Wells Fargo - Motion For Reconsideration of Order Denying Def Motion For Sanction

not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who
make false allegations.3 3. On December 9, 2010, the Supreme Court clarified its position and stated: Along with the amendments to form 1.996(a), rule 1.110(b) was amended to require verification of mortgage foreclosure complaints involving residential real property. One of the primary purposes of this amendment was to ensure that the allegations in the complaint are accurate.4 4. Florida Statutes section 92.525 is the statutory framework for verification of documents and states that (1) When it is authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner: (a) Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths; or (b) By the signing of the written declaration prescribed in subsection (2).5 5. Florida Statutes section 92.525(2) states that as a requirement, a written declaration as defined under section 92.525(1) of the Florida Statutes, means the following statement: Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true, followed by the signature of the person making the declaration, except when a verification on information or belief is permitted by law, in which case the words to the best of my knowledge and belief may be added. The written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration.6 6. Florida Statutes section 92.525(3) states that [a] person who knowingly makes a false declaration under subsection (2) is guilty of the crime of perjury by false written declaration, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.7 7. An opinion by the Florida Attorney General dated June 13, 1995 states that a verification may be made on information or belief, if authorized by law, and will be sufficient to subject the affiant to penalties of perjury.8
3 4
In re: Amendments to the Florida Rules of Civil Procedure, No. SC09-1579, (Feb. 11, 2010). (emphasis added)
In re: Amendments to the Florida Rules of Civil Procedure-Form (Final Judgment of Foreclosure), Case No. SC09-1579. (emphasis added)
5 6 7 8
Fla. Stat. 92.525(1). (emphasis added) Fla. Stat. 92.525(2). (emphasis added) Fla. Stat. 92.525(3). (emphasis added) Op.Atty.Gen. 95-40, June 13, 1995. (emphasis added)
8. Florida Statutes section 92.525(4)(b) states that [t]he term document means any writing including, without limitation, any form, application, claim, notice, tax return, inventory, affidavit, pleading, or paper.9 9. Florida Statutes section 92.525(4)(c) states that [t]he requirement that a document be verified means that the document must be signed or executed by a person and that the person must state under oath or affirm that the facts or matters stated or recited in the document are true, or words of that import or effect.10 10. A Judge may dismiss the action with or without prejudice if the court determines a fraud on the court has occurred. The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability to impartially adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense.11 11. "There are two elements in mail fraud: (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme (or specified fraudulent acts)."12 12. The elements of wire fraud under Section 1343 directly parallel those of the mail fraud statute, but require the use of an interstate telephone call or electronic communication made in furtherance of the scheme.13 13. When reviewing a case for fraud, the court should consider the proper mix of factors and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system.14
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Fla. Stat. 92.525(4)(b). (emphasis added) Fla. Stat. 92.525(4)(c). (emphasis added) v. Mobil Oil Corp., 892F.2d 1115, 1118 (1st Cir.1989). (emphasis added)
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11 Aoude 12
Schmuck v. United States, 489 U.S. 705, 721 n. 10 (1989); see also Pereira v. United States, 347 U.S. 1, 8 (1954) ("The elements of the offense of mail fraud under . . . 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme."); Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire Fraud, 31 Am. Crim. L. Rev. 703, 704 (1994) (cases cited).
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United States v. Briscoe, 65 F.3d 576, 583 (7th Cir. 1995) (citing United States v. Ames Sintering Co., 927 F.2d 232, 234 (6th Cir. 1990) (per curiam)); United States v. Frey, 42 F.3d 795, 797 (3d Cir. 1994) (wire fraud is identical to mail fraud statute except that it speaks of communications transmitted by wire); United States v. Cassiere, 4 F.3d 1006 (1st Cir. 1993) (to prove wire fraud government must show (1) scheme to defraud by means of false pretenses, (2) defendant's knowing and willful participation in scheme with intent to defraud, and (3) use of interstate wire communications in furtherance of scheme); United States v. Maxwell, 920 F.2d 1028, 1035 (D.C. Cir. 1990) ("Wire fraud requires proof of (1) a scheme to defraud; and (2) the use of an interstate wire communication to further the scheme.").
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Id. at 1117-18. (emphasis added)
14. Because dismissal sounds the death knell of the lawsuit, courts must reserve such strong medicine for instances where the defaulting party's misconduct is correspondingly egregious.15 15. The trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court, or where a party refuses to comply with court orders. 16 DEPOSITION OF WELLS FARGO BANK, N.A. EMPLOYEE AND LEGAL PROCESS SPECIALIST ALDEN BERNER, CO-WORKER AND TEAM MEMBER OF WELLS FARGO BANK, N.A. EMPLOYEE AND LEGAL PROCESS SPECIALIST DEBORAH BLANEY, AKA DEBRA BLANEY 16. A deposition of Alden Berner, a Legal Process Specialist for Wells Fargo Bank N.A., filed and admitted in three cases involving Wells Fargo Bank, N.A. as plaintiff with Case Numbers 2010-CA-018991-MB, 2010-CA-023143-MB, and 2010-CA-016671-MB, was taken December 7, 2010 where Carlton Fields, P.A., through its employee and attorney Michael K. Winston, Esq., Florida Bar Number 51403 with its business address being City Place Tower, 525 Okeechobee Boulevard, Suite 1200, West Palm Beach, Florida 33401-6149 appeared as counsel and attorney for plaintiff Wells Fargo Bank N.A. 17. In said deposition dated December 7, 2010, Alden Berner testified that himself, Debra Blaney, and Craig Zecher reviewed all mortgage foreclosure cases filed in the State of Florida on behalf of Wells Fargo Bank, N.A.17 Q. What type of training did you get as far as that goes for the -- when you first became the legal process specialist and dealt with the land transactions? My training that I received when I originally started with land transactions, I received training on reviewing plat maps, legal descriptions, titles, and the various investor requirements for those loans that I reviewed.18 [ ... ]
A.
