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).
I look forward to meeting Attorneys Peter A. Talevich and Philip M. Guess... in Court.
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).