It’s undeniable that most people are tired of the whole foreclosure thing. Policymakers have moved past and many people think that the problems with foreclosure and the fradulent and illegal conduct of the banks has been curbed, partly as a result of the National Mortgage Settlement and certainly as part of the new Dodd Frank regulations that are supposed to provide some oversight over illegal and improper bank conduct when they move to take homes away from consumers in foreclosure.
But the reality is, this is just not true…. a fact that I will illustrate in a foreclosure trial that occurred in Pinellas County on March 3, 2014….long after the feds stepped in, slapped the banks and asked them, pretty please…will you stop being so sleazy.
The case I will describe is a cornucopia of all the scurvy conduct the banks were supposed to knock off….but let me start with the nastiest part about this particular foreclosure…..
Chase mislead the court into thinking Chase has surrendered the original promissory note in 2010!
Turning over the original promissory note is the most important foundation upon which a foreclosure is based. And if Chase determines that it in fact does not have the original promissory note…what should Chase do? Should they continue with the foreclosure case and attempt to fool the judge using parlor tricks or should they just admit they’ve lost the note, take a dismissal and start again? Clearly, Chase should admit they lost the note, disclose their error to the court and start again. But Chase refuses to do so. I’ve hired two experts who have examined the alleged original promissory note and these documents experts say,
“Duh…that’s not an original note and you don’t need expert analysis to show that…why am I here?”
(You’re here because Chase insists on continuing the deception about this alleged original note…so I need you to make it crystal clear to the judge…THIS IS NOT AN ORIGINAL NOTE!)
Here’s where it starts…the very first part of the transcript:
This is a foreclosure matter,
the original Note and Mortgage were filed
with the court back in September 30, 2010.
The Clerk alerted me that they would be
here and it looks like they are here, Your
Honor.
(Except that even Chase attorney’s later admit that they did NOT file the original note with the court in 2010)
Now, right away I tried to assert the new rights and protections my client is allegedly entitled to under the new Dodd Frank and CFPB rules, but I was shut down, kicked in the teeth and told to go home…..no federal regulations will stop this foreclosure from going through…take that CFPB whoever you are….
17 Because the counterclaim we assert
18 is based on the plaintiff, Chase’s, moving
19 for a final judgment of foreclosure while
20 an application is pending in violation of
21 Subpart C, the Code of Federal Regulation,
22 Subsections 203.
23 Your Honor, it should also be noted
24 that this provision of the Code of Federal
25 Regulations, which expressly applies to
6
1 this case — and I will hand to the Court
2 the code that I’m referencing — only took
3 effect January 10th. I understand counsel
4 has some argument that perhaps they don’t
5 think it applies, but that’s an element for
6 trial.
7 That first line there you’ll read
8 indicates quite clearly that this federal
9 regulation may be enforced by a borrower.
10 A borrower may enforce the provisions of
11 this section. Just so the record is real
12 clear, I’ve got the section highlighted.
13 It’s on page 3 there, Your Honor, it’s up
14 from the bottom of the page on Subsection
15 G.
So that was my attempt to ask the court and Chase to recognize the newly enacted Dodd Frank regulations…here’s how the court responds:
3 THE JUDGE: All right. Well, the
4 Court finds as follows: First of all, this
5 is a federal regulation, the Court
6 recognizes that. As to whether or not it
7 applies to this court, being a state court
8 as opposed to a federal court, is a
9 question that I would imagine there would
10 be some basis for deciding if it were clear
11 that it does apply to state courts.
Even after the judge completely disregards the clearly applicable federal regulations, I try again:
21 MR. WEIDNER: Thank you, Your Honor.
22 Address the jurisdictional question first,
23 because that’s clearly important. As you
24 know, there can be concurrent jurisdiction.
25 When federal regulations relate to state
1 court of action, and they brought a state
2 court action, the foreclosure case, and the
3 federal regulation relates to that action
4 that is pending in state court, it clearly
5 applies.
6 As you know, there are many federal
7 regulations that state courts enforce.
8 It’s not because it’s a federal regulation
9 only the federal court hearing, that’s not
10 at all the case. When the cause of action
11 that’s being pursued is pending in state
12 court especially. But there are also cases
13 where, even if there’s not yet pending a
14 state court action, you file in state court
15 and then bring the federal claims within
16 state court.
Immediately thereafter Chase admits they did not file an original note in 2010 like they (incorrectly) represented to the court when they made that filing:
23 MR. WEIDNER: Your Honor, I’m going to
24 request a clarification. If we can be
25 clear whether counsel is referring to an
20
1 original Note or a copy of the Note.
2 THE JUDGE: I believe she said she was
3 referring to the copy.
4 Q. That’s a copy of —
5 just for the record, that is a copy of the Note
6 that’s in front of you, correct?
