Court’s attention to the Florida Bar adviser’s opinion which are facts which I believe are on all four squares with what this case and the facts in this case are. Counsel determines that there are problems with the evidence that’s been entered in the case, the affidavits and assignments. The Bar issues an advisory opinion which says to counsel that when this comes to their attention they are required to come before the Court and get an in-camera inspection to have the Court fully advised of the circumstances and premises under which they then want to remove that evidence from the court file and have the Court not rely on it. So my question to counsel is, has counsel followed the procedure articulated in the Florida Bar Ethics opinion with regard to this assignment of mortgage?
See Exhibit ” 1″, pg. 11, line 11 through pg. 13, line 15
Additionally, at the corporate representative deposition of Plaintiff, the following exchange between the attorneys of record occurred:
MS. KENEFIC: Before we begin, as far as Defendant’s Composite Exhibit 5-A and B, which are the assignment of mortgages, Plaintiff is going to make a standing objection as to the relevance. Plaintiff does not intend to rely upon the assignment of mortgage to confer standing.
MR. WEIDNER: And let’s mark this discussion ““ please help me to understand what it was you just said there. I’m frankly a bit confused.
MS. KENEFIC: Plaintiff is making a standing objection as to the relevance of the assignment of mortgage. We are ““ Plaintiff is not going to be relying upon the assignment of mortgage in order to prove its standing. We have filed as of October 12th of 2011 a notice of non-intent to rely upon the assignment of mortgage.
See Exhibit ” 7″, pg. 51, line 15 through pg. 52, line 7.
[2] For instance, Interrogatory 24 of Defendants’ First Set of Interrogatories to Plaintiff ask under what authority Green may assign the mortgage. Plaintiff subsequently responded that it was intending to rely upon some purported ” screen-shot” which made Defendants’ inquiry ” wholly irrelevant and not reasonably calculated to lead to admissible evidence and beyond the scope of Fla. R. Civ. P. 1.280.” See Exhibit ” 6″.
MR. WEIDNER: The problem is there is a DOCS, LLC, and a Linda Green assignment of mortgage. These are the infamous assignments of mortgage which are very similar to the facts that were pled in the Florida Bar Ethics opinion which dealt with this.
MS. KENEFIC: And, Your Honor, I have made it very clear by filing on the docket and filing with the Court a Notice of Non-Intent to rely upon that assignment of mortgage. We have no intent to rely on the assignment of mortgage from Linda Green or that was created by DOCS after the fact.
MR. WEIDNER: The very curious motion which brings this all to attention is the Notice of Non-Reliance on Assignment of Mortgage. I’m not aware of any Rule of Civil Procedure which allows a party to introduce evidence in a case and then when they’re subsequently determined to be problems with that evidence, to then say to the Court, ” We don’t want to rely on that.” I want to draw the Court’s attention to the Florida Bar adviser’s opinion which are facts which I believe are on all four squares with what this case and the facts in this case are. Counsel determines that there are problems with the evidence that’s been entered in the case, the affidavits and assignments. The Bar issues an advisory opinion which says to counsel that when this comes to their attention they are required to come before the Court and get an in-camera inspection to have the Court fully advised of the circumstances and premises under which they then want to remove that evidence from the court file and have the Court not rely on it. So my question to counsel is, has counsel followed the procedure articulated in the Florida Bar Ethics opinion with regard to this assignment of mortgage?
See Exhibit ” 1″, pg. 11, line 11 through pg. 13, line 15
Additionally, at the corporate representative deposition of Plaintiff, the following exchange between the attorneys of record occurred:
MS. KENEFIC: Before we begin, as far as Defendant’s Composite Exhibit 5-A and B, which are the assignment of mortgages, Plaintiff is going to make a standing objection as to the relevance. Plaintiff does not intend to rely upon the assignment of mortgage to confer standing.
MR. WEIDNER: And let’s mark this discussion ““ please help me to understand what it was you just said there. I’m frankly a bit confused.
MS. KENEFIC: Plaintiff is making a standing objection as to the relevance of the assignment of mortgage. We are ““ Plaintiff is not going to be relying upon the assignment of mortgage in order to prove its standing. We have filed as of October 12th of 2011 a notice of non-intent to rely upon the assignment of mortgage.
See Exhibit ” 7″, pg. 51, line 15 through pg. 52, line 7.
