cross posted via the Clouded Titles blog

While most of those living in non-judicial foreclosure states never see these individuals, states where the lender has to file a lawsuit and serve notice on the Borrower in order to complete a mortgage foreclosure brings to the forefront what I have been trying to advocate in my educational materials I disseminate in my enhanced Chain of Title Assessment (COTA) Workshops.  There is a COTA Workshop coming to Chicago, June 4-6, 2015.  One of more attorneys will be attending this workshop and will be answering questions about my procedures and how they are utilized in defending foreclosures, whether you are in a judicial or non-judicial foreclosure state.  Look for details to be posted soon on the Clouded Titles website.

On Monday, March 9, 2015, I was in court observing the goings-on in multiple foreclosure cases in two separate courtrooms in Palm Beach County.  I thought I would share a few items of interest for the readers of this blog site:

1. There are still very few homeowners that actually show up at trial.  This allows bank witness testimony to go unchallenged and thus, uncontroverted.  It is sad to see bank witnesses (I will refer to them as robo-witnesses here because that is exactly HOW they were behaving) complicit in helping the alleged bank get away with this sort of “legalized theft”.

2. The afternoon court session, which began shortly after 1:30 p.m. in Courtroom 4A, was littered with these robo-liars.  Several of them were accompanied by foreclosure mill attorneys (who were probably out of law school no more than a few years), who basically got up before the judge, who allowed each attorney to tag team these witnesses in tandem to all of their foreclosure cases (at least a dozen that I could count), where the attorney read from a list of questions AFTER the judge swore the witness in.  The Q&A was 90-mile-an-hour case specific.  The robo-witness was clearly “coached” to read figures from a list provided directly to them by counsel to quote from, which no objection from the absentee homeowner.  The judge even joked at one point that maybe he could get an attorney who wouldn’t talk so fast.

3. Our specific case was reserved for the very end, so there were very few people in the courtroom (the judge, two clerks and a woman bailiff) besides the litigants. The trial, which included a robo-witness (Cynthia Stevens, who had testified at numerous events earlier that day, unchallenged), lasted nearly 3-1/2 hours (2:40-6 p.m.).  The judge took the whole matter under advisement.

4. During the trial, I took notes (so I could compare them to the nearly 200-page trial transcript), counting 46 multiple objections by Palm Beach County foreclosure defense attorney Lorelei Fiala (who herself used to work for a foreclosure mill but was fired for refusing to alter sworn documents within verified complaints being used in foreclosure cases).  Most of these objections came at the expense of the robo-witness on issues involving hearsay, lack of foundation and lack of capacity.  The witness was clearly flustered during some points of her testimony, especially when Fiala forced her to give a “NO” answer to Steven’s lack of actual knowledge of certain statements she was making at the behest of U. S. Bank’s attorney.  The judge actually had to force Stevens on more than one occasion to answer YES or NO.   In this author’s opinion, Fiala certainly came into the fight with a lot of her “A Game”, which is something you don’t see a lot of.

5. During the morning session, I observed a very well-dressed foreclosure defense attorney toss out a few objections to witness testimony, but failed to cross-examine the witness when given the opportunity to do so.  You might as well have thrown your hard-earned money away on an attorney who won’t go the mile like Fiala did during the afternoon session.

6. During the nearly 3-1/2 hour trial, the judge overruled BOTH sides and denied the bank’s renewed motion to correct a scrivener’s error involving additional information that its counsel wanted added to the Plaintiff’s name.  In sum and substance, for 5 years, Trust A was the Plaintiff.  Then right before trial, Trust B comes in and wants to be substituted into the case, which was granted.  Trust B’s counsel however, had a difficult time proving HOW it got the note and mortgage and the defense certainly wasn’t going to give them an easy victory, which in the end, was highly doubtful.

7. During closing arguments, defense counsel proffered the following flow chart, which the defendant homeowner (one of my learned students, myself and Fiala) worked on into the wee hours of that morning before trial.  I offer that to you for your perusal and consideration     Flow Chart – PAUL v.4 FINAL  in .pdf format.