7 A. Yes.
Well, I was unaware that
8 this was not an original blue ink copy of
9 the Note. So I’m going to be moving the
10 Court to amend to allow the plaintiff to
11 proceed under a lost note when it’s clear
12 that there is partial —
Your Honor, the plaintiff
20 was unaware that there was not an original
21 Note.
22 THE JUDGE: I understand that. The
23 problem that we have is that Mr. Weidner is
24 objecting to this ore tenus and then
25 incorporating all of this into the file,
1 which doesn’t exist in written form, so as
2 to give him an opportunity to respond
So Chase misleads the court when it files what it identifies as the original note in 2010 only to discovery at trial on March 3, 2014 that they in fact did not file the original note and somehow I become the problem:
6 MR. WEIDNER: I’m going to object,
7 Your Honor. As the Court is having trouble
8 understanding exactly what’s happening
9 here, so am I. We have —
10 THE JUDGE: State your objection, sir,
11 please.
12 MR. WEIDNER: Authenticity. Again, I
13 cannot tell and the witness cannot tell —
14 THE JUDGE: Sir, I understand you’re
15 going to make a statement concerning what
16 the witness did or thinks or may perceive,
17 but please.
18 MR. WEIDNER: Best evidence,
19 authenticity, foundation, and relevance.
20 THE JUDGE: Okay. Overruled.
21 Overruled. Overruled.
22 The witness has identified his
23 signature on the documents, the documents
24 have been shown to you and they’re going to
25 be received in evidence as the documents of
1 the original of the Note.
2 MR. WEIDNER: So we’re making a
3 factual determination that that is, in
4 fact, the original?
5 THE JUDGE: Overruled, sir. Thank
6 you.
Even though it was clear they did not have an original promissory note, Chase resorted to parlor tricks and misdirection:
Is there anything that
8 you can do to the signatures or to any of the
9 notations on the Note to determine if it’s an
10 original versus a photocopy?
11 A. It could be possible the ink could
12 smudge, of course.
13 MR. WEIDNER: I’m going to object to
14 parlor tricks or something. He’s not an
15 expert and this is not a forum.
16 THE JUDGE: I’m going to allow the
17 question.
The trial goes on and on, but the bottom line is the judge ignored the improprieties of accepting a document as an original when the document admitted as evidence clearly was not an original…..
MOVE ALONG, JUDGEMENT FOR PLAINTIFF! But wait…..it gets even better.
We discovered after trial several very disturbing things. Not only was the document they identified as not an original….we discovered
An Assignment of Mortgage transferring the mortgage to the Secretary of Housing and Urban Development a month before the trial!
Just so this point is clear….after the trial, we discover that the mortgage Chase foreclosed on the month prior had been Assigned to the Secretary of Housing and Urban Development….(we didn’t discover this because Chase waited until after the trial was over to record the assignment.)
And so we have moved to have the judgment vacated because:
Newly discovered evidence reveals that Plaintiff may not have had the right to enforce the promissory note and mortgage
Trial courts have broad discretion to grant a new trial for newly discovered evidence provided that the newly discovered evidence fits in the following parameters:
Would the new evidence probably change the result if a new trial is granted? Has it been discovered since the trial? Could it have been discovered before the trial by the exercise of due diligence? Is it material to the issues? Is it merely cumulative or impeaching? EI Du Pont de Nemours v. Native Hammock, 698 So. 2d 267, 269 (Fla. 3d DCA 1997).
The newly discovered evidence in this case is the assignment of mortgage which Defendants filed on March 17, 2014. Because the answer to each of the EI Du Pont analysis questions is a resounding “yes,” this newly discovered evidence creates a second basis for vacating the final judgment.
First, the assignment probably would change the result because it is further evidence that Plaintiff does not have the right to enforce the subject promissory note even had it tendered the original.
Second, the assignment was discovered after the trial.
Third, the assignment could not have been discovered before the trial because: (1) it was not recorded in Public Records of Pinellas County until three days after the trial was complete; and (2) Plaintiff refused to provide it when responding to Defendant’s pro-se second request for production #9, which was filed on July 11, 2013 and explicitly requested “[c]opies of all assignments…concerning the note and mortgage.” To the extent Plaintiff argues the assignment came into existence after this request, Plaintiff was under the continual ethical duty to furnish updated documents previously requested by Defendants.
Finally, the assignment is material to a central issue of this case, namely whether Plaintiff had standing to sue. Indeed, the Court’s trial findings and orders specifically “found that Plaintiff had standing to prosecute the foreclosure.” See Trial Findings and Orders, Trial Proceedings, ¶2. Consequently, the newly discovered evidence cannot be said to be merely cumulative or impeaching.
Therefore, the final judgment should be vacated and a new trial ordered.
AND YET, INCREDIBLY, CHASE INSISTS ON CONTINUING WITH THIS GROSSLY IMPROPER FORECLOSURE.
Which of course leads to the only conclusion….the banks could care less about all the new regulations and requirements…it remains business as usual for them!