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Thank you all for coming. Sorry that you got here late, but we appreciate your being here.

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Good morning. Good morning. Eric Levine here on behalf of the appellant, the Bank of New York.

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Madeline, may it please the court. I'd like to reserve five minutes for rebuttal, if I may.

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Very good.

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The final judgment for the defendant should be reversed, and this matter remanded for entry of final judgment at foreclosure.

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The trial judge entered judgment for the defendants for one reason only, that the plaintiff failed to prove the defendants had defaulted on their mortgage loan.

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However, as I stand before you today, there's no dispute.

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In fact, it's freely admitted that the defendants have not tendered a mortgage payment in nine years.

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You know, maybe I'm getting cynical in my old age, but when they tell you you haven't made a payment in nine years, I don't see how you're not in default.

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Well, let's talk about that for just a moment.

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I'm going to head right into the issue.

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There are times where an ongoing default that isn't the fault of the borrower could bar the action, at least as then pleaded, right?

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I would submit, what do you mean by the fault of the borrower?

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Because the borrower is required to tender a payment every month, and if they don't tender a payment, that's only the fault of their own.

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And each failure to tender constitutes a new breach.

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Absolutely.

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So when this case was filed, the breach was based on January, I think it was what, 2016 or 2017?

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January 1st, 2017, and all subsequent payments.

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It was a continuing state of breach every single month starting January 1st, 2017 all the way through, I believe, January 1st, 2021.

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And so then the question became one of tender, whether they had tendered or not.

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So the question I want to pose to you is, what refuted the borrower's testimony that she, in fact, had tried to tender and it was refused unless she brought it current, including amounts that apparently were uncertain because of the DITEC issue?

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I mean, I think we're all familiar with the facts of the case.

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So I'd really like to get to that.

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To me, that's one of the hearts of this case.

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So I'm going to jump right into it, and I'm going to put it to bed right now.

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In 2015, four payments were reversed by the then-servicer of the loan.

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The bank witness at the trial testified he could not definitively state why they were reversed, but they were.

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He said it's possible it was for insufficient funds, but he couldn't say definitively.

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There's no evidence that the reversal was wrong.

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It's simply that we didn't know.

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And the judge in her findings didn't say it was wrong.

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I thought there was some testimony that, in fact, it was wrong.

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I don't believe so.

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But let's give over that.

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Let's assume for the sake of argument that those payments were improper.

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It was a mistake.

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Wasn't there evidence presented, documentary evidence, that the payments were made?

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The payments were tendered.

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They were reversed.

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We don't know why they were reversed.

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And so if they were reversed incorrectly, those amounts were no longer due in owing.

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That portion, correct?

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No.

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No.

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Even if they were improperly returned and reversed, you still owe the money.

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But that's a ‑‑ I'll concede that.

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But that's a breach by the lender to improperly, arguably, improperly reject tendered payments.

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I don't know if ‑‑ we don't know specifically why it was reversed.

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If we knew why, I could answer that better.

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Your client was a plaintiff.

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Wasn't it its burden to show how much was owed, when default occurred,

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the fact that payments were not properly made and so forth?

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And I know you're going to talk about the later payments or the lack of payments.

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But the whole situation seemed to develop from those four payments, or reversed payments.

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They were reversed.

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And eventually the bank said we're not accepting any more payments,

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or at least returned one payment in May of 2017,

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to say this is insufficient to bring along current.

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We're not accepting it.

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And what was that rejection of the May 2017 based on in terms of the amount that was owed?

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They believed at the time she was several months behind.

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That was what the records reflected.

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And did the evidence establish that, in fact, she had been several months behind as of May 2017?

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The records that we introduced did show that the payments were reversed.

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Based on what appears to be the erroneous reversal of the payments.

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Not necessarily, but I would submit.

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Am I correct in that or not?

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You're correct that the records reflect the payments were reversed.

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I don't agree that the records reflect that it was erroneous.

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But I will submit that I don't think it's relevant.

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I don't think it's material.

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That fact, whether the payments were correctly reversed.

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Before your argument why I don't think it's material, I just want to be clear about.

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Why is that material?

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Because the bank.

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No, I said before you argued why it's not material.

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I wanted to ask a question.

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So right now I believe Judge Silberman can correct me if I'm incorrect.

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You all were just discussing the return of the May payment.

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The May 2017 payment.

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The Bank of America mailed it back.

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That was essentially a one mortgage payment.

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That was one payment.

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It wasn't clearing a deficit that the bank contends was outstanding.

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Correct?

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No, it wasn't all of them.

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It was just that one May 2017.

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Right.

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So I'm saying what comprised that purported deficit.

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In other words, this is not sufficient to bring you current.

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Because there's X amount that you should pay now to bring you current.

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What comprises that X amount?

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And is it possible that it is due to the 2015 erroneously rejected payments?

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It was since January of 2017.

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So the rejection of the May 2017 payment, the rationale was you haven't paid since January.

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Therefore, you owe us January, February, March, April, and May.

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So was it based on an additional deficit that could be attributable to the rejected payments in 2015?

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Or was it based on the purported deficiency that was comprised of those 2017 missed payments?

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It was certainly mostly comprised because the payments had been reversed.

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And she had these four payments.

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She was in bankruptcy at the time.

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I don't know if that had anything to do with it.

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But the four payments were sent back for whatever reason.

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I don't agree with the fact that it was definitely.

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The four payments when?

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The four payments were reversed in August of 2015.

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No, no, no.

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I'm talking about, okay.

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Sorry.

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You just said the rationale for rejecting the 2017 May payment was that it was insufficient because the arrears were more than just one mortgage payment.

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Correct.

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What were the arrears?

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January through, I guess, May.

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It was five months.

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Because in January through April, you applied those payments or previous payments way back to the 2015.

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And so everything slid backwards.

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The oldest default.

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It gets applied to the oldest default.

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Okay.

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So that's why.

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Okay.

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Thank you.

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But let me push through the issue and tell you why it's irrelevant whether those payments were correctly or incorrectly reversed.

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Can you stop saying those payments and just tell me which payments you're talking about?

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Sorry.

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The four payments in August of 2015 were reversed.

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You're going to tell us why those are irrelevant.

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Good.

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Okay.

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They're not relevant because, one, obviously, that's not a basis to never tender a mortgage payment ever again,

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which is basically what's happened since May of 17.

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But I want to bring your attention to November of 2020.

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But I need to ask a clarification based on what Judge Gard asked and what you answered.

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The payments that were reversed, set those aside for a moment.

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Okay.

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So January 2017 through April 2017, did the borrower make payments?

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I believe the borrower tendered payments that got applied to they had been behind.

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Well, okay.

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That's the part I want to clarify.

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How were they behind if those payments were applied to a retroactive debt?

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It's not a retroactive debt.

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Payments are applied to the oldest payment then due.

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So which were those?

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So January probably got applied to January of 17.

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Payment probably got applied to, let's say, September of 2016.

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Was there a failure to pay in September 2016?

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Well, there's been a running default.

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So that goes back to the original four that were reversed.

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Could be.

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Well, whose responsibility is to know?

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And whose responsibility is there to present evidence establishing the sequence?

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Because you're now telling me, well, they were reversed, and maybe they weren't correctly reversed.

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Maybe they were correctly reversed.

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But we're declaring a default based on those uncertain reversals.

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And, by the way, when she starts making further payments, we're going to apply them to those even though we're not sure if they were properly reversed or not.

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Is that what I'm understanding the argument is?

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I don't believe I'd phrase it exactly that way.

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I know you wouldn't because you don't want to concede that, but that's what I'm hearing.

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I'm just telling you exactly what the records show.

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Those payments were reversed, and any payments she made after that that were accepted and applied applied to the oldest.

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Well, let me ask a follow-up to this.

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The Notice of Acceleration goes out.

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What was the basis of accelerating the loan?

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Was it those four unpaid payments from a few years earlier?

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The Notice of Default that went out in November 2020 was based – and it's not an acceleration.

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It was a Notice of Default.

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Acceleration is encouraged if the complaint is filed.

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That was based on all unpaid payments from, I guess, January of 2017 through November of 2020.

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So you're circling back now to what I started with, which is she testified she tried to make additional payments, and they were rejected.

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Now, I concede her testimony isn't a paradigm of clarity, but there is some testimony to that effect.

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Did the bank present evidence refuting her claim that she tendered additional payments?

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Well, she admitted that she didn't tender any payments after May of 2017, so I believe the bank – there was nothing to refute.

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Okay.

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I think opposing counsel might have a statement on that, or maybe I've misremembered what I read in the transcript.

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But let's talk about, then, if we can move to the tender issue.

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Did your client raise as an avoidance to the affirmative defense that she was required to make payment into the registry of the court and tender ongoing payments?

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No, Your Honor, because she didn't plead tender and refusal as an affirmative defense.

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She pled –

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So affirmative defense number two, defendants assert that the bad action – or I think I might have typed this incorrectly – of the plaintiff has caused the loan to be in default.

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Plaintiff states the defendants have not made a payment since January of 2017.

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This is false.

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Defendants made all payments until plaintiffs stopped taking payments.

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Plaintiff's own actions of not accepting payments caused any default, bars plaintiff from foreclosing on the property.

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Now, I will say that that last portion about bars plaintiff from foreclosing, I'm not sure I would agree with.

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But that seems to me to be a defense.

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So why, if you're arguing on appeal, which I think may be the first time it was raised, that she had to tender money into the registry of the court, was that ever argued to the trial court?

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Yes, it was argued in our motion for rehearing.

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Okay, but it wasn't argued before the entry of judgment in her favor or in their favor.

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No, but I'm also going to point the court out to the actual answer.

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Second affirmative defense is unclean hands.

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It's not a tender and refusal defense.

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It's an unclean hands defense.

193
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And we didn't need to plead that in avoidance of a defense that wasn't fled.

194
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I understand she said, well, you refused.

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So if I'm satisfied that that was enough to assert an affirmative defense that any default was caused by your client's action, did you have to avoid that defense?

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No, I would not.

