U.S. BANK NATIONAL ASSOCIATION, as trustee for Stanwich Mortgage Loan Trust Series 2012-3, by Carrington Mortgage Services, LLC; WELLS FARGO BANK, N.A., a chartered national bank; Wells Fargo Bank, N.A., as serv1cer, Defendants,
and
NORTHWEST TRUSTEE SERVICES, INC., as trustee, Respondent.
Excerpt: Lyons alleges three causes of action against NWTS-one under the DT A, one under the CPA, and one for intentional infliction of emotional distress. All of these claims are supported by the same underlying conduct that Lyons alleges involves a violation of RCW 61.24.030(7) in relation to the beneficiary declaration and a breach of the duty of good faith under RCW 61.24.010(4). The trial court focused on the issue of whether Lyons could bring a claim for damages under the DTA in the absence of a trustee’s sale, and there was almost no discussion of the CPA or the intentional infliction of emotional distress claims during argument on the summary judgment motion. Yet, the court granted NWTS’ motion on all ofthese claims. We begin by addressing the causes of action under the DT A and the CPA, including Lyons’ particular contentions regarding the beneficiary declaration and breach of the duty of good faith. We then address the cause of action for intentional infliction of emotional distress.
A. Without a nonjudicial foreclosure sale, a party may not bring a claim for damages under the DT A, but they can bring a claim under the CPA Recently we decided Frias v. Asset Foreclosure Services, Inc., _ Wn.2d _, 334 P.3d 529 (2014). Frias involved two certified questions from the federal district court regarding whether a plaintiff could bring a claim for damages under the DT A or the CPA in the absence of a foreclosure sale and what principles would govern each claim. This court carefully considered the language of the statute, the intended beneficiaries of the statute, the explicit and implicit legislative intent, and the purposes of the statute. The court concluded:
We hold that the DTA does not create an independent cause of action for monetary damages based on alleged violations of its provisions where no foreclosure sale has been completed. . . . We further hold that under appropriate factual circumstances, DTA violations may be actionable under the CPA, even where no foreclosure sale has been completed …. [T]he same principles that govern CPA claims generally apply to CPA claims based on alleged DT A violations. 334 P.3d at 531. Without the sale of the property, damages are not recoverable under the DTA, but a CPA claim may be maintained regardless of the status of the property. Frias clearly resolves the first issue in this case. Lyons cannot bring a claim for damages under the DT A in the absence of a sale, but she may bring a claim for similar actions under the CPA.
B. There were material issues of fact for trial regarding whether NWTS violated provisions of the DT A, which could be used to support Lyons’ CPA claim, so granting summary judgment to NWTS on Lyons’ CPA claim was improper A CPA claim is a preexisting statutory cause of action with established elements. Id. at 537. A claim under the CPA based on violations of the DTA must meet the same requirements applicable to any other CPA claim. 3 The availability of redress for wrongs during nonjudicial foreclosure under the CPA is well supported in our case law. Id.; Bain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 119, 285 P.3d 34 (2012) (a plaintiff may bring a claim under the CPA arguing the facts specific to the case); Walker v. Quality Loan Serv. Corp. of Wash., 176 Wn. App. 294, 320, 308 P.3d 716 (2013) (actions taken during the nonjudicial foreclosure process were sufficient to support all five elements of a CPA claim and survive pretrial dismissal); Vawter v. Quality Loan Serv. Corp. of Wash., 707 F. Supp. 2d 1115, 1129-30 (W.D. Wash. 2010) (court discussed the five elements for a CPA claim and considered the factual allegations supporting Vawter’s DTA claim to support the CPA claim as well); Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 295 P.3d 1179 (2013) (property was sold in this case, but court discussed action amounting to CPA claims in depth, focusing on acts of defendants, not the fact the property was sold). The absence of a completed sale of the property does not affect the availability of this cause of action. Whether a plaintiff will prevail on a CPA claim is a case by case determination of whether the plaintiff can satisfy the requisite elements.
The main question raised by the parties surrounds whether the alleged actions of NWTS amount to unfair or deceptive practices under the CPA.
More than 90 percent of judicial business in the United States is decided in state courts, and with business interests tangled up in much of the litigation, it’s easy to understand why corporations spend big on state judicial campaigns.
“Special interest groups continue to dump money into state supreme court races in an attempt to stack the deck in their favor,” Bannon said. “Voters should feel like our courts are fair and impartial, not political playgrounds where business interests and lawyers can tilt the scales of justice with their pocketbooks.”
Since January, political parties, outside groups and candidates spent more than $12.1 million on TV ads for state judicial races across the country. In the past week, outside groups spent a total of nearly $1 million on ads in Michigan, Montana, Ohio, North Carolina and Illinois in a last-minute surge before the election.
The 2012 election cycle was the first full cycle since the Supreme Court’s 2010 Citizens United ruling that struck down caps on outside corporate campaign spending, and special interest groups spent a record $15.4 million on TV ads for state high court races, nearly half the total spent on those races that year, according to a 2013 report by the Brennan Center and other watchdogs.
“Special interest groups have realized that it doesn’t take much money to reshape an entire state court compared to high-cost elections for statewide political offices,” Bannon said.
Last year, the American Constitution Society released analysis of judicial campaign finance data from 2000-2009 showing that the more campaign cash a state justice receives from business interests, the more likely they are to rule in favor of business litigants who show up in their courts.
How do you track where this money is going? Shouldn’t it be used to repay the homeowners?
Way too much fraud happening and the homeowners always end up screwed by both the government and the bankstas.
Ocwen-
Ocwen Financial Announces Operating Results for Third Quarter 2014
Recorded $100 million charge for potential settlement with New York regulator
ATLANTA, Oct. 30, 2014 (GLOBE NEWSWIRE) — Ocwen Financial Corporation, (NYSE:OCN), a leading financial services holding company, today reported a Net loss of $(75.3) million, or $(0.58) per share, for the third quarter of 2014 compared to Net income of $60.6 million, or $0.39 per share, for the third quarter of 2013. Ocwen generated revenue of $513.7 million, down 3% compared to the third quarter of 2013. Income from operations was $58.7 million for the third quarter of 2014.
Net income for the nine months ended September 30, 2014 was $52.2 million, or $0.36 per share, as compared to $175.1 million, or $1.17 per share, for the same period in 2013. Revenue for the first nine months of 2014 increased 9% from the first nine months of 2013 to a total of $1.6 billion.
Pre-tax loss on a GAAP basis for the third quarter of 2014 was $(72.3) million, a 194% decrease as compared to the second quarter of 2014. During the third quarter of 2014, Ocwen incurred a total of $137 million in normalized expenses. Ocwen’s normalized pre-tax earnings were $64.8 million, a 41% decrease from the second quarter of 2014. Normalized pretax earnings were impacted by $120.0 million of reserves for various regulatory and legal matters, including a $100.0 million accrual for a potential settlement with the New York Department of Financial Services, $9.0 million for Fair Value changes and $8.1 million of integration, technology-related and severance costs. We have not reached any agreement with the New York Department of Financial Services and cannot predict whether or when we may reach such a resolution. Any future resolution of these regulatory and legal matters may be materially different from what has been accrued.