[2] For instance, Interrogatory 24 of Defendants’ First Set of Interrogatories to Plaintiff ask under what authority Green may assign the mortgage. Plaintiff subsequently responded that it was intending to rely upon some purported ” screen-shot” which made Defendants’ inquiry ” wholly irrelevant and not reasonably calculated to lead to admissible evidence and beyond the scope of Fla. R. Civ. P. 1.280.” See Exhibit ” 6″.
Later, in Defendants notice of taking corporate representative deposition duces tecum, Defendants announced they would be asking questions regarding Green and ” the circumstances surrounding the assignments of the mortgage filed in this matter.” See Exhibit ” 12″. Rather than answer questions surrounding Green, Plaintiff filed a motion for protective order.
NoticeofNonReliance
MotioninLimine
AnswerBrief
Initial Brief
Reply Brief
Trial transcript
LOVED the motioninlimine ,,, GREAT JOB!
Do you think AHMSI will ever move the LPS case in Dallas forward? What’s holding it up? Mutual consent to let it sit so as to not cause further harm?
I really hope that this goes well.
I could just see Linda Green being called to the stand, and 35 surrogate signers from DOCX standing up. LOL.
Go get em Matt.
I need a copy of that Notice of Non-Reliance. I need to file a Notice of Non-Reliance on Plaintiff’s alleged original note. After 18 months of litigation in a foreclosure lawsuit about my property, something we brought to Plaintiff’s attention – either the Affidavit by an atty specializing in white collar crime that stated that the Assignment was fraudulent, or the forensic search by an expert from the inception of the mortgage to the present day stating that it never legally made it into the Securitized Trust in 2006, and was even mishandled when it went through the MERS machinations, or maybe our request to be allowed to depose all the signatories on that Assignment of Mortgage — whatever it was, they asked the judge to allow them to voluntarily dismiss their own case. We never got to depost the woman whose name appears on the back page of the alleged original note, in which she would testify that it was not her signature. Now, a year later, Plaintiff USBANK,N.A. has filed the foreclosure lawsuit all over again — this time leaving out the Assignment of Mortgage. The note has been entered as their evidence again. I want to file a Notice of Non-Reliance on that document, because I cannot rely on anything Plaintiff has filed, and I know that the signature (alleged to have endorsed in blank the note) is forged. Not only from written correspondence with the woman herself, whose name appears on the page, but also from an expert in handwriting analysis who also conluded that the signature was forged.
Additionally, I have been hampered from selling that property because that fraudulent Assignment of Mortgage from the first foreclosure case is still on file with the Pinellas County Court. It has slandered and clouded the title. Please advise — anyone.
I am involved in a fraud signature case with a mortgage company. How is your case going? It is Nov 2012, is your case settled?
Las Vegas? I haven’t read the attachments yet, but is it related to the woman who admitted to robo-signing and was found dead on her sentencing date in Vegas? I saw this a while ago and thought it interesting. If you follow the link given by Foreclosure Fraud, one of the comments there references the mysterious death of the DC Madame. Remember her? I do…and many others.
Nothin to see here…move along. https://www.zerohedge.com/contributed/foreclosure-fraud-lender-processing-services-robo-signer-whisleblower-found-dead-nevada
I finally finished reading all these docs, thank you for sharing them. I am still in learning mode and find that I still have much more to read.
I looked up UCC back in July 2010 and put it down thinking I’d had a grip on it. I thought mortgages were NOT negotiable, and I still think so but I’m shaky again after reviewing my notes and more this a.m.
Here is what I put together regarding notes on the Court Transcript and my articles collected back in 2010. It would be great to hear more about the UCC angle they will be harping on…
My NOTES:
I read the Court Transcript and came up with some additional comments.
Page 83, lines 1 through 4: ‘the witness has testified that the business record, copy — or the original note that’s in the court file is a copy of the business records that RCS maintains’ – WHERE IS THE ORIGINAL?
Page 93, what is BPO?
Page 120 – Negotiable Instrument, UCC?
Page 138 – p. 22 – Is it true that Transcripts can only be taken if permission is obtained prior to doing so??????
Page 147, Is it true that once a Complaint is amended, one cannot rely or refute any information supplied within the original complaint?
Page 166-167 – No one cares who the Owner is? UCC covers Mortgage Notes? Guess we can pay the newest Owner when ever they pop-up again, eh?
