TRANSCRIPT FROM A FORECLOSURE TRIAL…..WITH A SPECIAL SURPRISE AT THE END!

I wanted to share some excerpts from a recent foreclosure trial. These things are not for the feint of heart. The risks are huge….for the homeowner…and the deck is often stacked against us.  It’s like walking into a gunfight armed with nothing but a switchblade.  But it reveal quite a bit about the foreclosure process in Florida, about foreclosure defense, foreclosure laws and shows that foreclosure defense is not about foreclosure delay, but showing the facts in how a foreclosure defense attorney can win a foreclosure case.

Most foreclosure cases are very technically difficult for the Plaintiff, if a judge wants to fairly apply the rules of evidence and procedure…

if a judge wants to fairly apply the rules of evidence and procedure

This is the real challenge in a foreclosure trial….getting the court to believe that a homeowner in foreclosure is entitled to the same due process  protections as an accused child molester or murder. Put more plainly, most rulings by a judge are judgement calls and far too often, what we see in foreclosure is the calls falling in favor of the banks.  The challenge is getting a judge to believe he owes just as much due process to my clients, as he would to those who are accused of the most heinous crimes.

And now onto the foreclosure trial, starting with the bank witness:

Q And have you had the opportunity to review all
12 of the relevant documents and business records associated
13 with this specific loan and the present foreclosure
14 action?
15 A Yes.
16 Q And what are the sum of the records that you
17 reviewed?
18 A I reviewed the copy of the note, the mortgage,
19 the payment history, the final judgment, the breach
20 letter and the J-fix (ph.).
21 Q And all of the records that you just mentioned
22 are made at or near the time of the event they are
23 created. Correct?
24 A Yes.
25 MR. WEIDNER: Objection. Foundation, your

Honor.
2 THE COURT: Sustained. You will have to
3 indicate in what fashion they have been
4 substantiated, having been made at or near the time
5 that’s at issue.
6 Q (BY MS. ARENAS:) Okay. Let me rephrase the
7 question. Are these documents kept in the ordinary
8 course of your company’s business records?
9 A Yes.
10 MR. WEIDNER: Objection. Foundation. What
11 documents is she referring to?
12 THE COURT: Well, I think —
13 MS. ARENAS: I’ll withdraw the question. I’ll
14 withdraw the question, your Honor, and move straight
15 to the —
16 THE COURT: Okay.
17 Q (BY MS. ARENAS:) I’m handing you a document
18 right now. Can you tell me what this document is?
19 A This is a copy of the original note executed on
20 July 14, 2006, recorded in —
21 MR. WEIDNER: Objection. Foundation, hearsay,
22 authenticity, your Honor. I further object to the
23 witness, who appears to be reviewing the screen. If
24 she’s going to testify as to matters, those need to
25 be entered into record.

A witness cannot sit on a stand using “secretive” testimony, hiding what she’s doing from the court

MS. ARENAS: Your Honor, she’s not testifying
2 from the screen. She’s looking at the document.
3 THE COURT: If you can shut the screen down
4 just for the — that’s fine — not all the way, if
5 you don’t want to shut the computer off. Okay.

A court cannot ignore basic law anymore than it should ignore rules or procedure

6 MR. WEIDNER: Your Honor, I’m going to point to
7 — we’ll get straight to it. I’m going to point to
8 the specific objection, it’s that document that is
9 sitting before the witness right there, and be real
10 clear about what my objection is. May I voir dire
11 for two sentences?
12 THE COURT: Okay. Well, you said that you were
13 going to be real clear about your objection, so why
14 don’t you be real clear about your objection.
15 MR. WEIDNER: Quite plainly, your Honor, that
16 document is endorsed to a party other than the named
17 plaintiff.
18 A case just came out of the Fourth DCA. May I
19 approach and hand the Court what is marked as Dixon,
20 D-I-X-O-N, vs. Express Lending. That cite is
21 1D10-2127.
22 Reading from that highlighted portion there,
23 your Honor, the case that is before this court is
24 almost precisely what was before the court there in
25 Dixon, your Honor. That document that is before the court,

the note that they’re trying to introduce, is
2 made payable to another party. Because there is a
3 specific endorsement in there in favor of
4 Residential Credit, this witness can’t get that
5 document in.

This Judge, a very good judge, get’s it and knows the Plaintiff’s case is over right here.

