14 October 2016 Update: John Stumpf resigned, is fired, or whatever.... he's out. See this BBC story. It pretty much doesn't matter who replaces him, what matters most is that he and some of the corporate low-life thugs who presided over the fraudulent accounts and fraudulent Chain of Title processes be imprisoned. I wrote their attorneys today:
On Oct 13, 2016, at 06:31 PM, Christopher King <email@example.com> wrote:
It's always tough to lose a CEO.I was friends with Pat Bricker we played tennis together and I remember when his dad got the axe but it was nowhere near as nefarioushttp://m.legacy.com/obituaries/houstonchronicle/obituary.aspx?n=william-h-bricker&pid=17024896&referrer=0&preview=falseCiao
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We all know that in NY Attorney Linda Tirelli, the Federal District Court and BK Judge Michael Drain are busy schooling Wells Fargo for manufactured documents. From the 5 October Adversary Complaint in Franklin v. Wells Fargo:
Further, the Bankruptcy Court determined that Wells Fargo’s corporate witness, Mary Ellen Brust (“Ms. Brust”), lacked credibility and offered no information as to how or if Freddie Mac ever possessed the Debtor’s Note. Nor did Brust have personal knowledge regarding the condition of the indorsement on the note as her testimony was that she never saw the original note.Further, right here in Seattle, Washington we see the same exact sort of shenanigans in the case I have been working on or following for the past two (2) years as a housing advocate until I had to pass it off to local licensed Counsel Scott Stafne. Inadmissible Affidavits from people who had no Firsthand Knowledge of anything per FRE Rule 602. They never learn. They just keep on bullying, it is their modus operandi, part of their creepy corporate DNA.
Read this journal entry for more. Much more. I'm sure David Dayen and I will discuss it all on Saturday at his book signing. You remember Writer Dayen, right? From Seattle's Marie McDonnell fiasco where they hired her as a paid consultant yet refused to allow her to present her work on the MERS/King County Audit even as Multnomah County actually sued MERS.....
Note: The book signing for "Chain of Title" (NY Times) has been postponed owing to inclement weather.
26 August Update: It looks like K & L Gates is possible Special Counsel. Take a look, and as you do so, read the lower portion of this Revised Journal Entry including reference to a relevant Ohio case, Riddle v. Wells Fargo Bank N.A., 2015 U.S. Dist. LEXIS 147694 (2015).
Meanwhile, today's 1 Oct 2016 email to all Counsel
2 minutes ago at 6:29 AM
I've got quite the library over the years. I forgot my observations of Wells Fargo even include a lawyer I am damn sure committed PERJURY.
"I've got the original Note in my desk back at the office," he says in hushed tones. I had to push the volume in order to render it audible from the shotgun mic.
SURE you have the original Note back at your office, Attorney Masterson.... sure you do.
2 minutes ago at 6:08 AM
To coin a phrase from Geico: "When you're Wells Fargo, you make up documents..... it's what you do!" I am in NY right now -- New Rochelle -- and may stop over to see Attorney Tirelli, whom I have cc'd in this case on multiple occasions. Fascinating how life works, isn't it. No, I'm not asking.... I'm telling. (I'm actually here for my mother's birthday and some work on a certain homicide case but hey in all my spare time, right....anyway I'm sure she's quite proud of my work and that's what counts).
I like Fn 8/9 and the subsequent discussion, which I am now placing on my journal page:
8 Although Wells Fargo states in its brief that it objected to the admission of the Kennerty deposition and that the bankruptcy court “never actually admitted it” and should not have admitted it because the testimony “was not relevant to the issue being tried, and clearly was more prejudicial than it was probative,” (Appellant Br. 16, 20), Wells Fargo does not directly challenge the use of the testimony in its Statement of Issues Presented on Appeal. Regardless, the testimony was relevant to the issue of whether the indorsement was authentic. Seeing as he signed the Assignment of Mortgage, Kennerty obviously had some role with respect to Debtor’s loan. He also testified based on personal knowledge as to the practices of the assignment and indorsement teams at Wells Fargo. The fact that Wells Fargo had assignment and indorsement teams that, as the bankruptcy court found, would act to improve the record with respect to various notes and deeds of trust in Wells Fargo’s possession, makes the fact that the indorsement at issue here was added after-the-fact to improve Wells Fargo’s standing more probable “than it would be without the evidence.” Fed. R. Evid. 401(a).