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Id. at 1118 (emphasis added) Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. 4th DCA 1992). (emphasis added)
Dep. of Alden Berner, Dec. 7, 2010, Wells Fargo Bank, N.A. cases 2010-CA-018991-MB, 2010-CA-023143-MB, and 2010-CA-016671-MB (Palm Beach County) pp. 12 - 17. Dep. of Alden Berner, Dec. 7, 2010, Wells Fargo Bank, N.A. cases 2010-CA-018991-MB, 2010-CA-023143-MB, and 2010-CA-016671-MB (Palm Beach County) pp. 12.
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Q. A. Q. A.
Who is your supervisor? Mark Kline. Is he still your supervisor? Yes. MR. WINSTON: That's K L I N E. BY MR. FLANAGAN: (resumed)
Q. A.
And is he also located in the same office as you are, on Stage Coach Circle? Yes 19 [ ... ]
Q.
Okay. How was it determined that you would review a given mortgage foreclosure, was it by geographical area, was it by name? It was just we handled Florida -- the entire state of Florida. "We," being who? Myself and my team, my co-workers. Okay. So there was yourself and -Two other co-workers. Who? Deborah Blaney. Can you spell her last name? B L A N E Y. And Craig, C R A I G, Zecher, Z E C H E R. And yourself?
A. Q. A. Q. A. Q. A. Q. A. Q.
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Dep. of Alden Berner, Dec. 7, 2010, Wells Fargo Bank, N.A. cases 2010-CA-018991-MB, 2010-CA-023143-MB, and 2010-CA-016671-MB (Palm Beach County) pp. 13.
A.
And myself, yes.20 [ ... ]
Q.
Okay. Did you have any states that you were responsible for -- did the three of you have any states that you were responsible for other than Florida? No. And were the three of you reviewing all of the foreclosure complaints within the state of Florida? Yes.21
A. Q.
A.
18. In said deposition dated December 7, 2010, Alden Berner testified that it is standard and systematic procedure for Wells Fargo Bank, N.A. not to look at either a note or mortgage when verifying a foreclosure Complaint. 22 Q. Do you ever get a look at the actual loan document itself, the note or the mortgage? MR. [MICHAEL K. WINSTON]: Object to form. THE WITNESS [ALDEN BERNER]: No. Q. A. How about do you get a look at any documents that actually transfer or assign ownership of any note or mortgage? No, I do not look at them, but I don't need to look at them because I know what our processes are that refer those loans to our attorneys. And I rely that our attorneys do their job and put the information in those complaints accurately
Dep. of Alden Berner, Dec. 7, 2010, Wells Fargo Bank, N.A. cases 2010-CA-018991-MB, 2010-CA-023143-MB, and 2010-CA-016671-MB (Palm Beach County) pp. 15-16.
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Dep. of Alden Berner, Dec. 7, 2010, Wells Fargo Bank, N.A. cases 2010-CA-018991-MB, 2010-CA-023143-MB, and 2010-CA-016671-MB (Palm Beach County) pp. 31 - 49.
and correctly based on the information that was provided to them in our referral process.23 19. In said deposition dated December 7, 2010, Alden Berner testified that it is standard and systematic procedure for Wells Fargo Bank, N.A. to base their verification solely on information from a computer screen without any confirmation as to the source of said information. Q. A. Q. A. Q. A. Do you personally play any role in determining who is or isn't the proper person or entity for the name to foreclose in? No. As far as that information is concerned you're relying upon the information you get from the Investor Matrix? Yes. And that's computer information that's generated where? I don't know where it is generated, I do know that it is generated by a department of Wells Fargo who maintains the information that is in that Matrix, and that Matrix is updated weekly. Who prepares that Matrix? I don't know who prepares the Matrix. How does the information get into that Matrix? I am not exactly sure how that information gets in the Matrix.24 [...] Q. A. Correct. Okay. Now, how do you know that distinction, the owner versus the name to foreclose in? I look at our system, per our system it gives us codes, which we need to then plug those codes into the Investor Matrix; that Investor Matrix is what we rely on to give us that information.
Q. A. Q. A.
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Q.
All right. Then how do you verify that information, if at all? MR. WINSTON: Object to form. THE WITNESS: Again, I take the information from the loan, the codes from the loan, and I plug those codes into our Investor Matrix; and our Investor Matrix gives me what the correct -- who the owner and the correct name to foreclose in, and that's what I rely on.
Q.
Okay. So, when you're reviewing the information as far as who the proper name is for the entity to own the loan and to bring the lawsuit in you're relying on the information that's in that computer system, the Investor Matrix? Yes. Do you ever get a look at the actual loan document itself, the note or the mortgage? MR. WINSTON: Object to form. THE WITNESS: No. BY MR. FLANAGAN: (resumed)
A. Q.
Q. A.
How about do you get a look at any documents that actually transfer or assign ownership of any note or mortgage? No, I do not look at them, but I don't need to look at them because I know what our processes are that refer those loans to our attorneys. And I rely that our attorneys do their job and put the information in those complaints accurately and correctly based on the information that was provided to them in our referral process.25
20. In said deposition dated December 7, 2010, Alden Berner testified that it is standard and systematic procedure for Wells Fargo Bank, N.A. to never independently verify the ownership of the subject notes, mortgages, assignment or otherwise by looking at any actual note, mortgage, assignment or other documentation of ownership in the instant case. Q. Now, as I understand it you testified that you didn't personally look at the information that would have been contained in the note and mortgage, is that correct?
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A. Q. A. Q. A.