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I would say we would not need to avoid it because under the case law we saw in the brief, as part of your proving your affirmative defense,

198
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you have to put it into the court registry.

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It's not the burden of the defendant to force you, or the plaintiff to force you.

200
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Isn't it the burden of the bank to bring to the trial court's attention that there has been no tender?

201
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I would say, and we did in our motion for rehearing, but that was the first time I would submit that we realized.

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So it wasn't brought up as an avoidance or a reply to the affirmative defense.

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And it wasn't brought up at the hearing or at the trial on the default.

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No, it was not.

205
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Because we were going at that time based on an unclean hands defense, not a tender refusal defense.

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But once the trial judge made her ruling and said, oh, you refused her payments, that's kind of why it's not default.

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We said, oh, wait a minute.

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This is a tender refusal defense that hasn't been pled, and it hasn't been proven.

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Because in order to have a tender and refusal – so let's assume we talk about avoidance.

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You don't have to avoid an affirmative defense if they don't approve the affirmative defense.

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And an affirmative defense of tender and refusal requires tender, requires you actually tender the payments.

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And she admits she didn't.

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Now, I know Your Honor talked about her testimony, and I want to read – I'll just read to the court some of the quotes I copied out.

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Question, this is on page 1644 of the record.

215
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Okay, so you never made any effort to cure the default.

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Answer, correct.

217
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I wasn't advised to.

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Page 1961 of the record.

219
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Okay, so as we sit here today, you have made no effort to cure your obligation under the contract.

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Is that correct?

221
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Answer, correct.

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A little below it.

223
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But as we sit here today, you have not made any effort to cure the amount that have been continued to accrue.

224
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Is that correct?

225
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Answer, that is correct.

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When Ms. Fernandez tells you that she hasn't cured her default and has made no effort to cure her default, I think we should believe her.

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And I want to circle back to why I think these four payments, even if they were mistakenly reversed, is not material.

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In November of 2020, the breach letter was sent out.

229
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She owed about $56,000, and there's really no dispute that that number is basically correct.

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What does that mean, basically correct?

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I'll explain right now.

232
00:14:56,000 --> 00:15:00,000
So she said she only had about $20,000 in her account.

233
00:15:00,000 --> 00:15:03,039
in the bank, she was about $36,000 short

234
00:15:03,039 --> 00:15:05,000
of curing her default and bringing the loan

235
00:15:05,000 --> 00:15:07,080
current November of 2020.

236
00:15:07,080 --> 00:15:09,799
Even if we were to credit her those four payments

237
00:15:09,799 --> 00:15:14,799
about $800, that brings the amount down from 36,000,

238
00:15:14,799 --> 00:15:18,320
sorry, she was from 56 to about 53.

239
00:15:18,320 --> 00:15:22,159
So instead of being $36,000 short, she was $33,000 short.

240
00:15:22,159 --> 00:15:24,798
So either way, it's the same result.

241
00:15:24,798 --> 00:15:27,798
And I like to ask the court, you know,

242
00:15:27,798 --> 00:15:28,840
I know you're not gonna answer that,

243
00:15:28,840 --> 00:15:31,519
the questions go one way, but if we were to,

244
00:15:31,519 --> 00:15:34,879
if this court were to affirm, what happens then?

245
00:15:36,080 --> 00:15:38,039
We'll send another breach letter.

246
00:15:38,039 --> 00:15:41,080
This time, it'll probably be over $100,000.

247
00:15:41,080 --> 00:15:43,918
You know, presumably, we'll credit her the four payments,

248
00:15:43,918 --> 00:15:46,080
say, okay, here are the four payments back.

249
00:15:46,080 --> 00:15:48,438
The number will still probably be over 100,000.

250
00:15:48,438 --> 00:15:49,798
Presumably, she won't cure.

251
00:15:49,798 --> 00:15:50,720
I would love it if she would,

252
00:15:50,720 --> 00:15:52,599
but presumably, she wouldn't cure.

253
00:15:52,599 --> 00:15:55,278
And we'd be right back here, again, saying.

254
00:15:55,278 --> 00:15:56,918
Is that even relevant?

255
00:15:56,918 --> 00:15:57,759
I think it's relevant.

256
00:15:58,720 --> 00:16:00,480
If we think the trial court got it right,

257
00:16:00,480 --> 00:16:02,119
you're not without a remedy.

258
00:16:02,119 --> 00:16:04,799
But it's not our job to say,

259
00:16:04,799 --> 00:16:06,799
well, we're gonna shortcut the process.

260
00:16:06,799 --> 00:16:09,039
I don't, I'm asking the court to shortcut the process.

261
00:16:09,039 --> 00:16:09,879
I'm simply taking.

262
00:16:09,879 --> 00:16:11,680
No, you want us to say that the trial court got it wrong.

263
00:16:11,680 --> 00:16:12,519
I mean, I understand that.

264
00:16:12,519 --> 00:16:13,879
I think the trial court did got it wrong.

265
00:16:13,879 --> 00:16:15,480
If we think the trial court got it right,

266
00:16:15,480 --> 00:16:17,838
the fact that there is a practical solution

267
00:16:17,838 --> 00:16:20,319
that favors the bank doesn't eliminate

268
00:16:20,319 --> 00:16:22,599
the due process that has to apply.

269
00:16:22,599 --> 00:16:23,799
Due process definitely occurred.

270
00:16:23,799 --> 00:16:25,838
If they got noticed, an opportunity to be heard.

271
00:16:25,879 --> 00:16:29,720
If we agree with the trial court, and we affirm,

272
00:16:29,720 --> 00:16:34,720
your suggestion seems to be that we should still reverse,

273
00:16:36,440 --> 00:16:38,838
because you can sue again.

274
00:16:38,838 --> 00:16:40,639
No, no, I'm just pointing out the fact

275
00:16:40,639 --> 00:16:42,319
this is why the trial court was wrong,

276
00:16:42,319 --> 00:16:43,159
because they did not.

277
00:16:43,159 --> 00:16:44,680
Well, couldn't you have raised that?

278
00:16:44,680 --> 00:16:47,099
Couldn't you have raised a credit

279
00:16:47,099 --> 00:16:48,720
to the final judgment figures?

280
00:16:48,720 --> 00:16:51,759
And like in the re-hearing, or elsewhere?

281
00:16:52,360 --> 00:16:56,480
Just, couldn't that, I mean, you're suggesting

282
00:16:56,480 --> 00:16:58,879
that that's gonna be what happens if we send this back,

283
00:16:58,879 --> 00:17:00,360
but I mean, you didn't make that suggestion

284
00:17:00,360 --> 00:17:01,480
to the trial court, right?

285
00:17:01,480 --> 00:17:02,959
We never got to the amount to do.

286
00:17:02,959 --> 00:17:04,079
We never got to how much to do.

287
00:17:04,079 --> 00:17:05,878
The court said we never proved the default.

288
00:17:05,878 --> 00:17:08,118
So, obviously, we could always say,

289
00:17:08,118 --> 00:17:10,319
here's four months of credit in the final judgment.

290
00:17:10,319 --> 00:17:13,440
We could credit any time, but the point I'm trying to make

291
00:17:13,440 --> 00:17:15,479
is the trial court was wrong,

292
00:17:15,479 --> 00:17:19,000
because no payments had been tendered in years.

293
00:17:19,000 --> 00:17:20,160
Many years.

294
00:17:20,160 --> 00:17:22,880
So, even putting aside these four payments

295
00:17:22,880 --> 00:17:24,360
that were improperly reversed,

296
00:17:24,360 --> 00:17:26,838
even conceding they were improperly reversed,

297
00:17:26,838 --> 00:17:30,479
that is not an excuse to not make any payments in 2018.

298
00:17:30,479 --> 00:17:31,759
Mr. Levine, I think we understand

299
00:17:31,759 --> 00:17:33,079
that part of the argument.

300
00:17:33,079 --> 00:17:35,118
Let me just say, I've let you go over,

301
00:17:35,118 --> 00:17:38,160
because I asked more questions than I probably needed to.

302
00:17:38,160 --> 00:17:40,799
So, before you sit down and reserve your five minutes,

303
00:17:40,799 --> 00:17:42,838
if either judge has more.

304
00:17:42,838 --> 00:17:44,319
Otherwise, I'll let you have your five minutes

305
00:17:44,319 --> 00:17:45,519
if you're sitting.

306
00:17:45,519 --> 00:17:46,360
Thank you.

307
00:17:51,000 --> 00:17:51,838
Okay.

308
00:17:58,398 --> 00:17:59,319
Good morning, your honors.

309
00:17:59,319 --> 00:18:00,838
Good morning.

310
00:18:00,838 --> 00:18:02,278
May it please the court.

311
00:18:02,278 --> 00:18:03,919
My name is Alan Borden.

312
00:18:03,919 --> 00:18:05,720
I'm with Debra Lee Fleal Group,

313
00:18:05,720 --> 00:18:08,160
and I represent the Fernandeses.

314
00:18:08,160 --> 00:18:10,319
Mr. Borden, just speak up a little bit, please.

315
00:18:10,319 --> 00:18:11,720
I represent the Fernandeses.

316
00:18:11,720 --> 00:18:14,519
We're here, and they're the homeowners.

317
00:18:15,519 --> 00:18:20,519
The, what the bank here is trying to say is that,

318
00:18:23,759 --> 00:18:25,639
they, under a promissory note,

319
00:18:25,639 --> 00:18:29,639
can unilaterally reject payments,

320
00:18:30,799 --> 00:18:33,278
and then see how long they can wait

321
00:18:33,278 --> 00:18:34,979
until starting a foreclosure,

322
00:18:34,979 --> 00:18:38,360
just to test the financial viability of the homeowner.

323
00:18:38,360 --> 00:18:40,079
But couldn't you, or couldn't they,

324
00:18:40,079 --> 00:18:42,319
have filed a lawsuit for an accounting?

325
00:18:42,319 --> 00:18:44,360
This seems to be like there was an accounting issue

326
00:18:45,199 --> 00:18:46,038
over four payments, right?

327
00:18:46,038 --> 00:18:46,860
Correct.