6 THE COURT: Okay. Response.

7 MS. ARENAS: Your Honor, the actual original
8 note is with the court file. It is a
9 self-authenticating document. We still are entitled
10 to enforce under 673.3001. We can argue that we are
11 the non-holder in possession with the rights of a
12 holder.
13 THE COURT: Response.
14 MR. WEIDNER: Absolutely not, your Honor. When
15 there is a specific endorsement on that original
16 note that is before the court that I inspected, the
17 only party that can enforce that note is the party
18 to whom that note is payable.
19 THE COURT: Okay. Well, let’s see what our
20 note says here.
21 MR. WEIDNER: And just so the record is clear,
22 there is a promissory note there which is made
23 payable to the original lender. That note,
24 miraculously, subsequently appeared, some allonge,
25 which are not affixed to the note precisely as they should be, as the court tells us in Booker — that’s
2 a Second DCA case. But if you’re flipping through
3 the file there, you see that that note contains
4 what, for purposes of discussion we’ll articulate
5 and identify as an original promissory note, in the
6 of case Booker vs. Sarasota articulates that an
7 allonge must be affixed, permanently affixed is the
8 language that Booker uses, and it’s not.
9 The reason why you’re having a problem finding
10 the note, your Honor, is that there was a subsequent
11 filing in 2012, I believe it is, of the note.
12 Another objection we get to later is that there
13 was not even a copy of the note attached to the
14 complaint, but that’s getting ahead of us. Right
15 now, we’re just looking at the document they’re
16 trying to use to make their case. I assert they
17 can’t get off first base with it.
18 THE COURT: Well, let’s see here —
19 MS. ARENAS: Your Honor —
20 THE COURT: — the note here — the adjustable
21 rate note, which is Exhibit No. 1 to the Complaint,
22 I take it —
23 MS. ARENAS: There is no subsequent filing,
24 your Honor. Everything was filed July 26th of this
25 year. It’s the last –

THE COURT: The note date says July 14, 2006.
2 Is that what we’re talking about?
3 MS. ARENAS: Yes, your Honor.

This Judge really gets it and he’s trying to help the plaintiff understand they’re sunk.

4 THE COURT: Okay. Here is the original. Then
5 there is an allonge to the note that says is paid to
6 the order of Residential Funding Corporation.
7 Correct?
8 MS. ARENAS: Yes.
9 THE COURT: Okay. So how does Aurora get into
10 this?
11 MS. ARENAS: I’m sorry?
12 THE COURT: How do we get Aurora into this as a
13 party plaintiff?
14 THE WITNESS: Can I answer that, your Honor?
15 THE COURT: Yeah.
16 MR. WEIDNER: Well, let me object here.
17 THE COURT: Well, wait a minute. I want to
18 hear from her. She seems to know something.
19 MR. WEIDNER: The reason why I want to
20 interpose an objection right now is she has no
21 evidence. She’s going to provide some hearsay
22 testimony.
23 THE COURT: Well, I’m going to listen to her
24 testimony, and you can object to it being hearsay.
25 MR. WEIDNER: Yes, sir

Here, the witness tries to confuse and mix things around..I’ve got to keep her focused on the questions.

THE WITNESS: Your Honor, we are the servicer
2 for this. Aurora was the previous servicer for the
3 loan. I am a previous Aurora employee; now a
4 Nationstar employee, which service transfer took
5 place from Aurora on July 2012 to Nationstar. So
6 Aurora was the previous servicer for this note, and
7 we are entitled to enforce the note as the servicer,
8 as the holder, and not the owner of the note.
9 MS. ARENAS: Additionally, your Honor, the
10 record is clear there is an order granting our
11 motion to substitute party plaintiff into
12 Nationstar.
13 THE COURT: Is that correct?
14 MR. WEIDNER: There is, but we’re mixing all
15 things together here. We didn’t even get to my
16 arguments over whether the party that’s sitting
17 before the court is a proper party. You will note
18 that the witness did not articulate anything about
19 Residential Funding. She cannot articulate anything
20 about Residential Funding. She cannot make any
21 statements regarding Residential Funding. What she
22 was making was self-serving, hearsay statements,
23 which are contradicted by the record.
24 MS. ARENAS: Objection, your Honor. The note
25 is a self-authenticating document. There is no hearsay statement.
2 MR. WEIDNER: I’m making argument. You’re
3 objecting to my argument?
4 THE COURT: Let him finish.
5 MR. WEIDNER: I have a folder full of agency
6 cases, because we do encounter this from time to
7 time.
8 THE COURT: Well, I appreciate that, but go
9 ahead with your argument. As opposed to referring
10 to what you have, tell me what it says.