“I want to emphasize that Ocwen takes great efforts to keep borrowers in their homes and to avoid foreclosures,” commented Bill Erbey, Ocwen’s Executive Chairman. “Ocwen recently reached a significant milestone by making its 500,000th loan modification, including 290,000 HAMP modifications. Ocwen is the leader in foreclosure prevention with 44% more HAMP modifications than any other servicer. We work very hard to keep borrowers in their homes and that is why we take the concerns raised by the New York Department of Financial Services so seriously. We have numerous compensating controls in place which we believe should have prevented borrower harm. Nonetheless, Ocwen is proactively creating a process whereby any borrower, who believes they received a misdated letter, and were harmed as a result, will have the opportunity to receive a complete file review to resolve any issues caused by the misdating.”
WHAT WE HAVE LEARNED FROM THE MORTGAGE CRISIS ABOUT TRANSFERRING MORTGAGE LOANS Dale A. Whitman*
Editors’ Synopsis: The vast expansion of the secondary mortgage market posed great challenges to the legal principles governing the mortgage transfer system. Not only were parties not adhering to the rules set forth under the Uniform Commercial Code, but even some courts were conflating basic principles such as the difference between ownership and entitlement to enforce. This Article analyzes several critical legal principles of the transfer process, discusses what led to the system’s dysfunction during the mortgage crisis, while proposing a more userfriendly system for both lenders and borrowers.
I. INTRODUCTION II. HOW MORTGAGES ARE TRANSFERRED III. WHAT WE HAVE LEARNED: A SUMMARY
A. Ownership of the Note and Mortgage Must be Distinguished from the Right of Enforcement B. The Right to Enforce Negotiable Notes Can be Transferred Only by Delivery C. Negotiability Matters D. The Mortgage Follows the Right to Enforce the Note E. Note Endorsements are Helpful but Usually Not Essential F. Mortgage Assignments are Irrelevant to the Right to Foreclose by Judicial Proceeding G. Many Nonjudicial Foreclosure Statutes are Weak and Inadequate
IV. DETAILED EXAMINATION OF EACH OF THE PRINCIPLES
A. Ownership of the Note and Mortgage Must be Distinguished from the Right of Enforcement B. The Right to Enforce Negotiable Notes Can be Transferred Only by Delivery C. Negotiability Matters D. The Mortgage Follows the Right to Enforce the Note E. Note Endorsements are Helpful, but Usually Not Essential 1. The Use of an Allonge 2. Holder in Due Course F. Mortgage Assignments are Irrelevant to the Right to Foreclose by Judicial Proceeding 1. Mortgage Assignments as a Means of Gaining Notice 2. Recording an Assignment as a Tool to Prevent Wrongful Satisfaction or Subordination by the Original Mortgagee G. Many Nonjudicial Foreclosure Statutes are Weak and Inadequate 1. The Role of the Trustee under a Deed of Trust 2. Lost Notes in Nonjudicial Foreclosures
Unless they put a stop to this madness, they will continue to find homeowners, students etc etc continue to get screwed by both the Bankstas with their side kick the Government.
We’ve had enough of the regulators BS expressing, “We intend to hold them accountable”.
We don’t believe you.
Bloomberg-
The three-year-old U.S. consumer protection agency said it discovered that the largest mortgage servicers have been mishandling loan modifications and harming borrowers since new rules came into effect in January.
Consumer Financial Protection Bureau supervisors have made spot checks to examine the books and practices of bank and nonbank servicers, the agency said in a report yesterday, without naming the firms. Supervisors found “substantial delays” in modifying loans that resulted in “negative consequences,” such as higher mortgage payments and unjustified blemishes on borrowers’ credit reports, the report said.
“All borrowers should be treated fairly by loan servicers, and through our supervision program, we intend to hold them accountable,” Richard Cordray, the CFPB director, said in a statement.
We have a long and proud history in this country of neglecting our veterans. It’s a tradition that goes back as far as the Civil War, if not longer. In the last few decades though, that we’ve allowed the behavior to not only continue, but to be ratcheted up a few notches from simple neglect to abuse and predatory behavior. It’s as if we’re saying, “Hell, they’ve been shot at, lived in the dirt, been taken prisoner, and tortured. They can take it.”
Laws were broken the minute she entered the game in 2010.
Tampa Bay Times-
Partners with a powerful Washington, D.C., law firm aren’t registered as Florida lobbyists, but that hasn’t stopped them from wining and dining Attorney General Pam Bondi the past four years to discuss clients.
Bondi dropped suits or declined to investigate cases after numerous behind-the-scenes interactions with the firm, Dickstein Shapiro, the New York Times reported Wednesday.
A Tampa Bay Times/Miami Herald review shows none of the partners were registered to lobby in Florida, meaning their advocacy may have violated state law. They won’t be prosecuted unless someone files a sworn complaint with the state.
Since the recession, over 4 million people have made the difficult decision to give up their homes, believing they were walking away from their debt. Lenders hit with more than $1 trillion of foreclosed loans are looking to recoup some of their losses through a legal process known as deficiency judgment, in which borrowers may be liable for the difference between the foreclosure sale proceeds and the mortgage balance.
George Sheldon’s experiences in various forms of private and government services uniquely prepare him to be a great Attorney General who looks out for the interests of all Floridians. But more importantly, he is an honest man of principles and one who has experience working across the aisle with Independents and Republicans to make government work for everyone.
George’s View of Role as Attorney General
As Attorney General, George Sheldon is eager to assume the responsibility of making Florida safer for individuals and families by protecting consumers from fraud, targeting criminal activity, and assisting victims of crime. He sees it as his role to preserve and protect Florida’s natural resources and follow the best advice of esteemed physicians by supporting the legalization of medical marijuana to make treatment and quality of life better for those with severe illnesses and conditions which could be improved through its use.
George vows to be the the lawyer of all the people and represent their best interests – not those of the Governor or of the Legislature, protecting the civil rights of all Floridians regardless of race, sexual orientation, or religion.
Advocate of Affordable Healthcare for All
George also supports the adoption of the Affordable Care Act. It was voted into law by Congress, signed by the President, and passed a legal test in a challenge before the U.S. Supreme Court.
Regardless of whether you were for or against the program, NOT adopting it results in the loss of tens of millions of Federal dollars for the state each year – money Floridians send to Washington as taxes without return – to fund healthcare for 1.9 million Floridians annually. So as a state, we unnecessarily spend money paying for healthcare that could be covered by a Federal program, which is almost like paying twice for the same thing.
Represent the People as the Moral Pillar of State Government
George Sheldon believes the Attorney General needs to be the one moral pillar of the state government, and he doesn’t see that happening today in the way his opponent Pam Bondi has represented Floridians.
As an example of the way he’d serve – enforcing laws and pursuing those who would threaten consumer well-being and safety in Florida, George would use former boss and Attorney General Bob Butterworth as his role model because Bob is someone he holds in highest esteem. He will restore integrity to the office.
A group of funds that threw a monkey wrench in Bank of America Corp’s (BAC.N) proposed $8.5 billion settlement with investors in mortgage-backed securities will object to JPMorgan Chase & Co’s $4.5 billion offer to settle claims over similar investments, according to the lawyer that represents them.
The funds, collateralized debt obligations known as the Triaxx entities, received court permission on Wednesday to intervene in a proceeding seeking judicial approval of the JPMorgan settlement, people close to the case said.