Yes. Did you have a reason to look at that information, or is there a reason you didn't need to look at it? I believe that I did not have a reason to look at that information based on our referral process. What would that referral process be? That referral process would be that the original -- once the loan is in default, and the thirty day notice of default letters have been sent out, that our foreclosure department refers these loans to our counsel, and they provide our counsel with that information, being the note and mortgage - the original note and mortgage. And is it the attorneys job to input that information from the note and mortgage into the complaint? Yes.26
Q. A.
21. In said deposition dated December 7, 2010, Alden Berner testified that it is standard and systematic procedure for Wells Fargo Bank, N.A. to never look at the Complaint as it is filed in Court nor any of its attachments, per se. Q. A. Okay. And I take it you never get a look at a copy of the mortgage that's attached, or referenced in the complaint, am I correct? No I do not get a look at that again. That's part of our referral process, the original is sent to our attorneys; and I rely that they accurately input that information into the complaint, and there is no need that they send it back to us, when we originally sent it to them. Now, once you verify the information per your computer programs, the Investor Matrix and the other information, is that where you either approve or reject?
Q.
A. Yes. Q. Okay. And if you accept it have I got that right there, the choices you have, either accept or reject?
26
A.
Accept, reject, approve or disapprove.27
22. In said deposition dated December 7, 2010, Alden Berner testified that it is standard and systematic procedure for Wells Fargo Bank, N.A. to never verify that all conditions precedent to the filing of foreclosure actions have been performed or have occurred. Q. A. Q. A. Q. A. Q. A. Okay. If you accept and approve the information that you have reviewed on the computer screen -- if you click "accept" or "approve," then what happens? We get the verification to sign. The verification that was attached to the complaints in the cases? Yes. All right. What do you mean you get? Meaning it's now available for us to sign. If we reject it then it's not going to give us the verification to sign. When you say it's available for you to sign, does that come up on a computer screen? It's in the same attorney portal.28 [...] Q. A couple of these documents make reference to [ ] paragraphs [ ] that state, "all conditions precedent to the filing of this action have been performed or have occurred." What does that mean to you? It's legal terminology, but my belief is that that means that all of the things that had to happen prior to the foreclosure referral have taken place. Did you do anything as far as investigating to confirm any of that information? No, I didn't need to. Our system is automated to where everything has been done prior to this coming before me. Okay. And, so, is this information that again was supplied by counsel that prepared the form?
A. Q. A. Q.
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MR. WINSTON: Object to form. THE WITNESS: Yes.29 DOCUMENTS IN CASE DOCKET/RECORD 23. On or about December 21, 2010, Plaintiff, Wells Fargo Bank, N.A., through its attorneys, Marshall C. Watson, P.A., and more specifically, attorney Nalini Singh, Esq., Florida Bar Number 43700, which lists is business address as 1800 N.W. 49th Street, Suite 120, Fort Lauderdale, Florida 33309, as an employee and agent of Marshall C. Watson, P.A., and in representation of Wells Fargo Bank N.A., filed a Complaint against Defendants Carlos Ramos and Ilsa Ramos of Seminole County, Florida seeking foreclosure of a certain mortgage recorded in the Official Records Book 04865, Page 0543, of the Public Records of Seminole County, Florida and a related note. 24. Even though the Summons required responses to Marshall C. Watson, P.A., said Complaint, filed was signed by attorney Nalini Singh, Esq. on behalf of the Law Offices of Marshall C. Watson, P.A. in representation of Wells Fargo Bank N.A. 25. Said Complaint states in paragraph #3 that [m]ortgagee shown on the Mortgage attached as an exhibit is the original Mortgagee. Plaintiff is now entitled to enforce Mortgage and Mortgage Note pursuant to Florida Statutes 673.3011. 26. Said Complaint states in paragraph #6 that [a]ll conditions precedent to the filing of this action has been performed or occurred. 27. Nalini Singh, Esq., as an attorney for the Law Offices of Marshall Watson, P.A., and on behalf of Wells Fargo Bank, N.A., together with the Summons and Complaint, filed a separate page titled Fla. R. Civ. P. 1.110(b) Verification signed by a one Debra Blaney as Legal Process Specialist and stating that [u]nder penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief. 28. Said document titled Fla. R. Civ. P. 1.110(b) Verification is signed by Debra Blaney as Legal Process Specialist but does not state who is her employer, whether it is Plaintiff Wells Fargo Bank, N.A. or its attorneys, the Law Offices of Marshall C. Watson, P.A. 29. The Mortgage attached to the Complaint and referenced in the Complaint, showing to have been recorded in the Official Records Book 04865, Page 0543 of the Public Records of Seminole County, Florida patently show, on its first page, that the lender and mortgagee is Wells Fargo Home Mortgage, Inc. not Wells Fargo Bank, N.A.
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30. The Note attached to the Complaint and referenced in the Complaint patently shows, on its first page, that the lender is Wells Fargo Home Mortgage, Inc. not Wells Fargo Bank, N.A. 31. The Note attached to the Complaint and referenced in the Complaint patently shows, on its last page, that the lender is Wells Fargo Home Mortgage, Inc., endorsed the note en blanc; it is patently clear that Wells Fargo Bank, N.A. did not endorse said note because it was not the Lender nor the Mortgagee in the related aforementioned Mortgage. 32. Defendants through their undersigned Counsel filed a Motion for Sanctions Against Plaintiff for Perjury February 21, 2010 stating in paragraph #2 that [t]he documents attached to the Complaint clearly contradict and show that the allegations made in the Complaint are false and without merit. 33. Defendants through their undersigned Counsel filed the instant Motion for Sanctions Against Plaintiff for Perjury February 21, 2010 stating in paragraph #4 that [a]t a minimum, the person signing such document must have read the Complaint with its attached exhibits, namely the Mortgage and Note. 34. Defendants through their undersigned Counsel filed the instant Motion for Sanctions Against Plaintiff for Perjury February 21, 2010 stating in paragraph #5 that [c]learly, Plaintiff has not been forthcoming or offered such statements without regards to the Candor owed to the Court thereunder and its actions have caused Defendants to incur legal fees and expenses that are unnecessary and unjustified but for its actions in bad faith and without candor. AGREEMENT BETWEEN THE LAW OFFICES OF MARSHALL C. WATSON, P.A. AND STATE OF FLORIDA OFFICE OF THE ATTORNEY GENERAL 35. On or about March 24, 2011, the Law Offices of Marshall C. Watson, P.A. entered into an agreement with the State of Florida Office of the Attorney General, Department of Legal Affairs to resolve an investigation into the Law Offices of Marshall C. Watson, P.A. under the Florida Deceptive and Unfair Trade Practices Act, Part II of the Consumer Protection Statute, Chapter 501, AG Case #L10-3-1147, styled IN THE MATTER OF : INVESTIGATION OF LAW OFFICES OF MARSHALL C. WATSON, P.A., AND MARSHALL C. WATSON, INDIVIDUALLY. 36. Said Agreement entered into by and between the Law Offices of Marshall C. Watson, P.A., Marshall C. Watson, individually, and State of Florida Office of the Attorney General dated March 24, 2011 is entitled: ASSURANCE OF VOLUNTARY COMPLIANCE. 30
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Assurance of Voluntary Compliance agreement between the Law Offices Marshall C. Watson and State of Florida Office of the Attorney General dated March 24, 2011.
