Wow. The Banks really are out of control in this country. They operate generally in a world where no rules apply to them. Most Americans no thoroughly understand that banks and large corporations pick and choose what rules they will follow….knowing full well that hardly any government enforcement agency will hold them accountable.
Well not this time. You see, a good and very experienced judge heard a full foreclosure trial and at the end he said:
THE COURT: Very well. Thank you very much.
4 I’ve paid very close attention to the evidence
5 and testimony, and I have reviewed all the
6 documents. And it is the opinion of the Court at
7 the close of all of the evidence and testimony that
8 the motion [for involuntary dismissal] is with merit.
9 It will be granted.
10 And [Plaintiff’s] motion to amend will have to be
11 denied, sir, because there was objection at each
12 stage by Defense with respect to the matters to
13 which you wish to have the amendment addressed.
14 So it’s the decision of the Court.
15 Very well tried, and I thank you.
It was a most interesting trial…a trial that exposed major failings on the part of many of the banks that are obtaining foreclosure judgments all across this state….and presumably the country. The banks are failing to disclose mortgage modification agreements…..even when those modification agreements expressly overrule the note and mortgage the banks claim to be suing upon. That’s right….a document that completely changes the conditions of the prior note and mortgage…but they just fail to make those documents part of the litigation…
Thus concluded the trial of Wells Fargo, N.A. v. Griffin, 10-009347-CI-33 (6th Jud. Cir. 2014). Nevertheless, and despite the fact that the learned trial judge: (1) paid very close attention to the evidence and testimony; and (2) reviewed all the documents, Plaintiff seeks “rehearing” where no rehearing lies.
At the onset it is imperative to note that four years of judicial time, resources and taxpayer dollars have been invested in allowing this Plaintiff to bring their case to trial. The fact that Wells Fargo failed to achieve a judgment in its favor should not be rewarded with the extraordinary relief sought in their motion.
It should also be recognized that this Plaintiff, a national banking association, had at its disposal unlimited resources to both prepare for trial, convince a constitutionally appointed sitting judge with decades of experience to enter judgment in its favor, and then, when that failed, to plead their last best hope for relief in their motion for rehearing. The unlimited depth of Wells Fargo’s resources is revealed in its use of colorful graphics and highlighted PDF documents in its motion for rehearing, but those colorful distractions cannot change the fact that Wells Fargo lost fairly at trial and their Motion For Rehearing fails to state a proper basis to overturn the trial judge’s correct ruling.
It should be noted that Defendant first asked for a continuance of the trial based on the fact that Plaintiff, just days before trial, dumped 3,028 pages of “responsive” discovery documents on Defendant. The court will recall counsel for Defendant characterized this “document dump” as gross and abusive because it contained hundreds and hundreds of pages that were completely blacked or whited-out or were otherwise unreadable and were in no logical order at all.
Plaintiff, however, vociferously opposed Defendant’s pleas for a continuance, demanded that the trial continue and received the trial it sought. It is both outrageous and inequitable to both Defendant and the Court system as a whole for Plaintiff to suggest that this Court should devote more precious judicial resources to this case when Plaintiff got exactly what it wanted (a trial) but is now dissatisfied with the outcome of the trial it was granted.
Plaintiff’s plea for a new trial is even more outrageous considering that even as late as the filing of its Motion for Rehearing it continues to withhold from the Court the existence of modification agreements which fundamentally change the cause of action as pled in its complaint. These modification agreements are attached as Exhibits “A”, “B”, and “C”.
WELLS FARGO CONTINUES TO WITHHOLD FROM THE COURT THE EXISTENCE OF ALL THREE (3) SEPARATE MORTGAGE MODIFICATION AGREEMENTS THAT WERE REQUIRED TO BE INCORPORATED INTO THE PLEADINGS
The primary argument presented by Defendant at trial in support of her dismissal claim was that Plaintiff failed to attach to its complaint copies of the three (3) separate mortgage modification agreements that were entered into between the parties.[1]
Critically, the February and March 2008 loan modification agreements both provide, in Clause 14, that
This agreement supersedes and replaces any prior negotiations, agreements or understandings, whether written, oral or implied, between Borrower and Lender concerning the subject matter of this agreement.
