The simplest way to get a new document into evidence at trial is to list it on the pretrial catalogue and include a copy of it when serving the homeowner or counsel for the homeowner.
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I have seen this ploy used hundreds of times and it usually works because the document is listed as something that the homeowner believes he or she has already seen. But it is brand new and it changes the entire case. The case proceeds as though something else was in the pleading filed against the homeowner.
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In a recent case, I noticed in the pretrial catalog field by the foreclosure mill that a new document was suddenly listed. A copy of this newly fabricated, false document was provided. I researched it and found no evidence of it in my files.
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It was a “Demand Letter” that did not quite conform to a Default Letter as required by statute. It was not referenced in the pleading nor attached as an exhibit to the original pleading. In short, it made a brand new case without any pleading or exhibits. And if I and not caught it the homeowner would have missed an opportunity to throw it out, thus defeating the contention that US Bank had fulfilled all conditions precedent — an allegation that is often made and never true.
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Here is the edited correspondence that followed between the client and me and the lawyer now leading the charge (since I no longer appear in court):
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I wrote to the client: “I also notice that the opposition has provided a copy of a Demand Letter that looks like a notice of default but does not conform to the requirements of a notice of default. I don’t know if you ever actually received the demand letter. A specific motion to strike that exhibit should be filed, in my opinion, since it is not a notice of default, it provides no date of default and it fails to provide the information regarding the data used to compute the alleged arrearage. And of course they are not saying they are servicing the loan on behalf of US Bank or anyone else. I never received this Letter. I have kept EVERY piece of correspondence ever received from all of the entities who claim to have ever been involved in this issue, and have stacks of correspondence as a result.”
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The client responded, as I suspected: “I have NEVER received any such letter. I have the original “Notice Of Default” from 2008 but nothing of that nature on the 2018 foreclosure. I can guarantee they don’t have a legitimate “Return Receipt Requested” to prove that it was delivered to me or anyone else at this address. It would seem that common sense dictates that anyone with half a brain would have required said receipt for an issue involving $250K.”
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My Comment: I have been in trial wherein US Bank was named as Plaintiff multiple times in Florida. In each case — including the prior case against this client — they attempted to introduce a newly fabricated document that never existed until shortly before trial. I made my comment because, with my memory issues, I thought that perhaps I had forgotten about this demand letter. Frankly its appearance on the exhibit list surprised me because I have maintained throughout the current litigation that no new default letter was sent. And this letter is not really a default letter.
So the legal issues that are presented are as follows:
- The referenced demand letter was not attached to nor referenced in the complaint. If it qualifies as a default notice, then it changes the entire defense narrative — if they can show that US Bank now has ownership of the underlying obligation by having paid for it. And to be consistent with our res judicata argument, ownership must have been acquired after the 2016 trial and Final Judgment.
- And if they’re taking the position that this Demand Letter satisfies the statutory requirements (conditions precedent) to filing a foreclosure action, it was never received by Hollinsworth.
- I would point out that occasionally correspondence was sent to me instead of Terry, but I never saw that demand letter either.
- So you have three witnesses — X, Y and Neil who will all say that up until the exhibit list was filed in the pretrial catalogue (which is now subject to a motion to strike for other reasons) we neither knew about nor saw or received that Demand Letter.
- X is right. They should be required to show proof of mailing. It is a long-time trick that the attorneys hired to say that US Bank is a plaintiff will produce a document that is part of the “records” of the company designated as a servicer, as if it was sent. In most such cases, upon objection by the homeowner, the document is rejected (ruled inadmissible).
COMMENT: YOU NEED TO REMEMBER THAT OCWEN/PHH IS A FRONT FOR FINTECH SERVICERS. Financial technology companies are creating documents based upon AI algorithms that are difficult if not impossible to trace back to any human intelligence.
Virtually all documents related to the cases that have been filed against the client were prepared by such Financial technology companies who have been redesignated by the CFPB (May, 2022) as “Servicers” because they are doing the actual record keeping, receipt of funds etc.
Ocwen/PHH is merely a letterhead that those companies are allowed to use. Documents are sent electronically to the prosecuting lawyers (in this case Z, at XYZ law firm) as if they came from Ocwen/PHH. In reality, they come from a computer server that is owned, maintained and administered by FINTECH servicers who are working for investment banks. In this case, original investment bank was Lehman. In plain language, Ocwen/PHH undertakes no action and makes no decisions except as ordered by the controlling investment bank (Wells Fargo).
Persons without any personal knowledge of anything are hired to appear as robowitnesses and the employer is Ocwen/PHH. They will always testify they are familiar with the records of Ocwen/PHH. They will never testify, even under cross-examination or voir dire, that they are familiar with the records of US Bank.
Such “bookrunners” never own any debts allegedly due from homeowners. But they control the administration, collection and enforcement of the presumed or implied debts. Wells Fargo took over control when Lehman went bankrupt (its schedules showed no ownership of any “loans”). This is why the Payoff in the prior case was sent in the name of Wells Fargo because not even the foreclosure lawyers in the prior case understood what was going on.
There was also a filing in the name of OneWest that could have been a simple error but also could have reflected the fact that Wells Fargo was trying to leverage the FDIC deal with OneWests in which the FDIC covered 80% of all reported losses.
And once again, I state what was my premise in both cases: there is no unpaid loan account on the books or records of US Bank and there is no trust account maintained by US Bank in which the client owes any implied obligation. No trust is alleged nor identified in the pleading. The case style contains a group of words that is nothing more than a fictitious name that gets transferred when a new investment bank assumes control. The implied “entity” contained in that group of words in the case style does not exist and is not alleged to exist.
THIS IS WHY THE CLIENT’S OFFER TO PAY THE AMOUNT DEMANDED WAS TURNED DOWN — WHEN I SIMPLY ADVISED WE WANTED US BANK, AS PLAINTIFF, TO ACKNOWLEDGE THE SETTLEMENT, THE ANSWER WAS LITERALLY, “WELL THAT WILL NEVER HAPPEN.” — _____, FORMER COUNSEL FOR US BANK.
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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 12 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).
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yuh i had Cenlar fsb produce a POA proving their role as a “servicer” to Plaintiff US BANK which was expired and of no force or effect PRIOR to even filing my foreclosure ! aside from the fact they were a sub servicer but insisted to the court that they were servicer and then denied that they were servicer ….all documented rfas , interrogatories, contested answer ..but these nj state courts are corrupt
I commend your diligence and your client was very fortunate to have you as their Defense attorney.
I suffered a similar situation with a very unfortunate outcome where fabricated documentation was introduced just before trial and was allowed in by the Judge and my Defense attorney while authentic documentation that challenged and refuted that fabricated document was removed prior to the trial.
I was aghast that the bank won their case on a fabricated loan using fabricated documentation to prove that the foreclosed loan was not fabricated.
I have learned a lesson that it all comes down to the integrity of your Defense attorney and the Judge.