Lots of attention recently to allegations of document irregularities in the context of foreclosure cases. What I find so frustrating about all this is all the cases I have where we’ve proven fraud and the court just ignores it and enters judgment anyway.
Attached are just some of the pleadings from the appellate brief. The things that I find so disturbing is that at trial, the plaintiff admitted we proved fraud/forgery but was permitted to ignore the relevance of this proof.
Even worse, in the appellate briefs they’ve now submitted…they just ignore all these issues entirely.
So is forgery and fraud a problem in foreclosures? Absolutely.
So will courts start paying attention to fraud and forgery?
(Not likely when it is the bank doing it.)
On September 26, 2013, Plaintiff , then filed a document claiming to be e-filing a copy of the original note. (CI- 192-201). This alleged “original note” was substantially the same as the one originally filed by the Plaintiff on 2/28/2012 (CI, 7-13), but this one suddenly contained the addition of a second, undated allonge that did not have the same staple and punch holes as the alleged original “note” and the alleged original allonge. This second, fabricated allonge obviously was never attached to the original note, and obviously did not exist at the time the suit was filed as was pointed out in the Homeowners’ Motion to Dismiss Plaintiff’s Second Amended Mortgage Foreclosure Complaint.
The same Motion alerted the Court to Plaintiff’s attempts to mislead the court by “fraudulently substituting the case headings on the plaintiff’s newest pleadings”.
1. Plaintiff introduced a copy of the forged note that was attached to the original complaint (CI2, 633-638) and testifying, over the objection of the homeowners, as to its authenticity as an accurate copy of the original when the witness admitted that she had not seen the alleged original until the day of trial.
2. The Plaintiff’s counsel then realized that the first note did not match the second note, and explained it by saying “it appears my paralegal gave me a bad copy” (CI, 636, ll. 17 – 25) and moved to strike her own witnesses testimony. The court did not rule on that motion to strike.
3. The court Ruled on and improperly took judicial notice of the document alleged to be the original promissory note despite the fact that there was clearly a dispute as to whether that document was an original promissory note signed. There was no rule or lawful foundation that allowed the Judge to take judicial notice of that disputed document.
4. Homeowner objected to all testimony of the Plaintiff’s witness as to authenticity because that witness was not at the closing of the loan and had not, in fact, ever seen the original documents before the day of trial so had no knowledge of their authenticity.
5. The Witness then testified that she was looking at an original interest-only adjustable rate note. Over objection by Homeowner as to foundation, that she was not qualified to testify whether it’s an original, the court improperly ruled “Okay. I’ll accept it. It appears to be the original.” And then, over request of homeowner, refused to make it subject to strike later.
6. After Homeowner pointed out that the note originally filed by Plaintiff is 1 of 6 pages and that the initials did not match on the note they submitted in their two verified complaints, the Court then asked Homeowner to reserve the arguments, but inquired as to whether the Defendant contested the authenticity. Homeowner
pointed out to the court that the Homeowner denied authenticity as an affirmative defense.7. The Court then improperly denied the homeowner’s motion for an involuntary dismissal based on the “failure of proof for the original note, and there’s no testimony that, in fact, it was [an original].” The plaintiff presented no reliable testimony or any documents with a proper foundation to refute the Homeowner’s overwhelming evidence of plaintiff’s forgery.
8. The Court stated, “THE COURT: I can see there are two notes” after improperly and repeatedly proclaiming that “We’re wasting the Court’s time.” and cut off questioning when the vitally important issue of the differences between the two promissory notes was proceeding. Those differences, as stated above, were significant and material.
9. Thereafter the Homeowner testified that the 6-page note was a forgery and that the signature was not hers (CI- 676-677) and the forensic document examiner, Jean Joanne Berrie-Perrino, also found that the 6-page note proffered by the plaintiff was not signed by the same person that signed the mortgage or the five-page note provided from the records of the law firm that closed the loan.