9 Also, as with MERS’s/Kennerty’s lack of authority to assign the Deed of Trust in light of the fact Washington Mutual had ceased to exist, the In re Tarantola court found that the afterthe-fact allonge would have been ineffective to transfer the note because the party executing it “had no authority to do so.” In re Tarantola, 2010 WL 3022038, at *4. It stands to reason that a claimant who is willing to execute an unauthorized document to create standing is more likely willing to forge a blank indorsement to create standing as well.
Wells Fargo contends that the evidence relied upon by the bankruptcy court consisted entirely of unjustified speculation and conclusory allegations that cannot serve as the competent evidence necessary to overcome the indorsement’s presumption of validity. (See, e.g., Appellant Br. 20 (“The Bankruptcy Court’s assumption . . . that Kennerty must have forged indorsements is precisely the sort of speculation that cannot rise to the level of ‘competent evidence’ that the [blank] indorsement . . . was forged.”); Reply Br. for Appellant Wells Fargo Bank, N.A. (“Reply Br.”) 2 (Dkt. No. 24) (“Speculative and conclusory assertions are all that the Bankruptcy Court and [Debtor] could point to.”).)
Wells Fargo is correct that if Debtor’s evidence merely raised some “metaphysical doubt” as to the validity of the indorsement, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), Debtor would not have satisfied its burden and thus would not have overcome the presumption of validity in § 3.308, see, e.g., In re Connelly, 487 B.R. 230, 244 (Bankr. D. Ariz. 2013) (holding that the plaintiff, who challenged the authenticity of a deed of trust and other relevant documents but only “promised to bring forth additional evidence at a later date,” relied on “metaphysical doubt [rather] than evidence deserving all reasonable inference”).
Here, however, Debtor has not relied on mere speculation and conclusory assertions to overcome the presumption. Rather, Debtor offered specific evidence from which the bankruptcy court found that a reasonable juror could draw the inference that the blank indorsement was not genuine. Wells Fargo’s arguments to the contrary are not persuasive.
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Oh, brother. Remember last year when I told you about the file that had the two Allonges in it, one direct from Deep Green to Wachovia/Wells Fargo and one endorsed in blank? And how when I asked WF which one was attached to the Note, they told me it was the one in blank.... which was bullshit because they are only saying that so that they can play the bearer paper game, right: Holder of the Note has the Right to Foreclose.
You see, when I asked for the Original Note it was MIA but they had some guy who actually worked at Kay Jewelers or Zales -- one of the two I forget -- sign a Lost Note Affidavit even though he couldn't have any Actual or Constructive Knowledge of what the hell he was talking about because he was busy slinging lowbrow jewelry to the masses when the family allegedly signed the Note. Insane, right? But welcome to the Wacky World of Wells Fargo. Honorable U.S. Bankruptcy Judge Robert Drain cracked Wells Fargo's head open over similar fabrications not long ago so one would think they would learn, right? Apparently not, so they want to pass this Rule 11 hot mess on to the next Counsel, so I can go badger them when it comes time for a public Court hearing right.
Well anyway since that time we've seen Marie McDonnell review the purported Allonges and she agreed and went on to say that they're not even recordable documents.
Meanwhile in the related Foreclosure Case Snohomish County No. 16-2-02643-3, Wells Fargo even committed a Rule 11 violation in my opinion by arguing that they were in First Position. This is an argument heretofore never advanced and believe me I have been deep into it with their Routh, Crabtree & Olsen ("RCO") attorneys for more than a year as a housing advocate before referring it out to Learned Counsel Scott Stafne. So Ms. McDonnell and Attorney Stafne worked together and Counterclaimed a Fair Debt Collection Practices ("FDCPA") Action, which apparently predicated RCO or the client (WF) to punt for new, Special Counsel, identity not disclosed. And when I say not disclosed, I mean not disclosed for a couple of weeks now to my understanding.