328
00:18:46,860 --> 00:18:48,240
And instead of just sitting there

329
00:18:48,240 --> 00:18:50,679
and not making payments for years,

330
00:18:50,679 --> 00:18:53,799
couldn't your client have commenced an action

331
00:18:53,799 --> 00:18:56,398
against the bank, or taken more action

332
00:18:56,398 --> 00:18:58,360
than just tendering the one payment?

333
00:18:59,440 --> 00:19:01,440
Yes, they couldn't, so.

334
00:19:01,440 --> 00:19:02,919
And they didn't do it.

335
00:19:02,919 --> 00:19:05,558
I mean, we're here sitting in equity,

336
00:19:05,558 --> 00:19:09,720
and they were asking us to allow a foreclosure,

337
00:19:10,940 --> 00:19:13,558
and it appears there were four payments

338
00:19:13,558 --> 00:19:17,920
that may or may not have been wrongfully reversed.

339
00:19:17,920 --> 00:19:22,920
But the truth is that we're eight years of no payments,

340
00:19:23,000 --> 00:19:25,160
and I don't, I think from the testimony,

341
00:19:25,160 --> 00:19:28,160
your clients don't have a way to actually catch up.

342
00:19:29,639 --> 00:19:31,639
Right, but the equity situation,

343
00:19:31,639 --> 00:19:32,959
and whose burden is it,

344
00:19:32,959 --> 00:19:35,000
I think goes back to the original, right?

345
00:19:35,000 --> 00:19:38,319
So we have a foreclosure that was wrongfully done

346
00:19:38,319 --> 00:19:39,358
the first time, right?

347
00:19:39,358 --> 00:19:41,679
There was an original foreclosure back in 2019.

348
00:19:42,200 --> 00:19:46,679
That got dismissed, and so that has no effect, right?

349
00:19:46,679 --> 00:19:50,200
Right, and so there, it was dismissed voluntarily

350
00:19:50,200 --> 00:19:53,679
by the bank because they didn't realize

351
00:19:53,679 --> 00:19:56,519
until the day before trial that they were missing

352
00:19:56,519 --> 00:20:00,558
accounting by DITEC, those four payments, okay?

353
00:20:00,558 --> 00:20:02,398
That was produced the day before trial,

354
00:20:02,398 --> 00:20:04,078
and they dismissed it.

355
00:20:04,078 --> 00:20:07,639
Then, the bank, knowing that that's their issue,

356
00:20:07,639 --> 00:20:11,239
waited a year or two, and then filed another foreclosure

357
00:20:11,798 --> 00:20:12,639
with the exact same thing.

358
00:20:12,639 --> 00:20:14,759
And during that whole year,

359
00:20:14,759 --> 00:20:18,599
your clients never tendered a payment, right?

360
00:20:18,599 --> 00:20:21,798
So, yes, the unsophisticated borrowers

361
00:20:21,798 --> 00:20:25,440
versus the bank who knows and deals with mortgages

362
00:20:25,440 --> 00:20:27,759
every single day, who made a mistake

363
00:20:27,759 --> 00:20:29,599
on their own accounting, it's whose burden?

364
00:20:29,599 --> 00:20:32,078
But your unsophisticated borrower

365
00:20:32,078 --> 00:20:34,519
was represented by you, right?

366
00:20:34,519 --> 00:20:36,160
In that initial action, correct?

367
00:20:36,160 --> 00:20:37,200
Yes, Your Honor, yes.

368
00:20:37,200 --> 00:20:41,200
So, you could have provided them legal advice,

369
00:20:41,959 --> 00:20:43,759
presumably, so what's not, I mean,

370
00:20:43,759 --> 00:20:47,440
I get that they're a bank and they have lawyers,

371
00:20:47,440 --> 00:20:49,720
but I mean, your client had a lawyer as well

372
00:20:49,720 --> 00:20:50,838
to advise them, right?

373
00:20:50,838 --> 00:20:53,358
Right, and the typical response in this kind of situation

374
00:20:53,358 --> 00:20:56,798
is the bank then adjusts their accounting

375
00:20:56,798 --> 00:20:58,759
and then puts them back to current.

376
00:20:58,759 --> 00:21:01,398
When the foreclosure gets dismissed, it deaccelerates,

377
00:21:01,398 --> 00:21:03,838
so it should go back to regular monthly payments.

378
00:21:03,838 --> 00:21:05,759
They should send regular notices,

379
00:21:05,759 --> 00:21:08,160
but instead, the bank, and what's proven here

380
00:21:08,160 --> 00:21:10,440
is that they've kept those four missed payments

381
00:21:10,440 --> 00:21:11,920
the entire time, they wouldn't have accepted

382
00:21:11,920 --> 00:21:13,599
less than five payments at a time.

383
00:21:13,599 --> 00:21:17,119
So, the note decelerates and your client

384
00:21:17,119 --> 00:21:20,200
doesn't go back to making any payments, right?

385
00:21:20,200 --> 00:21:22,319
Well, because the bank won't accept anything less

386
00:21:22,319 --> 00:21:23,160
than the full amount.

387
00:21:23,160 --> 00:21:25,078
But they didn't even try, right?

388
00:21:25,078 --> 00:21:26,239
They only tried the one time

389
00:21:26,239 --> 00:21:28,519
and had the one payment rejected, right?

390
00:21:28,519 --> 00:21:30,200
That's what the record shows.

391
00:21:30,200 --> 00:21:32,759
The record shows she attempted to make a payment

392
00:21:32,759 --> 00:21:34,679
that was sent back through mail,

393
00:21:34,679 --> 00:21:36,398
and then she went literally to the bank

394
00:21:36,398 --> 00:21:37,720
with another check to try to pay them.

395
00:21:37,720 --> 00:21:39,160
When is this, can I ask a question?

396
00:21:39,160 --> 00:21:40,838
Are you talking about 2015 or 2017?

397
00:21:40,838 --> 00:21:41,920
2017.

398
00:21:41,920 --> 00:21:43,480
Okay, so that, okay, but,

399
00:21:43,480 --> 00:21:45,398
2000, sorry, Judge, go ahead.

400
00:21:45,398 --> 00:21:49,880
No, that's fine, but we're now talking 2021, right?

401
00:21:49,880 --> 00:21:50,759
Right.

402
00:21:50,759 --> 00:21:54,078
And there's no attempt in 2021

403
00:21:54,078 --> 00:21:58,078
after, like in your experience,

404
00:21:58,078 --> 00:22:01,039
you're expecting it to be reset,

405
00:22:01,039 --> 00:22:04,278
but there's no attempt after what you're expecting

406
00:22:04,278 --> 00:22:07,959
to be a reset for another tender, right?

407
00:22:08,720 --> 00:22:12,160
Right, they don't understand what their position is,

408
00:22:12,160 --> 00:22:16,278
correct, I mean, they don't know what the bank's doing,

409
00:22:16,278 --> 00:22:18,358
they're not receiving the notices that would tell them,

410
00:22:18,358 --> 00:22:20,679
okay, just start making your regular payments.

411
00:22:20,679 --> 00:22:22,519
But I think the court was correct in pointing out that-

412
00:22:22,519 --> 00:22:24,358
Say that again, what you just said?

413
00:22:24,358 --> 00:22:26,278
Say that again, what you just said?

414
00:22:26,278 --> 00:22:27,720
They didn't understand what?

415
00:22:27,720 --> 00:22:31,000
They didn't, they didn't get normal mortgage statements.

416
00:22:31,000 --> 00:22:33,480
You said they didn't understand the notice that said

417
00:22:33,480 --> 00:22:34,319
to restart the-

418
00:22:34,319 --> 00:22:36,239
That they would make normal, regular payments.

419
00:22:36,239 --> 00:22:37,720
What did that notice say?

420
00:22:38,398 --> 00:22:39,440
A regular mortgage statement.

421
00:22:39,440 --> 00:22:41,398
You're saying the bank didn't send that notice?

422
00:22:41,398 --> 00:22:43,558
Right, the mortgage, the bank didn't say that,

423
00:22:43,558 --> 00:22:44,880
here, you're back to normal,

424
00:22:44,880 --> 00:22:46,639
just make your regular mortgage payment.

425
00:22:46,639 --> 00:22:48,759
That wasn't advised to them, they didn't get that.

426
00:22:48,759 --> 00:22:50,239
You said they didn't understand it.

427
00:22:50,239 --> 00:22:51,920
Right, they wouldn't have understood, yeah,

428
00:22:51,920 --> 00:22:52,759
because they don't know what to do.

429
00:22:52,759 --> 00:22:55,119
They wouldn't have understood it if they got it

430
00:22:55,119 --> 00:22:56,239
or they didn't get it.

431
00:22:56,239 --> 00:22:58,160
If a mortgage statement was sent and said,

432
00:22:58,160 --> 00:23:00,160
okay, start paying your regular payment.

433
00:23:00,160 --> 00:23:02,639
What did the mortgage statement say when they received them?

434
00:23:02,639 --> 00:23:05,599
There's none presented, there was never anything sent

435
00:23:05,599 --> 00:23:07,319
to them after the dismissal.

436
00:23:07,639 --> 00:23:09,838
Okay, let's go back to 2015.

437
00:23:09,838 --> 00:23:14,838
So, those, they were returned for insufficient funds.

438
00:23:15,639 --> 00:23:16,959
It's a mystery, right?

439
00:23:16,959 --> 00:23:18,959
It's a mystery still.

440
00:23:18,959 --> 00:23:20,160
Well, I don't believe it's a mystery.

441
00:23:20,160 --> 00:23:21,000
It's a mystery to me.

442
00:23:21,000 --> 00:23:25,160
So, she didn't, they didn't pay.

443
00:23:25,160 --> 00:23:29,679
In other words, I'm a unsophisticated mortgagor,

444
00:23:30,679 --> 00:23:33,918
and one thing I'm aware of though,

445
00:23:33,918 --> 00:23:37,038
is money from my bank for those payments

446
00:23:37,759 --> 00:23:38,599
didn't end up at the bank.

447
00:23:38,599 --> 00:23:41,320
So, I know that I haven't paid anything for those months.