JPMorgan last year reached the $4.5 billion agreement with some 20 institutional investors in 330 residential mortgage-backed securities trusts issued by JPMorgan and Bear Stearns, which the bank took over during the financial crisis.
The case was something of a shocker: A Yuba County jury awarded $16.2million in damages to a Plumas Lake homeowner who nearly lost his home to foreclosure after his loan servicer mishandled his mortgage modification.
But the presiding judge has decided the jury got it mostly wrong.
Yuba Superior Court Judge Stephen Berrier has tossed out the vast majority of damages against New Jersey-based loan servicer PHH Mortgage Services. Homeowner Phillip Linza is entitled to only $159,000 in damages, the judge said.
The original verdict, in July, had represented a huge victory for Linza and his lawyers at the United Law Center in Roseville. The attorneys said it was one of the biggest jury awards they’d seen representing homeowners in mortgage-related cases.
Waiting for the unsealed complaint to drop to post up.
Charlotte Observer-
A newly unsealed federal lawsuit alleges Wachovia’s investment bank violated accounting rules and skirted internal controls to pursue short-term profits, benefiting senior management at the expense of the former Charlotte-based bank’s financial health.
Two whistleblowers, including a former Wachovia controller who lives in Union County, filed their lawsuit on behalf of the federal government, alleging the bank defrauded U.S. agencies that loaned money and provided other assistance to the bank in the financial crisis.
The lawsuit was first filed in 2011 but kept under seal until this week. Under the U.S. False Claims Act, the whistleblowers could be eligible to receive up to 30 percent of any damages or penalties awarded under the action.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2007-CH2, Asset Backed Pass-Through Certificates, Series 2007-CH2, Appellee, v. NORMA J. DVORAK, et al., Appellants.
Court of Appeals of Ohio, Ninth District, Summit County.
October 22, 2014.
JAMES R. DOUGLASS, Attorney at Law, for Appellants.
DAVID A. WALLACE, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
BELFANCE, Presiding Judge.
{¶1} Norma Dvorak and her son Richard Dvorak appeal the judgment of the Summit County Court of Common Pleas granting the motion for summary judgment of Deutsche Bank National Trust Company, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2007-CH2, Asset Backed Pass-Through Certificates, Series 2007 CH2 (“Deutsche Bank”) and ordering the foreclosure of the property. For the reasons set forth below, we reverse.
I.
{¶2} On September 7, 2006, Ms. Dvorak and Mr. Dvorak signed a promissory note (“the Note”) that was secured by a mortgage (“the Mortgage”), which they also signed. Chase Bank USA, N.A., was the lender and mortgagee on the instruments. Deutsche Bank filed a complaint for foreclosure on September 14, 2012, alleging that it was the holder of the Note and Mortgage and that the Dvoraks were in default on the Note. The Dvoraks filed a pro se answer, and Deutsche Bank moved for summary judgment. The Dvoraks retained counsel and filed an amended answer and a motion in opposition to Deutsche Bank’s motion for summary judgment. Deutsche Bank filed a reply along with a new affidavit. The trial court granted Deutsche Bank’s motion for summary judgment.
{¶3} The Dvoraks have appealed, raising three assignments of error for our review. For ease of discussion, we address their assignments of error together.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO PLAINTIFF-APPELLANT AND DENIED THE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT-APPELLANTS,[1] SINCE PLAINTIFF-APPELL[EE] NOT ONLY ADMITTED THAT IT WAS NOT THE HOLDER OF THE NOTE AND ENTITLED TO ENFORCE SAME AND FURTHER FAILED TO ESTABLISH THAT IT WAS THE HOLDER OF THE NOTE AND ENTITLED TO ENFORCE SAME IN ITS MOTION FOR SUMMARY JUDGMENT.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT AWARDED SUMMARY JUDGMENT TO PLAINTIFF-APPELLEE WHO FAILED TO DEMONSTRATE ENTITLEMENT TO RELIEF AS A MATTER OF LAW[.]
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT AWARDED SUMMARY JUDGMENT TO A PLAINTIFF THAT FAILED TO DEMONSTRATE STANDING TO SUE[.]
{¶4} The Dvoraks argue that Deutsche Bank failed to demonstrate it had standing because it failed to satisfy its initial burden of demonstrating that it was the holder of the Note at the time it filed the complaint. We agree.
{¶5} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party.” Garner v. Robart, 9th Dist. Summit No. 25427, 2011-Ohio-1519, ¶ 8.
{¶6} Pursuant to Civ.R. 56(C), summary judgment is appropriate when:
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a summary judgment motion, the movant bears the initial burden of demonstrating that there are no genuine issues of material fact concerning an essential element of the opponent’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party “`must set forth specific facts showing that there is a genuine issue for trial.'” Id. at 293, quoting Civ.R. 56(E).
{¶7} “It is fundamental that a party commencing litigation must have standing to sue in order to present a justiciable controversy and invoke the jurisdiction of the common pleas court.” Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 41. “The lack of standing at the commencement of a foreclosure action requires dismissal of the complaint * * *.” Id. at ¶ 40. The Dvoraks contend that the trial court erred in granting Deutsche Bank’s summary judgment because the bank did not establish that it had standing to bring the foreclosure action.
{¶8} In support of its motion for summary judgment, Deutsche Bank submitted the affidavit of Candace Reichardt, who averred that she was the vice president of JPMorgan Chase Bank, National Association. Ms. Reichardt further averred that, “[a]s a mortgage servicer, Chase collects payments from [Ms. Dvorak and Mr. Dvorak] and maintains up-to-date electronic records concerning the loans it services in its electronic record-keeping system[.]” According to Ms. Reichardt, the Dvoraks had failed to make a payment and had not subsequently made payments to cure the default.
{¶9} Deutsche Bank also submitted the affidavit of Dana Crawford. Ms. Crawford averred that she was a document control officer for Select Portfolio Servicing, Inc. (“SPS”), which was the servicing agent for Deutsche Bank. She further averred that, based upon her review of the business records of SPS, “[a]t the time of filing the complaint, and continuously since, Deutsche Bank * * * has been in possession of the original promissory Note.” Copies of the Note, Mortgage, the Dvorak’s Payment History, and the “Demand Letter” were attached to Ms. Crawford’s affidavit.
{¶10} “[A]ffidavits submitted in support of or in opposition to motions for summary judgment `shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.'” Maxum Indemn. Co. v. Selective Ins. Co. of S.C., 9th Dist. Wayne No. 11CA0015, 2012-Ohio-2115, ¶ 18, quoting Civ.R. 56(E). In addition, Civ.R. 56(E) provides that “[s]worn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit.” Generally, “a mere assertion of personal knowledge satisfies the personal knowledge requirement of Civ.R. 56(E) if the nature of the facts in the affidavit combined with the identity of the affiant creates a reasonable inference that the affiant has personal knowledge of the facts in the affidavit.” Bank One, N.A. v. Lytle, 9th Dist. Lorain No. 04CA008463, 2004-Ohio-6547, ¶ 13. “If particular averments contained in an affidavit suggest that it is unlikely that the affiant has personal knowledge of those facts, [however,] then * * * something more than a conclusory averment that the affiant has knowledge of the facts [is] required.” (Internal quotations and citations omitted.) Bank One, N.A. v. Swartz, 9th Dist. Lorain No. 03CA008308, 2004-Ohio-1986, ¶ 14. Averments in an affidavit may also be insufficient to indicate personal knowledge. In any case, “this Court `cannot infer personal knowledge from the averment of personal knowledge alone.'” Bank of Am., N.A. v. Loya, 9th Dist. Summit No. 26973, 2014-Ohio-2750, ¶ 12, quoting Maxum Indemn. Co. at ¶ 22.