The family's renewed offer of Settlement remains stagnant and on the table, I guess. Guessing is all one can do at this point because none of this makes any sense. Read the recent emails below with RCO Attorneys Synova M.L. Edwards and Janaya L. Carter at the helm:
Licensed to Practice Law in Washington
Licensed to Practice Law in Idaho, Oregon and Washington
Dear Attorney Carter:We have not spoken yet but you may have heard my two-allonge phone call on the C____________ file.It is my understanding that you and your client basically committed a Rule 11 & FDCPA violation by falsely claiming that Wells Fargo was in the First Position. Mr. C__________ informs me that he in turn filed an FDCPA Counterclaim as you and your client knew they had no colorable claim relative to your position.Mr. C___________ also informs me that he and his Counsel made you and your client a Settlement offer that remains unanswered, and he further informs that you and your client have represented that new, special Counsel is joining, has joined, or may possibly be about to be joining this case.Could you please clarify your client's position before I go to press this Friday, 26 August, on:1. Your belief that WF was in the First Position;2. The identity of new, special Counsel, and;3. Your client's position on Settlement and apparent Bad Faith failure to respond to Mr. C____________ Offer of Settlement.Relative to my phone call on this, there are pictures of the allonges you can download at the link below; I know that Marie McDonnell researched them and she agreed with me that not only are they fraudulent, they're not even real, valid recordable documents. I was a Title Insurance producer/Closing Escrow Attorney by the way so it's not my first time at the rodeo, so to speak.You may know of my by way of Wetmore v.NWTS, a prior case involving, in part, my journalism.Attorney Edwards is well aware of the history and is therefore copied on this email.Please advise.
I don't need them to advise me of anything. I ran my Lexis search, not finished yet but check this out, especially the Ohio case at the end.
For the foregoing reasons, Wells Fargo's motion to dismiss is granted. In so ruling, the court does not hold or even suggest that Wells Fargo did not violate the FHA, that Wells Fargo did not engage in reverse redlining, or that the direct victims ofWells Fargo's alleged misconduct do not deserve compensation (they have received compensation thanks to the diligent efforts of the DOJ and the Attorney General of Illinois). Rather, the court's ruling rests solely on its conclusion that, on the complaint' allegations, Cook County is not within the FHA's zone of interests. Because Cook County has brought only an FHA claim, the complaint is dismissed.
The plaintiffs' motion to certify California classes to pursue UCL claims for fraudulent business practices is granted, for essentially the reasons set forth in the prior ruling. Like a Rosenthal Act claim, a UCL "fraudulent practices" claim turns on an objective standard (although it is a different one): whether "members of the public are likely to be 'deceived.'" In re Tobacco II Cases, 46 Cal. 4th 298, 93 Cal. Rptr. 3d 559, 207 P.3d 20, 29 (Cal. 2009) (quoting Kasky v. Nike, 27 Cal. 4th 939, 119 Cal. Rptr. 2d 296, 45 P.3d 243, 250 (Cal. 2002) (internal quotation marks omitted)); see also Rubio v. Capital One Bank, 613 F.3d 1195, 1204 (9th Cir. 2010). Every potential class member's claim will therefore be driven by common questions similar to those driving their Rosenthal Act claims: whether the Trial Period Plan document's language was likely to deceive reasonable consumers into thinking they would receive permanent loan modifications if they complied with its terms (or perhaps into thinking Wells Fargo would either give them modifications if they met their obligations under the TPP, or notify them before the end of the three-month period if they didn't qualify).