37. Page #2 of the Assurance of Voluntary Compliance states in the second paragraph that Law Offices of Marshall C. Watson, P.A., Marshall C. Watson, individually are working with State of Florida Office of the Attorney General to establish best practices in foreclosure actions.31 38. Among the several allegations and consumer complaints which triggered the investigation into the foreclosure practices of Law Offices of Marshall C. Watson, P.A., detailed in section I, 1.1 of the Assurance of Voluntary Compliance, those relevant to the instant case are: a. foreclosure actions [ ] filed before the legal standing of the Plaintiff has been determined, and e. affidavits [ ] filed which were executed by persons without knowledge of the allegations contained in the affidavits.32 39. As of March 24, 2011, the Law Offices of Marshall C. Watson, P.A., Marshall C. Watson, individually agreed and assured, in section II of the Assurance of Voluntary Compliance to implement the following policies and procedures and to ensure such best practices: a. As a condition precedent to initiating a foreclosure case in a circuit court in Florida, each foreclosure case file of the Respondent [(Law Offices of Marshall C. Watson, P.A.)] will contain the following: (1) the original note, or a lost note affidavit; (2) the original mortgage or a copy of the recorded mortgage; and (3) documentation establishing the loan and mortgage are in default; if (1) through (3) do not reflect the Plaintiff to be named in the foreclosure complaint as the party entitled to foreclose the note and mortgage, there must also be contained in the law firms file documentation reflecting that the Plaintiff is a holder of the note or a nonholder in possession of the note who has the rights of a holder pursuant to Section 673.3011 of the Florida Statutes. b. [OMITTED] c. For cases that have already been filed and active, but in which no final judgment has been issued by the court on the effective date of this Assurance [(March 24, 2011)], the Respondents [(Law Offices of Marshall C. Watson, P.A.)] will ensure that prior to seeking entry of a final judgment the foreclosure court file contains the following: (i) the original note, or a lost note affidavit; (ii) the original mortgage or a copy of the recorded mortgage; (iii) documentation establishing the loan and mortgage are in default; and (iv) documentation reflecting that the named Plaintiff is entitled to enforce the mortgage. A verified complaint will only be required to be filed for complaints and amended complaints that were filed after June 3, 2010.
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d. For cases currently in litigation on the effective date of this Assurance, without a final judgment having been issued by the court, the Respondents [(Law Offices of Marshall C. Watson, P.A.)] shall review said filings for compliance with Section 2.1(c) of this agreement and will file either amended affidavits, replacement affidavits or notices of withdrawal of any affidavits executed by persons who Respondents [(Law Offices of Marshall C. Watson, P.A.)] learn did not have actual knowledge of the allegations contained in the affidavits. Respondents shall not proceed with the litigation until there is compliance with the terms and conditions of this provision.33 40. Section II, 2.2 of the Assurance of Voluntary Compliance requires [r]espondents and their representatives, agents, employees, successors, assigns or any other person who acts under, by, through, or on behalf of Respondents [(Law Offices of Marshall C. Watson, P.A.)], directly or indirectly, or through any corporate or other device, shall continue to comply with the Florida Deceptive and Unfair Trade Practices Act, Chapter 501, Florida Statutes.34 41. Section II, 2.3 of the Assurance of Voluntary Compliance establishes that [i]t is further agreed by the parties that Respondents [(Law Offices of Marshall C. Watson, P.A.)] shall be responsible for making the substantive terms and conditions of this agreement known to the officers, employees agents, representatives, or any other persons that are substantially affected by this Assurance and are involved in Respondents [(Law Offices of Marshall C. Watson, P.A.)] businesses, projects and activities. The obligation imposed by this paragraph is continuing in nature and shall apply to new officers, employees, agents, representatives or any other persons who become engaged in Respondents [(Law Offices of Marshall C. Watson, P.A.)] business activities, including any future business activities in which MARSHALL C. WATSON engages.35 42. Section II, 2.4 of the Assurance of Voluntary Compliance establishes that [i]t is further agreed by the parties that Respondents [(Law Offices of Marshall C. Watson, P.A.)] shall not affect any change in the form of doing business, or the organizational entity of any of the existing business entities, or create any new business entities, as a method of avoiding the terms and conditions set forth in this Assurance.36 CARLTON FIELDS, P.A. INVOLVEMENT AND PERPETUATION
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OF MARSHALL C. WATSON, P.A.S CONDEMNED ACTIONS
43. A notice of appearance was filed in the Courts docket July 27, 2011 listing Carlton Fields, P.A. as co-counsel in the instant case. 44. In an e-mail communication from Jason Perkins, Esq. dated July 28, 2011, with email address jperkins@carltonfields.com, confirms that Carlton Fields, P.A., and its employee, attorney Jason Perkins, Esq. with Florida Bar Number 610852, which lists its business address, of its Orlando office, as CNL Center at City Commons, 450 S. Orange Avenue, Suite 500, Orlando, Florida 32801-3336, represents Wells Fargo Bank, N.A. in the instant matter. 45. Marshall C. Watson, P.A. and its employee, attorney Nalini Singh, Esq., Florida Bar Number 43700, which lists its business address as 1800 N.W. 49th Street, Suite 120, Fort Lauderdale, Florida 33309 is still the original counsel, and now remains co-counsel with Carlton Fields, P.A., and its employee, attorney Jason Perkins, Esq., Florida Bar Number 610852, which lists its business address, of its Orlando office, as CNL Center at City Commons, 450 S. Orange Avenue, Suite 500, Orlando, Florida 32801-3336. 