448
00:23:41,320 --> 00:23:43,038
But that's not what happened.

449
00:23:43,038 --> 00:23:47,558
So, what you hear from the testimony of the witness first,

450
00:23:47,558 --> 00:23:49,558
which I think is very important to note,

451
00:23:51,358 --> 00:23:53,960
the date of default changed.

452
00:23:53,960 --> 00:23:58,000
So, in the deposition, he said it was a different date

453
00:23:58,000 --> 00:23:59,679
than when at trial.

454
00:23:59,679 --> 00:24:01,960
And the reason why is because on the deposition,

455
00:24:01,960 --> 00:24:05,880
in the discovery responses and the interrogatories,

456
00:24:05,880 --> 00:24:09,440
they completely omit DITEC, as if it never occurred.

457
00:24:09,440 --> 00:24:12,119
None of those answers were in the discovery,

458
00:24:12,119 --> 00:24:13,200
in the second foreclosure,

459
00:24:13,200 --> 00:24:15,759
even though we had it in the first one,

460
00:24:15,759 --> 00:24:16,960
which means they continue.

461
00:24:16,960 --> 00:24:18,358
Before you go too far down that line,

462
00:24:18,358 --> 00:24:21,558
I wanna go back to what Judge Atkinson just asked you.

463
00:24:21,558 --> 00:24:26,558
When DITEC said these payments are reversed,

464
00:24:26,599 --> 00:24:28,719
did the money go back to your clients?

465
00:24:28,719 --> 00:24:29,558
No.

466
00:24:29,558 --> 00:24:32,079
The money was still with the lender?

467
00:24:32,079 --> 00:24:32,918
Yes.

468
00:24:32,918 --> 00:24:34,759
So, it was a paper reversal.

469
00:24:34,759 --> 00:24:35,599
Correct.

470
00:24:36,358 --> 00:24:38,759
And that's what you see there,

471
00:24:38,759 --> 00:24:42,038
Mr. Greenlee testified to when he was initially asked

472
00:24:42,038 --> 00:24:42,880
what happened.

473
00:24:42,880 --> 00:24:44,918
He says, well, this typically happens

474
00:24:44,918 --> 00:24:47,279
when you're onboarding to a new servicer.

475
00:24:47,279 --> 00:24:50,798
They will do these accounting adjustments to transfer it.

476
00:24:50,798 --> 00:24:51,798
That's what that was.

477
00:24:51,798 --> 00:24:53,798
It wasn't that they sent the money back.

478
00:24:54,679 --> 00:24:55,519
And so-

479
00:24:55,519 --> 00:24:56,479
And I think, if I'm recalling correctly,

480
00:24:56,479 --> 00:25:01,038
the documentary evidence established

481
00:25:01,038 --> 00:25:02,639
that your clients did not, in fact,

482
00:25:02,639 --> 00:25:04,119
get those four payments back.

483
00:25:04,119 --> 00:25:04,960
Correct.

484
00:25:05,000 --> 00:25:08,159
And it's rejected on, the way it normally happens,

485
00:25:08,159 --> 00:25:10,558
it's rejected because it's insufficient funds

486
00:25:10,558 --> 00:25:13,719
or it's too little to pay what's currently due.

487
00:25:13,719 --> 00:25:14,558
Right.

488
00:25:14,558 --> 00:25:16,599
What you see is, and you see it in the accounting,

489
00:25:16,599 --> 00:25:19,159
there's four months of payments,

490
00:25:19,159 --> 00:25:21,079
and then if there was like an insufficient funds,

491
00:25:21,079 --> 00:25:22,279
that would be immediate.

492
00:25:22,279 --> 00:25:24,038
But what happened is four payments,

493
00:25:24,038 --> 00:25:25,320
and then the following month,

494
00:25:25,320 --> 00:25:27,239
they say reversal for some reason

495
00:25:27,239 --> 00:25:29,479
of all four of those payments at the same time.

496
00:25:29,479 --> 00:25:31,679
And your client continued making payments

497
00:25:31,679 --> 00:25:33,639
after the paper reversal.

498
00:25:33,639 --> 00:25:35,960
Did they know about the paper reversal at that time?

499
00:25:35,960 --> 00:25:38,279
They didn't know that they were behind

500
00:25:38,279 --> 00:25:42,320
until the servicer switched to Diatek and right back.

501
00:25:42,320 --> 00:25:46,759
When it came back to Bank of America in April of 2017,

502
00:25:46,759 --> 00:25:49,079
the first notice from Bank of America,

503
00:25:49,079 --> 00:25:50,719
newly on the servicer, said,

504
00:25:50,719 --> 00:25:51,558
oh, now you're four months behind.

505
00:25:51,558 --> 00:25:53,038
What was the date of that?

506
00:25:53,038 --> 00:25:54,798
In April of 2017.

507
00:25:54,798 --> 00:25:57,798
So they had been paying all the way

508
00:25:57,798 --> 00:26:02,159
through January, February, March, and April, 2017.

509
00:26:02,159 --> 00:26:03,440
Yes, and the accounting shows that.

510
00:26:04,239 --> 00:26:05,079
They paid every payment.

511
00:26:05,079 --> 00:26:06,000
Mr. Levine is saying, well,

512
00:26:06,000 --> 00:26:10,558
the reason the claimed default is January

513
00:26:10,558 --> 00:26:14,239
is because I'm not really sure

514
00:26:14,239 --> 00:26:16,440
because the money was already with the bank,

515
00:26:16,440 --> 00:26:18,918
but it seems that the argument is,

516
00:26:18,918 --> 00:26:23,918
well, the money was applied to 2015 or 16, whatever it was.

517
00:26:24,200 --> 00:26:26,119
I think Judge Gard got it right.

518
00:26:26,119 --> 00:26:27,719
It slides back, right?

519
00:26:27,719 --> 00:26:29,119
So they get a payment,

520
00:26:29,119 --> 00:26:30,519
whatever payment you're making,

521
00:26:30,519 --> 00:26:32,759
they're applying it to the last payment.

522
00:26:33,119 --> 00:26:36,880
So if they didn't count those four payments in 2015,

523
00:26:36,880 --> 00:26:39,279
every single payment after that would be four months time.

524
00:26:39,279 --> 00:26:40,358
But the bank actually had the money

525
00:26:40,358 --> 00:26:41,279
for those four payments.

526
00:26:41,279 --> 00:26:42,119
That's correct.

527
00:26:42,119 --> 00:26:44,519
So there was no reason to slide back.

528
00:26:44,519 --> 00:26:45,599
That's right.

529
00:26:45,599 --> 00:26:47,479
And so when...

530
00:26:47,479 --> 00:26:49,918
So the notice of default saying you're in default

531
00:26:49,918 --> 00:26:52,519
for January, 2017,

532
00:26:52,519 --> 00:26:55,479
that based on the evidence that seems to be in the record,

533
00:26:55,479 --> 00:26:59,239
that was an incorrect assertion of a default

534
00:26:59,239 --> 00:27:00,719
as to those dates.

535
00:27:00,719 --> 00:27:01,558
That's correct.

536
00:27:02,279 --> 00:27:05,320
Then we fast forward to May

537
00:27:05,320 --> 00:27:08,079
and there's a tender, it is rejected.

538
00:27:08,079 --> 00:27:10,759
And then your clients don't make any more payments.

539
00:27:10,759 --> 00:27:13,558
Am I recalling, and I know I said this in my questioning,

540
00:27:13,558 --> 00:27:16,479
am I recalling correctly that your client said,

541
00:27:16,479 --> 00:27:20,320
I did try to make payment after that one was rejected?

542
00:27:20,320 --> 00:27:21,159
Right.

543
00:27:21,159 --> 00:27:23,119
That's when they went physically visited the bank.

544
00:27:23,119 --> 00:27:24,440
And Mr. Levine's pointing out,

545
00:27:24,440 --> 00:27:26,880
well, that's not so clear because then she says,

546
00:27:26,880 --> 00:27:29,079
well, I didn't make any more payments,

547
00:27:29,079 --> 00:27:34,079
but that didn't seem to contradict her saying I tried.

548
00:27:34,719 --> 00:27:35,558
Right.

549
00:27:35,558 --> 00:27:37,079
She attempted two different times

550
00:27:37,079 --> 00:27:38,639
to go to the bank physically saying,

551
00:27:38,639 --> 00:27:39,719
here, I want your payment.

552
00:27:39,719 --> 00:27:40,679
And they would say, no.

553
00:27:40,679 --> 00:27:42,599
Since I'm the slowest kid in the class,

554
00:27:42,599 --> 00:27:44,918
I'm gonna continue asking questions.

555
00:27:44,918 --> 00:27:47,798
And much of the chagrin of all included here,

556
00:27:47,798 --> 00:27:52,798
but so why do we keep calling the May payment a tender

557
00:27:53,900 --> 00:27:58,519
if the contention is she was just paying regularly?

558
00:28:00,079 --> 00:28:01,798
Because the bank called it.

559
00:28:01,798 --> 00:28:04,358
The contention by the defendants

560
00:28:04,358 --> 00:28:08,719
are that they paid January, February, March, April, and May.

561
00:28:08,719 --> 00:28:09,798
Yes.

562
00:28:09,798 --> 00:28:13,380
But May, we're characterizing that as a tender.

563
00:28:13,380 --> 00:28:14,219
Why?

564
00:28:14,219 --> 00:28:17,519
Only because the bank said that they were behind that one.

565
00:28:17,519 --> 00:28:22,519
So what happened to January, February, March, April payments?

566
00:28:23,519 --> 00:28:25,000
They're paid and accepted.

567
00:28:25,000 --> 00:28:25,918
Okay.

568
00:28:26,320 --> 00:28:31,320
And the May payment was first accepted by, it was set.

569
00:28:31,599 --> 00:28:32,440
It was accepted.

570
00:28:32,440 --> 00:28:34,239
I'm assuming it was cashed.

571
00:28:34,239 --> 00:28:37,000
And then a check was issued by the bank saying,

572
00:28:37,000 --> 00:28:38,400
no, this isn't enough.

