BOOM! Oral Arguments Zervas v Wells Fargo

it’s a it’s a rather interesting foreclosure because while the mortgages signed by the husband and wife the notes only signed by the husband has cracked there’s no evidence in the record to my knowledge of the trust and Wells Fargo is a trustee had that been one of my complaints well and it’s it’s a good complaint because if the trust doesn’t give wells fargo the right to litigate then they’re out of court moreover summary judgment perplexingly was entered in this case when the case was not an issue there was no answer and no default and and I had a motion the judge head and I ago that the judge had we had a hearing the judge says you have 10 days to file an answer this is after a motion to stay says that verbally yes and I’ve been doing this for over four years 40 and a half years and for 40 and a half years I just said that ninety-five percent of time I filed an answer than ten days when the record doesn’t support and answer being filed when the rules required there in my motion to smiths paragraph five page 98 I i noted the court and i was up there was a scrimmage there noah sighs no assignment of the note or mortgage we go endorsement or that goin sideways the slap I hate the spin into the abyss but the note and I’ll ask your opponent this question as well but the original note mortgage was from fremont investment and loan correct correct round that’s not a legal entity is it i think it was a who you think as an officer of the court can you tell me what I can enjoy a nice little own is I’m not relying on we don’t know if that’s partnership we don’t know if that’s a corporation I think you’re right you have attached and quite honestly I’m not sure that a non legal entity can make an assignment of anything we know the assignment in this case on the note for reasons that escape me was on the back of the note when there were plenty of space on the front of the note but but there’s no evidence in this record it leads to my knowledge when the assignment was made and not in the acid Amos indebtedness either and the court back at bank of america funding in it and let me give you my last salvo and then i’ll hopefully be silent the plaintiff in this case alleged in their complaint is officers of the court and let me take a quick look at something yeah I’m not quite sure why their complaint needed the names of seven lawyers on it but it did and they alleged and I quote the conditions proceeded have all been met and and that’s not true it and i would also i would also admit to the court the face of it on the nose it specifically references the condition 2022 of the mortgages acceleration of remedies and all that the note on its Lane shows a condition they argue they’ve argued before this court in their brief and rely on the fact that it’s a negotiable instrument they claim i waived everything judge the waiver is a product of their non disclosure I the assignment of mortgage in violation of rule 1 point 0 e though was never provided me I had no idea there was assignment I argued motion Smith I was dumbfounded when it happens every time I can’t because the assignment on the back of the note is allegedly well from hits from fremont right that’s correct again but even in their complaint they allege that mers was a nominating which i think is I’m not sure what a nominee is but the banking setup I know what I know but they also allege that mers is a mortgagee now if Mars is the mortgagee

then MERS had to make the assign isn’t that right or am i missing something well that’s right judge if they are that’s what they alleged I don’t think it was true but that’s what they alleged not the assignment of mortgage I thought murder assignment I thought it was signed by fremont now I think merge signed it but I think Oh on assignment assignment morning’s right yes well that that is a document indeed sign by MERS which which brings us to a more perplexing point that the assignment on the note is from fremont but the assignment of the mortgage is from MERS as nominee but it’s dated four years after the alleged effective assignment and 23 days after who might as well that’s why I think it was done because a cause of action has to exist at the time the complaint is filed by using you by felt us in other cases of this court you can’t create a cause of action after you file the complaint and that’s what this assignment of mortgage looks like it’s trying to do and again judge i have spent an insane insane amount of hours on this case because it was so difficult to understand and i believe it had a significant kenter’s i put here pinto I’ve had my reply brief I know this it’s a case involving a bogus assignment mortgage that was in front of 4th district it’s now pending in the Supreme Court the assignment for each was not good but they presented it as a valid valid assignment of mortgage and they never went to judgment in this case we’ve gotta focus assignment of mortgage they literally consummated their what I believe is blatant for all upon the court and I believe this is systemic to the system in these trust cases many judges and with articulation much better than mine have articulated how it’s an interval machine that no one you know find the answers level of trial judges that’s got thousands hundreds of thousands of cases statewide I hyperlink to the website showing this trustee in this case sitting on but they claim to be Baron otes 897 million three hundred ninety two thousand dollars that they’re enforcing in Florida and the rest of the states I understand from general generalized