8. It is interesting to note also in this trial that the Pooling and Servicing Agreements (PSAs) of BOTH Trust A and Trust B were offered and accepted into evidence by the Court.  This allowed both sides to argue its contents.  The Plaintiff bank of course offered Trust B’s PSA into evidence.  Defense counsel offered Trust A’s PSA into evidence to countermove the Closing Dates on BOTH trusts, which were BOTH in 2005.  The bank’s attorney maintained her poker face during almost the entire event.  Virtually all of her objections were overruled during the presentation of the defense attorney’s case.

9. Bank’s counsel tried to avoid the Assignments of Mortgage which were done in 2009 and 2013.  Defense counsel got both of them admitted as exhibits and in the end, it was the homeowner who took the stand and impeached the bank’s counsel with testimony that BOTH Assignments of Mortgage never made the Closing Date … and neither did their Allonges, which appeared to be “conveniently manufactured”, to give U. S. Bank standing to be an alleged Plaintiff.  The judge also examined the alleged photocopied “Allonges” to the Note, which were NOT attached in the original complaint five years earlier.  This really added to the bank’s demise as to credible testimony.

10. In the end, I did not see the bank proving what it needed to elementally prove its case.  The Flow Chart came in handy for defense counsel because it clearly showed the judge where (in simple terms), we were coming from.  This is a case-maker, because we framed our entire case for appeal, as it is highly likely in most cases that go down in Florida courts, that a judge will give a house to a homeowner.  I found it also interesting the way Fiala postured her closing remarks about, “We’re not asking for a free house, Your Honor … we want this case dismissed so they can re-file and present their case properly, not like they have here today!” We already had read the judge’s mind and “headed that common concept off at the pass” (as it were).

11. MOST IMPORTANTLY, the bank’s attorney admitted:

(a.) That it knew the title to the property was screwed up! AND

(b.) That the Servicer created the documents that were being used at trial!

Both of those admissions made defense counsel’s jaw drop (as did the rest of us)!   It is significant to note that this is what I have been teaching in my COTA Workshops … “If I can’t convey, neither can they!”   This goes to the fact that the bank, through its document manufacturing mills, littered the chain of title with so much crap that there’s no way they could legitimately SELL this property at a foreclosure sale without clearing title.  Good luck with that, if you don’t have standing.

Had the homeowner NOT taken the COTA Workshop, the level of presentation would have been less obvious in the flow chart.  The flow chart however, is simple, and says it all in one page.  JPMorgan Chase can’t have two “bites at the same apple” when transferring a note.

I can’t wait to see the trial transcript.  It will be even more interesting when we finally get a ruling to see WHAT the judge perceived as being the real triable issues of fact here.  I found this case to be significant for Florida for the following reasons:

(a.) It incorporated the pooling and servicing agreements from two separately-registered SEC trusts.

(b.) Both trusts’ Closing Dates came into play (like Glaski), citing the recent 4th DCA-released Murray v. HSBC Bank USA N.A. and McLean v. JPMorgan Chase Bank, N.A. cases.

(c.) There are very few cases in which the PSAs are even allowed to be discussed at trial because banks’ attorneys always object to the homeowner having the right to challenge them.  We used the PSA to assert that the Note, as well as the supporting documentation, never made either trust pools’ Closing Date.

(d.) We also used the PSA to defeat the robo-witnesses’ testimony that she reviewed the PSA to see if the note was in it, yet later backpedaled when challenged, that she wasn’t an attorney and couldn’t interpret the PSA and refused to answer further questions about her actual knowledge of the PSA.  This doesn’t look good for robo-witnesses.

(e.) There are very few cases in Florida that ever get close to arguing internal issues within a PSA.  Defense counsel presented (and got entered into evidence) a  copy of the Loan Remittance Report for January of 2015, obtained publicly from Wells Fargo Bank, N.A. (as Master Servicer of the trust)’s website, wherein the homeowner’s loan COULD NOT BE FOUND!   That doesn’t say much for note ownership, does it?

More significantly, an appeal will follow if the judge grants the bank Summary Judgment of Foreclosure.  Countersuits are also likely.  That’s why you use a court reporter!  Again, I can safely attest that the COTA Workshop paid off here, even if you don’t end up becoming a COTA Preparer.

Now … you be the judge.

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