573
00:28:38,400 --> 00:28:39,239
Correct.

574
00:28:39,239 --> 00:28:41,840
So the tender then, what I'm talking about is

575
00:28:41,840 --> 00:28:43,719
she then went testified.

576
00:28:43,719 --> 00:28:45,320
I went to the bank a couple of times

577
00:28:45,320 --> 00:28:47,858
and tried to get them to take that money.

578
00:28:47,858 --> 00:28:48,960
Correct.

579
00:28:48,960 --> 00:28:50,918
And then that has implications too

580
00:28:50,918 --> 00:28:53,200
on the acceleration notice

581
00:28:53,200 --> 00:28:55,599
because part of the contract does say

582
00:28:56,279 --> 00:28:58,719
that you have to accurately tell how much you're behind.

583
00:28:58,719 --> 00:29:00,918
And so you can compare two, right?

584
00:29:00,918 --> 00:29:04,599
In April of 2017, or in May of 2017,

585
00:29:04,599 --> 00:29:06,460
when they sent that acceleration notice,

586
00:29:06,460 --> 00:29:08,639
they said you're four payments behind.

587
00:29:08,639 --> 00:29:09,479
Okay.

588
00:29:09,479 --> 00:29:12,719
Now fast forward a few years later on the-

589
00:29:12,719 --> 00:29:15,639
They're four payments behind, but they have the money.

590
00:29:15,639 --> 00:29:16,479
The bank has the money.

591
00:29:16,479 --> 00:29:17,298
Yeah, they have the money.

592
00:29:17,298 --> 00:29:20,380
But then in November, 2020, after years of all this,

593
00:29:20,380 --> 00:29:22,159
they send the exact same date.

594
00:29:22,159 --> 00:29:23,279
You're behind from that date,

595
00:29:23,279 --> 00:29:25,960
which means they still are not counting those four payments

596
00:29:25,960 --> 00:29:27,960
and every other subsequent payment.

597
00:29:27,960 --> 00:29:28,798
So it's still incorrect.

598
00:29:28,798 --> 00:29:31,200
When you say the exact same date, you mean January, 2017?

599
00:29:31,200 --> 00:29:32,038
Say that again?

600
00:29:32,038 --> 00:29:32,880
When you say the exact same date.

601
00:29:32,880 --> 00:29:34,519
Yes, January 17th.

602
00:29:34,519 --> 00:29:37,479
So they're still focusing the acceleration letter

603
00:29:37,479 --> 00:29:38,960
or the notice of default,

604
00:29:38,960 --> 00:29:41,679
all have the incorrect date of default.

605
00:29:41,679 --> 00:29:45,119
The amount is incorrect, but see, they're relying-

606
00:29:45,119 --> 00:29:47,679
Here's a problem that I think you need to address.

607
00:29:47,679 --> 00:29:51,639
So the bank's notice letter says January, 2017

608
00:29:51,639 --> 00:29:53,798
and all subsequent payments.

609
00:29:53,798 --> 00:29:58,798
Isn't that a defense not to the right to foreclose,

610
00:29:58,960 --> 00:30:00,159
but as to the amount-

611
00:30:00,159 --> 00:30:04,959
that's due and owing, because we know she didn't make payments

612
00:30:04,959 --> 00:30:08,359
after May of 2017.

613
00:30:08,359 --> 00:30:09,999
And that one was rejected.

614
00:30:09,999 --> 00:30:12,159
Rightly or wrongly, it was rejected.

615
00:30:12,159 --> 00:30:16,839
But she doesn't make June, July, August.

616
00:30:16,839 --> 00:30:18,339
And I think your position is, well,

617
00:30:18,339 --> 00:30:20,718
they've already said they're not taking any more payments

618
00:30:20,718 --> 00:30:23,319
because she owes all this other money.

619
00:30:23,319 --> 00:30:26,639
But isn't that a defense as to the amount owed as opposed

620
00:30:26,639 --> 00:30:31,759
to thwarting or dismissing the foreclosure action?

621
00:30:31,759 --> 00:30:36,918
No, I think that would be where, in equity,

622
00:30:36,918 --> 00:30:39,239
they shouldn't have the right to foreclose.

623
00:30:39,239 --> 00:30:43,319
If they're rejecting payments and miscalculating

624
00:30:43,319 --> 00:30:46,319
the accounting, then they should be limited

625
00:30:46,319 --> 00:30:47,719
as to what their remedies are.

626
00:30:47,719 --> 00:30:50,639
So any time there's an accounting issue or accounting

627
00:30:50,639 --> 00:30:55,438
problem, a court shouldn't allow a foreclosure to happen.

628
00:30:55,438 --> 00:31:01,359
It should allow 3, 4, 5, 6, 7, 8, 9 years of non-payment?

629
00:31:01,359 --> 00:31:03,999
No, it's not.

630
00:31:03,999 --> 00:31:05,959
Because this is what this boils down to, right?

631
00:31:05,959 --> 00:31:07,758
This was an accounting issue.

632
00:31:07,758 --> 00:31:08,358
Yes.

633
00:31:08,358 --> 00:31:11,599
And I'm not saying right or wrong,

634
00:31:11,599 --> 00:31:13,919
but there was an accounting issue.

635
00:31:13,919 --> 00:31:16,599
And then, because there was this accounting issue,

636
00:31:16,599 --> 00:31:18,178
your client stopped paying.

637
00:31:18,178 --> 00:31:22,358
Now, maybe the bank should have taken action more quickly,

638
00:31:22,358 --> 00:31:23,358
and they didn't.

639
00:31:23,358 --> 00:31:26,239
But that's where we are.

640
00:31:26,239 --> 00:31:28,959
But why should a foreclosure be stopped

641
00:31:28,959 --> 00:31:30,639
when there's years of non-payment

642
00:31:30,639 --> 00:31:35,038
over this four payments accounting issue?

643
00:31:35,038 --> 00:31:41,239
Because you have to weigh what the position both

644
00:31:41,239 --> 00:31:43,758
of these parties are in, right?

645
00:31:43,758 --> 00:31:47,639
So if the bank makes a mistake and then forecloses.

646
00:31:47,639 --> 00:31:50,278
But your client signed a contract

647
00:31:50,278 --> 00:31:54,038
saying she would make monthly payments.

648
00:31:54,038 --> 00:32:01,038
And in effect, you're saying we should forgive that obligation.

649
00:32:01,038 --> 00:32:02,398
No, not at all.

650
00:32:02,398 --> 00:32:04,959
No one's here saying the debt isn't owed.

651
00:32:04,959 --> 00:32:06,599
The bank will get their money.

652
00:32:06,599 --> 00:32:08,998
It's just when will they get their money, right?

653
00:32:08,998 --> 00:32:11,798
Do they get it immediately now we're foreclosing?

654
00:32:11,798 --> 00:32:14,599
Or do they fix the client's credit

655
00:32:14,599 --> 00:32:17,239
because they've been reporting negative for nine years?

656
00:32:17,239 --> 00:32:20,039
So to allow them the opportunity to refinance.

657
00:32:20,039 --> 00:32:21,278
Why would they get their money?

658
00:32:21,278 --> 00:32:23,918
Why are you so sure they'll get their money?

659
00:32:23,918 --> 00:32:27,679
The order said that they didn't prove breach.

660
00:32:27,679 --> 00:32:30,638
No, no, like the total amount.

661
00:32:30,638 --> 00:32:31,679
They didn't prove breach.

662
00:32:35,039 --> 00:32:39,599
Right, but what I'm saying is that they didn't.

663
00:32:39,599 --> 00:32:41,119
Not letting them foreclose is not

664
00:32:41,119 --> 00:32:44,039
the same as the bank won't get their money.

665
00:32:44,718 --> 00:32:47,718
If tomorrow the Fernandez's sell,

666
00:32:47,718 --> 00:32:49,239
the bank will get their money.

667
00:32:49,239 --> 00:32:51,599
If the Fernandez's went and refinanced,

668
00:32:51,599 --> 00:32:54,599
if their credit was good enough, but not because of the bank,

669
00:32:54,599 --> 00:32:56,239
then they could get their money.

670
00:32:56,239 --> 00:32:58,198
There are a lot of options for the Fernandez's,

671
00:32:58,198 --> 00:33:00,479
if not for the fact that the bank has been repeatedly

672
00:33:00,479 --> 00:33:03,838
telling everybody that they're behind for nine years,

673
00:33:03,838 --> 00:33:06,159
based on the things that they're wrongful accounting.

674
00:33:06,159 --> 00:33:08,959
But they are behind for nine years.

675
00:33:08,959 --> 00:33:11,679
They're just the distinction is whether there's

676
00:33:11,679 --> 00:33:13,879
four months of payments, right?

677
00:33:14,519 --> 00:33:15,438
And so, yeah.

678
00:33:15,438 --> 00:33:18,078
So it's not that the bank's been wrongfully reporting them

679
00:33:18,078 --> 00:33:21,239
behind, right?

680
00:33:21,239 --> 00:33:23,399
They are actually behind.

681
00:33:23,399 --> 00:33:25,358
But they wouldn't be if.

682
00:33:25,358 --> 00:33:31,638
So you have a pattern of when this loan was taken out

683
00:33:31,638 --> 00:33:33,918
of payments continuously.

684
00:33:33,918 --> 00:33:35,959
That changes only when the bank says we don't

685
00:33:35,959 --> 00:33:37,198
take your payments anymore.

686
00:33:37,198 --> 00:33:40,278
OK, I was about to ask a question about that.

687
00:33:40,278 --> 00:33:41,879
What evidence in the record is there

688
00:33:41,879 --> 00:33:44,319
that the bank communicated that we wouldn't

689
00:33:44,319 --> 00:33:46,479
take your payments anymore?

690
00:33:46,479 --> 00:33:49,159
The rejection of the renewed?

691
00:33:49,159 --> 00:33:50,599
I don't expect you to know, but I'm

692
00:33:50,599 --> 00:33:52,438
trying to find out myself while we talk.

693
00:33:52,438 --> 00:33:56,399
Where in the record is that actual May 2017 rejection

694
00:33:56,399 --> 00:33:57,319
letter?