46. An e-mail communication from Renee Kemper, paralegal to Jason Perkins, Esq. of Carlton Fields, P.A. to Nalini Singh, Esq. of Marshall Watson, P.A. dated August 16, 2011 , in which Mrs. Kemper is forwarding a Notice of Filing of the 2004 merger of Wells Fargo Bank, N.A. and Wells Fargo Home Mortgage, Inc. in support of Plaintiffs opposition to sanctions for perjury, confirms Marshall C. Watson, P.A.s continued control and involvement in the instant matter, notwithstanding the fact that it remains co-counsel in the instant matter. 47. All filings in the matter by Jason Perkins, Esq. of Carlton Fields, P.A. have also been copied as a matter of legal process to Nalini Singh, Esq. of Marshall C. Watson, P.A. 48. The Law Offices of Marshall C. Watson, P.A., through its employee attorney Nalini Singh, Esq., or otherwise, have made no further filings or arguments directly to the Court in the instant matter. 49. Nonetheless, by virtue of the March 24, 2011 Agreement, titled Assurance of Voluntary Compliance, by and between the Law Offices of Marshall C. Watson, P.A., the State of Florida Office of the Attorney General, Department of Legal Affairs, and attorney Marshall C. Watson, P.A., individually, the actions of Carlton Fields, P.A. remain the responsibility of the Law Offices of Marshall C. Watson, P.A. 50. Despite the Motion for Sanctions Against Plaintiff for Perjury being filed February 21, 2010 stating in paragraph #2 that [t]he documents attached to the Complaint clearly contradict and show that the allegations made in the Complaint are false and without merit, and despite an email from the undersigned attorney to Jason Perkins, Esq. dated
August 12, 2010 where Defendants make Plaintiff aware of their concerns and allegations in the Motion for Sanctions Against Plaintiff for Perjury, Marshall C. Watson, P.A. and Carlton Fields, P.A. failed to abide by the Assurance of Voluntary Compliance or correct a known fraud upon the Court. 51. Therefore, their actions callously, egregiously, willfully, and without remorse, perpetuate a fraud upon the Court, through it, upon the citizens of Seminole County and all those under the jurisdiction of the 18th Judicial Circuit of Florida. ARGUMENTS PRESENTED BEFORE THE COURT AT THE AUGUST 30, 2011 HEARING OF DEFENDANTS MOTION FOR SANCTIONS AGAINST PLAINTIFF FOR PERJURY 52. The Mortgage attached to the Complaint and referenced in the Complaint, showing to have been recorded in the Official Records Book 04865, Page 0543 of the Public Records of Seminole County, Florida patently shows, on its first page, that the lender and mortgagee is Wells Fargo Home Mortgage, Inc. not Wells Fargo Bank, N.A. 53. The Note attached to the Complaint and referenced in the Complaint patently shows, on its first page, that the lender is Wells Fargo Home Mortgage, Inc. not Wells Fargo Bank, N.A. 54. The Note attached to and referenced in the Complaint patently shows, on its last page, that the lender is Wells Fargo Home Mortgage, Inc., endorsed the note en blanc; it is patently clear that Wells Fargo Bank, N.A. did not endorse said note because it was not the Lender nor the Mortgagee in the related aforementioned Mortgage. 55. Plaintiff argued that Defendants Motion for Sanctions against Plaintiff for Perjury was unfounded where Plaintiff is the original mortgagee by way of a merger that took place May 8, 2004, where the original mortgagee Wells Fargo Home Mortgage, Inc. merged into Plaintiff Wells Fargo Bank, N.A. 56. Defendants argued and maintained that the fact that the merger occurred a year after the mortgage was entered into between the original mortgagee and that Plaintiff was the surviving entity in the merger proves that Plaintiff is not the original Mortgagee. At the time the mortgage was executed the original mortgagee was an independent entity from Plaintiff with a different federal employers identification number (FEIN/Tax Id) and therefore autonomous and separate from Plaintiff. 57. Defendants argued and maintained that the Complaint makes no mention of a merger, or an assignment of the note and mortgage, therefore depriving Defendants from raising potential defenses in that respect. 58. Defendants argued and maintained that Plaintiff Wells Fargo Bank, N.A. through their Counsels Marshall C. Watson, P.A. and Carlton Fields, P.A. should have corrected its Complaint to provide information of the merger so as to establish how and when plaintiff
Wells Fargo Bank N.A. can foreclose when the original mortgagee is Wells Fargo Home Mortgage, Inc. and that the Complaint makes no mention of the said merger. 59. Moreover, Defendants argued that the information of the merger is irrelevant since it has nothing to do with the verification statement which makes reference to the truthfulness and correctness of the allegations made in the Complaint; that it should be clear to the Court that the contradictions are patent and no inferences need be drawn to see that the Complaint is not truthful or correct. 60. It is clear and irrefutable, that, having had the opportunity and the duty to correct the Complaint and withdraw the false statement of verification, especially when they were present when Wells Fargo Bank, N.A. confessed to its perjury, a fraud has been committed upon the Court and still continues despite all the requirements of the Supreme Court of Florida and the agreement reached with the State Attorney Generals office to halt an investigation into the foreclosure practices of these law firms and their client, Wells Fargo Bank N.A. 61. This Court, during the hearing of the instant Motion for Sanctions Against Plaintiff for Perjury, agreed with Defendants counsel that the allegations made in the Complaint and the Verification was a mistake. 62. This Court, in its discretion, denied that sanctions be imposed on Plaintiff stating that the mistakes of Plaintiff and its counsel did not rise to the sanctions being sought by Defendants or what the Supreme Court intended. ARGUMENT AND CONCLUSION OF LAW Florida Statutes section 92.525 and AMENDMENTS TO RULE 1.110(B). 63. In reaction to this wave of abuses, the Supreme Court of Florida amended Fla. R. Civ. Pro. 1.110(b) to require that, on all actions for foreclosure of a mortgage on residential real property, the complaint shall be verified. The Plaintiff, through its attorneys made no efforts whatsoever to verify the allegations in the complaint even though the instant action is an action for foreclosure of a mortgage on residential real property. 