{¶11} As noted above, Ms. Crawford averred that she is a document control officer for SPS, an entity she averred was the servicer of the Dvorak’s loan. She also averred that she “ma[d]e this affidavit based upon personal knowledge obtained from [her] personal review of [SPS’] business records for the loan which is the subject of this action.” Thus, it is clear that whatever knowledge Ms. Crawford has about the Note and the Mortgage were obtained from reviewing business records[2] rather than from something she had personally observed (e.g., she had seen the Note in Deutsche Bank’s vault the day that Deutsche Bank filed the complaint).
{¶12} However, Ms. Crawford did not attach the alleged business records that she referred to in support of her averment that she had personal knowledge based on SPS’s business records that Deutsche Bank was continuously in possession of the note. Ms. Crawford attached a copy of the Note endorsed in blank, the Mortgage, the assignment of the Mortgage, and “Demand Letter[.]” None of these documents indicate when, or even if, Deutsche Bank came into possession of the Note or that Deutsche Bank had possession of the note at the time the complaint was filed.[3]See, e.g., Loya at ¶ 11-15. See also Deutsche Bank Natl. Trust Co. v. Reynolds, 9th Dist. Summit No. 27192, 2014-Ohio-2372, ¶ 13-14.
{¶13} To the extent Ms. Crawford relied on documents beyond those attached to her affidavit, she did so in contravention of the provision in Civ.R. 56(E) that “[s]worn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit.” (Emphasis added.) Civ.R. 56(E). See Walls v. Firelands Radiology, Inc., 106 Ohio App.3d 313, 336 (6th Dist.1995). In this regard, the Dvoraks also argue that her affidavit is not based upon personal knowledge but rather impermissible hearsay. We agree that the requirement that averments in an affidavit be made upon personal knowledge and the requirement of attaching sworn or certified copies of all papers to the affiant’s affidavit serve are essentially safeguards against hearsay, which by definition, are statements that are made without personal knowledge. See, e.g., State v. Cicerchi, 182 Ohio App.3d 753, 2009-Ohio-2249, ¶ 52 (8th Dist.), quoting Hayes v. Cleveland Pneumatic Co., 92 Ohio App.3d 36, 44 (8th Dist.1993) (“Although Evid.R. 803(6) permits introduction of records of regularly conducted activity, that exception concerns the introduction of the documents themselves, not oral testimony * * *. `There is no hearsay exception that allows a witness to testify to the contents of business records, in lieu of providing and authenticating the records in question.'”). Thus, we find that the Dvoraks’ argument has merit to the extent Ms. Crawford is averring to the content of the business records that are not attached to her affidavit. Civ.R. 56(E). Therefore, because Ms. Crawford did not attach the business records upon which she relied to make her affidavit as required by Civ.R. 56(E) and because her personal knowledge was derived from SPS’s business records, her affidavit did not satisfy Deutsche Bank’s burden of establishing an absence of a dispute of fact that it was in possession of the Note at the time the complaint was filed. See U.S. Bank, N.A. v. Umphrey, 9th Dist. Summit No. 27172, 2014-Ohio-4461, ¶ 13-14.
{¶14} Similarly, Ms. Reichardt, who identified Chase as Deutsche Bank’s servicer, did not attach the records relied upon in her affidavit. Ms. Reichardt averred that she made the statements in the affidavit based upon her review of Chase’s business records. While Ms. Reichardt, like Ms. Crawford, attached copies of the Note, the Mortgage, and the assignment of the mortgage, those documents, as noted above, do not establish when or if Deutsche Bank came into possession of the Note or that Deutsche Bank was in possession of the Note at the time of the filing of the complaint. Furthermore, Ms. Reichardt averred that, based on Chase’s business records, “Plaintiff, directly or through its agent, is in possession of the original Note and was in possession prior to and at the time of filing the Complaint in this action.” However, Ms. Reichardt never identifies who “Plaintiff[]” is and further indicates that she does not know what entity is actually in possession of the Note: the “Plaintiff[]” or an agent. Thus, Ms. Reichardt’s affidavit also does not establish an absence of a dispute of fact that Deutsche Bank had possession of the Note at the time it filed the complaint in this case. See Civ.R. 56(E).
{¶15} Notwithstanding these problems, Deutsche Bank urges this Court to conclude that the affidavits of Ms. Crawford and Ms. Reichardt require reasonable minds to come to but one conclusion, which is that Deutsche Bank was in possession of the Note at the time it filed its complaint. However, none of the cases cited by Deutsche Bank to support its position actually address the circumstances of this case. Compare with Deutsche Bank Natl. Trust Co. v. Cassens, 10th Dist. Franklin No. 09AP-865, 2010-Ohio-2851, ¶ 13 (Note endorsed as payable to Deutsche Bank prior to the filing of the complaint.); Bank of New York v. Dobbs, 5th Dist. Knox No. 2009-CA-000002, 2009-Ohio-4742, ¶ 40 (Affiant was the employee of the company in possession of the original note and mortgage.); Deutsche Bank Natl. Trust Co. v. Ingle, 8th Dist. Cuyahoga No. 92487, 2009-Ohio-3886, ¶ 9 (Bank submitted affidavits from the loan servicer and the bank’s counsel, both of whom averred that the bank was in possession of the note.).
{¶16} Accordingly, the materials submitted by Deutsche Bank with its motion for summary judgment failed to demonstrate an absence of a dispute of fact that it had standing at the time it filed its complaint. The Dvoraks’ assignments of error are sustained.
III.
{¶17} In light of the foregoing, the judgment of the Summit County Court of Common Pleas is reversed, and the matter is remanded for further proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
GALLAGHER, J. CONCURS.
CARR, J. CONCURS IN JUDGMENT ONLY.
(Gallagher, J., of the Eighth District Court of Appeals, sitting by assignment)
[1] This reference to a motion for summary judgment by the Dvoraks appears to be made in error since the Dvoraks never moved for summary judgment in the trial court, nor do they make any argument in their brief regarding such a motion. See App.R. 16(A)(7). In any case, our decision today is limited solely to whether Deutsche Bank should have been awarded summary judgment.
[2] A business record is “[a] memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation[.]” Evid.R. 803(6).
[3] Although the Mortgage was assigned to Deutsche Bank by JPMorgan Chase, the Note had previously been transferred by Chase to a separate entity, making the assignment of minimal value at best for establishing the possession of the Note.
Who Should Be Providing Mortgage Credit to American Households?
David J. Reiss, Brooklyn Law School
Abstract
Who should be providing mortgage credit to American households? Given that the residential mortgage market is a ten-trillion-dollar one, the answer we come up with had better be right, or we may suffer another brutal financial crisis sooner than we would like. Indeed, the stakes are as high as they were in the Great Depression when the foundation of our current system was first laid down. Unfortunately, the housing finance experts of the 1930s seemed to have a greater clarity of purpose when designing their housing finance system. Part of the problem today is that debates over the housing finance system have been muddled by broader ideological battles and entrenched special interests, as well as by plain old inertia and the fear of change. It is worth taking a step back to evaluate the full range of options available to us, as the course we decide upon will shape the housing market for generations to come. This is a Response to Brent Horton, For the Protection of Investors and the Public: Why Fannie Mae’s Mortgage-Backed Securities Should Be Subject to the Disclosure Requirements of the Securities Act of 1933, 89 Tulane L. Rev. __ (forthcoming 2014-2015).
