This foreclosure began when Wells Fargo incorrectly demanded $58.61 from my client…she spent months trying to get them to correct their math. And when they refused….over months and months, she kept fighting back.
The foreclosure case was filed in 2013. So why did it take the banks nearly 5 years and several different servicers before they finally went to trial?
Santander/Dovenmuehle Mortgage were substituted into the case just a few days before trial. Their witness testified they had NO idea what was going on with the dubious documents they were presented at trial…..Now, I’ve pursued a whole lot of foreclosure defense cases which featured dubious documents…but my latest trial features one of the doobiest set of documents I’ve seen yet….the recorded mortgage was NOT the mortgage Dovenmuehle Mortgage sought to pursue…instead, when we went to trial on 10/25/18 in Sarasota, they asked the judge to grant Dovenmuehle Mortgage their foreclosure…even though they could offer no explanation whatsoever for the obviously altered documents that were attached to the complaint…and made part of the trial. The bottom line is this foreclosure should have resulted in a dismissal by the Plaintiff within about two minutes when they realized there was no legitimate explanation for the varied documents they were presented at trial….but no, this one went on for HOURS! First, have a look at the mortgage:
The transcript reveals dubious conduct servicers continue to engage in….although I will give this trial witness credit….as you’ll read from the transcript, the Dovenmuehle Mortgage witness was quite honest and upfront….she took her oath seriously…and when presented by her own attorney with the variations in the documents Dovenmuehle Mortgage was presented at trial…she refused to play the game of just fudging it and acting like any old document was just fine. This bank witness answered truthfully, honestly and she didn’t respond to any efforts to “bake in” memories or evidence, which led to fun exchanges like this:
MR. WEIDNER:· And I very much
appreciate your truthful —
THE WITNESS:· Not a problem.
MR. WEIDNER:· — your truthful
testimony under penalties of perjury.
MR. GOLLAHON:· I object to the
MR. WEIDNER:· That your witness is
testifying truthfully under penalties of
MR. GOLLAHON:· No, you’re insinuating
MR. WEIDNER:· No, she’s doing a great job.
It may be a bit hard to understand the back and forth at trial, so here’s the visual…real plain and simple. A mortgage was recorded….9 pages long. (note the Official Records Book and Page Numbers top left). But when it comes time to attach the mortgage to the complaint, the plaintiff relies upon a version of the mortgage (3 pages) that were NOT recorded….and which differed significantly from the recorded mortgage (note the missing spouse signature):
MR. GOLLAHON:· Well, I mean, that’s my
understanding as to why there was a second
MR. WEIDNER:· Understanding from who?
From where?· From what?· 2015?· I don’t
remember what I did in April of 2018.· But,
what, is there some system that tells you
what might have happened in a courtroom
three years ago?
Judge, I don’t — I give this witness
credit again —
MR. GOLLAHON:· I can’t testify because
I wasn’t there.· I don’t know what happened.
MR. WEIDNER:· Neither can your witness.
That’s the whole point.
THE WITNESS:· I’ve testified that
Santander provided a slew of documentation
upon boarding.· May 1 of ’18 was our
effective date of transfer.
In those documents, there was a
purported copy of the note which is
recognizable.· What you are presenting to
me, you’re saying that is the original note.
I recognize the Barbara Wood
endorsement.· That’s fine.· I don’t
recognize the endorsement in the back.· In
fact, I didn’t see anything in our systems
with that endorsement.
12· · · · · · ·MR. WEIDNER:· Ma’am, have you ever seen
13· · · · this document?· I’m going to show you —
14· · · · · · ·THE WITNESS:· No, sir.
15· · · · · · ·MR. WEIDNER:· What is your lawyer
16· · · · talking about?· Are you as confused as I am?
17· · · · · · ·THE WITNESS:· Is this what you showed
18· · · · me in the atrium earlier today?
19· ·BY MR. GOLLAHON:
20· · · · Q· · The original document as an exhibit is what
21· ·I provided.
22· · · · A· · Okay.· Well, I will testify that I have not
23· ·seen this up until this afternoon.
Click Below to Read The Entire Transcript:
And the band plays on….