The judge gets the facts and the evidence he wants to see, he keeps his courtroom in control and focuses all the parties.

11 MR. WEIDNER: You have got an original note 12 there, your Honor. The case law could not be more
13 explicit — most recently, a little over a month
14 ago. The only party that is entitled to enforce
15 that document that you are holding in your hand is
16 Residential Credit, period. And I know from —
17 THE COURT: Residential Funding?
18 MR. WEIDNER: Residential Funding, yes, sir.
19 It is a specially endorsed note. The Uniform
20 Commercial Code is explicitly clear. Residential
21 Funding is the only party that can enforce it.
22 THE COURT: Well, the opinion here is that if
23 an endorsement is made by a holder of an instrument,
24 whether payable to an identified person or payable
25 to bearer and the endorsement identifies a person towhom it makes the instrument payable, it is a
2 special endorsement. When specially endorsed, an
3 instrument becomes payable to the identified person
4 and may be negotiated only by the endorsement of
5 that person.
6 Now, where do we have something that
7 Residential Funding Corporation is the successor, to
8 the extent that it has been by endorsement, made to
9 the person — made to that entity, for purposes of
10 this being brought before the court.
11 MR. WEIDNER: We absolutely don’t.
12 THE COURT: I didn’t ask you that. I asked
13 them that. If you want to answer and help them, go
14 ahead.
15 MR. WEIDNER: They absolutely don’t have it.

 

 

This is not correct, and I take exception, but I’m not sure it’s intentionally misleading.

16 MS. ARENAS: Your Honor, there is no
17 requirement for a promissory note or a mortgage to
18 be transferred by an assignment. The actual
19 physical possession of the note alone gives us
20 standing. There is — although I have not read that
21 case, nor was I provided it by opposing counsel
22 prior to the trial —
23 MR. WEIDNER: I provided opposing counsel, your
24 Honor.
25 MS. ARENAS: I don’t have time to read that right now during trial, your Honor. I apologize. I
2 am not prepared for this case, that specific case.
3 However, there is case law that says physical
4 possession alone entitles you to enforce the note.
5 That gives you standing there. We are not coming as
6 holder. Again, because it is specifically endorsed,
7 we would be the non-holder in possession with rights
8 as a holder.

And here the judge bends backwards to try and save the Plaintiff….But here’s where defendant’s preparation works

9 THE COURT: Well, the next issue is, was this
10 raised as a defense.
11 MR. WEIDNER: Yes, your Honor.
12 MS. ARENAS: No, your Honor. There is very,
13 very general affirmative defenses filed, actually by
14 counsel’s predecessor, stating as to standing.
15 However, it does not say anything about specific
16 endorsements.
17 MR. WEIDNER: That’s a standing argument.
18 First of all, we need to correct some misstatements
19 that counsel made, I believe unintentionally.
20 The Uniform Commercial Code is clear that a
21 note, a negotiable instrument with blank
22 endorsement, may entitle a party in possession to
23 enforce. The Uniform Commercial Code is, likewise,
24 equally clear that when there’s a special
25 endorsement, only the party to whom the instrument is endorsed may enforce the obligation.

Good case law that is on my side, that boxes the plaintiff in…

2 THE COURT: Well, I’ll be happy to let you take
3 a look at this case, but this seems to be rather on
4 point. When you have a specific endorsement and
5 then you don’t have anything that indicates that
6 that’s the entity that is pursuing the foreclosure,
7 that that’s not going to cut it.
8 MS. ARENAS: Your Honor —
9 THE COURT: I understand you have some argument
10 that if they’re just in possession of the note that
11 that’s enough, but I don’t see how that comports
12 with this, nor do I see any law that supports that.
13 MS. ARENAS: Your Honor, if I had time, if I
14 knew this — I feel I’m being surprised today, on
15 the day of trial, and a little bit put in the
16 situation of being prejudiced here, as there are
17 many cases that will rebut this case stating exactly
18 what I’m arguing.
19 THE COURT: Well, it says an affirmative
20 defense, lack of standing. That’s rather specific.
21 Affirmative defense. Failure to show the
22 plaintiff is the owner and holder of a promissory
23 note and mortgage.
24 MS. ARENAS: We did show —
25 THE COURT: That’s rather specific.

And now, the plaintiff, who is in trouble…is digging deep.