Bold emphasis added.
The complaint at issue in this case, filed in 2010, attached only the note and mortgage
originally executed by Defendant but failed entirely to reveal the existence of these preceding agreements that expressly modified the contacts Plaintiff was suing upon.
Plaintiff’s witness at trial freely admitted that he knew of the existence of the modification agreements and alerted Plaintiff’s counsel of the documents existence. In the witness’s own words:
Q Were you aware of these agreements prior to coming
15 to court?
16 A I became aware of them as part of my review of thefile.
18 Q And did you advise Counsel that these modification agreements existed?
20 MR. SMART: Objection. To the extent it calls
21 for attorney/client privilege.
22 THE COURT: Objection be overruled.
23 A I noted the modification — I asked my attorney
24 to — I advised him to make sure that he was aware that they
25existed.
Trial Transcript at 58.
Despite the explicit admission of Wells Fargo’s witness that they were aware of the three (3) modifications, and advised their attorneys of such, Plaintiff has taken great pains to avoid any mention whatsoever of these three (3) additional modification agreements in its Motion for Rehearing.
Defendant asserted the position, both the morning of trial during her motion to continue and at the trial, and strongly reasserts this position now, that Plaintiff is not entitled to foreclosure when it knowingly concealed the agreements from the Court. The trial judge, having heard all the evidence, having considered the character of the witness, and after weighing the facts presented, agreed with the Defendant’s legal position and granted judgment in Defendant’s favor.
Consequently, Plaintiff’s motion should be denied.
THE COURT WAS CORRECT NOT TO ALLOW WELLS FARGO TO AMEND ITS PLEADING WHEN THE EVIDENCE IT SOUGHT TO CONFORM WAS IN ITS POSSESSION FOR FOUR (4) YEARS
In Arky, Freed, et al. v. Bowmar Instrument Corp., 537 So. 2d 561 (Fla. 1988), the Florida Supreme Court reversed a jury verdict in Bowmar’s favor because “Bowmar did not prove the allegation of the counterclaim, but rather proved a claim not pled with sufficient particularity for Arky, Freed to prepare a defense. Under our law, Bowmar is thus precluded from recovery on this essentially unpled claim.” Id. at 563.
The Court then concluded, for policy reasons,
that litigants at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared. Our growing, complex society and diminishing resources mandate the requirement that litigants present all claims to the extent possible, at one time, and one time only.
Id. See also Horowitz v. Laske, 855 So. 2d 169, 173 (Fla. 5th DCA 2003).
By withholding, and continuing to withhold, from the Court the existence of all three (3) modification agreements, Plaintiff has violated the policy argument advanced by the Court in Arky, Freed. Therefore, the learned trial judge’s involuntary dismissal was imminently correct.[2]
Indeed, where, as here, a claim is not pled with sufficient particularity, involuntary dismissal/directed verdict is the appropriate remedy. See Arky, Freed, So. 2d at 563 (requiring on remand that the district court order a directed verdict in Arky, Freed’s favor); E.I. Du Pont de Nemours & Co. v. Desarrollo Indus. Bioacuatico S.A., 857 So. 2d 925, 929 (Fla. 4th DCA 2003) (providing that “where a claim is not pled with sufficient particularity for the opposing party to prepare a defense, the plaintiff is precluded from recovery on the unpled claim and a directed verdict is properly entered.”).
Consequently, Plaintiff should be barred from the relief it seeks.
THIS CASE EVIDENCES THAT WELLS FARGO IS ENGAING IN A PRACTICE OF WITHOLDING TAX REVENUE FROM THE STATE OF FLORIDA MAKING THE DOCUMENTS IT SEEKS TO ENFORCE UNENFORCEABLEFla. Stat. §201.08(1)(a) requires a tax of 35 cents for each $100 of indebtedness or obligation on promissory notes executed, delivered, sold, transferred, or assigned in this State, “and for each renewal of same.” Fla. Stat. §201.08(1)(a). Bold emphasis added.
