We have all, unfortunately, become far to numb to the widespread document manufacturing that is occurring across this nation in the context of foreclosure proceedings.
The basis for the numbness is the widespread disregard to these issues articulated by trial and appellate court judges. The rule articulated again and again, in courtrooms all across this country is…
EVEN A THIEF CAN ENFORCE A NOTE
Think about that for a moment and let it sink in…..in context, this can be stated:
EVEN A THIEF CAN COME IN AND TAKE YOUR HOME
We have clearly gone way too long down a path from which we cannot recover.
But just read this detailed opinion and understand just how much trouble this judge has with this issue:
(“[I]n light of [claimant’s] admission that it fabricated the Allonge, and in the absence of any
credible explanation for the difference of the Original from other filed versions of the Note, the Court
will not apply the usual evidentiary presumptions to the validity of the Endorsements.”).
It is not clear that Mr. Kennerty fully understood the legal consequences of signing these documents; for example, he testified when shown
the Assignment of Mortgage that he executed it not on behalf of the assigning party but, rather, on
behalf of the party “in getting the assignment,” although he also testified that “I’m – I’m not an
attorney, but the way I understand this document, it was assigning the mortgage, taking it out of MERS’
name and putting into Wells Fargo Bank’s name.” Id. at 93‐4. It is clear, however, that he pretty much
signed whatever outside counsel working on the default put in front of him and that these documents
often included assignments, including the Assignment of Mortgage, drafted by Wells Fargo’s outside
enforcement counsel to fill in missing gaps in the record.
Thus, in describing the work of his “assignment team” Mr. Kennerty stated, “[I]f there was not
an assignment in there [that is, in Wells Fargo’s loan file] then they would – excuse me, they would
advise the attorney that we did not have it, that they would need to draft the – the appropriate
assignment.” Id. at 116. See also id. at 76 (“[I]f the assignment needed to be created they would have
advised the attorney, the requesting attorney to – that we did not have the assignment in the collateral
file, then they needed to draw up the appropriate document.”); id. at 121 (“Once it [that is, the
collateral file] was received then they would check to see if it was something that could be used or not
used; and, if it’s something that was in the file, but couldn’t be used then they would advise the
requesting attorney to go ahead and draft the actual document.”).
Because Wells Fargo does not rely on the Assignment of Mortgage to prove its claim, the
foregoing evidence is helpful to the Debtor only indirectly, insofar as it goes to show that the blank
indorsement, upon which Wells Fargo is relying, was forged. Nevertheless it does show a general
willingness and practice on Wells Fargo’s part to create documentary evidence, after‐the‐fact, when
enforcing its claims, WHICH IS EXTRAORDINARY.
Moreover, Mr. Kennerty’s testimony does not stop at describing manufactured mortgage
assignments. He also testified that his “assignment team’s” duties were not limited to processing
assignments, including, when determined necessary, creating them; in addition, the “assignment team”
included people tasked with endorsing notes.
Mr. Kennerty said nothing more that was relevant to the issue of whether Wells Fargo
forged the blank ABN Amro indorsement, with the exception of stating that “I am not familiar with
Margaret Bezy,” id. at 143, who has not been identified as ever having been an employee of Wells Fargo
and presumably was an employee of ABN Amro.
Frankly, it does not appear that he understood the
difference between preparing legitimate assignments and indorsements by Wells Fargo and improper
assignments and indorsements to Wells Fargo.
Similarly, why would Mr. Kennerty’s group – Wells Fargo’s defaulted document group – on a regular basis be creating
new documents and adding indorsements from itself to true third parties for the third parties’ benefit?
It is more reasonable to infer from Mr. Kennerty’s testimony that, instead, Wells Fargo was improving its own position by creating
new documents and indorsements from third parties to itself to ensure that it could enforce its claims.
Again, then, the burden should shift to Wells Fargo to show that it did not forge the blank ABN Amro
indorsement.