UCC
These are articles I pulled over the years concerning UCC:
“Understanding Negotiable Instruments and Payment Systems”
William H. Lawrence, Professor of Law, University of San Diego, School of Law
“Memorandum of Law for the International Swaps and Deriviatives Association, Inc: Validity and Enforceability of Collateral Arrangements under the ISDA Credit Support Documents”
Allen & Overy LLP, NY, NY
Construction Law Today
FDIC Loan Sales: It’s Good to Be a Holder in Due Course
11/11/2009
https://www.constructionlawtoday.com/2009/11/fdic-loan-sales-its-good-to-be-a-holder-in-due-course/print.html
which also leads to:
https://www.law.cornell.edu/ucc/3/article3.htm#s3-104
” § 3-104. NEGOTIABLE INSTRUMENT.
(a) Except as provided in subsections (c) and (d), “negotiable instrument” means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:
(1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
(2) is payable on demand or at a definite time; and
(3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor.”
Based on the above and this below, Mortgages are NOT negotiable but fall under Article 9 of UCC
https://www.law.cornell.edu/wex/mortgage which leads here:
Security agreements are contracts. Article 9 of the Uniform Commercial Code governs security interests in personal property. It has been adopted, with some modifications, by every state. A security agreement must comply with other state laws governing contracts. See Contracts.
from: https://www.law.cornell.edu/wex/secured_transactions
Part 5 of Article 9 deals with the procedures to be followed when a borrower defaults. See § § 9-501 – 9-507 of the code.
and….from: https://www.law.cornell.edu/cfr/text/12/1026/appendix-SupplementI
Section 1026.39″”Mortgage Transfer Disclosures
39(a) Scope
Paragraph 39(a)(1)
1. Covered persons. The disclosure requirements of this section apply to any ” covered person” that becomes the legal owner of an existing mortgage loan, whether through a purchase, or other transfer or assignment, regardless of whether the person also meets the definition of a ” creditor” in Regulation Z. The fact that a person purchases or acquires mortgage loans and provides the disclosures under this section does not by itself make that person a ” creditor” as defined in the regulation.
2. Acquisition of legal title. To become a ” covered person” subject to this section, a person must become the owner of an existing mortgage loan by acquiring legal title to the debt obligation.
i. Partial interest. A person may become a covered person by acquiring a partial interest in the mortgage loan. If the original creditor transfers a partial interest in the loan to one or more persons, all such transferees are covered persons under this section.
ii. Joint acquisitions. All persons that jointly acquire legal title to the loan are covered persons under this section, and under § 1026.39(b)(5), a single disclosure must be provided on behalf of all such covered persons. Multiple persons are deemed to jointly acquire legal title to the loan if each acquires a partial interest in the loan pursuant to the same agreement or by otherwise acting in concert. See comments 39(b)(5)-1 and 39(d)(1)(ii)-1 regarding the disclosure requirements for multiple persons that jointly acquire a loan.
iii. Affiliates. An acquiring party that is a separate legal entity from the transferor must provide the disclosures required by this section even if the parties are affiliated entities.
3. Exclusions. i. Beneficial interest. Section 1026.39 does not apply to a party that acquires only a beneficial interest or a security interest in the loan, or to a party that assumes the credit risk without acquiring legal title to the loan. For example, an investor that acquires mortgage-backed securities, pass-through certificates, or participation interests and does not acquire legal title in the underlying mortgage loans is not covered by this section.
ii. Loan servicers. Pursuant to TILA Section 131(f)(2), the servicer of a mortgage loan is not the owner of the obligation for purposes of this section if the servicer holds title to the loan as a result of the assignment of the obligation to the servicer solely for the administrative convenience of the servicer in servicing the obligation.
4. Mergers, corporate acquisitions, or reorganizations. Disclosures are required under this section when, as a result of a merger, corporate acquisition, or reorganization, the ownership of a mortgage loan is transferred to a different legal entity.
Paragraph 39(a)(2)
1. Mortgage transactions covered. Section 1026.39 applies to closed-end or open-end consumer credit transactions secured by the principal dwelling of a consumer.
39(b) Disclosure Required
1. Generally. A covered person must mail or deliver the disclosures required by this section on or before the 30th calendar day following the date of transfer, unless an exception in § 1026.39(c) applies. For example, if a covered person acquires a mortgage loan on March 15, the disclosure must be mailed or delivered on or before April 14.
39(b)(1) Form of Disclosures
https://www.law.cornell.edu/cfr/text/12/1026/appendix-SupplementI