there’s someone please six and ten trillion dollars with these trust Hortense’s out there now that may be high I don’t but there’s there’s nearly a billion dollars in this one trust and they’re not time with the rules they did for you a few cases in the law simpler than a mortgage foreclosure when you don’t layer in assignments and and if you have a loan from Smith mortgage to Joe Blow and Smith holes the paper and Joe Blow defaults Joe blows basically only defenses payment I agree judges it’s a very simple process but when lenders bring upon themselves assignment upon assignment and they bring in entities they call nominees and they don’t record assignments on the public records and an assignment of a mortgages from a different party than an assignment of a note and you don’t have a trust instrument it it creates a problem and I respectfully submit a judge that it wasn’t that difficult in this one right they knew they did not have an assignment of mortgage it was filed when they had none they after acquired it they’re charged to know that it’s see that that’s the problem that was some borrowers counsel believe that the obligation is going to go away if it almost no circumstances that’s going to happen but it does have to be filed correctly and it’d be nice to know you’re paying the right party yeah as I understand that the investors have paid for them what their Merrill Lynch has no money in this the investors bought the notes maryland’s now is actually its trustee I question whether Merrill Lynch has authority to do that judge if someone as I understand it at least in

these the dose was litigation is up in New York these investors assume these various brokerage houses and they got back maybe thirty cents on the dollar whatever this might be a case and there’s no way to tell from the record all I know is if there’s no way to tell who’s right party to pay and I don’t believe well in the banks have any we know unless we obviously see a lot of foreclosures and we see a lot of foreclosures where the loan was made april one of 05 and the party either never made a payment on the loan or made one or two monthly payments in him then it has lived mortgage free for years your client actually paid on this loan for four plus years that’s correct and again and and times got tough but then I got penalized for you know looting state I tried my best to negotiate its own and I am I was asking to reduce that principal down depressed a valuation and we’re out here and they didn’t work and I’m not a four-poster expert your honor but I I have done a lot of catching up by killing myself because I felt integrity of the triffids this year it was at stake if this court would find and I don’t understand why it hasn’t done that just on these these these notes that tie into the condition proceeding which could this court handle debussy bank I know the issue were different I read that in the answer of my opponents they says well that was three days no they didn’t give them time but as I understand and I have a definition in my initial brief definition says an unconditional promise to pay us some certain the note says is subject to the rule 22 that’s conditional it’s not a negotiation it’s not a better note and they’re trying to pass off these mortgages they find himself in the possession they’re trying to pass them off as no demand knows a dollar bill is a demand note from the Federal Reserve let me ask you a question to that in this case when when the case was filed Wells Fargo couldn’t have gotten a judgment because the exhibits to the complaint contradicted their ownership of the note and mortgage correct aren’t you that okay and then they come along and they file what they deemed to be a supplemental exhibit now a supplemental pleading by the Florida rules of civil procedure requires a motion but they never filed a motion they just file this and they tried to mask it as an amended complaint but they never filed an amended complaint today no okay but oh and these witness waiver are you judge they withheld a very documentation that would allow me to defend the case now when I when I filed that motion to dismiss under the rules that this product does no assignment of mortgage or an endorsement and if they wanted to say I waved anything I believe they waived the right to allege that by virtue of they’re not moving to strike but if they were move to strike I’m going to brought all that up then they would have been caught having to exposed to me the assignment of the mortgage which I would then said this case is out of here I mean I belissa necessarily true is it I believe so your honor opinion of our protocol Taylor and discusses an epileptic oval standing it says if you can show that you are the owner and the holder of the note at the time you instituted the lawsuit you have standing so the first part would be if the assignment does it if that feels you’re correct there’s still a secondary position that they could arguably attempt to establish I’m not suggesting day like this area I’m very aware of that case there is nothing in the trial record and they did not file records no agenda see theoretically that Avenue theoretically that’s correct or in the same thing I but there’s nothing in the record that would allow them to they did not even file a technical count I mean you know they think they relied on that what I believe is to be a disingenuous promissory note that they’re trying to pass off as a barren now just so you know you’ve got five minutes left you won’t use it for a rebuttal or you can

