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U.S. BANK, NATIONAL ASSOCIATION, etc., Appellant, v. ROSA PAIZ, et.al., Appellee. Case No. 3D11-891 Lower Case: 09-16102
APPELLEE’S MOTION FOR REHEARING EN BANC COMES NOW, Rosa Paiz and Rigoberto Paiz, referred herein as “Homeowner”, by and through the undersigned attorney, and
pursuant to Florida Rules of Appellate Procedure 9.330 and 9.331 (d), hereby moves this Court to grant rehearing en banc. The undersigned counsel expresses a belief, based on a reasoned and studied professional judgment, that the panel decision on
whether the trial court can stay the execution of a writ for possession in a foreclosure case, in order to look further into allegations of fraud on the court resulting from the pattern and practice of the plaintiff in submitting of affidavits in support of summary judgment signed is by individuals whose claim of to of
§702.07, and Florida Rule of Civil Procedure 1.540(b) is
exceptional importance as it has a direct bearing on Florida 1
judiciary’s struggle to fashion an effective remedy to deal with the worsening foreclosure crisis affecting our state. In support of this Motion, Appellee expressly relies on the Appellant’s Appendices as filed with the Court and certain
matters of public records and public knowledge cited herein. BACKGROUND FACTS Appellee alleged fraud on the court in their Emergency
Motion under Fla. R. Civ. P. 1.540(b) to set aside judgment, and re-open the case filed post foreclosure sale (A.15). The
challenges raised by Appellee below were whether the subject loan has been included in securitized trust specified by
Plaintiff in the foreclosure suit, whether the affidavits of amounts due and owing executed by notorious robo-signers China Brown and Herman John Kennerty submitted in support of summary judgment were at all reliable, and whether the affidavit of Lisa Cullaro as to the reasonableness of the attorney fee added to the judgment was executed in violation of the Florida Bar Rules of Professional Conduct (A.14, A.17). As a result of the allegations, the trial court held two separate hearings to inquire further into these allegations.
Based on what it learned, the court issued two specific orders; one staying the execution of a writ of possession based on final judgment of foreclosure, and the other continuing the stay of the writ and permitting discovery. In the order dated February 2
18, 2011, Judge Joseph P. Farina cites to, in extending the proceeding, (A.16). US Bank filed an interlocutory order and on August 17, 2011, this Honorable Court reversed the trial court on the Appellee’s motion alleging Fraud on the Court
ground that Florida Rule of Civil Procedure 1.540 “is designed for the correction for of clerical from mistakes and to provide orders a
proceedings under certain articulated and limited circumstances. It is not a substitute for a timely appeal.” ---So.3d --, 2011 WL 3586132 (Fla. App. 3 Dist., 2011). This motion for re-hearing en banc timely follows. ARGUMENT Appellee respectfully submits that this Court has
inadvertently treated the proceeding below as one considered by the circuit court pursuant to Florida Rule of Civil Procedure 1.540 (b), provisions (1) through (3), which have a one year limitation while the record in fact reflects that the circuit court became sufficiently concerned about fraud on the court to rescind the sale temporarily so that additional discovery can be held. In fact, Appellee relied upon the saving clause of Rule
1.540(b) which provides: “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding, or to set aside a 3
Guardian Life Insurance Co. of America.2d 699.” 12 James Wm. 128 L. a judgment would always remain subject to challenge.. 700 (9th Cir. that intrinsic fraud or fraudulent It makes sense between the misconduct parties has a higher standard a more strict time table because “[I]f fraud on the court were to be given a broad interpretation that encompassed fraudulent misconduct between the parties. Kokkonen v.2d 391 (1994).Ct. 1673. 645 F. 2010). 511 U. Moore. Moore’s Federal Practice [c] (3d ed. there is no time limit to move for relief from judgment due to fraud on the court because any court has the inherent power arising from the control necessary vested in it to manage its own affairs and to achieve the orderly and expeditious disposition of its business. 377.Ed.judgment or decree for fraud on the court. On the other hand.” Id. 114 S. 4 .. et. 375.S. al. and the oneyear time limitation applicable to motions based on [Civil Rule 60(b)(3)] would be meaningless. Although the rule language refers to the court’s power to “entertain an independent action”. it makes no sense for the party sounding the alarm of fraud on the court to wait to file a separate action when the court could very well address the transgression as soon as it is made known in the same case. Boise Cascade Corp.1981) (district court “had jurisdiction over plaintiff's claims of fraud on the court in the earlier settlement”). Valerio v.