MS. ARENAS: Agreed, your Honor. However, we
2 have shown that by filing the original note with the
3 court that we are in possession of.
4 THE COURT: But that original note is endorsed
5 over to — what is the name again?
6 MR. WEIDNER: Residential —
7 THE COURT: Residential Funding Corporation.
8 And they’re not a party in this case.
9 MS. ARENAS: Perhaps I — no, they’re not a
10 party in this case, your Honor.

And now this is really what case is all about….THE PLAINTIFF IS NOT ENTITLED TO FORECLOSE ON THIS HOME

11 THE COURT: Okay. Well, I suggest you have two
12 alternatives. One, there may be an appropriate
13 non-suit that you might elect; or two, this isn’t
14 going to go very far, unless you have some testimony
15 that they are the successor to this note in a
16 fashion or form that indicates that on the record,
17 not just that they’re holding it.
18 MS. ARENAS: Your Honor, there is nothing other
19 than testimony of my client, which you have heard.
20 THE COURT: Okay. Then I’m going to grant the
21 standing objection to the questions that are
22 designed to prove that Aurora is the holder of the
23 note.

This attorney is doing the best she can…it’s not her fault her case is bad…and the judge is going to try to help her

2 MS. ARENAS: Again, your Honor, had I prepared
3 that prior to two seconds ago, I would be able to
4 rebut that issue or this case.
5 THE COURT: Well, we can do a number things,
6 possibly even continue the hearing of this matter.
7 MR. WEIDNER: And we would object to that, your
8 Honor.
9 THE COURT: But these matters were raised by
10 affirmative defense specifically as to standing, so
11 it’s whether you want to proceed now with the court
12 going to sustain the objections or whether you want
13 to take some other alternative action.
14 MS. ARENAS: Your Honor, at this point, I
15 believe that we would be able to move forward if I
16 was properly prepared. A continuance might be the
17 best route.
18 THE COURT: So what are you asking the court?
19 MS. ARENAS: If we may continue this matter for
20 30 days.
21 MR. WEIDNER: Your Honor, I’ll just object on
22 the record. The case law clear. It’s prejudicial
23 to my client. We’re not agreeing to that, and they
24 can’t fix it anyway.
25 MS. ARENAS: It’s not prejudicial to his client. The last time we were here, your Honor,
2 they moved for a continuance, and it was granted.
3 MR. WEIDNER: The trial has started today.
4 THE COURT: Well, that’s the other thing I’m
5 concerned about. The trial has started. It’s not a
6 criminal case where jeopardy is attached.
7 MR. WEIDNER: Your Honor, the case law is very
8 clear, because what would be occurring here is an
9 attempt to fix a fundamental problem which cannot be
10 fixed; make the record real clear here.
11 MS. ARENAS: I’m not trying to fix it.
12 THE COURT: I don’t know that something can’t
13 be fixed, unless that’s the situation that we can
14 find. I tend to think there is a problem here, and
15 the problem is that there is going to have to be
16 some chain showing to show the entitlement of
17 plaintiff with standing. And we don’t have that
18 here, because this has been assigned or paid to the
19 order of, endorsed over to a party who is not before
20 the court or an entity that is not before the court
21 as a party.
22 I’m going to deny the motion to continue.
23 Now, what do you want to do?

Again, the judge recognizing their problem, tries to help them

24 MS. ARENAS: Could I just have a minute to
25 confer with my client, your Honor?

THE COURT: Yes.
2 (PAUSE IN PROCEEDINGS)

(This was actually a very, very long pause in an open courtroom)

3 MS. ARENAS: Your Honor, I would like to just
4 state on the record again that this case does not
5 speak to 673.3011, as we are coming as a non-holder
6 in possession with rights of a holder. It doesn’t
7 mention 673 at all.
8 So based on that fact, and that I do believe we
9 do still have standing, we can prove that payments
10 were made to the plaintiff. Why would they pay my
11 client if they don’t have standing to bring this
12 action? It’s been in default now for five years.

This is just wrong, wrong, wrong…but what more can I do?

