The issue is very clean, crisp and simple. The banks produced the contracts they wanted to rely upon. They made them long and detailed; they contained page after page and provision after provision….and nearly every one of those provisions were intended to protect the banks. Surprise, surprise, they didn’t spend too much time and energy drafting contracts that would help the consumer….right?
So, the banks….through Fannie Mae and Freddie Mac, all get together and draft a uniform document…the terms in virtually all Florida mortgages are exactly the same.
But here’s the problem….the banks forgot to read their own contract when they set up the third party vendors who sent out their default letters. And in a case study in colossal corporate blunders, the banks used one default letter that was sent out both to judicial states and non-judicial states.
The issue here is real simple….the banks drafted the contract, they must adhere strictly to the terms of that contract…..and……
THE DEFAULT LETTERS THEY SENT OUT DO NOT COMPLY WITH THE CONTRACT THEY DRAFTED
Now, as you’ll see in this trial…as we see in many trials where good judges rule on foreclosure cases just like the would rule in any other kind of case….a court cannot excuse conduct that is in violation of their own contract…Now, the appellate courts have only two choices here. They either uphold principles of law that have existed since our nation was formed or they choose to excuse the sloppy and reckless conduct of the banks and their servicing companies.
From a pure legal perspective, attorneys and judges should be about the business of preserving the integrity of our court system and the rule of law. Unfortunately, we’ve seen a few opinions that excuse bank wrongdoing adn in so doing, our courts and the rule of law is desecrated.
From a public policy perspective, we must all recognize that the banks are effectively nationalized industries. They’ve all shoveled hundreds of billions (trillions) of our taxpayer dollars into their own bottom lines, then promptly transferred that money into the pockets of their own executives or shared it with foreign counter parties. What we know for certain is they failed to properly staff, manage or run their own banks. We hear the excuses all the time that they were not able to staff or train properly, but that’s just not true…it’s a lie……
THE BANKS CHOSE NOT TO HIRE, TRAIN OR MANAGE THEIR MORTGAGE DIVISIONS PROPERLY
During the period of record unemployment and misery that has not been felt in this country since the Great Depression, the banks took the hundreds of millions (trillions) of dollars given to them and shipped that money out of this country…rather than use that money to provide jobs and economic relief to the very nation and for the benefit of the people that provided that relief. That to me is economic treason. Trillions of taxpayer dollars was shoveled in dumptrucks into the pockets of banks and they spent that money not on supporting and preserving this country, but on fattening their own bottom lines. One more time:
THE BANKS, WITH THEIR ENABLERS THEIR GOVERNMENT, HAVE COMMITTED ECONOMIC TREASON
And so, we must not let another American be thrown into the streets by those who have worked to destroy this nation….
Q Who do you currently work for,
18 Ms. Thompson?
19 A Wells Fargo Bank, N.A., doing business as
20 America’s Servicing Company.
21 Q And how long have you worked for Wells
22 Fargo?
23 A Approximately five years.
24 Q And what is your current position with
25 Wells Fargo?
Q Ma’am, you had indicated on Direct
17 testimony that the default letter was outsourced to a
18 third-party contractor, correct?
19 A They are mailed by a vendor, yes.
20 Q Okay. And you don’t know, as you sit here
21 today, what date that notice was mailed; whether it
22 was mailed that day, the following day, or even two
23 days later?
MR. CONKLIN: That it makes a
10 difference. And that Countrywide has failed
11 to perform the conditions precedent. The
12 Plaintiff’s Motion for Summary Judgment and
13 Partial Summary Judgment was granted in that
14 case.
15 Your Honor, I submit to you also the
16 opinion by Judge Amy Williams, as to the
17 case of PHH vs. John Wink. This is a case
18 that I argued, your Honor, before Judge
19 Williams. Judge Williams, likewise, ruled
20 that where the notice states inside of it
21 that the Borrower has the right to bring a
22 court action. This is not what Paragraph 22
23 of the Florida-Single-Family, Fannie Mae,
24 Freddie Mac uniform instrument provides.
Judge Williams in that case also found
9 that there was no material issue of fact,
10 that this was a matter to be decided as a
11 matter of law. I quote from her decision.
12 The Court finds that the Notice of Intention
13 to Foreclose sent by Plaintiff to Defendant
14 on January 11th, did not comport with the
15 notice language specified in Paragraph 22 of
16 the mortgage. And, therefore, Plaintiff
17 failed to perform the conditions precedent
18 to acceleration and the filing of this
19 foreclosure action, because compliance with
20 Paragraph 22 was a condition precedent to
21 filing this foreclosure action.
22 The Court holds that Defendant was not
23 required to demonstrate prejudice. The
24 Court dismissed the complaint, without leave
25 to amend.
Judge Schafer cites Konsulian vs. Busey
14 Bank, 61 So.3d 1283. It’s a Second District
15 Court case. The language in the mortgage is
16 clear and unambiguous. The word, shall, in
17 the mortgage, created conditions precedent
18 to foreclosure. The Court in that case,
19 your Honor, dismissed without leave to amend
20 or dismissed with prejudice.
THE COURT: You know, it doesn’t comply
5 with Paragraph 22. I mean, that’s the real
6 issue at this point.
7 MR. HAIDERMOTA: And, your Honor, this
8 is a Court of Equity. On the eve of trial,
9 Defense counsel brings up this issue. It’s
10 disingenuous. I mean, there is a
11 technicality —
12 THE COURT: Well, they have a right
13 to — I mean, they have a right to — I
14 can’t tell them how to represent their
15 client. They chose to do that. Now,
16 whether or not you agree with that, that’s
17 another matter. But I don’t think that they
18 chose this vehicle as something that would
19 prevent them from arguing whether that was
20 or was not; all conditions precedent were
21 met.
THE COURT: Let me ask you a question.
10 This Paragraph 22, it’s been represented to
11 me that it is the only paragraph that’s in
12 bold type or print. Is that —
13 MR. McDONALD: It is in bold.
14 THE COURT: Out of a 20-page document.
15 MR. McDONALD: That’s correct.
16 THE COURT: So would I be incorrect in
17 drawing an inference that maybe that is
18 enough to put you on notice that they expect
19 strict compliance with that particular
20 paragraph, or not?
MR. ROCK: I believe it says, moreover,
15 it is black letter law that if the provision
16 of a contract — the provisions of a
17 contract are unambiguous, the Court may not
18 violate the clear meaning of the words in
19 order to create an ambiguity. And,
20 certainly, the Court may not rewrite the
21 contract.
THE COURT: All right. We’ve been here
10 a long time. But it’s — it’s — in my
11 opinion, this acceleration notice does not
12 comply with the clear language of Paragraph
13 22 of the mortgage. And I don’t think I
14 have the authority, nor the desire to try to
15 rewrite that particular provision. You-all
16 noticed that they were challenging it,
17 apparently, a long time ago. I’m not sure.
18 Two, three years ago, whenever it was. But
19 you’ve been on notice for some time. And,
20 apparently, you chose not to do anything
21 about it, other than to come to court for
22 trial.
MISCHE~1
21