997. the trial court has proper jurisdiction to 5 . 328 U. one of which is afterdiscovered fraud [upon the court]. v.2d 167. 64 S.Ct. relief will be granted against judgments regardless [of when they were entered].S. v. 88 L. 90 L. 1176. 580. Additionally. 375. v.”). 114 S. 1250 (1944) (“From the beginning there has existed alongside [rules of finality] a rule of equity to the effect that under certain circumstances. Universal Oil Products Co. Fraud has long been recognized as an exception to finality that justifies setting judgments aside. United States.Ed. 511 U. Southeastern Colorado Water Conservancy Dist.S.”).Ct.2d 21 (1976). 31. 380. 1447 (1946) (“The inherent power of a federal court to investigate whether a judgment was obtained by fraud is beyond question. Root Refining Co. and then try to bring an independent lawsuit to address the fraud committed in the foreclose case by opposing party or their counsel.In the context of a foreclosure case where fraud on the court has been alleged. 854 P. Hartford-Empire Co.Ed.Ct. 176 (Colo.Ed. 66 S. 244-45. 17. Guardian Life Insurance Co.. overruled on other grounds by Standard Oil Co. 128 L. loses her house. v.S. 238. Kokkonen v..Ct. 322 U.Ed. Cache Creek Mining Trust. 1673.2d 391 (1994). 97 S.S. See Hazel-Atlas Glass Co. 575. Federal courts have the inherent power to vacate judgments on proof of fraud. 50 L.. it would be enormously unfair for the homeowner to be denied relief from judgment.1993). 429 U.
” This statute has been interpreted and applied by the Florida Supreme Court to grant relief from judgment even post foreclosure sale. or set aside a decree of foreclosure of a mortgage of property at any time before sale does not deprive a circuit court of jurisdiction to set aside or reconsider a foreclosure judgment upon a proper motion once a foreclosure sale has been held). Stat. 2d DCA 2007)(Statute granting circuit court authority to rescind. Ass’n. Seminole Rock & Sand Co.2d 658 (Fla. Bank Nat.07. see also Maule Indus. vacate. Day.2d 307 (Fla. shall have jurisdiction. 136 So.. Of importance is Judge Altenbernd’s explanation of the history of §702. Sterling Factors Corp. 1006.S.1956)(The Florida Supreme Court has concluded that section 702. and authority to rescind. 91 So. and the judges thereof at chambers. Fla. power. v. 102 Fla.. Inc.rescind the sale and order discovery in this case under the statutory authority of §702. which provides that: “The circuit courts of this state.. U. and to dismiss the foreclosure proceeding upon the payment of all court costs. vacate.07 does not deprive a court of jurisdiction to set aside a foreclosure judgment once a foreclosure sale occurs). v. 701 (1931). see Taylor v.07 and how it is so relevant to modern-day 6 . and set aside a decree of foreclosure of a mortgage of property at any time before the sale thereof has been actually made pursuant to the terms of such decree. 968 So.
n. in their zeal to process hundreds of thousands of foreclosures as quickly as possible and get those properties on the market.residential foreclosures and its application must be utilized to level the playing field for embattled homeowners: There is no discussion in the case law regarding the legislative history of this statute. at least. endorsements to promissory notes. 968 So. but not yet remedied. assignments. which would provide more protection for the banks and purchasers. The collapse began in 1925 and 1926. Sterling Factors. would not seem to support the negative inference proposed by the Nesters. it seems likely that the statute was enacted during these hard times to give trial judges more power to protect landowners by expressly permitting the court to take actions after the final judgment of foreclosure and before the sale that were not previously authorized. 5. 1996). and other documents to facilitate summary judgment and foreclose sale of homes in default.. See William W. however. History.2d at 663. Fortune & Misfortune: The Paradoxical Twenties. a reporter of the New York Times wrote: Chase and GMAC. in The New History of Florida 294-96 (Michael Gannon ed. It is noteworthy. Thus. David Streitfeld. The pattern and practice of banks in foreclosure litigation has included the use of robo-signers to sign affidavits. Rogers. that it was enacted before the modern rules of civil procedure and at a time when many Floridians were facing foreclosure and ruin due to the collapse of the Florida real estate boom. emphasis added. employed people who could 7 . This pattern and practice has been on-going and exposed.
October 6. . which those workers acknowledge they have no time to do. Although the foreclosure in that case was upheld.” In depositions taken by lawyers for embattled homeowners. (Schott Vocab. when the Federal Deposit Insurance Corp.sign documents so quickly they popularized a new term for them: “robo-signer. 2010. It’s a department dedicated to simply signing documents.blogs. Nickname for those who processed large numbers of foreclosure affidavits. the robo-signers said they or their team had signed 10.com/2010/10/06/robo-signers/. 8 . But that’s impossible because Washington Mutual Bank FA changed its name in 2004. Kennerty testified that he signs 50 to 150 documents a day. As to the entity involved in the instant case. verifying only the date on each. he supposedly transferred the mortgage from Washington Mutual Bank FA to Wells Fargo on July 12. Robos-signers. What else might Kennerty want to verify? Well. Wells Fargo did not dispute Kennerty’s signing practices. Wells Fargo.nytimes. Wells Fargo Flatly stands behind its practice. 2010) http://schott. took it over. Now that haste has come back to haunt them. Abigail Field of the Daily Finance wrote: For example. and by any name WAMU ceased to exist in 2008. Herman John Kennerty of Wells Fargo gave a deposition describing the department he oversees for Wells Fargo. in one document he signed that I’ve reviewed.000 or more foreclosures affidavits a month. . in one case I reviewed. the affidavits in foreclosures attest that the preparer personally reviewed the files.
