STROMINGER v. BANK OF NEW YORK: Document Fraud in a Foreclosure Case – Trial Court Ignores, Appellate Court Reverses!
Cross-posted from https://mattweidnerlaw.com
It is most incredible and a very, very troubling commentary on the state of our nation’s judicial system when fraudulent documents are permitted to be used in any courtroom. Worse than that, it’s even more troubling that the production and use of fraudulent documents does not result in harsh penalties by the court system itself.
As you read this post, pay particular attention to the fact that even after the homeowner presents very specific findings of fraud committed by the bank, the attorneys for Bank of New York just completely ignore the issues entirely. I find that infuriating!
The appellate court opinion that was just released by Florida’s Second District Court of appeals is very disturbing because it makes reference to the use of fraudulent documents in a court case….but the facts as reported in the decision are actually just the tip of the iceberg. Here’s what the opinion provides:
Lawrence and Adriana Strominger appeal the final judgment of mortgage foreclosure entered against them and in favor of the Bank of New York, as Trustee for the Certificateholders of the CWABS Inc. Because the Bank failed to prove it had standing to foreclose at the inception of the case, we reverse and remand for dismissal. This court employs a de novo standard of review to determine whether a party has standing to bring a mortgage foreclosure action. St. Clair v. U.S. Bank Nat’l Ass’n, 173 So. 3d 1045, 1046 (Fla. 2d DCA 2015). A plaintiff seeking to foreclose must prove it had standing at the time the foreclosure complaint was filed. Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013). “A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiff’s status as the holder of the note.”
At a February 2015 trial, the Bank of New York relied on two documents to prove it had standing. The first document was an assignment that the trial court previously determined was fraudulent and “not entitled to introduction in evidence for any purpose.” The second document was a bailee letter dated October 6, 2005. The bailee letter acknowledges an agreement between Countrywide Home Loans and Impac Funding, and it identifies a wiring account number to the Bank of New York, where Countrywide has an account. Both documents fail to prove that the Bank had possession of the note at the time it filed the original complaint in November 2007. Because the Bank failed to prove it had standing to enforce the note at the time the initial complaint was filed, we reverse the final judgment of mortgage foreclosure and remand for dismissal.
But even more importantly, read passages from the homeowner’s briefs which give some indication of the magnitude of the wrongdoing:
The record reflects that BONY produced an Assignment of Mortgage from Countrywide Home Loans to BONY, attached to its amended complaint. R1 97. The trial court expressly ruled that attachment to the amended complaint, which was a subject of Strominger’s January 5, 2012 amended motion to dismiss, was “an instrument of fraud intentionally perpetrated by the Plaintiff. . .” R1 199. The trial court held that the notary’s stamp demonstrated that this fraudulent document could not have been signed before the start of litigation.
This fact is a fatal flaw to BONY’s obligation to prove it had standing at the time it filed the original complaint. Indeed, based on the notary’s stamp, and BONY’s stipulation that it would not rely on that document in this case, proves that BONY was assigned Strominger’s mortgage after BONY filed its complaint. And, to make matters worse, BONY filed this fraudulent document at trial to prove it owned the mortgage and note on November 1, 2007. That was the basis of the Final Judgment, entered on March 6, 2015.
The trial court held that the BONY must keep this assignment out of evidence because it was, on its face, fraudulent. See R199-200. Irrespective of that ruling, during the bench trial, BONY still presented this fraudulent assignment as Exhibit 6 in support of its claim against Strominger.
This is the state of the court system that operates today…