Section 201.08(1)(b) also imposes this tax burden on mortgages “recorded in this state, and for each renewal of same.” Fla. Stat. §201.08(1)(b). Bold emphasis added.
For purposes of §201.07, “a renewal shall only include modifications of an original document which change the terms of the indebtedness evidenced by the original document by adding one or more obligors, increasing the principal balance, or changing the interest rate, maturity date, or payment terms.” Fla. Stat. §201.08(5).
“Section 201.08(1)(b)…precludes judicial enforcement of a mortgage ‘unless and until the tax due thereon… has been paid.’” One 79th Street Estates v. Am. Inv. Servs., 47 So. 3d 886, 890 n. 1 (Fla. 3d DCA 2010).
All three modification agreements are “renewals” of the subject loan documents Plaintiff seeks to enforce.
However, it is evident from the face of the documents introduced at trial that Plaintiff failed to pay documentary stamp taxes on any of these modification agreements.
It should further be noted that Defendant, at trial, specifically raised the objection that documents upon which the proper taxes have not been paid are not enforceable by any court in this State. Indeed, during Defendant’s opening statement, her counsel asserted the existence of the three (3) modification agreements, and objected to the introduction of the note and mortgage for failure to pay documentary stamp taxes as follows:
19 MR. FUINO: This is the first modification
20 agreement that was entered February 2008. This was
21 an amended modification agreement entered in
22 March 2008, and this is the June 2009 modification
23 agreement.
24 THE COURT: You might want to hang onto those
25 until they’re offered.
MR. FUINO: The basis of the objection, your
2 Honor, and it goes back to one of the affirmative
3 defenses that Counsel stated was from doc stamps not
4 being paid on the mortgage.
Trial transcript at 11.
….
9 So we object to the introduction of an open
10 mortgage until documentary stamp taxes are paid. In
11 fact, the case law says that when the Court learns
12 that doc stamps have not been paid, you had to
13 either abate the action, or dismiss it without
14 prejudice.
15 So those are two options before the Court,
16 because the modification agreement that altered the
17 terms of the note and mortgage, that cease to be
18 induced. It’s unenforceable, so you can’t even take
19 it into evidence.
Trial transcriptat 12.
When the note and mortgage were offered into evidence, Defendant’s counsel formally objected to the documents introduction:
MR. SMART: I do. I’d like to introduce and
23 offer into evidence, your Honor, Exhibit 1, which is
24 the adjustable rate mortgage note, and Exhibit 2,
25the mortgage.
THE COURT: Okay. Any objection?
2 MR. FUINO: And I will recite the objection I
3 just made, based on failure to pay doc stamps, and
4 lack of authenticity.
5 THE COURT: All right. Very well.
6 Objection shall be respectfully overruled.
7 They will be received.
8 You can have a continuing objection.
Trial Transcript at 12-13.
On this point, the law is undeniable and clear – even had Plaintiff fulfilled its obligations and disclosed the three (3) modification agreements either before trial or during trial, if it did not pay the proper amount of documentary and intangible taxes, (as it did not do here) those modification agreements remain unenforceable.
In this case, the subsequent mortgage modification agreements were (and remain) unenforceable in any Court in this State and the cause of action as framed by Plaintiff’s Complaint which does not refer in any way or incorporate into that Complaint those agreements was improper, a proposition accepted by the learned trial judge. Accordingly, the Court’s dismissal should be left undisturbed.
[1] A related part of Defendant’s argument (addressed more fully herein below) was that even if Wells Fargo had properly disclosed these agreements to the court, Wells Fargo failed to pay documentary taxes on those modifications pursuant to Fl. Stat. §201.08, and therefore these agreements were unenforceable at trial. [2] It is in fact quite extraordinary that Wells Fargo would on the one hand fail to attach the three (3) modifications at issue to the complaint it sues upon and then on the other hand complain it its Motion for Rehearing that it suffers some injustice when the court holds them accountable for this failure.