000 proceedings after finding some statements “did not strictly adhere to the required procedures. To permit “foreclosure actions to proceed based upon these false and fraudulent papers would be to accept dishonest and bogus behavior in Maryland courts. Maryland homeowner asked a court to dismiss any Wells Fargo & Co. sometimes processing as many as 500 in two hours. the biggest U.” Saidman said in a motion filed Oct. Susan Saidman asked a Montgomery County court to recognize as a class all defendants in Maryland cases with foreclosure papers signed by Xee Moua for Wells Fargo.S. 2010) http://www. In a March deposition in a Florida case.dailyfinance. Moua said she didn’t verify all the information in filings she signed. foreclosure actions in the state that involve affidavits given by a bank employee who said she signed documents without completely checking their accuracy.” The San Francisco-based bank has said it chose to resubmit the documents out of “an abundance of caution” and that none of “these instances led to foreclosures which should not have otherwise occurred. 29. Robo-Signing: Documents Show Citi and Wells also Committed Foreclosure Fraud. Wells Fargo.” Ohio Attorney 9 . The law firm couldn’t be reached by telephone yesterday after regular business hours. said last week that it will file supplemental foreclosure affidavits to courts in about 55.(Daily Finance.” Saidman raised the defense against members of Shapiro & Burson LLP. home lender. October 2. “Such a result would be an assault on the rule of law.com/2010/10/02/robo-signing-scandalspreads-documents-show-citi-and-wells-also/). a law firm that she said brings foreclosure actions on behalf of Wells Fargo and other secured lenders.
Moua’s supervisor. She’s seeking civil penalties and punitive damages. The Maryland case is Burson v. Montgomery County (Rockville). “We believe we have designed an appropriate process intended to insure the quality of customer and loan data in foreclosure proceedings. a Wells Fargo spokeswoman.bloomberg. 2010-CV-1373. homeowner Ann Piwinksi brought a suit yesterday accusing Wells Fargo of violating the state’s Consumer Sales Practices Act. the Ohio case is Piwinski v.” she said. it would not be appropriate to provide a response on pending litigation. Saidman. Marysville. Hers is the first civil case in the state against Wells Fargo involving the use of so-called robo-signers. http://www. Wells Fargo Bank. Ohio. Circuit Court.General Richard Cordray last week asked judges in his state for copies of foreclosure affidavits filed in their courts and signed by Moua.html In the case sub judice. Appellee advised the circuit court that said pattern and practice of using robo-signers is present and that the affidavits submitted by Herman John Kennerty and 10 . 323096V. said yesterday. “Without seeing the specific information. according to court filings. Ohio. Fairfield County Court of Common Pleas (Lancaster).com/news/2010-11-01/wells-fargoforeclosure-robo-signer-draws-maryland-dismissalmotion.” Vickee Adams. Piwinski said documents in her foreclosure case were signed by China Brown. John Sherrod of Dublin. according to her lawyer. He sent a separate letter to Wells Fargo asking the bank to vacate any foreclosure judgment in Ohio involving incorrect affidavits.
The signers of these documents do not examine any actual books 11 .” (A. To dispute these attestations by Kennerty.17. and documents kept by Wells Fargo Bank”. do not have personal knowledge of anything they attest and affix their signatures to. Appellee provided the trial court with a copy of Herman John Kennerty’s deposition in an unrelated case where Kennerty testified at length about Wells Fargo’s system of generating documents specifically to suit the foreclosures in all states. records. on behalf of Wells Fargo as the servicer of Appellee’s loan are unreliable because these individuals have been documented as lacking sufficient knowledge and information to verify the accuracy of the contents of their affidavits and other documents in aid of Wells Fargo’s foreclosures. It becomes crystal clear to the reader of Kennerty’s deposition that signers like Herman John Kennerty. and has “personal knowledge of the facts contained” in the affidavit as well as “personal knowledge of facts regarding the sums of money which are due and owing to Plaintiff or its assigns pursuant to the Note and Mortgage which is the subject of the lawsuit. Kennerty swore in the affidavit that he is a Vice President of Documentation for Wells Fargo Bank.China Brown. Attachment C). Herman John Kennerty himself submitted two affidavits of amounts due and owing in this case. is familiar with the books of account and has similarly “examined all books.
