- Deutsche Bank v. Fastiggi; 08-CA-052491 - update
It was a bizarre day in trial today. Plaintiff brought one witness, a guy from Ocwen. Saxon was the original servicer through default and for about a year after the case was filed. Our first affirmative defense (standing) and our third affirmative defense specifically made the negative averment required to challenge a signature on a note as provided by F.S. 673.3081. Plaintiff's Reply to our Answer alleged Riggs controlled and that they did not have to authenticate the signatures on the allonge as they were presumed authentic. The questionable signature was actually a stamp of Steve Nagy of New Century. The note had plenty of room on it for several signatures, but carried none except those of our clients. Our clients admitted that their signatures on the note and mortgage were originals. We had Lynn Szymoniak to testify about the signatures. Our fourth affirmative defense was lack of acceleration.
Plaintiff entered the note and mortgage into evidence. The authenticity and reliability of the allonge was separately challenged by us. Initially, Judge Holcomb agreed that we had placed the authenticity of the allonge signatures into question, but after further reading of F.S. 673.3081, he determined that the first sentence didn't mean what we thought it meant. He determined that the second sentence in the first paragraph of that statute said that the signature was presumed authentic unless the action is to enforce the liability of the purported signer - and the "signer" in this case would then be Steve Nagy - and since this was not an action to enforce the liability of Steve Nagy, F.S. 673.3081 did not apply and we could not attack the authenticity of Steve Nagy. Here is the statute:
673.3081 Proof of signatures and status as holder in due course.—
(1) In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or incompetent at the time of trial of the issue of validity of the signature. If an action to enforce the instrument is brought against a person as the undisclosed principal of a person who signed the instrument as a party to the instrument, the plaintiff has the burden of establishing that the defendant is liable on the instrument as a represented person under s. 673.4021(1).
(2) If the validity of signatures is admitted or proved and there is compliance with subsection (1), a plaintiff producing the instrument is entitled to payment if the plaintiff proves entitlement to enforce the instrument under s. 673.3011, unless the defendant proves a defense or claim in recoupment. If a defense or claim in recoupment is proved, the right to payment of the plaintiff is subject to the defense or claim, except to the extent the plaintiff proves that the plaintiff has rights of a holder in due course which are not subject to the defense or claim.
Jim beat back every attempt Plaintiff made to get their guy from Ocwen to get into evidence anything that happened at Saxon through the business records exception. Plaintiffs counsel was frustrated and the court told Plaintiffs counsel it would not advise him how to get those documents in over Jim's numerous and strong objections. So the Plaintiff could not establish through their Ocwen witness 1) a debt; 2) a default of the debt; or 3) acceleration.
Plaintiff then called our clients who admitted that this loan was a refinance to pay off a prior loan. The undisputed evidence is that our clients are people who were paying the full amount of their mortgage every month. Each month Saxon would send a payment coupon and the clients would pay over the phone. At some point Saxon had downwardly adjusted the escrow payment in error. Our clients continued to pay the amount represented on their payment coupon every month, which now included a smaller payment due to the reduced escrow component. When they went to pay the March, 2008 payment coupon, Saxon rejected the payment and stated that the payment coupon sum was not correct (it was Saxon's coupon) and that the Clients had to pay many thousands of dollars more due to an escrow error. (This number too was grossly in error as the apparent imbalance was probably about $1,600.) The clients testified that they told Saxon they could pay the many thousands of dollars if spread out over 36 months, but Saxon refused to work with them and instead brought a foreclosure action.