64. The Supreme Court went on to clarify that one of the primary purposes of this amendment was to ensure that the allegations in the complaint are accurate. However, the Supreme Court also envisioned that some attorneys and their clients may still ignore the rules and further noted that this amendment is also made to give trial courts greater authority to sanction plaintiffs who make false allegations. Such is the instant case. 65. Since a verification is required, Florida Statutes section 92.525 established the principles of said verification statement where Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true, followed by the signature of the person making the declaration, except when a verification on information or belief is permitted
by law, in which case the words to the best of my knowledge and belief may be added. Plaintiff made no effort whatsoever to verify the allegations in the complaint even though it states under penalty of perjury that those allegations had been verified and they are all accurate and true. 66. Florida Statutes section 92.525 required that the written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration. The written declaration of verification was not printed or typed at the end of or immediately below the document being verified; in fact, it makes no reference as to what document is being verified. 67. This intentionally false and fraudulent statement of verification has been made despite Plaintiffs counsels knowledge that under Florida Statutes section 92.525(3) states that [a] person who knowingly makes a false declaration under subsection (2) is guilty of the crime of perjury by false written declaration, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Thus far, despite the investigations by the Attorney General and the depositions, clearly showing the perjury committed by Plaintiff, no such individuals appear to have been prosecuted for their crimes upon this Court and the citizens affected by them. FRAUD ON THE COURT 68. It is blatantly obvious that a fraud upon the Court has occurred as established in, at least, three other cases, where the verification system ploy by Plaintiff and their counsel is systematic and schematically designed to falsely satisfy the requirements of the Supreme Court amendments to Rule 1.110(b). a. Alden Berner deposition of December 7, 2010 clearly delineates the unacceptable protocol used to falsely verify the Complaint and that Debra Blaney participated in such process; to wit, that himself, Debra Blaney, Craig Zecher, and no other individuals reviewed all mortgage foreclosure cases filed in the State of Florida on behalf of Wells Fargo Bank, N.A.; b. that it is standard and systematic procedure for Wells Fargo Bank, N.A. not to look at either a note or mortgage when verifying a foreclosure Complaint; that it is standard and systematic procedure for Wells Fargo Bank, N.A. to base their verification solely on information from a computer screen without any confirmation as to the source of said information; c. that it is standard and systematic procedure for Wells Fargo Bank, N.A. to never independently verify the ownership of the subject notes, mortgages, assignment or otherwise by looking at any actual note, mortgage, assignment or other documentation of ownership in the instant case;
d. that it is standard and systematic procedure for Wells Fargo Bank, N.A. to never look at the Complaint as it is filed in Court nor any of its attachments, per se; e. that it is standard and systematic procedure for Wells Fargo Bank, N.A. to never verify that all conditions precedent to the filing of foreclosure actions have been performed or have occurred. VIOLATIONS OF THE MARCH 24, 2011 AGREEMENT BY AND BETWEEN THE LAW OFFICES OF MARSHALL C. WATSON, P.A. AND STATE OF FLORIDA OFFICE OF THE ATTORNEY GENERAL ASSURANCE OF VOLUNTARY COMPLIANCE. 69. This case was filed December 21, 2010 and the March 24, 2011 agreement by and between the Law Offices of Marshall C. Watson, P.A., Marshall C. Watson, individually, and State of Florida Office of the Attorney General dated March 24, 2011 entitled Assurance of Voluntary Compliance required that in the instant case, currently in litigation prior to March 24, 2011, where a final judgment has not been issued by the court, the Law Offices of Marshall C. Watson, P.A. review its filings for compliance with Section 2.1(c) of the agreement and file either amended affidavits, replacement affidavits or notices of withdrawal of any affidavits executed by persons who the Law Offices of Marshall C. Watson, P.A. learn did not have actual knowledge of the allegations contained in the affidavits. 70. Alden Berner deposition of December 7, 2010 clearly shows that the Law Offices of Marshall C. Watson, P.A. clearly knew that all of Wells Fargo Bank, N.A. cases filed prior to March 24, 2011 and the instant case had been subject to false verifications and fraudulent statements of verifications made under penalty of perjury by the only three (3) employees and legal process specialists doing said verifications for all foreclosure actions for entire State of Florida; to wit, Alden Berner, Debra Blaney and Craig Zecher. 71. The emails referenced and incorporated herein by reference as exhibits, together with the filings in opposition to Defendants Motion for Sanctions Against Plaintiff for Perjury clearly show that the Law Offices of Marshall C. Watson, P.A. and its co-counsel, Carlton Fields, P.A. proceed with the litigation without complying with the terms and conditions of provisions of Section II of the Assurance of Voluntary Compliance. 72. In essence, as argued by the undersigned Counsel before the Court in the hearing of Defendants Motion for Sanctions Against Plaintiff for Perjury last August 30, 2011, Plaintiff has been on notice of the defects in the Complaint since said motion for sanctions was filed; Plaintiff has been on notice of the defects in the Complaint through e-mail communications with the undersigned counsel, which are incorporated as exhibits by reference; and Plaintiff has made no effort to correct is perjurious and abusive behavior. 73. What is even more unconscionable and unacceptable - even though there was an investigation into Plaintiffs counsel, Law Offices of Marshal C. Watson, P.A., for unfair and