use it anyway well I would I don’t how to use one more minute okay I I would also ask ask this court to note that because of the i played was mimicked the public interest in getting these cases uh congestion in the courts the court considered if it does decide this is sanctionable conduct I would ask the court to consider the sanction be measured by the 890 two million three 897 million three hundred ninety two thousand dollar amount of bear notes they claim they hope not by the 185 thousand dollar mortgage case thirty percent of foreclosures are all the way in default and they can’t prove this case there’s not a court order default in this case is there no judge and I had problem appearance that there’s no clerks people they couldn’t do it you need a court signed order default on you yesterday and I’m and I mean there’s just so much I’ve had a very difficult time preparing for this because I’m not trying to take apart I just make sure I micropterus how this reserve four minutes up for well thank you judge miss Matson 20 times good morning a lot to cover and I feel I need to explain some things but the first thing that I wanted to highlight is the issue of the no default and and they no answer file take you through that the the judge verbally says you’ve got to file an answer by july five it was a written word and turn your honor okay but there’s never a default you’ve got it was no diva we submitted the status of the case is this the defendant filed a motion to stay initially back in november of 2009 after service it was never served on our office so we didn’t know about it we filed a motion for clerks default against the parties and it was returned to us by saying that was immediately define to see if i can short-circuited the this case was not at issue when the summary judgment was entered it was at issue because it was a court order that ordered him to file an answer by July fifth and instead he took made a tactical decision to instead by the motion city she really does us the case can only be an issue if there’s an answer or a default and it was it was not a mysterious yellow brick road that would have prevented Wells Fargo from obtaining a default or compelling an answer but they didn’t do it no your honor and I but I don’t believe for in order and moving on a motion for summary judgment it’s not a requirement that all the parties be defaulted it would be a default resin is there any authority that summary judgment can be entered when a case is not at issue that I don’t know your honor that I don’t know I’d be hard-pressed to think of such a butt that motion was reported scheduled for hearing at the same time as the summary judgment and the court denied it and because the court had already ordered them to file an answer by July fifth and they didn’t the court didn’t grantham additional time to file an answer but the court would have had the default here’s from this court how versus bad if a plaintiff moves for summary judgment before the defendant has filed an answer the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact now among a multitude of items of genuine issues of fact is that in your complaint and I say you’re on much I don’t believe you signed it but perplexingly to me it had multiple names on it there was a paragraph that was captioned conditioned proceeded and it said all conditions proceeded have been met now it’s not hard to know if you do mortgage foreclosures that you need to comply with the acceleration clause and that was never done by Wells Fargo was it it wasn’t raised in that permit of defense cannot equate my question is Wells Fargo never complied with the acceleration clause did this I can’t say because it wasn’t raised and I didn’t ask my client to present to provide me with a demand letter no hold on your firm specializes in mortgage foreclosures right yes young and every mortgage that I know of has an acceleration clause right your honor and so before you file the mortgage you send out the certified mail letter saying this is the data the default this is what you owe to bring current and you got 30 days or we’re going to potentially follow foreclosure absolutely that’s a condition proceeded and in your complaint you caption to paragraph either four or five say bold print condition preceded and you I mean your firm said all conditions preceded have been met Colonel is an officer of the court the signatures on that

complaint represented that all conditions proceeded had been met correct wasn’t true was it no it was too and I can’t I don’t I haven’t seen the letter but if so we have letter wait are you really suggesting that you don’t know no no I’m suggesting that we have when our client listen to me either you’re not telling us that you don’t know whether the acceleration letter was centered I hope you’re not saying that no I’m saying that when we get a referral it shows us on the the information that we receive from the client when the demand letter expired so it was not sure I’ve never in my 15 years had a case where a demand letter was not sent do you know judge black as I asked you was it sent in this case or not yes or no that’s a very simple question no I understand that but I have not seen it because it wasn’t raised as an issue in the case so you’re saying because it wasn’t raised you don’t know the answer to that question I luxury David I would rely on our business records on the referral that state is when the demand letter expired they tell us the demand better was latex like once its raised in a brief if in fact you had such a letter you would mention it somewhere in the record and