695
00:33:57,319 --> 00:34:00,998
I have my May 11, 2017, Exhibit 7 to some documenter.

696
00:34:00,998 --> 00:34:03,578
We are returning these funds to you for the following reasons.

697
00:34:03,578 --> 00:34:06,159
Funds are less than total amount due.

698
00:34:06,159 --> 00:34:10,637
OK, so from that, you're saying that an unsophisticated

699
00:34:10,637 --> 00:34:14,278
mortgagor will think they will never

700
00:34:14,278 --> 00:34:17,838
accept another mortgage payment here until kingdom come?

701
00:34:17,838 --> 00:34:19,278
No, there is another document.

702
00:34:19,278 --> 00:34:22,278
And it is the letter that came along with that,

703
00:34:22,278 --> 00:34:24,998
I think maybe submitted right before or right after,

704
00:34:24,998 --> 00:34:27,639
from the attorneys of the bank saying,

705
00:34:27,639 --> 00:34:29,599
we understand you tendered this payment.

706
00:34:29,599 --> 00:34:31,039
But it is insufficient because you

707
00:34:31,039 --> 00:34:32,557
are behind four more payments.

708
00:34:32,557 --> 00:34:36,159
And you can only catch up if you pay all four.

709
00:34:36,159 --> 00:34:38,599
OK, so I don't have that in front of me.

710
00:34:38,639 --> 00:34:40,838
But let's presume for the sake of discussion

711
00:34:40,838 --> 00:34:42,918
that you accurately characterized the record,

712
00:34:42,918 --> 00:34:45,918
which I only presume you would.

713
00:34:45,918 --> 00:34:50,238
So from that, that juncture in time,

714
00:34:50,238 --> 00:34:52,557
everybody's in a standoff.

715
00:34:52,557 --> 00:34:58,238
And you're saying that the mortgagors

716
00:34:58,238 --> 00:35:01,039
are entitled to do nothing?

717
00:35:01,039 --> 00:35:02,199
No, they didn't.

718
00:35:02,199 --> 00:35:05,117
And then years later, having done nothing

719
00:35:05,117 --> 00:35:08,918
for multiple years, a circuit court judge

720
00:35:08,918 --> 00:35:12,318
is correct to say that the plaintiff has not

721
00:35:12,318 --> 00:35:18,318
proved a breach of the contract by the, at all, no breach?

722
00:35:18,318 --> 00:35:21,557
But you're skipping the part where the bank forecloses

723
00:35:21,557 --> 00:35:24,278
and then admits that they're the ones who made the mistake

724
00:35:24,278 --> 00:35:24,958
and dismiss the foreclosure.

725
00:35:24,958 --> 00:35:25,318
Why?

726
00:35:25,318 --> 00:35:26,358
What does that have to do with anything?

727
00:35:26,358 --> 00:35:27,358
They dismissed the case.

728
00:35:27,358 --> 00:35:28,998
It's history.

729
00:35:28,998 --> 00:35:31,639
Right, so if they made the mistake,

730
00:35:31,639 --> 00:35:33,639
if they're the reason why all of this happened,

731
00:35:33,639 --> 00:35:34,998
they could have accepted payment.

732
00:35:34,998 --> 00:35:36,238
They could have accepted that May payment.

733
00:35:36,238 --> 00:35:38,718
I mean, the blame is being put on the homeowners for saying,

734
00:35:38,718 --> 00:35:40,318
why don't you make all these payments?

735
00:35:40,318 --> 00:35:42,159
But the bank's not being looked at for,

736
00:35:42,159 --> 00:35:44,159
why didn't they just keep making payments?

737
00:35:44,159 --> 00:35:45,718
And then investigate the four payments

738
00:35:45,718 --> 00:35:48,159
to verify if that's the issue.

739
00:35:48,159 --> 00:35:50,557
The bank's letter or the lawyer's letter

740
00:35:50,557 --> 00:35:54,039
says, you owe four more months.

741
00:35:54,039 --> 00:35:56,759
And therefore, we're not accepting your payment

742
00:35:56,759 --> 00:35:58,318
because you owe that.

743
00:35:58,318 --> 00:36:01,358
And then your client's position is, we paid it.

744
00:36:01,358 --> 00:36:02,798
The bank has the money.

745
00:36:02,878 --> 00:36:05,518
And ultimately, that was established at trial

746
00:36:05,518 --> 00:36:07,159
based on the documents.

747
00:36:07,159 --> 00:36:08,599
And then am I recalling correctly

748
00:36:08,599 --> 00:36:13,998
that the bank's witness still wasn't certain whether or not

749
00:36:13,998 --> 00:36:17,117
the bank, I'm not sure that this was addressed,

750
00:36:17,117 --> 00:36:19,358
was the witness, did the witness acknowledge

751
00:36:19,358 --> 00:36:21,718
that the bank had the money?

752
00:36:21,718 --> 00:36:22,798
No, I don't think they had.

753
00:36:22,798 --> 00:36:23,438
It didn't come out.

754
00:36:23,438 --> 00:36:24,518
I don't think it came out.

755
00:36:24,518 --> 00:36:25,918
Right, it came out.

756
00:36:25,918 --> 00:36:29,039
But the witness was uncertain as to why

757
00:36:29,039 --> 00:36:31,479
the reversal had occurred.

758
00:36:31,479 --> 00:36:31,958
Right.

759
00:36:31,958 --> 00:36:33,557
And then your client's established,

760
00:36:33,557 --> 00:36:35,238
but they have the money.

761
00:36:35,238 --> 00:36:35,759
Right.

762
00:36:35,759 --> 00:36:38,479
And so at the time, the bank's lawyers

763
00:36:38,479 --> 00:36:41,159
say, we're not accepting payment because you

764
00:36:41,159 --> 00:36:44,639
owe this extra money.

765
00:36:44,639 --> 00:36:46,159
Your clients, based on the evidence,

766
00:36:46,159 --> 00:36:48,639
didn't owe that extra money.

767
00:36:48,639 --> 00:36:49,438
Exactly.

768
00:36:49,438 --> 00:36:52,079
And so let's, and I don't want to cut off

769
00:36:52,079 --> 00:36:54,079
either Judge Atkinson or Judge Gard if they have

770
00:36:54,079 --> 00:36:55,039
more questions on this.

771
00:36:55,039 --> 00:36:56,878
But I'd like you to address what I think

772
00:36:56,878 --> 00:36:59,117
is another important issue, which is failure

773
00:36:59,117 --> 00:37:01,117
to tender the money to the registry of the court.

774
00:37:05,557 --> 00:37:10,159
Well, so yes, they didn't tender to the court.

775
00:37:10,159 --> 00:37:13,358
And quite frankly, I'm not aware of anyone

776
00:37:13,358 --> 00:37:15,557
who would know that as a reason.

777
00:37:15,557 --> 00:37:17,398
I don't think you can use that as an excuse.

778
00:37:17,398 --> 00:37:19,438
They're represented by counsel.

779
00:37:19,438 --> 00:37:20,438
Sure.

780
00:37:20,438 --> 00:37:22,599
And I understand you may be following on your sword

781
00:37:22,599 --> 00:37:25,039
that, shoot, I didn't know that.

782
00:37:25,039 --> 00:37:26,718
But, and maybe you did, maybe you didn't.

783
00:37:26,718 --> 00:37:29,358
But that seems to be where you're heading is,

784
00:37:29,358 --> 00:37:31,398
we messed up on that part of it.

785
00:37:31,398 --> 00:37:33,998
So does that then mean the bank's

786
00:37:33,998 --> 00:37:37,998
entitled to a reversal because there was a failure to tender?

787
00:37:37,998 --> 00:37:43,039
Well, the advice was, or what you see in the testimony

788
00:37:43,039 --> 00:37:46,958
is the homeowner saying, we saved up money.

789
00:37:46,958 --> 00:37:47,998
We are saving up money.

790
00:37:47,998 --> 00:37:51,918
Now, they even claimed it was $20,000.

791
00:37:51,918 --> 00:37:55,599
The bank is arguing that that was,

792
00:37:55,599 --> 00:37:59,159
according to the November 2020, when they started the second.

793
00:37:59,159 --> 00:38:00,798
But that's not accurate.

794
00:38:00,798 --> 00:38:05,199
That $20,000 is after the first foreclosure.

795
00:38:05,199 --> 00:38:06,518
She had $20,000.

796
00:38:06,518 --> 00:38:10,079
She saved up all this money, but nowhere to put it.

797
00:38:10,079 --> 00:38:12,438
So she had acted in that way.

798
00:38:12,438 --> 00:38:15,878
But then again, that's where life gets into the situation

799
00:38:15,878 --> 00:38:18,557
where, how do you hold on to that money

800
00:38:18,557 --> 00:38:22,398
if you have no credit, if the bank is telling you

801
00:38:22,398 --> 00:38:24,479
for the entire amount of the first foreclosure?

802
00:38:24,557 --> 00:38:29,199
How much of this is explained in the record as far as no credit,

803
00:38:29,199 --> 00:38:30,718
I had to spend it, and so forth?

804
00:38:30,718 --> 00:38:31,918
Was that addressed in trial?

805
00:38:31,918 --> 00:38:32,559
Yes, it was.

806
00:38:32,559 --> 00:38:34,798
And she testified to that.

807
00:38:34,798 --> 00:38:42,119
And as far as the proof at trial for foreclosure,

808
00:38:42,119 --> 00:38:49,599
was the bank asking for the total amount

809
00:38:49,599 --> 00:38:52,398
after applying the four payments that were rejected,

810
00:38:52,398 --> 00:38:54,239
or was that still uncertain?

811
00:38:55,239 --> 00:38:57,918
They still argued that those four payments were missed.

812
00:38:57,918 --> 00:39:00,798
So they were presenting evidence that you owe,

813
00:39:00,798 --> 00:39:03,838
I don't remember what the number, $50-some-thousand.