Okay.of account or records of the loan in question. No. And you’re looking at the documents to make sure that the date is correct and consistent with the date you’re signing the document. correct? A. How often do you actual sign documents? A. Somebody comes and brings you those documents and you sit down to sign them. A. Q. Daily. The matrix is updated daily. All they do is sign the documents that have been generated for them: Q. I’m not looking at the matrix. And you’re looking on a computer screen at the foreclosure matrix that you described to me to make certain that the name of the foreclosing-of the beneficiary on the document that you’re signing matches with the matrix. Okay. How many employees do you supervise? A. 12 this . is that correct? A. Q. Can you tell me about how many documents you sign a day? A. **** Q. Anywhere from 50 to 150 **** Q. Q. Yes. matrix? What are you looking at on the A. That’s not correct. Q. And we currently have 15 contract workers. 53 full-time employees. and information is pulled from that matrix.
you don’t have any independent knowledge about whether or not the information is truthful. Attachment 3. (A. Q. Q. ***** Q. Correct. 8-9. A. swore to the following: 13 . So you’re simply signing the document that’s presented to you and you’re just making sure that the date is correct. you’re relying on the other people in the process to make sure that the information is correct on the document that you’re signing? A. Q. in her affidavit. pp.Q. It’s generated from our foreclosure departments. Not my employees. A. So you’re relying upon your employees to have the correct information in the matrix system? A. 63-64) In addition to Herman John Kennerty. There are people that are responsible for the – for maintaining that matrix. 17. Correct. Okay. this case involves an affidavit signed by China Brown as to amounts due and owed the Plaintiff. Specifically I don’t know who. Q. And so when you sign this beneficiary declaration and any other beneficiary declaration. China Brown. Fellow Wells Fargo team members. Who puts the information into the matrix? A. Depo Transcript. So how do you know when you’re signing this document that is true and correct? A. 61-62.
. in another assignment of mortgage recorded in OR Book 23875. Attachment A) Because Appellee suffered a default judgment in this case. records and documents kept by WELLS FARGO BANK.A. in an assignment of mortgage recorded in OR Book 23875. (A. on May 18.I am Vice President of Loan Documentation (title) of WELLS FARGO BANK. For example. as well as other affidavits filed by plaintiff counsel in support of summary judgment and granted the same. China Brown also signed as VP of Loan Documentation for USB Mortgage LLC. concerning another property and mortgagors. Palm Beach County. China Brown also signed as VP of Loan Documentation for Wells Fargo Bank. Yet there is cause for concerns because China Brown is also a robo-signer who swears to and signs different types of documents in foreclosure cases for different banking corporations. 14 . as Trustee for SASCO 2007-WF2 pursuant to the Note and Mortgage which is the subject matter of this lawsuit. the circuit court expressly relied upon the foregoing attestations by China Brown. I am familiar with the books of account and have examined all books. 2010. Palm Beach County. Page 0742. in addition to being Vice President of Loan Documentation for Wells Fargo. N.. I have personal knowledge of the sums of money which are due and owing to US Bank National Association. Specifically. Page 0472. N.A. . . On that same day.17. I have personal knowledge of the facts contained in this affidavit.
Appellee brought to the lower court’s attention that there were discrepancies between Kennerty’s affidavit and Brown’s affidavit as to the per diem interest. 15 . is the point that the circuit court wanted to investigate further and for good reason. explained the Appellee in the motion hearing.2d 371 (Fla. Rather.1st DCA 1983) (both agency and courts can judicially notice existing inflation and its effect on a utility company). Florida Public Service Com'n. Citizens of State of Fla.These are simply matters of public records that this Court could take judicial notice of. Mitchum v. it raises the question of what other discrepancies or non-truths that these affidavits represent and whether the court can confidently rely on them to grant Plaintiff summary judgment.2d 298 (Fla. Again. The point of this discussion. 1st DCA 1971) (Judicial notice is the cognizance of certain facts which judges and the jurors may properly take and act upon without proof because they already know them). is not whether the discrepancies harm or help Appellee in the calculations of the final judgment. State. 251 So. The fact that China Brown has signed for so many different corporations and has sworn to so many matters so readily where the matters require the average person’s utmost attention to detail and careful examination of substantial amount of information and data. v. 440 So.
Ice said both Lisa and Erin Cullaro's signatures varied in appearance. When Erin [Cullaro] started work for the attorney general's office.” The reliability of Lisa Cullaro’s affidavits too. according to court documents.L. the Cullaros changed roles: Lisa Cullaro served as the expert witness. notarized the affidavits. has been questioned in other foreclosure cases. Appellee challenged the propriety of the affidavit in the proceeding below and asserted that Cullaro violated the Florida Rules of Professional Conduct where Cullaro declared that in her opinion. P. and in one particular case. When she left the firm. protested. be unreasonable. she continued to serve as an expert witness for the firm. defense counsel was interviewed by a news reporter: Ice detailed his questions in court documents filed in the 7th Judicial Circuit in Volusia County. “a review of the actual file in this case would be unnecessary and futile” and that “under no circumstances could the fee be charged by FDLG. and he wants to question the two about it.. but a Volusia County judge agreed in early April 16 . Ice said [Erin] Cullaro worked as a lawyer with Florida Default Group before she worked for the attorney general's office. The Cullaros. and Erin Cullaro notarized the documents. signing affidavits to establish that the firm's fees were reasonable. Her sister-in-law.As to the affidavit of reasonableness of attorneys fee submitted by Lisa Cullaro. Lisa Cullaro. through lawyers.