13 MR. WEIDNER: Objection.
14 THE COURT: Okay. Well, you know, I will let
15 you go and put on the record what you want. I think
16 counsel has raised the issue of standing.
17 Now, if this witness is going to testify as to
18 payments, the only holder of the note that’s
19 disclosed in the four corners of this complaint in
20 the court file is an entity that is not before the
21 court.
22 MS. ARENAS: Again, your Honor, to put on
23 record, we’re not arguing as the holder here.
24 THE COURT: I understand. And I’ll let you
25 proceed. Go ahead. But we’re not going to identify the plaintiff as the holder in this case, unless
2 there is some proof that there is an endorsement
3 that indicates that.
4 MS. ARENAS: Your Honor, there is other
5 evidence that I can provide to the court —
6 THE COURT: Okay. Go right ahead.
7 MS. ARENAS: — that would indicate they are
8 the correct party here.
9 THE COURT: Okay. I’ll let you proceed.
10 MS. ARENAS: Just to be clear, your Honor, you
11 are not receiving the original note into evidence.
12 Is that correct?
13 THE COURT: That’s correct, because it does not
14 show that you’re the holder of that note from the
15 standpoint of any endorsement having been made to
16 your client.

What exactly is a “business record” and how doe it get into a foreclosure trial?

17 Q (BY MS. ARENAS:) I’m handing you another
18 document now. Are you familiar with this document
19 labeled Exhibit 1? — I mean Exhibit 2, I’m sorry.
20 A Yes, I am. This is a copy of the original
21 mortgage recorded in Pinellas County, Florida, instrument
22 number —
23 Q Stop.
24 MR. WEIDNER: And I’m going to object to that
25 foundation. THE COURT: What is your objection?
2 MR. WEIDNER: Foundation. The witness has no
3 relevant testimony that she can base that testimony
4 on.
5 THE COURT: Overruled.
6 Go ahead. You’ll have to show a foundation.
7 Q (BY MS. ARENAS:) Is this record made at or
8 near the time of the event?
9 MR. WEIDNER: Objection. Foundation. Hearsay.
10 THE COURT: Okay. Is she’s saying that she was
11 familiar with the business records of the original?
12 MS. ARENAS: I’m getting there, yes.
13 THE COURT: Okay. Then I’ll let you proceed.
14 Go ahead.
15 Q (BY MS. ARENAS:) Was this made by or from a
16 person with knowledge at the time —
17 MR. WEIDNER: Objection. Foundation. Hearsay.
18 MS. ARENAS: Your Honor —
19 THE COURT: Overruled.
20 Go ahead.
21 A Yes.
22 Q (BY MS. ARENAS:) And —
23 THE COURT: Excuse me. And who was that? Who
24 was that person?
25 THE WITNESS: The person with knowledge, your Honor?
2 THE COURT: Yes.
3 THE WITNESS: An employee of Nationstar and
4 Aurora.
5 THE COURT: And are you that person?
6 THE WITNESS: No, your Honor.
7 THE COURT: Have you spoken to that person?
8 THE WITNESS: I reviewed our business records,
9 your Honor, with the system of record that we use
10 that keep all of our records.
11 THE COURT: Okay. What about their business
12 records?
13 THE WITNESS: Aurora’s business records?
14 THE COURT: Yes.
15 THE WITNESS: Yes, your Honor. They’re part of
16 the service transfer.
17 THE COURT: Okay. You reviewed their business
18 records?
19 THE WITNESS: Yes.
20 THE COURT: And how did you determine, on
21 review of that, that those records were made in the
22 ordinary course of business?
23 THE WITNESS: Because of the way that our
24 service transfer takes place, your Honor, those
25 records are comported through our computer system, the L-stamp (phonetic) system which we use, which is
2 the system of record for most servicing. It comes
3 over with that information. The information is then
4 transported into the computer with a person of
5 knowledge. I don’t know who that person is because
6 I do not work in that department, but our records
7 are kept using this system of record, your Honor.
8 MR. WEIDNER: Just for the record, I’m
9 objecting to all the hearsay within hearsay
10 foundation.
11 THE COURT: Sustained.
12 She’s obviously not the custodian of the
13 business records of the original party that granted
14 the mortgage.
15 MS. ARENAS: Your Honor, it’s an exception to
16 the hearsay rule as a business record.
17 THE COURT: It is, that’s true, but —
18 MS. ARENAS: To get it in as a business record.
19 THE COURT: — they have to be the custodian of
20 those business records, not just their own business
21 records.
22 MS. ARENAS: By reviewing the records, those
23 records now are a part of her record as well.
24 MR. WEIDNER: Objection.
25 MS. ARENAS: That’s what she just testified to.