814
00:39:03,838 --> 00:39:06,838
And your client's position is, I don't

815
00:39:06,838 --> 00:39:08,679
know that this was articulated to the court,

816
00:39:08,679 --> 00:39:11,439
but my understanding correctly, we

817
00:39:11,439 --> 00:39:13,999
know we haven't paid all the mortgage,

818
00:39:13,999 --> 00:39:17,077
but they're still not crediting us

819
00:39:17,077 --> 00:39:19,838
with those four payments for which they have the money.

820
00:39:19,838 --> 00:39:20,679
Correct.

821
00:39:20,679 --> 00:39:23,278
And I would like to highlight the difference

822
00:39:23,318 --> 00:39:25,599
in the first foreclosure and the second foreclosure,

823
00:39:25,599 --> 00:39:28,439
everything is exactly the same except more time.

824
00:39:28,439 --> 00:39:32,798
So if in the first foreclosure, if we could retroactively,

825
00:39:32,798 --> 00:39:34,559
if we know that those payments were made,

826
00:39:34,559 --> 00:39:37,518
the first foreclosure was rightfully dismissed,

827
00:39:37,518 --> 00:39:39,278
and it was wrong in the amount that they

828
00:39:39,278 --> 00:39:40,918
were trying to collect, and anyone

829
00:39:40,918 --> 00:39:43,518
would have said that the acceleration letter and all

830
00:39:43,518 --> 00:39:45,798
of that was incorrect because of those four payments.

831
00:39:45,798 --> 00:39:47,278
Your position seems to be, the bank

832
00:39:47,278 --> 00:39:48,999
should have sorted this out before they

833
00:39:48,999 --> 00:39:50,398
started the second foreclosure.

834
00:39:50,398 --> 00:39:51,119
Correct.

835
00:39:51,119 --> 00:39:53,077
That's what it comes down to.

836
00:39:53,077 --> 00:39:55,198
I've let you go over, I don't want

837
00:39:55,198 --> 00:39:57,637
to not let Judge Atkinson or Judge Gard

838
00:39:57,637 --> 00:39:59,398
ask any additional questions.

839
00:39:59,398 --> 00:40:00,239
I do have a question.

840
00:40:00,239 --> 00:40:04,159
So you're contending that the record is ironclad clear

841
00:40:04,159 --> 00:40:09,637
that the bank has the money for the 2015 payments?

842
00:40:09,637 --> 00:40:10,518
Yes.

843
00:40:10,518 --> 00:40:11,018
Where?

844
00:40:11,018 --> 00:40:12,637
What supports that in the record?

845
00:40:12,637 --> 00:40:14,077
Their own accounting.

846
00:40:14,077 --> 00:40:16,318
Because the money gets in, right?

847
00:40:16,318 --> 00:40:19,318
But we just talked about, you just talked to Judge Silberman,

848
00:40:19,318 --> 00:40:22,559
and you conceded that they didn't concede that, correct?

849
00:40:22,559 --> 00:40:24,918
Yes, that they didn't concede that, but.

850
00:40:24,918 --> 00:40:26,798
They don't concede that the record establishes

851
00:40:26,798 --> 00:40:28,918
that they have the money?

852
00:40:28,918 --> 00:40:29,758
I believe that.

853
00:40:29,758 --> 00:40:30,439
OK.

854
00:40:30,439 --> 00:40:32,039
Yes, I believe that would be the case.

855
00:40:32,039 --> 00:40:34,679
Go on, but the counsel has an opportunity to respond now.

856
00:40:34,679 --> 00:40:35,318
Yeah.

857
00:40:35,318 --> 00:40:39,637
Mr. Greenlee, though, their witness is so unambiguous,

858
00:40:39,637 --> 00:40:40,518
he doesn't know.

859
00:40:40,518 --> 00:40:42,159
And he even testified when it comes

860
00:40:42,159 --> 00:40:45,398
when he was pressured and asked about the NSF, right?

861
00:40:45,398 --> 00:40:46,398
So let me ask you this.

862
00:40:46,398 --> 00:40:49,999
So if we look at this record, how do we review that?

863
00:40:49,999 --> 00:40:52,159
There is essentially, you're going

864
00:40:52,398 --> 00:40:54,599
to tell me whatever evidence shows in their records

865
00:40:54,599 --> 00:40:56,999
that the bank has the money.

866
00:40:56,999 --> 00:41:00,359
The bank contends that the borrower has the money.

867
00:41:00,359 --> 00:41:02,439
And then that leads to the conclusion

868
00:41:02,439 --> 00:41:05,318
there's been no breach?

869
00:41:05,318 --> 00:41:06,758
As a matter of law?

870
00:41:06,758 --> 00:41:09,398
Well, I think that the trial court found

871
00:41:09,398 --> 00:41:11,119
that the payments were there.

872
00:41:11,119 --> 00:41:14,679
That the bank failed to meet their permission.

873
00:41:14,679 --> 00:41:16,278
What was the order?

874
00:41:16,278 --> 00:41:16,918
Let's see here.

875
00:41:16,958 --> 00:41:21,798
Order on final?

876
00:41:21,798 --> 00:41:22,479
OK.

877
00:41:22,479 --> 00:41:24,398
So this is like post-trial.

878
00:41:24,398 --> 00:41:26,518
This is, OK.

879
00:41:26,518 --> 00:41:31,439
So the court finds in paragraph four

880
00:41:31,439 --> 00:41:33,918
that Ms. Fernandez was credible in her testimony

881
00:41:33,918 --> 00:41:37,717
as to the payments she made on a monthly basis from January

882
00:41:37,717 --> 00:41:40,918
2015 and April 2017.

883
00:41:40,958 --> 00:41:43,958
The January 2015, that's the start

884
00:41:43,958 --> 00:41:47,159
of the four uncertain payments?

885
00:41:47,159 --> 00:41:48,198
No, it was August.

886
00:41:48,198 --> 00:41:49,999
But we wanted to cover as much as possible.

887
00:41:49,999 --> 00:41:50,878
August of which year?

888
00:41:50,878 --> 00:41:51,798
Of 2015.

889
00:41:51,798 --> 00:41:52,679
OK.

890
00:41:52,679 --> 00:41:58,518
So the judge's finding is that she finds Ms. Fernandez

891
00:41:58,518 --> 00:42:01,878
credible that she made the monthly payments from January

892
00:42:01,878 --> 00:42:08,318
2015 until April 2017, which covers the August, the four

893
00:42:08,318 --> 00:42:10,039
that are in question.

894
00:42:10,039 --> 00:42:12,318
Can we review that for, what's our standard of view

895
00:42:12,318 --> 00:42:14,119
for that then?

896
00:42:14,119 --> 00:42:15,359
That if you're.

897
00:42:15,359 --> 00:42:17,318
Well, there was no, there was no.

898
00:42:17,318 --> 00:42:19,479
Never mind, I got it.

899
00:42:19,479 --> 00:42:21,077
But it is in the accounting.

900
00:42:21,077 --> 00:42:22,758
It's backed up by their own accounting.

901
00:42:22,758 --> 00:42:23,758
It says payments came in.

902
00:42:23,758 --> 00:42:26,039
So that's a factual issue for which we owe deference

903
00:42:26,039 --> 00:42:27,479
to the trial court is what you're going to say.

904
00:42:27,479 --> 00:42:28,979
And I know you're aware of the time.

905
00:42:28,979 --> 00:42:31,918
So I don't want to step on the presiding judge's toes

906
00:42:31,918 --> 00:42:34,637
as he tries to manage his courtroom.

907
00:42:34,637 --> 00:42:35,159
Very good.

908
00:42:35,159 --> 00:42:37,637
Well, we've let you go over by five minutes.

909
00:42:37,637 --> 00:42:40,278
So we will turn it back to Mr. Levine.

910
00:42:40,278 --> 00:42:42,717
And if you need a minute or two extra, Mr. Levine,

911
00:42:42,717 --> 00:42:44,758
I won't cut you off.

912
00:42:44,758 --> 00:42:47,458
I would like you, though, to address this very last thing

913
00:42:47,458 --> 00:42:52,119
first, which is, does the bank have the money

914
00:42:52,119 --> 00:42:53,318
for those four payments?

915
00:42:53,318 --> 00:42:54,099
I don't know.

916
00:42:54,099 --> 00:42:55,918
Is there any evidence that the money

917
00:42:55,918 --> 00:42:58,439
was returned to the borrowers?

918
00:42:58,439 --> 00:43:01,198
The only evidence that I cite the court to

919
00:43:01,198 --> 00:43:03,119
is the payment history that shows they were reversed.

920
00:43:03,119 --> 00:43:04,077
I'm sorry, speak up.

921
00:43:04,077 --> 00:43:06,198
Is the payment history that shows it was reversed.

922
00:43:06,198 --> 00:43:08,679
If it was reversed for insufficient funds,

923
00:43:08,679 --> 00:43:10,239
like Mr. Greenley said it might be,

924
00:43:10,239 --> 00:43:11,599
then there's no money to return.

925
00:43:11,599 --> 00:43:13,838
Because we never got the money to begin with.

926
00:43:13,838 --> 00:43:15,359
But your witness doesn't know.

927
00:43:15,359 --> 00:43:16,039
He doesn't know.

928
00:43:16,039 --> 00:43:16,999
I think she did.

929
00:43:16,999 --> 00:43:20,159
So what evidence is there that the bank doesn't

930
00:43:20,159 --> 00:43:23,999
have the money represented by those four payments from 2015?

931
00:43:23,999 --> 00:43:26,039
The only evidence that I said is that the payment

932
00:43:26,039 --> 00:43:26,918
shows it was reversed.

933
00:43:26,918 --> 00:43:29,119
Usually when payments are reversed, they're sent back.

934
00:43:29,119 --> 00:43:32,518
No, we understand usually what may happen, Mr. Levine.

935
00:43:32,518 --> 00:43:35,318
But it's your client's burden as a plaintiff

936
00:43:35,318 --> 00:43:37,679
to present evidence as to the amount of the default

937
00:43:37,679 --> 00:43:39,077
and the basis of the default.

938
00:43:39,077 --> 00:43:43,039
So my question is, how did it establish it

939
00:43:43,039 --> 00:43:44,958
when the witness says, I really don't know what

940
00:43:44,958 --> 00:43:46,878
happened with those four payments?