up in the briefing somewhere not know because it wasn’t it wasn’t preserved for appeal wasn’t raised as an affirmative defense there was no obligation on our part before the 7th because it wasn’t raised you don’t know you just didn’t figure figured why bother to look it wouldn’t change it couldn’t affect the outcome I can’t bring evidence at the appellate level welfare so what I don’t understand is when I represent multiple banks as a lawyer and I always sent the acceleration letter and I had a pair of gray just like you have and I said attached is Exhibit A which is the acceleration letter you made the bold assertion but there’s nothing attached there’s nothing in this record I agree your honor there’s not us but for us pleading perspective that’s all that’s required the pleading with the pleading Rules of Civil Procedure allow you to make a general statement that the conditions precision geminis that officer of the court is not true they allow you to do that they allow you to do that yes and I’m saying if you know as an officer of the court there was no acceleration letter you can alleged know if I knew that there was no acceleration letter sent I could not allege it but we we would we receive a referral it indicates when the demand letter expires because that’s the important date you can’t file the foreclosure until that 30 days has expired so that’s part of the information that we get we don’t necessarily asked to see the letter unless it’s raised and it wasn’t raised in an investigation to determine whether or not the client is correct I’m sorry your honor there’s no independent lawyerly viewing of the clients file to verify that the clients represented now we have to accept their business records as being accurate at some point otherwise we would have to go into every single one of them to counter it and like I said in 15 years I’ve never procedure on a complaint right they and they would have reviewed the referral that came in that indicated when the demand letter expired on we have to rely on that there’s no way to go and behind and we don’t really get a copy of the letter unless it’s raised as an affirmative defense and again the rules allow a generalized statement of conditions proceedings and in this case the defendant was ordered to file an answer he could easily have raised that as an affirmative defense he had 30 days from the time he filed the motion to dismiss until the actual summary judgment hearing to file it he could have filed an affidavit in opposition and raised that as a defense he could have filed his the proposed answer that he ultimately filed a month after in his motion for rehearing but he didn’t do it it would agree with me that the cause of action must exist at the time the complaint is filed yeah yes what evidence is there in this record is when there was an assignment of the note I would suggest that there’s no specific evidence about that because the assignment of we did file an assignment of mortgage but it wasn’t filed as evidence because we had possession of the original note in dorsten blank we pled that we we owned and held it and we and we surrender the original note with a blank endorsement no endorsed and blank under the orr case is valid but it has to be assigned to your client before your client files the suit and there’s no evidence in this case when the assignment of the note was made on I do the assignment of mortgage that we did file although my head right now about the assignment of nodal move to the morning correct it there’s endorsements unknown certain are never dated much like it when you endorse the check there’s no date is there no okay and the assignment of mortgage the assignment of the note was from Fremont correct because the note that identifies the lender was Fremont the only entity that could endorse that would be fremont fremont investment and wallet illegal in

it I don’t know the status of pretty much I don’t believe they’re in business any longer but it’d be a problem if they weren’t if they weren’t we non-legal inity can’t make an assignment of anything kid well this wasn’t an assignment it’s an endorsement dad that’s the one by the senior vice president with that recourse on the endorsement karai forget a gentleman’s name I’m I yeah I don’t remember anything but yes it was without recourse I okay that’s what were you referring to right and not i believe went out of business and the thing is after the Harper assignment of mortgage says the effective assignment day is August 2305 correct the 2005 is if you look at the plaintiffs name it’s it’s a series on 2005 trust that trust was established in 2005 and this mortgage went into that trust on that date but it’s a this assignment is endure it is notarized October 29 2009 which conveniently is 23 or so days after you file your complaint correct and if your honors understand what the purpose of MERS was when it was organized enters no I think we but if the purpose of MERS was to eliminate the need for assignments of mortgage because prior to it prior to the securitization actually when I started doing foreclosure work it was a DC bank and then they sold it to XYZ bank and then they sold it to another one and you might have ten assignments by the time it went into foreclosure you recorded it in the county where the mortgage is correct so it was easy for a title search to find out who absolutely and that has a different function Mars was not that was designed for a different reason MERS was designed to eliminate the need for all of those assignments and the only time they really do an assignment