THE COURT: Okay. I’m going to sustain the
2 objection.
3 Q (BY MS. ARENAS:) Are the records of Aurora now
4 a part of your records and you were able to review them
5 before coming to court today?
6 A Yes.
7 MR. WEIDNER: Objection. Foundation.
8 THE COURT: What’s the foundation?
9 MS. ARENAS: Your Honor, I’m trying to
10 establish that these are kept in the ordinary course
11 of their business.
12 THE COURT: In whose business?
13 MS. ARENAS: Nationstar, the plaintiff in this
14 case.
15 THE COURT: You’re saying that the records of
16 the original mortgage lender are the business
17 records of Aurora?
18 MS. ARENAS: That’s correct.
19 THE COURT: And I sustain the objection,
20 because this person was never connected with the
21 original lender and they cannot testify —
22 MS. ARENAS: She just testified as to the
23 transfer.
24 THE COURT: Exactly, the transfer — but not of
25 those original business records were prepared. And even if — and how they were prepared in the
2 ordinary course of business. She’s looking at
3 records that were transferred to her that were done
4 by someone with a different company that she wasn’t
5 affiliated with, and the Court finds that that’s not
6 admissible to prove up those business records.
7 MS. ARENAS: Your Honor, case law would suggest
8 that it is, as they are all kept under the same
9 standards and policies of a servicer, as a lender.
10 They all use the same, actually the same — she
11 just testified that they use the same computer
12 system.
13 MR. WEIDNER: I need to interpose another
14 objection. Counsel continues to make references to
15 quote, unquote, business records and are referring
16 to documents which are clearly not before the court.
17 There is nothing before the court to base counsel’s
18 statements on, much less a witness’s statements,
19 about what business records they are even talking
20 about.

This is a whole lot about what the entire case comes down to….

6 THE COURT: Cross-examination.
7 MR. WEIDNER: The mortgage has not been
8 introduced. Accepted into evidence, your Honor.
9 The witness can’t authenticate that document. There
10 is no foundation for it. Even if the Court takes
11 judicial notice, there is no foundation for that,
12 either. It’s not in. I don’t need to cross-examine
13 her on it.
14 MS. ARENAS: It was moved into evidence, your
15 Honor. You accepted it as judicial notice.
16 THE COURT: I’ve taken judicial notice that
17 it’s recorded. That was what you requested, that I
18 take judicial notice that it was recorded in the
19 public records of Pinellas County, Florida; and
20 finding that counsel did not have any good-faith
21 objection to that assertion, I accepted that. So I
22 have taken judicial notice of the fact that it is
23 recorded in the public records of this county.
24 MS. ARENAS: Okay. We’d like to then introduce
25 a copy of the original mortgage into evidence as plaintiff’s exhibit.
2 THE COURT: Okay.
3 MR. WEIDNER: I stated for the record the
4 objection. You have already sustained the
5 objection. They can’t introduce it into evidence.
6 THE COURT: You’re introducing this as your
7 client being the holder of this mortgage. Is that
8 correct?
9 MS. ARENAS: No, your Honor.
10 THE COURT: Just the mortgage, that it exists?
11 MS. ARENAS: Yes.
12 THE COURT: Not in favor of your client?
13 MS. ARENAS: That there is a lien on this
14 property, as she testified.
15 THE COURT: Okay. I’ll receive it for the
16 purpose of showing that it exists as a mortgage.
17 MS. ARENAS: Okay. Thank you, your Honor.
18 MR. WEIDNER: Subject to the exclusion, making
19 clear the objection as to its evidentiary value. I
20 recognize it’s — I’ll voir dire — well, it’s not
21 necessary.
22 THE COURT: Good. Then it’s received.
23 (PLAINTIFF’S EXHIBIT 1 RECEIVED IN EVIDENCE)
24 MS. ARENAS: I’m handing you another document
25 here.

MR. WEIDNER: And I’d like a copy of that so
2 that the judge can see it so I can make my
3 objections regarding that document.
4 MS. ARENAS: I don’t have another copy. I did
5 provide it to you prior.
6 THE COURT: What document are we talking about?
7 Q (BY MS. ARENAS:) Can you tell us what that
8 document is?
9 A This is our acceleration letter.
10 MR. WEIDNER: Approaching the Court, your
11 Honor. I’m handing you what I believe they are
12 trying to introduce in. It’s a default letter that
13 was e-mailed to me earlier today.
14 THE COURT: Go ahead.
15 Q (BY MS. ARENAS:) Could you explain the purpose
16 of this letter?
17 MR. WEIDNER: Objection, your Honor. The
18 witness has shown no connection to this document and
19 can’t explain the purpose of it until she can
20 establish a foundation for the testimony.
21 THE COURT: Okay. Please establish some type
22 of connection between this witness and that letter.
23 Q (BY MS. ARENAS:) Is this letter kept in the
24 ordinary course of your company’s business records?
25 A Yes, it is.