21· · · · MR. GOLLAHON:· And I will just point
22· ·out to the Judge, mortgage fraud, if that’s
23· ·what’s alleged, was not brought up as an
24· ·affirmative defense, therefore it would be
·1· · · · MR. WEIDNER:· This is an evidentiary
·2· ·objection, but this was, in fact, pled both
·3· ·to the note and to the mortgage.· Let me
·4· ·make sure what we’re talking about.· I’m not
·5· ·talking in circles and let’s not be — let’s
·6· ·not hide the ball.· Let’s be real specific
·7· ·about what’s happening here, Judge.
·8· · · · Counsel, do you affirm that the
·9· ·document you are holding onto, your verified
10· ·second amended Complaint is the Complaint
11· ·along with the exhibit that’s attached?· And
12· ·if not, we can look on the screen and see
13· ·online to make sure that that’s what’s
14· ·before us.
15· · · · MR. GOLLAHON:· I would have to refer
16· ·back to what’s on the Court docket, but it
17· ·appears to be the same mortgage to me.
18· · · · MR. WEIDNER:· Okay.· Here’s what
19· ·happens, though, Judge, pages one, two,
20· ·three, four, five, six is the mortgage,
21· ·okay?· Note the recording up there at the
22· ·top of those six pages.· Look what happens
23· ·when you get to page seven.·
12· · · · There is no way to explain what you are
13· ·holding onto other than somebody was
14· ·fabricating documents.· And just very
15· ·specifically, the Complaint that is before
16· ·his Court, this document, the unrecorded
17· ·version that has the signature problems, why
18· ·didn’t they just go to the official records
19· ·and pull the official record document?
20· · · · There is simply no explanation for that
21· ·other that forgery, fraud, document
22· ·manipulation.· And going beyond that — and,
23· ·I mean, I want to make the — let’s get to
24· ·the relevance.
25· · · · Clearly any kind of document problem,
·1· ·forgery, fraud, whatever you want to call
·2· ·it, warrants a dismissal.· We can’t proceed
·3· ·with this kind of evidence before the Court.
·4· · · · But the essential element of this case
·5· ·from my client’s perspective, Judge, is
·6· ·she’s making her payments on time.· The
·7· ·predecessor’s far removed.· This is 2011.
·8· ·This ain’t the people sitting in His Honor’s
·9· ·courtroom.· She’s making her payments on
10· ·time.· They tell her you’re not making your
11· ·payments on time or you are missing a
13· · · · The default letter that she has shows
14· ·that — or tells her that you’re $68.61 in
15· ·arrears in 2011.· Is that your default
16· ·letter, counsel?
·2· · · · THE COURT:· Where did you get that
·4· · · · MR. GOLLAHON:· This was the one
·5· ·attached to the amended Complaint, along
·6· ·with the ones that he just stipulated to for
·7· ·the —
·8· · · · MR. WEIDNER:· Well, no, that was not,
·9· ·because the one attached to the amended
10· ·Complaint was not recorded.· That is the
11· ·issue.· There are separate riders.· This is
12· ·the document he was going to hand to the
13· ·witness.· This is the three pages that are
14· ·not recorded.
15· · · · MR. GOLLAHON:· If I can correct this
16· ·for the record.· It is recorded, the one
17· ·attached to the second amended Complaint,
18· ·just the last three pages that he’s talking
20· · · · MR. WEIDNER:· Let’s be very clear.
21· ·Absolutely not.· The verified — the second
22· ·amended verified Complaint, the three pages
23· ·that are the rider, are absolutely not
24· ·recorded.· That’s the issue.
And then this exchange regarding the note:
·4· · · · Q· · Did you receive a copy of this note signed
·5· ·by or at least purported to be signed by Ms. Ouwinga?
·6· · · · A· · Not this one, because this was not part of
·7· ·what we had in our system.
·8· · · · Q· · Please describe to the Court the difference
·9· ·between what you received in your system and what
10· ·you’re provided there.
11· · · · A· · Sure.· I recognize pages one through four
12· ·with the first endorsement.· I do not recognize the
13· ·endorsement in blank on the back.
14· · · · Q· · Is this the note upon which the foreclosure
15· ·is based in connection with the property at 2657
16· ·Ringling Boulevard, Sarasota, Florida?
17· · · · A· · I can’t answer that honestly because this
18· ·isn’t the same documentation that was provided to
19· ·Dovenmuehle by Santander Bank.
20· · · · Q· · And with regard to the endorsements on the
21· ·note, what endorsements did you see when you received
22· ·this document?
23· · · · A· · As I said before, the loan documentation
24· ·that was provided to us in our systems upon boarding
25· ·with Santander stopped at page four