Accordingly, because these factual averments were not attributed to Wells Fargo's conduct, it is not proper to amend a pleading through briefing, and Plaintiff has been granted several attempts to amend her complaint and justice does not require that the Court grant such leave again, it is respectfully recommended that Wells Fargo's motion for summary judgment be granted. Additionally, because the Court finds that Plaintiff did not adequately preserve this claim against Wells Fargo, whether it is barred by the statute of limitations need not be discussed.
On January 12, 2011, Dionne Riddle filed a motion to set aside the judgment on the basis that the allonge and the assignment of the note and mortgage were invalid. (Motion to Set Aside Judgment, Doc. 3-4, Exh. 4). Dionne Riddle argued that the allonge was prepared by LSR as part of the foreclosure proceedings because it bore that firm's "LSR number" that corresponded to the foreclosure case. Dionne Riddle also asserted that: (1) the signer of the allonge, Melissa Viveros, was an employee of Countrywide Home Loans, not Fremont; (2) the allonge was not notarized; and (3) the allonge did not bear a stamp indicating that it had ever been recorded.
Here, Wells Fargo argues it proved standing because it "asserted in its complaint that it owned and held the note and mortgage, and produced the original note bearing a specific endorsement [in its favor]. Clearly, it met the burden established through Florida case law." However, when Wells Fargo filed the complaint, it attached a copy of the note, which was in favor of Homefield and unendorsed. Wells Fargo did not file the original note with the three either undated or pre-note-execution-dated allonges until the trial date. This alone is insufficient to establish standing at the case's inception.Tilus v. AS Michai LLC, 161 So. 3d 1284, 1286 (Fla. 4th DCA 2015) (citing Bristol v. Wells Fargo Bank, Nat'l Ass'n, 137 So. 3d 1130, 1132 (Fla. 4th DCA 2014)).
Wells Fargo also argues the chain of allonges attached to the original note proved standing, but this argument also fails. The first allonge contained a blank endorsement from Homefield, but it was undated and not affixed to the note when the complaint [**8] was filed. See § 673.2041(1), Fla. Stat. (2013). The second and third allonges show a chain of endorsements from Homefield to Option One to Wells Fargo, but they are dated before the original note was executed, contain a different loan number than is found on the original note, and have a different note execution date than is found on the original note. See Cutler v. U.S. Bank Nat'l Ass'n, 109 So. 3d 224, 225-26 (Fla. 2d DCA 2012).
Wells Fargo could have proved through its analyst that it owned or held the note prior to filing the complaint because the endorsement occurred prior to filing the complaint. See Sosa v. U.S. Bank Nat'l Ass'n, 153 So. 3d 950, 951 (Fla. 4th DCA 2014). But, the analyst testified that he did not know when the allonges were executed or when they were affixed to the back of the original note.
Put simply, Wells Fargo failed to establish standing at the time the complaint was filed. We therefore reverse and remand the case for entry of judgment in favor of the borrowers. Murray v. HSBC Bank [*1175] USA, 157 So. 3d 355, 359 (Fla. 4th DCA 2015).
(i) BB&T has failed to establish that it has attained the status of "holder."
A person is a "holder" if the person possesses the note and either (1) the note has been made payable to the person in possession, or (2) the note is payable to the bearer of the note. UCC § 1-201(b)(21)(A). This inquiry requires examination of the face of the note and any endorsements. An endorsement means a signature, other than that of the
Here, the Promissory Note was payable to Colonial Bank. (Dkt. #86 at 23.) The Allonge includes Tamara Stidham's endorsement (in her capacity as FDIC's attorney-in-fact), and states that it is to be affixed [*11] to the Note. While the copy of the Promissory Note attached to BB&T's Response includes the Allonge, the copy attached as an exhibit to BB&T's Motion for Summary Judgment does not include the Allonge. (Dkt. #80-1 at 2.) This is not sufficient to establish that the Allonge was affixed to the Note. Thus, BB&T has not established that it is the holder of the Promissory Note. In order to enforce the Promissory Note, BB&T instead must prove it became a "nonholder in possession of the instrument who has the rights of a holder" under UCC § 3-301(a)(2).