MR. WEIDNER: Objection. Foundation.
2 Hearsay. Authenticity. Let me make the record
3 clear about the document, your Honor. What the
4 witness is looking at is a printout. There is no
5 evidence that that letter was actually sent. That
6 is not the best evidence. If anything was ever sent
7 by anybody, as the Court has properly recognized,
8 this party has no connection to the original
9 creditor.
10 THE COURT: Okay. I’m going to let counsel
11 proffer the testimony concerning this and then I’ll
12 revisit this. Go ahead.
13 Q (BY MS. ARENAS:) Was this record made at or
14 near the time of the event?
15 A Yes.
16 Q And was it made by a person with knowledge at
17 the time of the event?
18 A Yes.
19 MR. WEIDNER: Objection. Foundation.
20 THE COURT: Go ahead. Proffer the testimony.
21 Q (BY MS. ARENAS:) Is it kept in your company as
22 regular — I’m sorry, is it your company’s regular
23 practice to keep these business records?
24 A Yes.

8 MR. WEIDNER: Objection, your Honor.
9 Foundation as to testimony; making statements that
10 aren’t related to that document and are not part of
11 the record.
12 THE COURT: Well, we get back to the standing
13 issue in this case. Obviously, this acceleration
14 letter is one that was authored by Aurora Loan
15 Services, and the problem that we have is that the
16 underlying debt instrument, which is the note,
17 doesn’t get to Aurora Loan Services. The last
18 endorsement is a specific endorsement to Residential
19 — Residential I think is the name —
20 MR. WEIDNER: Residential Credit.
21 THE WITNESS: Residential Funding.
22 THE COURT: Thank you.
23 How do we get this to Aurora?
24 MS. ARENAS: Your Honor, no further questions
25 for this witness.

BY MR. WEIDNER:
4 Q Have you ever worked at Residential Funding
5 Corporation?
6 A No, I did not.
7 Q Have you ever met with any employees with
8 Residential Funding Corporation?
9 A No, I have not.
10 MR. WEIDNER: No further questions, your Honor.

11 THE COURT: Okay. Anything further of this
12 witness?
13 MS. ARENAS: No, your Honor.
14 THE COURT: Thank you. Call your next witness.

THE COURT: You may inquire.
5 MS. ARENAS: Thank you, your Honor.
6 MR. WEIDNER: Just to start, your Honor, I’m
7 going to object to any questioning regarding an
8 obligation which this plaintiff has not proven they
9 have the right to come to court to try to enforce.
10 THE COURT: Okay. Well, feel free to reassert
11 that after counsel has proffered the testimony of
12 this witness.
13 Go ahead.

You really cannot treat an elderly, sick woman as a hostile witness….

14 MS. ARENAS: Your Honor, I’d like to ask the 15 Court’s permission to treat the witness as hostile, 16 as she is a party to this case. 17 MR. WEIDNER: I’d object to that, but — 18 MS. ARENAS: The rule clearly — 19 THE COURT: Assuming there is some evidence of 20 that, I’ll permit you to ask leading questions. 21 MS. ARENAS: Your Honor, there is an amendment 22 to the rule that provides that – 23 THE COURT: Ma’am, I told you, if she shows 24 something in the way of antagonism to you, you will 25 be permitted to ask leading questions.

MS. ARENAS: No further questions, your Honor.
2 THE COURT: Cross-examination.
3 MR. WEIDNER: I have no questions of my
4 witness, your Honor.
5 THE COURT: Thank you, ma’am. You may stand
6 down. Call your next witness.
7 MS. ARENAS: No witnesses from the plaintiff,
8 your Honor.
9 THE COURT: Okay. We’ll hear your closings —
10 or do you have a motion?
11 MR. WEIDNER: I moved for directed verdict.
12 There has been absolutely no evidence that this
13 party is entitled to enforce the documents of the
14 obligations before the court.

THE COURT: The endorsement on the note is to
25 Residential Funding Corporation. Residential Funding Corporation is not a party to this action.
2 The party to this action is Aurora Loan Services,
3 LLC. There is no chain that indicates that Aurora
4 is the holder of this note, to the extent that it
5 has standing to bring this foreclosure action.
6 Therefore, the motion for directed verdict is
7 granted. The court directs a verdict in favor of
8 the defendants.
9 You can prepare a judgment accordingly.

15 Comments

  • John says:

    Way to go Matt! You made that bank (servicer) look like what they are…. lying pos!