(A. State AG Investigates Its Own. Respondent began providing affidavits to Echavarria without reviewing the files before completing the affidavits in those cases that would be disposed of by Summary Judgment. Attachment 5) . Erin Cullaro. Florida Default Law Group is representing Wells Fargo Bank. May 1.to allow Ice to ask the two limited questions.8. emphasis added. pp.7. 22-26. A. Florida Bar.com.tbo. 2010). (TBO. In fact. Woodard stated in the consent judgment that he had signed “thousands” of these affidavits: Once it became apparent to the Respondent that the files involving uncontested matters were all essentially the same. and attached a copy of the Consent Judgment for the circuit court’s consideration where Woodard conceded essentially the same conduct of signing and attesting to reasonableness of fees without ever reviewing the actual file as a violation of the Florida Bar Disciplinary Rule 4.20. Ice thinks the questions may help his foreclosure lawsuit. http://beta2. acted as notary (A. In that case.20. and her sister. SC03-1351. This has not yet happened.com/business/business/2010/may/01/bz-state-aginvestigates-its-own-ar-47218/ Not only does the Affidavit of Lisa Cullaro match this pattern described by the news reporter in that she signed. Attachment 6) 17 .4 (c) and (d). Appellee also referred to the case of Woodard v.
in some cases as long ago as 2005 and 2006. banks. August 31.. Several dozen documents reviewed by American Banker show that as recently as August some of the largest U.S. said pattern and practice has yet to abate. The practice continues nearly a year after the companies were caught cutting corners in the robo-signing scandal and about six months after the industry began negotiating a settlement with state attorneys general investigating loan-servicing abuses. They and some industry members say the related mortgage assignments. especially in Florida where we have been ravaged by residential foreclosures. Ally Financial Inc. Many banks are missing the original papers from when they securitized the mortgages. 2011. Wells Fargo & Co. should have been 18 .It is extremely difficult for the average person to comprehend how widespread and persistent the problem of robosigning and faulty documentation is because despite a multitude of publicity. showing transfers from one lender to another.. were essentially backdating paperwork necessary to support their right to foreclose.. Some of documents reviewed by American Banker included signatures by current bank employees claiming to represent lenders that no longer exist. according to plaintiffs' lawyers. and OneWest Financial Inc. An article on the American Banker appears just yesterday. reads in part: Some of the largest mortgage servicers are still fabricating documents that should have been signed years ago and submitting them as evidence to foreclose on homeowners.. including Bank of America Corp.
Fla.) Most of the pooling and servicing agreements governing securitizations require a complete chain of endorsements. Some courts have endorsed that view. According to a document submitted in a Florida court by Bank of America Corp. such as the Massachusetts Supreme Judicial Court. This means the promissory note (the piece of paper the borrower signs promising to pay the loan) and all intervening mortgage assignments showing transfers from one lender to another must be delivered to a trust within 60 days of the securitization closing date. bank assistant vice president Sandra Juarez signed a mortgage assignment on July 29 of this year that purported to transfer ownership of a mortgage from New Century Mortgage Corp. "But they're making up new documents. have found that this amounts to a lack of sufficient evidence and renders foreclosures invalid." says Lynn E. to a trustee. but others. was seeking to foreclose on behalf of the trust and its bondholders. a subprime lender. went bankrupt in 2007. Szymoniak. as the servicer of the loan. a plaintiff's lawyer in West Palm Beach. 19 .completed and filed with document custodians at the time of transfer." The banks argue that creating such documents is a routine business practice that simply "memorializes" actions that should have occurred years before.. "It's one thing to not have the documents you're supposed to have even though you told investors and the SEC you had them. Deutsche Bank. Two problems with that: New Century. and the Deutsche Bank trust that purported to hold the loan was created for a securitization completed in 2006 — about five years before Juarez signed it over to the trust. (Bank of America.