David J. Reiss, Brooklyn Law School Jeffrey Lederman, Brooklyn Law School
Abstract
As the FHFA sets the housing goals for 2015-2017, it should focus on maximizing the creation and preservation of affordable housing. Less efficient proposed subgoals should be rejected unless the FHFA has explicitly identified a compelling rationale to adopt them. The FHFA has not identified one in the case of the proposed small multifamily subgoal. Thus, it should be withdrawn.
Homeowners in Baltimore can lose their houses for as little as $250 in unpaid taxes — a threshold far lower than in other cities — according to a new Abell Foundation report that urges a change in the practice.
The report calls on Baltimore officials and the Maryland General Assembly to add protections for owner-occupied homes and simplify a city system that often confuses homeowners, enriches investors and adds to the number of vacant properties that line neighborhood streets.
City Councilwoman Mary Pat Clarke said she’s seen many residents, often elderly, get swept up in tax lien sales, and she wants the city to raise the threshold that triggers a sale to $750 in back taxes.
Ocwen Financial Corp said it was hiring an independent firm to investigate how the mortgage servicer had sent backdated letters to borrowers about loan modifications and foreclosures and the reason for the delay in fixing the issue.
Hundreds of thousands of borrowers facing foreclosure may have been harmed after they received letters from Ocwen with cure dates that had passed months earlier, New York Financial Services said on Tuesday.
The company denied them loan modifications in letters that they received more than 30 days after they were mailed, cutting off an opportunity to appeal, according to an Oct. 21 letter from the New York Financial Services to Ocwen.
Ocwen’s Chief Executive Ron Faris wrote a letter to homeowners on Friday apologizing for the improperly dated letters, as well as to clarify what happened, explain the actions the company had taken to address the issue, “and to commit to ensuring that no borrower suffers as a result of our mistakes”.
Ocwen Financial (OCN) has taken a beating after the New York Department of Financial Services sent a letter to the company on Oct. 21 alleging that the company had been backdating letters to borrowers, and now Ocwen is posting an open letter to homeowners.
Ocwen CEO Ron Faris writes to its clients explaining what happened and what steps the company is taking to investigate the issue, identify any problems, and rectify the situation.
In recent days you may have heard about an investigation by the New York Department of Financial Services’ (DFS) into letters Ocwen sent to borrowers which were inadvertently misdated. At Ocwen, we take our mission of helping struggling borrowers very seriously, and if you received one of these incorrectly-dated letters, we apologize. I am writing to clarify what happened, to explain the actions we have taken to address it, and to commit to ensuring that no borrower suffers as a result of our mistakes.
What Happened
Historically letters were dated when the decision was made to create the letter versus when the letter was actually created. In most instances, the gap between these dates was three days or less. In certain instances, however, there was a significant gap between the date on the face of the letter and the date it was actually generated.
What We Are Doing
We are continuing to investigate all correspondence to determine whether any of it has been inadvertently misdated; how this happened in the first place; and why it took us so long to fix it. At the end of this exhaustive investigation, we want to be absolutely certain that we have fixed every problem with our letters. We are hiring an independent firm to investigate and to help us ensure that all necessary fixes have been made.
Ocwen has an advisory council made up of fifteen nationally recognized community advocates and housing counsellors. The council was created to improve our borrower outreach to keep more people in their homes. We will engage with council members to get additional guidance on making things right for any borrowers who may have been affected in any way by this error.
We apologize to all borrowers who received misdated letters. We believe that our backup checks and controls have prevented any borrowers from experiencing a foreclosure as a result of letter-dating errors. We will confirm this with rigorous testing and the verification of the independent firm. It is worth noting that under our current process, no borrower goes through a foreclosure without a thorough review of his or her loan file by a second set of eyes. We accept appeals for modification denials whenever we receive them and will not begin foreclosure proceedings or complete a foreclosure that is underway without first addressing the appeal.
In addition to these efforts we are committed to cooperating with DFS and all regulatory agencies.
We Are Committed to Keeping Borrowers in Their Homes Having potentially caused inadvertent harm to struggling borrowers is particularly painful to us because we work so hard to help them keep their homes and improve their financial situations. We recognize our mistake. We are doing everything in our power to make things right for any borrowers who were harmed as a result of misdated letters and to ensure that this does not happen again. We remain deeply committed to keeping borrowers in their homes because we believe it is the right thing to do and a win/win for all of our stakeholders.
We will be in further communication with you on this matter.
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
KATHLEEN HARPER, Appellant,
v.
HSBC BANK USA, NATIONAL ASSOC. AS TRUSTEE FOR WELLS FARGO HOME EQUITY ASSET BACKED CERTIFICATES, SERIES 2005-4, ET AL., Appellee.
_____________________________/ Opinion filed October 23, 2014.
An appeal from the Circuit Court for Duval County. Charles O. Mitchell, Jr., Judge.
Douglas Bradford Hughes of Lindell & Farson, P.A., Jacksonville, for Appellant.
Dean A. Morande and Michael K. Winston, and Maryellen Michelle Farrell of Carlton Fields Jorden Burt, West Palm Beach, and Suzanna M. Johnson, Tampa, for Appellee. PER CURIAM.
In this foreclosure-related appeal, Appellant Kathleen Harper asserts that summary judgment should not have been entered against her because Appellee
HSBC Bank USA failed to establish the absence of a genuine issue of material fact and to refute one of her affirmative defenses. We agree and reverse.
In moving for summary judgment below, the Bank had the burden to show the absence of any genuine issue of material fact and to refute Ms. Harper’s legally sufficient affirmative defenses. See, e.g., Lindsey v. Wells Fargo Bank, N.A., 139 So. 3d 903, 906 (Fla. 1st DCA 2013). In this case, Ms. Harper executed a mortgage and note with the Bank that required the Bank to notify her of a default prior to accelerating her loan or foreclosing on her property; to specify how she could cure the default; and to provide at least a 30-day period to cure. Courts have recognized similar notice provisions preclude the entry of summary judgment where a bank’s complaint, motion for summary judgment, and affidavits fail to refute a defendant’s assertion of not being given the requisite notice and opportunity to cure. See, e.g., Ramos v. Citimortgage, Inc., 39 Fla. L. Weekly D1861 (Fla. 3d DCA 2014); Patel v. Aurora Loan Servs., LLC, 39 Fla. L. Weekly D840 (Fla. 4th DCA 2014); DiSalvo v. SunTrust Mortg., Inc., 115 So. 3d 438, 441 (Fla. 2d DCA 2013).
HSBC BANK USA, N.A. as Trustee for Nomura Asset Acceptance Corporation Mortgage Pass-Through Certificates, Series 2005-AR5, Appellant, v. COSTEL SERBAN, Appellee.
District Court of Appeal of Florida, First District.
Opinion filed October 23, 2014.
