Everyone Knows Plaintiff Owns the Loan, You Can Look It Up Online!


Know the Law, the Rules of Evidence and Procedure, the Facts and Don’t Give Up!

Cross-posted from the Law Offices of Evan M. Rosen

We won another trial recently.  Both the Plaintiff and the original lender were Suntrust.  For some reason, the Plaintiff moved to substitute to Fannie at the outset of trial.  I argued prejudice and fairness – considering our motion for leave to amend our answer and affirmative defenses was just denied 5 weeks ago, Plaintiff’s motion to substitute, which is effectively the same thing as our motion to amend, should also be denied. Judge ruled. P’s Motion – GRANTED.

On voir dire, the witness from Seterus testified that he just saw the original note today for the first time and learned of the file a few weeks ago in prep for trial.  Same facts as Kelsey vs SunTrust Mortgage, Inc. I argued authenticity of the note.  Also, the note the Plaintiff had in Court was different than note attached to complaint!  I argued several cases that say the Plaintiff is bound by its pleadings.  The pleadings frame the case and are considered judicial admissions. Objections overruled – Note in evidence.

Mortgage – No evidence it was ever recorded (no stamps from the clerk’s office) and it was not even certified!  I argued that it was not self authenticating and based on Yang v. Sebasian Lakes Condominium Assoc, Glarum v Lasalle Bank National Association and my voir dire of the Seterus representative, who confirmed he knew nothing about a Suntrust mortgage, the mortgage is also hearsay.  Objections overruled – Mortgage in evidence.

Next, I did an extensive voir dire on the acceleration letter and loan history.  The witness from Seterus was honest.  No cutsey B.S. like some of the other robo-witnesses.  He just flat out has no idea what happens at Suntrust because he works for Seterus and has never worked for Suntrust.  Yet, both the acceleration letter and loan history are from Suntrust.  I explain to the Judge and make authentication and hearsay objections.  Overruled – Both the acceleration letter and loan history are in evidence.

On cross examination, I cover that the amount in default in the acceleration letter is wrong.  We find more and more of these mistakes during our very thorough, item by item review of the pay history.   Also, the witness can’t compute any totals. I tee up the issues up via my questions and then argue Sas v. Federal National Mortgage Association.  There are all kinds of other Paragraph 22 problems with the standard Suntrust acceleration letter which I walk the witness through.

The Judge did keep out a Fannie Mae screen shot and Power of Attorney based on my reliance on Binger v. King Pest Control – neither were listed on the exhibit list nor provided in response to our request to make copies of exhibits available.

At the close of the Plaintiff’s case, I move for involuntary dismissal. I go back over all of the above issues, adding in the witness’ lack of comfort and familiarity with the pay history.  My “reverse Elston” as I call it – on cross, I get the Seterus rep to admit there’s no records evidencing that Seterus is authorized to testify, foreclose, enforce, or possess on behalf of the Plaintiff, Fannie Mae.  The acceleration letter is deficient and there was no evidence it was mailed – I was able to obtain a crystal clear admission on that point via my cross examination as well.

In response, Plaintiff’s attorney mis-characterizes all the evidence, as they typically do.  I take careful notes and call her out on it.  Then, the Plaintiff’s attorney repeats some nonsense and adds something to the effect of,

“Judge, everyone knows Plaintiff owns the loan, you can look it up online!”

In my response, I deflated a couple of her issues, highlight that the Plaintiff has had over 2 years to prepare for this day, their day in court, to meet their burden etc…  Then, with a look of bewilderment, I slowly repeat the Plaintiff’s argument back to the court, verbatim, about “everyone knows…look it up online!?!”  Judge cuts me off, she’s finally had enough.

Involuntary Dismissal GRANTED! 

Once again, the moral of the story is stay focused, stay calm and keep pushing!  Keep making simple, concise evidentiary and procedural objections, demonstrating that you know exactly what you are doing, and keep handing the judge cases on key points.  What I cannot accurately recount above, without the transcript, is all the evidentiary and procedural objections that I raised throughout this trial. It depends on the Plaintiff and the witness and moreover, the questions asked, but in this trial I had so much to object to.  I was standing up to object so much to make objections that about half way through the trial, I just stopped sitting back down and stayed standing.  By diligently and consistently pressing, only with good faith, legally sound objections and argument, eventually, the cumulative effect paid off. This is certainly not the first time we have won a case after most of the trial has gone horribly wrong. Hopefully, it won’t be the last.

This particular judge’s courtroom has been a known slaughterhouse for the defense.  I was told by another foreclosure defense attorney who lost three recent trials with this Judge that this may have been that Judge’s first defense ruling. Hopefully, we’ve helped this judge see the light and come around to many more defense rulings in the future!

I had the pleasure of having an attendee from one of my Foreclosure Trial Workshops observe this trial.  She gave me the second nicest compliment I’ve received from a fellow lawyer.  She said watching me in trial was “like watching ice skating.”  I was completely relaxed, completely focused and just kept pushing – mostly with a smile on my face.  

(If you’re curious, the nicest compliment I’ve ever received from a lawyer came from a bank lawyer, from a large law firm.  At a case status conference he told an associate from our office that he will do whatever it takes to push their client to settle because, “I’ve seen Evan in trial and I really don’t want to face that again!”)


If you are in Florida and are looking for help with debt, foreclosure, real estate or want more information about bankruptcy law, call (855) 55-ROSEN or fill out the online form for a FREE CONSULTATION. Let the lawyers and staff at the Law Offices of Evan M. Rosen serve you!