fraudulent trade practices and where, as a result of said investigation, the Law Offices of Marshal C. Watson, P.A. agreed and assured to withdraw its perjurious statements and Complaints, and where Plaintiffs co-counsel, Carlton Fields, P.A. through its employee, attorney Michael K. Winston, Esq., conducted and was present in representation of Plaintiff Wells Fargo Bank, N.A. when Alden Berner, legal process specialist for Plaintiff Wells Fargo Bank, N.A. testified under oath as to the protocol and scheme to defraud and falsely represent its verification of the Complaint as required by the Supreme Court of Florida amendment to Rule 1.110(b), Jason Perkins, Esq., employee attorney for Carlton Fields, P.A. failed and refused to withdraw and correct said false statements and stated in its email to the undersigned counsel dated August 15, 2011 that he intended to proceed with litigation and seek other fees and costs. 74. The Law Offices of Marshall C. Watson, P.A. failed to abide by Section II of the Assurance of Voluntary Compliance where it is clear that the Law Offices of Marshall C. Watson, P.A. is responsible responsible for making the substantive terms and conditions of this agreement known to the officers, employees agents, representatives, or any other persons that are substantially affected by this Assurance and are involved in the Law Offices of Marshall C. Watson, P.A.s businesses, projects and activities. Said obligations of the aforementioned paragraph are continuing in nature and applied to co-counsel Carlton Fields, P.A. as new officers, employees, agents, representatives, who become engaged in the Law Offices of Marshall C. Watson, P.A.s business activities, including the instant case. 75. An e-mail communication from Renee Kemper, paralegal to Jason Perkins, Esq. of Carlton Fields, P.A. to Nalini Singh, Esq. of Marshall Watson, P.A. dated August 16, 2011 , in which Mrs. Kemper is forwarding a Notice of Filing of the 2004 merger of Wells Fargo Bank, N.A. and Wells Fargo Home Mortgage, Inc. in support of Plaintiffs opposition to sanctions for perjury, confirms Marshall C. Watson, P.A.s continued control and involvement in the instant matter, notwithstanding the fact that it remains co-counsel in the instant matter. CARLTON FIELDS, P.A.S INVOLVEMENT AND PERPETUATION OF THE KNOWN FRAUDULENT VERIFICATION OF THE COMPLAINT AND FALSE ALLEGATIONS CONTAINED IN THE COMPLAINT 76. Carlton Fields, P.A., through its employee and attorney Michael K. Winston, Esq., Florida Bar Number 51403 with its business address being City Place Tower, 525 Okeechobee Boulevard, Suite 1200, West Palm Beach, Florida 33401-6149 appeared as counsel and attorney for plaintiff Wells Fargo Bank N.A. with regards to the deposition of Alden Berner, a Legal Process Specialist for Wells Fargo Bank N.A. in three cases involving Wells Fargo Bank, N.A. as plaintiff with Case Numbers 2010-CA-018991-MB, 2010-CA-023143-MB, and 2010-CA-016671-MB. Therefore, it is clear that Carlton Fields, P.A. was aware of the fraudulent practices of its client, Plaintiff Wells Fargo Bank, N.A. as far back as December 7, 2010.
77. A notice of appearance was filed in the Courts docket July 27, 2011 listing Carlton Fields, P.A. as co-counsel in the instant case. 78. An e-mail communication from Jason Perkins, Esq. dated July 28, 2011, with email address jperkins@carltonfields.com, confirms that Carlton Fields, P.A., and its employee, attorney Jason Perkins, Esq. with Florida Bar Number 610852, which lists its business address, of its Orlando office, as CNL Center at City Commons, 450 S. Orange Avenue, Suite 500, Orlando, Florida 32801-3336, represents Wells Fargo Bank, N.A. 79. All email communications from Jason Perkins, Esq., employee and attorney of Carlton Fields, P.A. with the undersigned counsel and their statements made before this Court at the August 30, 2011 hearing of Defendants Motion for Sanctions Against Plaintiff for Perjury underline the fact that Carlton Fields, P.A. has, like its co-counsel, the Law Offices of Marshall C. Watson, P.A., no intention of rectifying a known fraud upon this Court; instead that Carlton Fields, P.A. continues to perpetuate the forbidden actions in the Law Offices of Marshal C. Watson, P.A.s Assurance of Voluntary Compliance; and refuses to abide by the requirements of said Assurances made by the Law Offices of Marshall C. Watson, P.A. 80. It is clear and irrefutable, that, having had the opportunity and the duty to correct the Complaint and withdraw the false statement of verification, especially when they were present when Wells Fargo Bank, N.A. confessed to its perjury, a fraud has been committed upon the Court and still continues despite all the requirements of the Supreme Court of Florida and the agreement reached with the State Attorney Generals office to halt an investigation into the foreclosure practices of these law firms and their client, Wells Fargo Bank N.A. WHEREFORE, since this Court already agreed that the allegations made in the Complaint and the Verification were a mistake, and the evidence attached, referred to and filed herein with this Motion, simultaneously or as a separate document, especially, the damaging sworn testimony of Wells Fargo Bank, N.A. to Carlton Fields, P.A., which has already been procured for three (3) other Wells Fargo Bank, N.A. cases and a Wells Fargo Asset Securities Corporation case in the 15th Judicial Circuit in and for Palm Beach County, Florida, the Defendants Carlos and Ilsa Ramos, through their undersigned attorney, most respectfully pray this Court reconsiders their Motion for Sanctions Against Plaintiff for Perjury and reverses its decision denying said motion for perjury against Plaintiff, and further: (1) conclude that the required verification ordered by the Supreme Court of Florida in its amendment of Florida Rules of Civil Procedure 1.110(b), was not made; (2) conclude that a false statement filed under penalties of perjury by Plaintiff Wells Fargo Bank, N.A. through its attorneys the Law Offices of Marshall C.