Donna Eng, Michael K. Winston, and Dean A. Morande of Carlton Fields Jorden & Burt, P.A., West Palm Beach, for Appellant.
George M. Gingo and James E. Orth Jr., of Gingo & Orth, P.A., Titusville, for Appellee.
PER CURIAM.
HSBC Bank USA, N.A., as Trustee for Nomura Asset Acceptance Corporation Mortgage Pass-Through Certificates, Series 2005-AR5 (“HSBC Bank”), appeals the denial of its motion for continuance, made at trial, and the trial court’s dismissal of the action without prejudice due to HSBC Bank’s failure to appear at trial with a witness through which evidence might be presented to prove its case. HSBC Bank contends that the trial court erred as a matter of law by convening the trial before the case was “at issue” under rule 1.440(a), Florida Rules of Civil Procedure; abused its discretion by denying the motion for continuance; and abused its discretion by dismissing the action upon HSBC Bank’s failure to comply with the court order setting the trial. Under the circumstances of this case, the trial court committed no legal error by convening the trial as scheduled and its rulings were not abuses of discretion. Accordingly, the order on appeal is affirmed.
The proceedings were initiated by HSBC Bank on March 11, 2008, upon its filing the complaint for foreclosure in circuit court. Attached to the complaint was a copy of a note under which Mr. Costel Serban promised to repay a loan made by Gateway Funding Diversified Mortgage Services. The note was secured by a mortgage on real property. The last page of the note contained a blank endorsement from Gateway Funding. See § 673.2051(2), Fla. Stat.
For five years, the case made little progress due to lengthy gaps between the parties’ filings. When the trial court issued case management orders in 2013, the litigation proceeded in earnest.
On August 13, 2013, the circuit court entered its Order Setting Non-Jury Trial for October 17, 2013. This provided the parties with 65 days’ notice of the trial date and time, well in excess of the 30-days’ notice required by rule 1.440(c). No doubt mindful of the age of the case, and consistent with the court’s responsibility to manage its docket,[1] the court’s order setting trial included an admonition to counsel as follows:
3. The Plaintiff shall file all necessary documents as required by the rules of court and be present and prepared on the date indicated herein to resolve this case via Non-Jury Trial, failure of either party to be prepared to resolve the case via Non-Jury Trial may result in imposition of sanctions by the court against the offending party to include dismissal of the action;
Plaintiff HSBC Bank raised no objection to the order at any time prior to the date of trial.
On September 11, 2013, Mr. Serban moved for leave to amend his answer and affirmative defenses and the court granted the motion on September 19, 2013. The court directed HSBC Bank to file its reply within ten days, which time expired September 30, 2013. Fla. R. Civ. P. 1.190(a). HSBC Bank filed its Reply to the Answer on October 2, 2013 and Reply to Affirmative Defenses on October 9, 2013. HSBC Bank did not request a continuance of the trial at this point.
Each party appeared through counsel at the trial as scheduled on October 17, 2013. Due to the amended answer and HSBC Bank’s latest reply thereto, there was no question that the trial date was less than 20 days after HSBC Bank served the “last pleading.” See Fla. R. Civ. P. 1.440(a). However, the status of the action as “at issue” was not immediately challenged. Instead, the following exchange between counsel for HSBC Bank and the court took place:
MR. McDONALD: Your Honor, as you know, I represent the plaintiff, HSBC. And I’m the attorney that is assigned to try this case.
When you ask if the plaintiff is ready to proceed, the answer to that is — plaintiff[‘s] counsel is ready to proceed, Your Honor. I fully prepared this case for trial, am fully prepared to try the case today. However, unfortunately, I have to present the Court with a motion for continuance.
THE COURT: I hope its not because of unavailability of your bank witness, because I’m kind of getting wore out with those.
MR. McDONALD: Your Honor, I understand that. And it is the unavailability of the witness.
Wells Fargo is the servicer, Your Honor. All of the Wells Fargo witnesses are assigned out for other trials.
I have been begging and trying to get a witness for the case, and the client has been trying to find somebody. But all of their witnesses are assigned out, and they couldn’t have somebody here today, Your Honor.
Counsel then argued that a continuance would be fair, in light of the court’s recent acceptance of the amended answer and affirmative defenses. Counsel candidly admitted to the court that he was notified “between seven and ten days ago” that no witness for the plaintiff would be available. Counsel for Mr. Serban objected to the request for continuance due to the time and expense incurred for counsel to appear at trial and because HSBC Bank failed to show good cause for a continuance.
The trial court found that HSBC Bank had ample notice of the trial and sufficient opportunity to locate a qualified witness or even to train a witness during the interim between the setting of trial and the trial date. When the court announced its intention to deny the continuance, HSBC Bank’s counsel introduced the argument that the amended answer and affirmative defenses “probably took the case out of being at issue.” Counsel further argued that “the case was no longer at issue, so the trial order for today actually would not be proper for setting the case for trial today.”
The trial court rejected HSBC Bank’s rule 1.440(a) argument, finding that counsel could have filed a written motion for continuance prior to the day of trial, but waited until the parties and the court had assembled to seek a later trial date. The court further found that the reason HSBC Bank could not put on its case as scheduled was “not because of the amendment to the pleadings by the defendant; it’s because the bank did not, after sufficient notice, have a representative here to testify.” The court thus denied the continuance and, upon motion by the defense, dismissed the action without prejudice pursuant to rule 1.420(b).
In Parrish v. Dougherty, 505 So. 2d 646, 648 (Fla. 1st DCA 1987), this Court clarified that “Bennett did not hold that in every case where the court fails to issue an order setting trial, failure to comply with rule 1.440 is automatically reversible error regardless of the circumstances.” The violation in Parrish was the lack of a signed court order setting trial, as required by rule 1.440(c). This Court held that this procedural requirement could be waived when the party appeared at the scheduled trial and raised no objection to the method of setting the trial. In contrast, Bennett involved violations of both rule 1.440(a) and 1.400(c) because the trial was not set by a signed court order, the trial was held prior to the close of the pleadings, and motions to dismiss certain pleadings were still pending. This combination of procedural improprieties prompted reversal in that case.
Minor violations of rule 1.440 are insufficient grounds for reversal when it is clear that no deprivation of due process resulted from the violation. For instance, in Mourning v. Ballast Nedam Construction, Inc., 964 So. 2d 889 (Fla. 4th DCA 2007), the notice resetting the trial was mailed to Ballast by opposing counsel rather than by the court. Ballast then failed to appear at trial, without explanation. The appellate court distinguished the technical violation of rule 1.440(c) from the violations which occurred in Bennett and held that Ballast’s failure to appear, after receiving notice of the trial, constituted a waiver. Rejecting a “bright-line rule,” the court found “no due process implication if Ballast receives the order setting the trial docket in a timely fashion and that order comes in a properly addressed envelope sent through the U.S. mail by Mourning’s counsel. We fail to see the logic in permitting Ballast to ignore the order and thereafter engage in `gotcha’ tactics to set aside the final judgment.” Mourning, 964 So. 2d at 893. The court refused to “elevate form over substance” where, under the facts of the case, a strict application of rule 1.440 “does nothing to advance the due process of law.” Id. at 894. Accordingly, the trial court’s order vacating the default judgment against Ballast was reversed.
