Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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William A. Roper, Jr.
The Florida Court of Appeals for the Fourth District reminds us that disputes in material fact created by the Plaintiff's own evidence will preclude entry of a summary judgment.  This is another conditions precedent case.  The case is:
Valencia v. Deutsche Bank National Trust Company, No. 4D09-3297, (FL App. 4th Dist., Decided June 22, 2011)
http://www.4dca.org/opinions/June%202011/06-22-11/4D09-3297.op.pdf
The decision is only two pages and therefore is a quick and easy read and therefore probably should speak for itself.

I DO find troubling the last sentence of the second paragraph, which seemingly suggests a rather major strategic blunder on the part of the defendant, though perhaps this can be explained by other facts of record not mentioned in the decision.  The second paragraph reads:
"For some reason, the lender had not retained a hard copy of the letter notifying the borrowers of the default, but instead produced two possible letters that could have been sent.  Both letters contained a cure date of October 8, 2003.  Although the original letter was found by appellants after the summary judgment hearing, it contained a different date and different amount owed."
It is UNCLEAR how it would come to pass that the discovery of the actual letter after the summary judgment hearing would have gotten this letter into evidence and in the record considered by the appellate court.

One possibility is that the defendants might have testified by affidavit that they never received the letter and that upon discovery of this letter that their attorney felt they had some duty to come forward with the letter to correct what might have otherwise been false testimonyThis would seem to me be a pretty good reason to file the letter.

The other possibility is that upon discovery of the letter after the summary judgment hearing, that they thought that this actual letter might be a basis to have the original judgment overturned on the basis of fraud on the court.

The defendant may have sought to have the judgment vacated by motion.

If this is the case, this seems to me to have been a major blunder.  As is evident by the decision, discovery of the letter was unnecessary to get the summary judgment set aside on appeal.

As we have so often seen in prior threads, defendants seem to feel impelled to rush forward and present to the opposition and Court their best evidence, often prematurely.  Such would seem to be the case here.

Unless the defendants had erroneously and falsely testified about receipt of the letter, it seems to me that a better strategy would have been to keep the actual letter as a little dry powder for an actual trial on the merits.

Bear in mind that IF the plaintiff could offer no more conclusive testimony under oath as to the authenticity of the notice of default, they were NOT going to win at trial either.  Now the defendants have given the plainitiff the evidence which the plaintiff was unable to find within its own files.

The possiblity of proving fabrication of evidence, while interesting, is far from conclusive on these facts.  Given the premature pleading of the actual letter, the defendant has given the plaintifff a wealth of possible and plausible explanations for the prior disputed evidence.

The plaintiff can probably say that they are uncertain of the origins of the earlier letters and that maybe they were unsent drafts.

The point is that without someone coming forward and swearing to the authenticity of these letters with greater certainty, they were not admissible.  And it would ONLY be within the context of developing other evidence of fabrication that the defedant had any prayer of keeping this as a potent issue at trial.  By prematurely presenting the actual notice, the defendant wins the battle, but loses the war! 

If only the defendant has resisted the impulse to rush to court and tell the court the truth.  What might have instead happened is the reversal and remand, followed by the plaintiff's voluntary dismissal of the case, with the plaintiff doing a new notice and bringing a wholly new action.  OR the plaintiff might have proceeded and faced further discovery about the conflicting letters.

Of course, IF the plaintiffs served a request for production, the defendants would have had a duty to bring forward the actual letter.

NOTE:  I AM NOT AN ATTORNEY AND THIS IS NOT LEGAL ADVICE!

Comments by others, and particularly those with knowledge of the facts of record in this case, are solicited, encouraged and appreciated!
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William A. Roper, Jr.

Special thanks to Alina for bringing this case to my attention yesterday!

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