11 Responses to “Everyone Knows Plaintiff Owns the Loan, You Can Look It Up Online!”
  1. meeshalin says:

    We, the homeowners or ex homeowners, we’re all preyed upon. The recession hit, people lost work. The banks saw it all as opportunity to steal the homes of those they lent money to purchase. They made it public they would help homeowners having trouble paying mortgage or who couldn’t pay their mortgage. At that point, whomever asked for help was now on the list to steal from. Now the banks knew who was having mone issues, not only could these people not psy mortgage they wouldn’t be able to pay a lawyer to represent them. The banks couldn’t stop there, they started stealing the homes of people who didn’t ask for help, people who had loans with another bank. The government backed up the banks because they saw it as a way to strip us al the right to own property. Only the rich should own and rent to us. That’s why I rent, I was a homeowner since I was 21. 20 years later, I rent an apartment, I own nothing. Have no money saved. I see everything different, not the same as a young adult. No more American dream. Its now the American nightmere.

  2. Mystify says:

    Best defense is to bankrupt and give it all back to them and let them pay the bills!

  3. Jack Lee says:

    “everyone knows it’s online”. That was the key, responding to an absurd statement with another absurd statement letting all of them know just what you think of them, and blink, they change their mind.

    This was also the advice that Jesus gave when dealing with impossibly stubborn people, when they get absurd, beyond all reason, respond in the same way and WHAM they realize what fools they’ve been. To avoid looking more foolish, they rule in your favor.

  4. se7ensnakes says:

    “On Sept 1st, 1894, we will not renew our loans under any consideration. On Sept 1st we will demand our money. We will foreclose and become mortgagees in possession. We can take two-thirds of the farms west of the Mississippi, and thousands of them east of the Mississippi as well, at our own price… Then the farmers will become tenants as in England…” — 1891 American Bankers Association as printed in the Congressional Record of April 29, 1913

    • one of the Victims says:

      We were shafted twice; once by the banking industry, and then the government agencies and investors took advantage of the situation. The reason no criminal charges were sought in this massive mortgage scam implemented by Countrywide, Bank of America and J..P. Morgan Chase is because there is no money to be gained by it except for the attorneys on both sides who will fight as long as there is a billing to be had. Now the banks are being charged in civil suits and they are paying billions in penalties. But are they compensating the victims who lost their homes through scams and lies? No there is little or no restitution, practically no modification. I watched B of A write off twice the amount of the mortgage in my case, pay their attorney thousands to support their case and then turn around and foreclose and GIVE my house away for 25% of the value of the $250K they charged off when they could have sold it for much more. They liquidated it pure and simple. They showed a loss and then charged back $99,000 to me and also showed reconciliation-relocation charges of another $7,000+, which were NOT paid to me. This will be reported to the IRS as income!
      You talk about raping the victim! This is gang rape and there is no defense for the poor who can’t fight. We have already been taken to the slaughterhouse by our Government and believe me those of you who believe the GOP and their small government claims are the answer just aren’t paying attention. The Republican party is not on the side of the little man or the victim. They are squarely in the Wall Street-banking industry that funds their campaigns. I’ve said it before and will again. We have a Plutocracy already in place. Many of us just think we hold the reins.
      It is all in our minds!

  5. john c. hacker iii says:

    what a shame/what a quagmire/what a slap in the AMERICAN peoples face. THE AMERICAN DREAM SHATTERED ,and good American ,law abiding people are getting and have been run over by greedy banks, and government, our congress,senate and the president himself,should go through what we have… Homeowners,trying to go to work every day and be left alone.just to own a home and pay their taxes. but its not enough,for the greed on capitol hill. Fuck em and fuck em ALL. you pieces a shit should all be lined up and tortured,just like us. And then and only then. we can start to fight fairly. and im sure the 4 million homeowners plus would back me up 100% ya ought be beyond shamed. because you don’t represent me!! period. john c. hacker iii

    • j Alonzo says:

      I totally agree. These judges are all a bunch of bank servants and are for the most part as corrupt as Mexican judges. This whole mess is created by the two headed dragon, our two party system that are both equally responsible for the mess. When will the SHEEPLE finally get it, that Democrats and Republicans ARE THE SAME! They have us so busy trying to cheer for one side and in the end they are all servants to the New World Order.
      We are The Sheeple!

  6. caggiano says:

    vary trentend by owner bank morgage co trentend by his brother known for fraud stole alot money and terroised me my family.fraudently sold my home back to them selves vary little to no money wouldnt stop till stole my historical ranch.

    • Julia Young says:

      There is little justice in the lending and mortgage business. It is more like the banks are saying JUST US!

  7. charley rice says:

    That’s great, but we need lawyers that are doing the same procedure here…
    Do you know anyone?

    • Julia Young says:

      Good luck finding a lawyer. I had one of the best but his services disappeared because I could not continue to pay $500 a month to keep his services, which I admit I said I would pay for his work. After an auto accident reduced my income to almost nothing I had no choice but to stop payment on this plus the $850 to the defendant’s law firm that was to be provided according to court order to the defendant. After completion of 6-8 mod packages, over a 4 year period, they kept coming back for updated packages. My $850 was going to the lawyer’s trust fund and no interest, taxes, etc. deductible plus the defendant’s attorney was obviously billing his client or mortgage servicer major big bucks for depositions and service plus my payment, while dragging their feet. I went through this over 4 years and no modification was available so I stopped trying. They were never going to modify the loan or prosecute the case, which may or may not still be pending. We had the Court somewhat on our side but it means nothing if the lawyers staoll the case.

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