is when it goes into foreclosure was what MERS the mortgagee mortgagee as defined in the mortgage yes and and and are the mortgagee and and nominee for that that lender and it’s a sign so if they took the place of free modest double as the mortgagee right they so how could free mod make an assignment when they were no longer the mortgagee they thought they’d endorsed a note they were still the lender on the note they would the lender never changed Marissa’s is a nominee always a loner and a mortgagee or two different things as defined in these documents yes relent for a different purpose so you have a lender on the note here i have MERS on the mortgage and that’s the trance the operational right and the purpose and the most was actually set up to benefit the public because the borrowers would get a mortgage that has a min number on it as a min number if you go to the MERS website you can call you can go in and you will always be able to find out who is servicing your loan and this was always a big problem before if they didn’t get the notice of Trance servicing transfer and when the loans were assigned solar serve the purpose of two things that eliminated the multiple assignments that might have happened and it also provided a base where the borrowers could go to always find out who was servicing their loan so that won’t be assignments when it’s a mom monomers originated mortgage like this one was you wouldn’t expect to see any assignment until it goes into foreclosure and because the rule the MERS rules say that if it goes into foreclosure it has to come out so that’s the assignments of mortgage in these cases on mom loans are almost always done after the foreclosures father at least after its referred to foreclosure so I would for t-ball I’m now the mortgagee right if you if you’re not executed an assignment of mortgage mortgage to me on the ward jr. okay but I don’t mix notes in mortgages those know then the notes get endorsed but the mortgages get assigned so when you say assign the note I get confused because i’m not sure what you’re referring to talk about the mortgage fremont assigns the mortgage to me I’m the mortgagee right okay I’m assuming this was not a MERS originated mortgage well murrs doesn’t change the basic rules of mortgage foreclosures and murs it’s not a friend of the borrower I’ve seen hundreds of these and trust me I haven’t seen one yet where verse was a friend of the more if MERS if Fremont assigns the mortgage to me on the mortgagee right correct fremont has no more connection to that loan to that obligation to that mortgage to the mortgage right but you’re mixing that notes and the mortgage again and i let me want endorse the note in blank which makes it a bearer note anybody who has possession of it can enforce it the mortgage murders assigned the mortgage to the plaintiff plaintiff actually had possession of the note they had possession of the note before the

complaint was filed we did not include loss no account because it wasn’t lost and we knew that I had it assuming that to be the fact that as I look at the record the document signed by the vice president mr. padlet so soon as the name has no date on it right so we don’t know if regretting it no I agree it whether it predates the falling help me out with the corporate assignment of work I’m looking at the one from MERS that’s in this record and it says as nominee in it it was just above the corporate seal says this assignment is effective I’m not trying to be argumentative I’m going to say it strikes me as that is a legal conclusion as distinguishing from this document was transferred on such and such a data types of such a time and then we make the legal conclusion that it was effect that’s my first concern and the second was I’ll make sure I understood your earlier argument just above the assignment it says together with the notes and we were having me followed two separate paths no more it’s right well me out here okay the note goes with this assignment but and now and this entity that the assignee also has possession of the original Oh aunt which contains a blank endorsement doesn’t go this was the more the mortgage dollars the note the note doesn’t follow correct so Wells Fargo was already in possession of the original note and the mortgage followed it the assignment was done for the purpose of getting it out of MERS and into the entity that father foreclosure action and who owned it since 2005 when it was placed into the trust and I agree your honor that the you know this adding the assignment is effective that date it’s not a custom assignment it’s a standard document that they use and that’s the only way that the preparers could get that information on to the document it would be nicer if it were a custom document and it said on such-and-such a date this deal you know to place and the mortgage we voted to a trust that they don’t do that is doing something on summary judgment where the moving party has arguably a burden of proof because the ultimate result is to deny someone a trial I’m just to make sure I understood all the documents are what they’re saying okay no I understand your honor and again it’s a it’s their form document and it doesn’t provide for that kind of language and in a different world and they could customize everything every it might look different if your honors have no other questions with regard then I make sure I’ve got a couple actually I have one he’ll make sure on the standing issue if I understand one of this Court’s earlier 2011 you can have but i think the opinion I think was