2011. the chief executive of Legalprise Inc. http://www. August 31. B of A had power of attorney to sign on New Century's behalf. and that servicers are supposed to audit the loan before proceeding with a foreclosure. 954 (Fla.3d 950.com/issues/176_170/robosigning-foreclosure-mortgage-assignments-10417411. says such mortgage assignments are simply "procedural steps" to prove to a court that a trust has the right to foreclose on a borrower. 57 So.Y." says Michael Olenick.1989). In Pino v. a West Palm Beach.. 4th DCA 2011). Fla.americanbanker. the plaintiff filed a complaint based upon a bogus contract and attached that bogus document to its complaint. Mobil Oil Corp. Bank of N. that the loan was properly assigned to the trust and that the debtor is genuinely in default. When the defendant became 20 . "They're supposed to make sure the trust is the correct trust.2d 1115 (1st Cir. Robo-Signing Redux: Servicers Still Fabricating Foreclosure Documents. But other mortgage industry members argue that the burden of proof is on the banks to show their legal right to enforce a debt. In Aoude v. In the Juarez case.Jumana Bauwens. and wrote: One federal appellate decision makes the point well. Judge Polen cautions the judiciary to address the widespread infection of fraud upon the court via foreclosure proceedings. she says. a spokeswoman for B of A. 892 F... American Banker. research firm that tracks foreclosure filings and other court records for attorneys. Mellon.html Clearly our judges too have taken notice of this outrageous phenomenon and are trying to combat it.
The court of appeals affirmed both holdings. In an appeal plaintiff argued that the attempted fraud arising from the use of the bogus agreement had no effect ultimately on defendant's ability to litigate the case or on the court's ability to make a just decision on the merits.’ ” 892 F. The trial court granted the motion. That being so. When [plaintiff] concocted the agreement. they plainly thought it material. BNY Mellon's attempt to allege and file the assignment of the mortgage was undeniably based on a belief in the necessity for—and the materiality of—a valid assignment of mortgage. arguing that the dismissal of the first case barred the claim permanently. too.aware of the falsity of the contract sued upon. As Aoude forcefully makes clear. a party should not escape responsibility and appropriate sanctions for unsuccessfully attempting to defraud a court by purposefully evading the issue through a 21 . it moved to dismiss the case for the attempted fraud on court. Defendant's colorable showing of possible fraud in the making and filing of the assignment led to the scheduling of the depositions of those involved in making the document and the notice of depositions led directly to the voluntary dismissal to avoid such scrutiny for an attempted fraud. The trial court again granted the motion. and thereafter when he and his counsel annexed it to the complaint. responding: “The failure of a party's corrupt plan does not immunize the defrauder from the consequences of his misconduct. So.2d at 1120. defendant again moved to dismiss. ‘[t]hey are in no position now to dispute its effectiveness. When plaintiff later refiled its claim and attached the real contract. The court rejected the argument on appeal that the attempt to defraud the court had failed and thus could escape punishment.
3d 555 (Fla. reliable evidence. See In re Amendments to Rules of Civil Procedure.110(b) is amended to require verification of mortgage foreclosure complaints involving residential real property.3d at 556.s. (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note.] 44 So.” [e. the Supreme Court promulgated changes to a rule of procedure made necessary by the current wave of mortgage foreclosure litigation. the court pointedly explained: “[R]ule 1.voluntary dismissal. as here. I think this rule change adds significant authority for the court system to take appropriate action when there has been. a colorable showing of false or fraudulent evidence. 44 So. Decision-making in our courts depends on genuine. 22 . The judicial branch long ago recognized its responsibility to deal with. The system cannot tolerate even an attempted use of fraudulent documents and false evidence in our courts. Recently. and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations. We read this rule change as an important refutation of BNY Mellon's lack of jurisdiction argument to avoid dealing with the issue founded on inapt procedural arcana.2010). This issue is one of unusual prominence and importance. (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded ‘lost note’ counts and inconsistent allegations. The primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate. In approving one amendment.
However. including (without limitation) the striking of a voluntary dismissal filed in aid of such conduct. i.e. courts must be most vigilant to address the issue and pursue it to a resolution.and punish. including its decision to rescind the foreclose sale temporarily to allow discovery. Pattern and practice is commonly known as continuous and repeated conduct rather than single isolated occurrence. I would hold that the trial judge had the jurisdiction and authority to consider the motion under rule 1. the attempted use of false and fraudulent evidence. Courts have interpreted the term “pattern or practice' in accordance with the usually meaning of the words. McLean v. GMAC Mortg. specific instances of fraud committed by US Bank on the Appellee within the litigation..540(b) on its merits *960 and—should the court find that a party filed a false and fraudulent document in support of its claim—to take appropriate action. 23 . Appellee was alerting the circuit court to a widespread and insidious pattern and practice employed by banks in foreclosure cases without any regards for the rules of law. When such an attempt has been colorably raised by a party. Id at 959-960. This Court statement in the opinion that the instant case “is a prime example of allegations that nibble at the edges of fraud” would be absolutely correct if Appellee were simply trying to prove intrinsic fraud. and the circuit court was sufficiently concerned to do something about it.