Watson, P.A. and Carlton Fields, P.A. was willingly filed to influence the Court into believing that Plaintiff can foreclose on Defendants; (3) conclude that, as the Supreme Court of Florida noted in its amendment of Florida Rules of Civil Procedure 1.110(b), the primary purposes of this amendment are to provide incentive for the plaintiff to ensure that the allegations in the complaint are accurate and to give trial courts greater authority to sanction plaintiffs who make false allegations such as that made under perjury where Plaintiff Wells Fargo Bank, N.A., through its attorneys the Law Offices of Marshall C. Watson, P.A. and Carlton Fields, P.A. callously state that such verification actually took place, when, in fact, never happened; (4) conclude that Plaintiff Wells Fargo Bank, N.A., through its counsel, Law Offices of Marshall C. Watson, P.A. failed to file the required verification ordered by the Supreme Court of Florida in its amendment of Florida Rules of Civil Procedure 1.110(b) pursuant to the format expounded in Florida Statute section 92.525(2) requiring that the written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration; (5) conclude that those individuals making said perjurious statements, specifically, Alden Berner, Deborah Blaney - aka Debra Blaney, Craig Zecher , be referred to the State Attorney General and investigated pursuant to Florida Statutes section 92.525(3) which states that [a] person who knowingly makes a false declaration under subsection (2) is guilty of the crime of perjury by false written declaration, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084; (6) conclude that the aforementioned acts by the parties involved, including two major law firms, constitute a fraud on the Court where Carlos and Ilsa Ramos have demonstrated, clearly and convincingly that Wells Fargo Bank N.A., the Law Offices of Marshall C. Watson, P.A. and Carlton Fields, P.A. have sentiently set in motion this unconscionable scheme calculated to interfere with the judicial systems ability to impartially adjudicate this mater by improperly influencing this Court and unfairly hampering the presentation of Carlos and Ilsa Ramos presentation of their defenses; (7) conclude that the Law Offices of Marshall C. Watson, P.A. have breached their Assurance of Voluntary Compliance with the State Attorney Generals office where it has failed to correct, rectify and withdraw the perjurious statements and where it has failed to ensure that Carlton Fields, P.A. continues to do so as co-counsel in cases in which the Law Offices of Marshall C. Watson, P.A. was originally involved;
(1) conclude that, pursuant to the legal precedent discussed herein this Motion, Wells Fargo Bank N.A., the Law Offices of Marshall C. Watson, P.A. and Carlton Fields, P.A.s actions are so egregious so as to warrant that this case be DISMISSED WITH PREJUDICE; (2) that reassured by the legal precedent herein discussed, together with all the undeniable proof and argument provided herein, this Court, having been appraised of a fraud upon it being committed, DISMISS THIS ACTION WITH PREJUDICE; (3) that as expounded in Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. 4th DCA 1992), this Court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court, or where a party refuses to comply with court orders, where, in the instant case, both situations warranting a DISMISSAL WITH PREJUDICE have occurred, this Court DISMISSED THIS ACTION WITH PREJUDICE; (4) order an investigation into all similar cases filed by Wells Fargo Bank, N.A. in the State of Florida to ensure the integrity of our judicial system and all those foreclosures which may have already been adjudicated under such false and perjurious pretenses; (5) order an investigation into the Law Offices of Marshall C. Watson, P.A. for its ongoing fraudulent misrepresentations and lack of candor on this Court; (6) order an investigation into Carlton Fields, P.A. for its fraudulent misrepresentations and lack of candor on this Court and for perpetuating a known fraud vis-a-vis their being appraised of such fraud by way of the December 7, 2010 deposition of Alden Berner in which Carlton Fields, P.A. actively participated;
(7) refer and advise the State Attorney General to investigate the Law Offices of Marshall C. Watson, P.A. and Carlton Fields, P.A. for their breach of the Assurance of Voluntary Compliance agreement between the Law Offices Marshall C. Watson and State of Florida Office of the Attorney General dated March 24, 2011. (8) refer and advise the Federal Authorities to open a wire/mail fraud investigation for each and every instance in which any such aforementioned perjurious statements were mailed, be it as it may, through e-mail, facsimile (telecopy), or US Mail, in each and every case that may be affected by the actions of Wells Fargo Bank, N.A., the Law Offices of Marshall C. Watson, P.A. and Carlton Fields, P.A.
(1) refer and advise the Florida Supreme Court and the Florida Bar to open ethical investigations into all attorneys involved in the instant case and all other such relevant cases where it may be pertinent, together with any and all other remedies this Court may deem just and proper to maintain the integrity of the judicial system of the State of Florida. CERRUD LAW, PLLC
______________________________ EURIBIADES CERRUD II, ESQUIRE Florida Bar No.: 0523569 324 Wilshire Boulevard Casselberry, Florida 32707 Telephone No.: (407) 758-6100 Facsimile No.: (407) 386-6570 Attorney for Defendants Carlos Ramos and Ilsa Ramos
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Motion for Reconsideration of Order Denying Defendants Motion for Sanctions Against Plaintiff for Perjury has been furnished by U.S. Mail, postage pre-paid, to Nalini Singh, Esq., Law Offices of Marshall C. Watson, P.A., 1800 N.W. 49th Street, Suite 120, Fort Lauderdale, FL 33309; Jason Perkins, Esq., Carlton Fields P.A., 450 S. Orange Avenue, Suite 500, Orlando, Florida 32801-3336 this 13th day of September 2011. CERRUD LAW, PLLC
______________________________ EURIBIADES CERRUD II, ESQUIRE Florida Bar No.: 0523569 324 Wilshire Boulevard Casselberry, Florida 32707 Telephone No.: (407) 758-6100 Facsimile No.: (407) 386-6570 Attorney for Defendants Carlos Ramos and Ilsa Ramos

Wells Fargo - Motion For Reconsideration of Order Denying Def Motion For Sanction

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Wells Fargo - Motion For Reconsideration of Order Denying Def Motion For Sanction

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not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who

Id. at 1117-18. (emphasis added)

And myself, yes.20 [ ... ]

Accept, reject, approve or disapprove.27

OF MARSHALL C. WATSON, P.A.S CONDEMNED ACTIONS

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