The effect of an amended pleading filed subsequent to an otherwise compliant order setting trial under rule 1.440 was the issue in Labor Ready Southeast Inc. v. Australian Warehouses Condominium Ass’n, 962 So. 2d 1053 (Fla. 4th DCA 2007). Like HSBC Bank in this case, the appellant in Labor Ready argued that the amended pleading removed the case from “at issue” status under rule 1.440(a) and required reversal of the final injunction order. The Fourth District Court of Appeal disagreed, holding:
This is not a case where the case had never been at issue. This is not a case where the parties did not have sufficient time to prepare. This is not a case where anyone was prejudiced by the technical amendment to the complaint. In situations where the parties have received actual, timely notice of the trial, they are precluded from arguing prejudice based upon a technical violation. See Abrams v. Paul, 453 So. 2d 826, 829 (Fla. 1st DCA 1984).
Labor Ready Se., 962 So. 2d at 1055-56. Noting that the case had been pending for more than four years and that there was “no ambush or violation of the procedural safeguards that Rule 1.440 was designed to protect,” the appellate court found “no error in the trial court’s handling of this trial.” Labor Ready Se., 962 So. 2d at 1056.
HSBC Bank filed this case more than five years prior to the scheduled trial. There was no question that the parties were notified of the trial date by the court’s order entered August 13, 2013, more than sixty days before the trial date. The last-minute amendment to the answer, to which plaintiff replied prior to trial, did not prompt HSBC Bank to move for continuance immediately, to avoid wasted court time and parties’ travel expenses. The trial court’s determination that the amendment had no relation to HSBC Bank’s failure to supply a witness for trial was reasonable. Under the circumstances of this case, the trial court’s proceeding to trial on the scheduled date, even though fewer than twenty days had passed “after service of the last pleading,” did not deprive HSBC Bank of due process and does not warrant reversal. Fla. R. Civ. P. 1.440(a).
In addition, the trial court’s denial of HSBC Bank’s motion for continuance made at trial was not an abuse of discretion. See Garner v. Langford, 55 So. 3d 711, 714 (Fla. 1st DCA 2011) (decision to grant or deny motion to continue is matter resting within the sound discretion of the court). HSBC Bank relies on cases where the physical or mental condition of counsel or a party unexpectedly prevented appearance at a scheduled trial. See Krock v. Rozinsky, 78 So. 3d 38 (Fla. 4th DCA 2012); Myers v. Siegel, 920 So. 2d 1241 (Fla. 5th DCA 2006). Those cases list additional factors to be considered in determining whether a trial court abused its discretion in denying a motion for continuance, including whether denial will create injustice for the movant, whether the cause for the request was “unforeseeable by the movant” and whether the opposing party would suffer any prejudice as a result of a continuance.
The continuance sought in this case had no relation to any medical emergency or other unforeseen event. Plaintiff’s counsel knew a week or more in advance that his client would not be supplying a witness for trial. While rule 1.460, Florida Rules of Civil Procedure, acknowledges that a continuance may be sought on grounds of nonavailability of a witness, continuances are generally disfavored and require a showing of good cause. Fla. R. Jud. Admin. 2.545(e) (“All judges shall apply a firm continuance policy. Continuances should be few, good cause should be required, and all requests should be heard and resolved by a judge.”). No abuse of discretion is presented by the trial court’s determination that HSBC Bank’s reason for failing to provide a witness for trial—the overscheduling of its employees or representatives in other cases—did not constitute good cause for a continuance.
HSBC Bank’s argument that a continuance would not cause Mr. Serban to suffer any prejudice because he would simply continue to occupy the property without payment on his loan until the eventual trial is unavailing. The prejudice to Mr. Serban in this situation is the persistent lack of resolution of the allegations against his property interests. HSBC Bank’s presumption that Mr. Serban is enjoying possession of the real property at HSBC Bank’s expense is premature, given HSBC Bank’s failure to present any proof of its allegations at trial, and in particular any evidence to establish that HSBC Bank was entitled to enforce the note as of the date the lawsuit was filed. In Gee v. U.S. Bank N.A., 72 So. 3d 211, 213 (Fla. 5th DCA 2011), in reversing summary judgment of foreclosure for the plaintiff bank, the court noted:
Incredibly, U.S. Bank argues that “[i]t would be inequitable for [Ms. Gee] to avoid foreclosure based on the absence of an endorsement to [it].” But that argument flies in the face of well-established precedent requiring the party seeking foreclosure to present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.
As the plaintiff, it is HSBC Bank’s burden to prove that it is the proper party to enforce the note via maintenance of the foreclosure action. It must also present evidence to support its claim of non-payment of certain monies owed to HSBC Bank. Only then do the equities of any possession by the defendant borrower become relevant. Because HSBC Bank failed to produce a witness for the previously scheduled and noticed trial, the trial court did not abuse its discretion in requiring HSBC Bank to suffer the consequence of its failure to produce any proof of its case by denying a continuance.
Finally, the trial court’s dismissal of the action without prejudice, pursuant to rule 1.420(b), was not an abuse of discretion. The order setting the trial date specifically informed the parties of the consequences for failure to appear at trial ready to resolve the case. While the trial court did not use the terms “willful” or “dilatory tactics” in discussing HSBC Bank’s failure to produce a witness, the court expressed its disapproval of the client’s apparent refusal to cooperate with counsel to put on its case. As previously noted, the case had been pending for more than five years and the court found no circumstances showing that HSBC Bank’s failure to produce a witness for trial resulted from events beyond its control. HSBC Bank has not demonstrated any abuse of the trial court’s discretion in dismissing the case without prejudice.
For all the foregoing reasons, the order on appeal is affirmed.
VAN NORTWICK, CLARK, and SWANSON, JJ., CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.
Bank of America’s ongoing alleged “bad faith” delay tactics and discovery stonewall in author TJ Fisher’s explosive $70 million lawsuit against the bank have stretched the case into four years. Now flat broke and $27 million in debt, former-millionaire Fisher faces the possibility of no roof over her head before a jury finally has the opportunity to pass judgment on the Too Big To Fail banking titan. The bank’s Motion for Continuance postponed the author’s hard-won August 18, 2014 jury trial against the financial giant. The headliner case remains off the jury trial docket. Now the bank foreclosure of Fisher’s ocean block home got slotted into the court calendar before her pivotal eye-pop saga of how Wall Street banking royalty broke all the rules to create an American horror story. Judge Catherine M. Brunson is assigned to both intertwined cases.
Judge Brunson is the longtime presiding judge in Fisher’s drawn-out battle against the bank and the judge who granted the jury trial continuance in the Fisher vs. Bank of America court proceedings. She is also now the adjudicator on the non-jury foreclosure case. Judge Brunson was assigned to hear Fisher’s foreclosure case by judicial rotation.
Fisher’s weird “movie of the week” sweeping legal and financial drama with McCrary began with Hurricane Katrina and 2006 core bank-rule-breaking limited liability company transactions between the bank’s Palm Beach Branch Manager and Vice President Peter Kafouros and Fisher’s spouse. The bank’s complicity in a conversion of funds is undisputed. The bank settled McCrary’s lawsuit against them in 2011, two months after Fisher hit the megabank with a negligence lawsuit for opening an undocumented account that allowed converted funds to funnel through her life.