Taylor said equitable standing so I go through the record on this case the emotions the affidavits they were found at support which document would you tell me to look for that would say that Wells Fargo was the owner and holder of this note on a date that precedes the day filing of the complaint is there a document I could look at or a series of documents she would drag me to there’s no doubt no specific document that says that the the pleading of the complaint where there’s no allegation that the note was lost we alleged that we were had possession of the of the of the note the note was originally directly after news it was filed correct you could but if we didn’t know that the clot that well so it didn’t have the note didn’t have possession of the note we would have included a loss no account we didn’t because we knew it and we knew it was coming to our office and when it did get there that’s when we made the copy that contain the endorsement and did the notice of filing as an amendment to be to the complaint to take the place of be the copy of the note that we receive what happens is is that usually one the mortgage referral the foreclosure referral comes in the lender gives you the copy of a note that scanned on their system that comes from the origination file which of course it’s before it’s been endorsed so that’s all we had to work with at that point but a month later the note the original note did get into our office on and it’s an unusual situation but the record shows that we did file a lost known affidavit at one point and it was by our office because it says you didn’t lose no we didn’t it does father didn’t well father didn’t lose it I want pointed out because it indicates our policy and procedure in our office and that we received the original note and we it was misfiled so prior to the summary judgment we didn’t have we couldn’t we didn’t have we didn’t know where the note was so we we filed a lost note affidavit and it is part of the record but after that we did located it was just misfiled is there any legal significance if I mispronounce the word alone shore-long launched that it appears on the reverse side of the note rather on the thing well there’s a different Anna launch is actually a separate piece of paper that gets affixed to the note that has the endorsement on it those usually are also not dated this case did not involve and a launch at all what he was seeing was it was the endorsement is on the back

page and that many endorsements are on the back page at the last page of the note and the only way to get that on the record is to copy it and so it looks like it’s on the on a separate page but it’s not it’s an endorsement if the stamped incorrect it’s a step it’s not in a launch I’ve ever seen in 40 years of the lawyer where the endorsements on the back really yes oh ma I’ve seen many any men here yeah yeah yeah no I do and I’ve seen many in the front two in two or three in the front but I’ve seen just as many on the on the back side at the last page so I don’t think that that’s unusual at all um and your time is up okay thank you well rebuttal I think the course question just brings out that Wells Fargo well in this case and they had full knowledge they were not providing full disclosure demanded by effort all cases tried in chancery and they had an obligation of good faith litigation practices in by by not filing the material documentation and attaching them attaching to the complaint showing the the note with endorsement the assignment of mortgage to verify the allegations of the complaint defense counsel is running around chasing and chasing air almost it’s the borrower’s rarely have any money my time being no different I mean they’re having trouble with their mortgage they don’t have money to stop this volume of paper or thrown out by the banks when the banks play hide and seek with the truth and equity there should be a session I have now spent over three years on this on this case but they’re about since 2009 it’s not right that a borrower is faced with one of our default I understand over thirty percent go away the fall when there’s 897 million ninety two thousand dollars release notes they can do that with they’re making 300 or more million dollars just on defaults and no one knows whether they were right or wrong I do not give now I cannot give them the excuse I believe it should be sanctioned I believe that we stop this conduct the decision by the second District Court of Appeals the congestion will be down by fifty percent or more this is the game they’ve been playing they’ve never been saying i don’t think i found a sanction more than seven hundred fifty thousand dollars if they only got sanctioned senator $15,000 twice in every hundred cases they would get out if they have mortgages average 200,000 then net out 2005 8 18 million five hundred thousand dollars profit would not have to improve their case that they got sanctioned seven thousand dollars twice and every hundred cases and i only found one or two I believe i mighta quoted the American West case but I disaster courts consider and I and I I made scooters there i said my motion for sanctions i had enough section power this Court has the inherent authority and equity it finds this conduct is outrageous as I do and it has the ability to squeal sponte under Rule 50 cent statute 57 105 first paragraph probably use the court when they find something and I believe this is not the similar to the the penalty case up there for the Supreme Court it would involve the boat well thank you thank you welcome thank you both