  • James M says:

    Good solid work.

  • steve says:

    Excekkent work product. Keep it up!!! Wish you were in Michigan, I’d keep you real busy!

  • Barbra Orr says:

    You did an excellent job. I love to read cases where an attorney kicks another ones rear. I got such a great feeling reading this case. It is like the difference between an A+ student and a D-. Wonderful reading .

  • Bob G. says:

    Matt,

    I’m surprised that this got as far as a trial. Why didn’t you make a motion for summary judgment way before this? You obviously had the goods. They would have put in the same witness testimony in affidavit form, and you could have demolished it in a reply affidavit stating pretty much what you stated at trial.

  • James C says:

    Thanks for sharing this. This was a great read and a wonderful primer in how to defend a foreclosure action at trial. I was just going to skim this, but as a trial lawyer I couldn’t stop reading.

  • Rebecca Lynn Lara says:

    I have hard time articulating and wrongful foreclosure
    March 29 2011 lockout after 22 years I did program after to save our home only wrongful foreclosure well come to find this feb 2013 I have note paid that was stamped with seal micro filmed that does go with original loan docs feb 1989 Mers feb 20 2013 had no standings nor the two substitute of trustees many errors wrongs unfair practices plus I have court order clerk of court signed x off I became sole owner 1998 judge granted exclusive grant deed. My ignorance to knowledge legislation divorce banks truth in lending I can go on and on did not miss payment jan 2007 to march 17 2010 CFPB said my foreclosure started one two years prior trio party loan jan 2013??? I looked I saw what HUD approved program would of seen if doing job and I’m lost displaced my family torn apart so confused today fighting oct 2009 to this day the principle of matter they put this old lady out to pasture at 53 today 55 been disabled 1999 ssi disability extremely low limited income poor homeless so confused my son left abroad jan 2010 5 years now he has no home to return to Wells Fargo said Freddy Mac had note no then Fanny Mae nope sorry out of country never know jan 2011 Los Angeles Naca I have what can I do told forward email fraud alert spring 2012 Russ concealment IFR this is very confusing I have all docs original to show prove why didn’t hall of records have what I filed have the receipt that clerk of court had me take in elder abuse mental emotional physical put out to pasture single women who didn’t qualify income too low to save or get housing help in 5 so Calif counties micro filmed Florida. Chicago title I have the man who sold home to us his papers show me the note? I don’t know help me please rebecca

  • barbra orr says:

    I am a little confused. Are you saying the endorsement has to be on the note itself the original note? or are you saying that a special endorsement that is set out on a separate page only that person can foreclose?

  • Dear Mr. Weidner:
    I am not an attorney or paralegal, I merely have enjoyed studying the law for the last 40 years. You are simply brilliant in your ability to convey your point. It was pure pleasure to read the above transcript. May you continue to be blessed as you are a blessing. Sincerely & Respectfully,
    Dr. James Chappell

  • Keith Angstadt says:

    I can only wish you were in Virginia. I am in Virginia and have a cause of action against the same plaintiff in this case. May I offer my sincere congratulations.

  • ian says:

    Atty Weidner- As i saw the noose tightening around the plaintiff’s counsel’s neck, I actually started to sweat! Did you notice any perspiration marks around Ms. Arena’s armpits? Great job!

  • I love attorneys who are not afraid to object, and don’t take opposing counsel’s BS. Never backs down, and very confident. Excellent job, come on up to GA, we need help!

  • jim macklin says:

    Matt…Jim & Dan out here in California…Neil’s research guys…very well done. One cannot convey the necessity of prepared counsel for exactly this reason…your professionalism really comes to light in this transcript…very well done!

  • Rod Ciferri says:

    No, the endorsement says something like “I endorse this note to Residential.” That’s a special endorsement. If it said, “I endorse this note to bearer,” that’s not a special endorsement and the Plaintiff’s arguments above, such as contending to be a non-holder in possession of the note with the rights of a holder would have made sense.

  • Greg says:

    This case is wrongly decided. It should be an easy appeal for Aurora. The UCC provides that “person entitled to enforce the note” includes a party in physical possession of the note, even if it’s not endorsed to such party. Without an endorsement (and without a blank endorsement), such party must account for possession, i.e. prove that they were given possession for purposes of enforcement. Residential Funding is in bankruptcy and there is an order in that bankruptcy cases specifically authorizing transfer of mortgage loans to other parties, such as Aurora, for purposes of enforcement.

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