Inc.R. at 123. Inc.2002) (failure to respond to one qualified written request did not amount to a “pattern or practice”).Mass.Fla.Fla. 281 B. 1365 (S.R. 467 (11th Cir. May 2. 2nd 863. 209 F.D. 2000 WL 536666. 682 (Bankr.D. 98–2457.M.D. 101.”).Corp. 595 F. then a pattern and practice of fraud on the court has been proven to warrant further discovery to see whether this pattern and practice has infected the bench. 123 (Bankr. 273 B. In re Maxwell.D. see also In re Maxwell.. 2000). then the allegations voiced by Appellee are no longer nibbles but the certain and destructive shredding at the fabric of our judiciary.D. where Appellee introduced evidence showing that the system utilized by Wells Fargo in execution of documents dispositive to the issue of summary judgment is flawed and where all the affidavits submitted in this case are questionable because their signers have engaged in robo-signing several times... Keystone Bank. perhaps thousands.2010).Supp. Appx. HomeSide Lending. No. *10 (E. (“The term suggests a standard or routine way of operating . 398 Fed. Here.2001) (citing Cortez v. affd. 2nd 1360. This is proof that the circuit court acted on its own power and discretion to investigate further and whether Appellee 24 .2009).Pa.Ill. 869 (N. Ploog v.2002)(failure to respond to qualified written requests on five occasions was sufficient to establish a pattern or practice”).Supp. 281 B. In re Tomasevic.R.
and in the end an honest development of the facts of a controversy that will end in a just result.S. Inc. 538. Dist.2d 601. A fraud upon the court is one which interferes with the judicial machinery itself. Extrinsic fraud has been defined as going to the jurisdiction of the court. 118 S. Court of the Ninth Judicial Dist. It is such as prevents the party complaining from making a full and fair defense.Ct. 557. respect for the court as an institution and for its orders. fraud upon the court implicates interests that transcend those of the parties. Thompson. 70.has suffered actual prejudice by the discrepancies and irregularities is not a determining factor. (“[c]ourts are vested with very great and far-reaching power to control their business and proceedings and to enforce their orders and process in conducting the business of a court. because it calls into question the legitimacy of the court's judgment. v. Extrinsic fraud corrupts the judicial power and serves to turn a court of law into an instrument of injustice. or which operates to deprive the person against whom the judgment was rendered of an opportunity to defend the action when he has a meritorious defense.. 1489. People ex rel. Thus. 169 Colo. See Calderon v. 453 P. or constituting a fraud upon the law of the forum.2d 709. Fahrenbruch v. 735 P. Bi–Rite Package. Courts must have these very great powers to ensure civility. 140 25 . orderly procedure. Taber. 76. 605 (1969). 523 U.
this Court reviewed the dismissal of an independent action challenging a judgment secured by an affidavit made by the adverse parties that was knowingly and falsely made and which formed the basis of summary judgment.2d 763.2d 728 (1998). Fla. The complaint further alleges that the false affidavit was a basis for the summary final judgment entered in the prior action. reversed the trial court. any judgment. but void ab initio. Florida Rules of Civil Procedure. the judgment is not voidable. supra. Kutner v.540.1965. judicial resources would be conserved by this Court’s approval of the circuit court’s order of discovery to get to the bottom of Appellee’s allegations of fraud on the court in this case right now. are likely because under this scenario. Sterling Factors. Kalish. 173 So.App. and held plainly: “We find that the complaint alleges the making of an affidavit by the adverse parties which was knowingly and falsely made. Independent actions of homeowners who had been foreclosed by robo-signed affidavits and manufactured documents because if these were serving as a basis for a judgment. For the criticism that Appellee failed to address these 26 . In 1971.Ed. We think that if these charges are proved they are sufficient for relief authorized by rule 1.L.” If a fraudulent affidavit that successfully secured a summary judgment can be challenged in an independent lawsuit down the road.
Inc. Comm'r of Internal Revenue. or §702. Coleman (Parent) Holdings. Stat.issues prior to summary judgment. having the lawyers put the legitimacy on these affidavits and filing them with the courts. misconduct appropriately vindicated via criminal contempt proceedings and/or grievances filed with the Florida Bar).1997)(alleged improper conduct must have an effect on the outcome of the decision to challenge the rule of finality). Where banks install this elaborate system of generating whichever documents required in a particular foreclosure case. See Drobny v. 113 F. who then rely on them to grant summary judgment. in discovery such that does not is prejudice more the final rather. Morgan Stanley. 20 So. In particular. the failure is relevant to the consideration of a motion of vacate judgment pursuant to the grounds enunciated in the subsections of the rule. 958-959 (Fla. but not under the saving clause.3d 952. Fla. having people sign them and attesting to their accuracy without any personal knowledge or review. 678 (7th Cir. v.07.3d 670. 4th DCA 2009)(A motion for relief from judgment is not the appropriate vehicle for handling attorney misconduct judgment. the pattern and conduct alerted by Appellee is not fraud involving a single litigant or a single case but an elaborate scheme involving score of lawyers as officers of the 27 . the evil of fraud goes directly to the heart of the summary judgment and changes the outcome of the case.