Plaintiff could not get our clients to admit a debt, default or acceleration either because they actually never received the notice of default. If you examine the Reply brief, you will note that Shapiro and Fishman attached the acceleration letter to it. They blacked out the Post Office certified mail tracking number. In court today, the Plaintiff attempted several times to present the default letter with an attached unsigned Certified Mail Return Receipt from the Post Office. However, this one differed from the one attached to their Reply brief because it did not have the tracking number blocked out. We ran the tracking number on the Post Office website and it came back that the document did not exist. Attorney Catherine Jones ran to the Post Office and talked to them about the document. They too found that the document didn't exist. They said that they could not come to court to testify about whether it was delivered, but that their procedures for tracking a document were available on their website and that all they could offer is that website. Because ultimately that document never made it into evidence, this issue never matured to the point where we would try to somehow get the Post Office document tracking result into evidence. But it is noteworthy for your cases that if you see the tracking number blocked out on the Post Office Certified Mail Return Receipt, it probably was never sent and you need to have someone from the Post Office to testify to that. So Plaintiff's apparently attach an unsigned Certified Mail Return Receipt with a tracking number no longer blacked out to give the appearance that it was delivered. Note that Plaintiff argued strongly that this gave the presumption of delivery in the form that it was in.
Plaintiff rested and we moved for a directed verdict. After we argued on a directed verdict, Judge Holcomb agreed that the Plaintiff had not presented those elemental facts of their mortgage foreclosure and said that he thought a directed verdict was appropriate, at which point the Plaintiff immediately moved to amend the complaint to allege an equitable lien.
Judge Holcomb felt the equitable lien would have to be granted because there was proof of payment of a prior mortgage with the funds (based on the authenticity of the allonge not being in question). It became apparent that we would not finish the trial today, so we put on Lynn Szymoniak to preserve her testimony in the event of an appeal.
Lynn was amply qualified as an expert witness in forensic document analysis to determine whether signatures were fraudulent. She has been admitted as an expert many times in state and federal court, has years of experience and has authored works, so it was very easy to qualify her. Lynn's testimony and opinion about the alleged signature of Steve Nagy on the allonge was that it was merely a stamp and that it didn't even look like his real signature, of which she had an example of, right out of our own court clerk records (certified copy of A.O.M. in some other case) which is Defendants A for identification (Defendants admitted evidence is represented by a number whereas evidence that hasn't been admitted is given a letter designation). She had testified that she had seen Steve Nagy's signature about 500 times and felt competent to opine as to whether the signature on the allonge was that of Steve Nagy. Her opinion was that the signature of Steve Nagy on the allonge was not his real signature and appeared fraudulent. The Plaintiff's objection to that testimony and Defendants Exhibit A for identification was relevance (why would it be relevant if I can't challenge the Steve Nagy signature in the first place). Lynn also testified that the signature of Linda Green on Defendants Exhibit B for identification too was fraudulent, based on about 10,000 signatures of Linda Green that she had reviewed. Lynn went into great detail and also used enlarged demonstrative evidence.
The entire PSA and Prospectus was admitted into evidence (Document 59 in the register of actions). I pointed out several parts to those documents where the indorsements are required to be on the note and may only be on an allonge in the event that there is no room on the note. Our note had 3/4 of the page left blank, so there was plenty of room on it. I also pointed out that the PSA and Prospectus required a complete chain of endorsments and that the endorsements of two of the transferree's were missing. Plaintiff argued that this was a contract between the Trustee, Servicer and Certificate Holders and that defendants were not parties thereto. I had prepared a brief and presented it to the court that New York law applied (section 12.3 of the PSA), that New York law prevented the trustee from acting ultra vires, and that this violation of the trust was at least more evidence that the authenticity of the signatures on the allonge were in question.
The court then continued the trial to March 11, 2011 at 11 a.m. for a briefing on the allonge (the court exclaimed that it had never seen an indorsement on the allonge), ruling on the admissibility of Lynn's testimony, the admission of Defendants Exhibit A and B for identification and for closing.
In conclusion, and as usual, if we lose we will probably appeal. But, because it appears that a signature stamp indorsement on a note or an allonge can never be challenged, what effect would that message send to a fraudulent document mill other than start pumping out stamped indorsements on allonges?
Any advice and comments are welcome.
George Gingo Gingo & Orth
3239 N. Hwy. 1
Mims, Florida 32754
Office: (321) 264-9624
P.O. Box 838
Mims, FL 32754