In the wake of Fisher’s attorney Patrick W. Maraist, Esq. unearthing 100,000 pages of undisclosed relevant bank documents in her main case against the bank — key material yet to be produced in contempt of Judge Brunson’s court order to open records — Fisher fears the bank may never face a jury. “Bank of America obstructs discovery to stall and string the timeline into infinity. They have the money, might and influence to do it, to crush people and break them financially. The November foreclosure bench trial ahead of the jury trial against the bank jeopardizes my case,” Fisher says.
The flip-flop of court-calendar scheduling favors Big Banking. Resilient Fisher, who has lost everything, is still fighting. Her court pleadings lay out how Bank of America misconduct triggered a hornet’s next of litigation that imploded her life, setting in motion her inescapable plunge from a wealthy woman to penniless.
The unbelievable yet real-life Technicolor saga of Fisher’s smashed socialite storybook life boomerangs between the frayed fringes of a fantastical Southern gothic unraveling—no novelist could pen—and a carnivalesque-themed “Desperate Housewife” reality show. Fisher previously split her time between a Bourbon StreetFrench Quarter residence and her longtime Palm Beach home and drove a big pink ‘59 Cadillac convertible.
If Fisher is foreclosed upon and forced into bankruptcy and her ultimate David vs. Goliath winning streak of negative rulings against Bank of America forfeited, a six-panel jury may never deliberate the evidence and consequential fallout of banking wrongdoing.
TJ Fisher arriving at St. Edward Catholic Church, JFK’s church
Fisher’s sole-practitioner attorney Maraist has petitioned Judge Brunson to default Bank of America and hold the financial institution and its attorneys in criminal contempt for bad faith litigation tactics and willful discovery failures. The judge scheduled a November 12, 2014 three-hour default and contempt hearing against the bank one week before she hears the ancillary foreclosure case against Fisher’s home since the 90s — whereas the bank wears the opposite shoe as plaintiff not defendant.
Fisher has struggled to subsist for years to get to jury trial against the Wall Street banking titan, even selling her clothing to survive. At this juncture of a seven-year litigation nightmare, formerly well-heeled Fisher does not even have a vehicle. If forced from her home, she does not know where she would live while awaiting a jury trial.
The bank has waged a war of attrition against Fisher since 2011 to deprive her of a jury via a Motion to Strike Jury Demand but the court granted Fisher a jury trial this year. The bank also recently lost their 11th hour Motion for Summary Judgment against Fisher, filed just days before her main case was set to go to trial.
Ticktin Law Group attorneys Tim Quinones and Michael Vater represent Fisher in the bank’s tangled foreclosure action. The firm’s former Managing Partner Jessica Ticktin recently won a 15th Circuit Court judgeship to commence in January, however Judge Ticktin has not personally represented Fisher in any court proceeding.
Fisher realizes the potential loss of her landmark Florida homestead would serve to magnify the irreparable harm she has already suffered, which cannot be corrected by monetary compensation alone.
Maraist believes Bank of America has “unclean hands” in the foreclosure action and the foreclosure should be stayed until Fisher’s $70 million main case is heard at jury trial. Otherwise Fisher’s case against the bank is prejudiced and impeded, possibly derailed.
Banker Kafouros opened and handled $11 million of authorized account deposits for Fisher’s husband, including inter-account transfers and wires. He also secured bank financing on Fisher’s home, Fisher says. A recent Bank of America 39-page “privilege log” reveals the bank had a 226-page discussion regarding a Fisher property mortgage.
“Bank of America doesn’t want to ever get to jury trial. They fight tooth and nail every step of the way, with a bottomless checkbook,” Fisher explains. “They hope I’ll fade into the twilight. The bank’s bigwigs are taking a gamble I can’t survive a life like in a horror movie to defeat them. Their laughing lawyers already promised to overturn any lower court (trial court) jury verdict award at the appellate level.” Fisher has become a reluctant heroine for others burnt by banks.
She says she remains determined to seek some semblance of justice for her financial devastation and personal ruin. Fisher has nothing left from her “former life” except eight-figure debt obligations. All her assets and personal belongings are gone, just a few personal documents, photographs and a Bible remain. Yet she has lived to tell the tale of impossible circumstances and says others view her as an inspiration. Her indomitable spunk and sense of humor remain in tact. People admire her strength and fortitude in the face of awfulness.
To her, for Bank of America to escape accountability and liability and skate out the side door unpunished for the torment and misery unleashed by improper Big Banking transactions in this blockbuster saga would be an ultimate travesty.
A U.S. Bankruptcy Court Southern District of Florida proceeding with a federal judge and trustee at the helm would likely not force the titan financial institution to jury trial. Although jury decisions are often unpredictable, Fisher says experts believe a jury will relate to this unfathomable but genuine human-interest drama and return a verdict against the megabank. Fisher seeks to recover financially, move forward to rebuild her life away from the shadow of scorched earth litigation and keep a roof over her head.
“Banks dread juries,” Fisher says, “with good reason. Why? The truth comes out and they can’t stop it. Can’t seal it up.”
Award-winning author and “voice” Fisher says, “I want to get back to writing books not fighting lawsuits.” She adds, “Those who thought they could grind me dust were wrong. I’m still here. And I will not be silenced.”
Rolling Stone contributing editor Matt Taibbi first called “Bank of America: Too Crooked to Fail” in his darkly telling 2012 exposé. Bank of America has paid and agreed to more than $77 billion in settlements to resolve legal issues related to the financial crisis, more than any other U.S. bank.
Three blondes (L to R) Madame Calliope de Bourbon, Lady Scotus Cornelia LaRue, Colonel Dudley Boudreaux Waddlesworth
Fisher wonders, will her story have a happy ending? She offers a warning about the dangers inbuilt in truth telling and trying to get to jury against the banking industry. “Big Banking intends to discourage those watching from the sidelines from ever trying to take them to court,” Fisher says. “They believe they can prevail.”
Fisher vows she will not be detoured from her frustrating path against one of our country’s largest banks until she has been vindicated with compensation in-hand. “I will continue to shine a light on Bank of America banking practices. While not pretty—it must be exposed how a bank’s recklessness can ruin people’s lives. They strip you dry down to bone marrow, leave you holding the empty bag, surviving on scraps, while they run for cover. The banking industry’s employee behavior and bad decisions shower down toxic fallout.”
Bank of America shed their ironic 2007 “Bank of Opportunity” slogan campaign to rebrand their public image away from the mire of economic and credit-crisis era bad publicity. The general public is familiar with the bank’s TARP bailout program, toxic mortgages messes, consumer complaints, investor loses, state law enforcement agencies and U.S. Department of Justice lawsuits. Fannie Mae, Freddie Mac and the Federal Housing Administration (FHA) financial markets were among those taken in by the bank’s failure to disclose accurate information and violations of the law.
Fisher still believes in the administration of justice and punishment for the accountable. She accepts as true a simple David’s stone and slingshot can beat a Big 4 bank’s powerful shield and sword, before a jury. In a day of reckoning before unbiased fact finders, bigger is not necessarily better.
The family of a murdered woman is calling a local bank “heartless” after the bank filed foreclosure on the dead woman’s home.
“I’ve had so many things ripped away from me,” said Stacey White.
Her sister, Bridgette Holt, was murdered by her ex-husband, who later took his own life in midtown Atlanta in November 2013. Holt was on her way into work when she was killed.
“We offered to pay, they don’t want it, it is too late,” White said about the home.
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