”) Where the reliability of the subject affidavits in support of summary judgment could/should have been tried in the case prior to sale.D. we find a deliberately planned and carefully executed scheme to defraud not only the Patent Office but the Circuit Court of Appeals. the larger issue of creating questionable summary affidavits in and filing them in court other bench. and of its complete success up to date. This is not simply a case of a judgment obtained with the aid of a witness who. supra. there is no fraud upon the court within the meaning of [FRCP] Rule 60(b).. And no equities have intervened through transfer of the fraudulently procured patent or judgment to an innocent purchaser. the United States Supreme Court granted relief from a judgment obtained through an on-going fraud orchestrated by counsel as fraud upon the court that began nine years earlier: Every element of the fraud here disclosed demands the exercise of the historic power of equity to set aside fraudulently begotten judgments. is conclusive.C. Hartford-Empire. its 625. 28 .1969)(“[W]here officers involved. Proof of the scheme. on the basis of after-discovered evidence. Here.court. is believed possibly to have been guilty of perjury. In Hazel-Atlas Glass Co. Lockwood v. Bowles.D. 632–34 are not (D. v. the court 46 or F. to obtain is no judgments cases the where of the the party it is unrepresented affects integrity longer Appellee’s missed opportunity but a significant public interest that demands this Court’s immediate attention. even if we consider nothing but Hartford's sworn admissions.R.
2d 889. The dispute here is whether the circuit court proceeded under the intrinsic fraud or extrinsic fraud and it appears from the record that the circuit judge was sufficiently upon which concerned summary as to the was veracity granted of the affidavits judgment in their broader implication. emphasis added. Mourning v. As such. the circuit court’s exercise of jurisdiction in rescinding the sale and allowing discovery is entirely proper under §702. Inc. Rosso v. ruling on a motion is to vacate under Florida A trial court's Rule of of Civil Procedure 1. Moreover.540 reviewed under the abuse discretion standard.S.07. internal citations omitted. Stat. if there is factual dispute upon which the trial court based its determination to vacate the default final judgment. reached the merits this of Court the in its written by opinion. v. 892 (Fla. Ballast Nedam Constr.Hazel-Atlas Co.. 4th DCA 2007). Appellee exercised its has argued that to the circuit the court and properly ordered discretion rescind sale discovery pertinent to the named affiants. Hartford-Empire. at 246. 1300 (Fla. Fla. on has the controversy commenting 29 . 964 So. this Court should have found that Judge Farina did not abuse discretion. 4th DCA 1998). Ass'n. 322 U.2d 1298. Golden Surf Towers Condo. then the court of appeal would apply the strict de novo standard. 711 So. Additionally.
The opinion stated that “Cullaro did not state in her affidavit that she reviewed the fee affidavit” and commented on the figures stated in the China Brown’s affidavit as well as the Herman John Kennerty’s affidavits.substance and quality of the subject affidavits as to their factual representations.” Douglass v.2d 463.” Bodley v. Buford. 469 (Del. 9 So. 1st DCA 2009). Jones. 617 (Fla. See 30 . “Sitting as an appellate court. CONCLUSION Appellee asserts that Appellant Bank has not come into court with clean hands in its tender of the fraudulent documents One of the principle maxims of equity is “he who comes into equity must come with clean hands.3d 636. The circuit court’s order however is completely silent on the substance of these affidavits but allows for discovery.2d 614. State.”) decision Appellee and prays the that this Court reconsider prior allow circuit court’s order to stand on this principle. The purpose of the doctrine of unclean hands is to maintain the integrity of the courts of equity and shield them from misuse by litigants whose actions denigrate the very principles of equity the courts are meant to uphold. 945 So. 637 (Fla.1947). Farneth v. 59 A. we are precluded from making factual findings ourselves in the first instance. 2d DCA 2006) (“A fundamental principle of appellate procedure is that an appellate court is not empowered to make findings its of fact.
and affirm the circuit court.. R.Nakahara v. Morande.2d 204.210(a)(2).Ch. P. Ste Ciampa. Inc. West Carlton Fields. mail to Attorneys for the Appellant. Esq. 718 A.Ch. NS 1991 Am. Dean A.. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.1991). 9. 213 (Del. App. September. ________________________________ JANE M. FL 33177 COUNSEL FOR APPELLEE 31 . 1200.. in compliance with Fla. 552 (Del. In re Enstar Corp. Esq. Michael K. C. Ormand Industries.A.2d 518. Esq.. 522 (Del. Respectfully submitted. CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this brief is 12-point Courier New.1998). Appellee prays this Court to hear the matter en banc. Trust..2d 543. Skoglund v. 525 this Okeechobee 1st day of Palm Beach. and Nancy Blvd. 593 A. Winston. 2011.1976). 372 A.S. LETWIN FNB 990329 14251 SW 175th Street Miami..Ch. For that reason. 33401. FL P.
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