941
00:43:46,878 --> 00:43:48,758
Very easily.

942
00:43:48,758 --> 00:43:51,679
Because as I said, with a continuing state of default,

943
00:43:51,679 --> 00:43:54,119
even if we give deference to the trial courts

944
00:43:54,119 --> 00:43:57,077
that they were not in default as of January 2017,

945
00:43:57,077 --> 00:44:00,119
or February 2017, or April, even if we give deference

946
00:44:00,119 --> 00:44:01,758
to the trial court for that, they're

947
00:44:01,758 --> 00:44:04,679
still in default for June, July, et cetera.

948
00:44:04,679 --> 00:44:07,318
Then the acceleration would be invalid, wouldn't it?

949
00:44:07,318 --> 00:44:08,359
No, absolutely not.

950
00:44:08,359 --> 00:44:09,439
Why not?

951
00:44:09,439 --> 00:44:12,159
If the payments, as the judge found,

952
00:44:12,159 --> 00:44:14,039
she made the monthly payments in accordance

953
00:44:14,039 --> 00:44:19,599
with the note and mortgage from January 2015 until April 2017.

954
00:44:19,599 --> 00:44:26,198
The notice of default in 2020 goes back to January of 2017.

955
00:44:26,198 --> 00:44:29,599
So that was the basis of the acceleration, right?

956
00:44:29,599 --> 00:44:31,559
That was the notice of default, an opportunity

957
00:44:31,559 --> 00:44:33,119
to cure a pre-suit, yes.

958
00:44:33,159 --> 00:44:35,359
And if the numbers were incorrect,

959
00:44:35,359 --> 00:44:38,758
then the notice of acceleration is void or voidable?

960
00:44:38,758 --> 00:44:39,239
No.

961
00:44:39,239 --> 00:44:41,077
What about the notice of default?

962
00:44:41,077 --> 00:44:41,918
Neither.

963
00:44:41,918 --> 00:44:43,077
Now, this is if you did both.

964
00:44:43,077 --> 00:44:45,679
Why wouldn't the notice of default have been defective?

965
00:44:45,679 --> 00:44:48,039
Because a notice of default under paragraph 22

966
00:44:48,039 --> 00:44:52,798
of the mortgage needs to simply tell you what the default,

967
00:44:52,798 --> 00:44:54,958
you haven't paid, which they haven't,

968
00:44:54,958 --> 00:44:57,758
what you need to do to cure the default to pay.

969
00:44:57,758 --> 00:45:00,518
OK, so stop there for a moment.

970
00:45:00,518 --> 00:45:03,637
The amount that is claimed that you need to cure the default

971
00:45:04,358 --> 00:45:10,518
Included an amount representing or represented by those four checks that we've been talking about all morning

972
00:45:10,998 --> 00:45:15,717
Right, I believe that amount did include that. Yes, and we don't know if in fact

973
00:45:16,438 --> 00:45:21,557
That money was ever rejected or returned in the possession of the borrowers

974
00:45:22,518 --> 00:45:24,757
We don't know but it's not relevant and i'll explain why right now

975
00:45:25,157 --> 00:45:29,077
There's a case called and this is not brief because it wasn't litigated the the amount

976
00:45:29,317 --> 00:45:31,077
The amount of the breach letter is not something that was raised

977
00:45:31,077 --> 00:45:33,717
So i'll tell you just my knowledge of this industry doing this for a while

978
00:45:34,038 --> 00:45:38,518
There's a case called als versus garvin is out of the fourth dca. I don't have a site for you

979
00:45:39,077 --> 00:45:41,557
In that case that exact issue came up

980
00:45:42,277 --> 00:45:46,918
The breach letter had the wrong amount the bank in that case the plaintiff admitted and said

981
00:45:47,476 --> 00:45:49,637
We admit our number is too high

982
00:45:49,956 --> 00:45:54,838
The number in the breach letter is more than the bar actually needed to cure the default the trial court said well

983
00:45:55,398 --> 00:45:58,998
If you can't foreclose you have a bad breach letter the fourth dca reversed

984
00:45:59,637 --> 00:46:01,637
and it said

985
00:46:02,117 --> 00:46:04,358
If you tell them you're in default for not paying

986
00:46:04,838 --> 00:46:09,797
And if you tell them to cure the default you have to pay that substantial compliance the breach letter is sufficient

987
00:46:09,797 --> 00:46:15,077
So in this case, even assuming that fifty six thousand dollars should have been fifty three instead of fifty six

988
00:46:15,878 --> 00:46:20,117
It still told them you're in default for not paying and it still told them what they need to do to cure the default

989
00:46:20,278 --> 00:46:22,597
Now, let's say they had tendered the fifty three

990
00:46:23,077 --> 00:46:27,637
And not the full 56 because they said no no you we you have those payments

991
00:46:28,436 --> 00:46:31,237
A completely different story completely different story after that

992
00:46:31,717 --> 00:46:38,757
This ties into your argument that the acceleration nevertheless is proper because there were no payments after may

993
00:46:39,378 --> 00:46:46,037
2017 that's correct. Is that I I understand we've been talking a lot today about what happened in 2015 up until may of 17

994
00:46:46,037 --> 00:46:48,697
And I I know it's the basis of their default, but ultimately

995
00:46:49,637 --> 00:46:55,018
Ultimately, it's not material. Well, but it can be material because the judge says

996
00:46:55,896 --> 00:47:03,177
The bank stopped accepting payments and there's testimony saying she tried to pay now we get to the tender issue. So

997
00:47:04,378 --> 00:47:10,137
The the trial judge did say payments weren't accepted after may of 2017 and I like to ask you. What does that mean?

998
00:47:11,177 --> 00:47:12,378
Well, he's right

999
00:47:12,378 --> 00:47:15,197
The trial judge is right. No payments were accepted after may of 2017

1000
00:47:15,436 --> 00:47:20,637
Let's finish that let's finish let's finish that sentence and subsequent defendants may

1001
00:47:21,177 --> 00:47:25,838
2017 payment was returned by the plaintiff and subsequent attempts to pay

1002
00:47:26,398 --> 00:47:30,657
Directly at the service or bank of america were not accepted after may 2017

1003
00:47:31,916 --> 00:47:33,916
so the judge made a finding that

1004
00:47:34,717 --> 00:47:39,677
The ms. Fernandez tried to make payment. They were rejected. That's why I say well

1005
00:47:39,677 --> 00:47:42,237
Then we get to this tender issue into the registry of the court

1006
00:47:42,237 --> 00:47:43,277
So

1007
00:47:43,277 --> 00:47:45,038
the may 2017

1008
00:47:45,038 --> 00:47:51,436
The payment that was made in that month regardless of what payment it was was returned. I do agree with that. No one's ever no one's

1009
00:47:51,996 --> 00:47:53,597
I've never said otherwise

1010
00:47:53,597 --> 00:47:55,436
after may of 17

1011
00:47:55,436 --> 00:48:00,637
No payments were tendered. So that's not what the court found and that's not what ms. Fernandez testified

1012
00:48:01,038 --> 00:48:04,157
She said she went to the bank to try to pay and the bank said no

1013
00:48:04,398 --> 00:48:06,318
I believe that was may of 2017

1014
00:48:06,318 --> 00:48:07,518
She went to the bank

1015
00:48:07,518 --> 00:48:13,518
Made the payment and that's why bank of america had to mail her back a separate check and bank of america said we're not accepting

1016
00:48:13,757 --> 00:48:15,757
any more payments because

1017
00:48:15,757 --> 00:48:20,398
You've got to pay this amount. We they've said in accordance with paragraph one of the mortgage

1018
00:48:21,038 --> 00:48:26,958
We are only accepting payment that was sufficient to bring the loan current and that's isn't that the crux of it though?

1019
00:48:27,518 --> 00:48:29,597
Whether the amount to bring it current

1020
00:48:30,318 --> 00:48:37,356
Involves those four payments that were made but the bank says were reversed and whether who had the money

1021
00:48:37,518 --> 00:48:40,478
If those were the only defaults we were suing on january

1022
00:48:40,878 --> 00:48:42,878
Obviously, we know there's later defaults

1023
00:48:42,958 --> 00:48:47,838
But are they defaults if she tried to pay and the bank says we're not taking any more unless you pay this

1024
00:48:48,556 --> 00:48:53,916
You have to pay three thousand dollars and she says but I only owe a thousand dollars

1025
00:48:54,237 --> 00:48:59,038
I I think then judge subman it really comes down to which I believe the panel's already asked. Um, mr. Borden about is

1026
00:48:59,597 --> 00:49:01,097
if the bank

1027
00:49:01,097 --> 00:49:07,038
Incorrectly returned that money in 2017. I'll get let's say let's say that was wrong. Does that mean?

1028
00:49:07,757 --> 00:49:09,996
They never have to tender another payment ever again

1029
00:49:10,157 --> 00:49:15,677
No, it means she still has to tender payment and the judge says she tried but the bank basically made it clear

1030
00:49:15,757 --> 00:49:19,998
We're not accepting more payments because you owe more she tendered one that was returned. That's correct

1031
00:49:19,998 --> 00:49:22,876
That's not what the judge found and that's not what miss fernandez testified

1032
00:49:22,876 --> 00:49:27,757
She said she went to the bank on a couple of occasions to try and pay and the bank said no

1033
00:49:28,238 --> 00:49:29,998
how many because there's

1034
00:49:29,998 --> 00:49:31,998
Well nine years

1035
00:49:32,398 --> 00:49:38,958
Your client cross-examined her didn't they so they could have brought out how little she did or how much she did well we did we

1036
00:49:39,597 --> 00:49:43,998
And she's and the bank and I read the quote to the court and the bank was satisfied that she tried

1037
00:49:45,438 --> 00:49:49,677
The bank the bank. No, i'm sorry. I said the bank the court was satisfied. I think you understood it

1038
00:49:50,077 --> 00:49:55,278
But anyway, we've beat it to death. Can I ask what so going back to the uh,

1039
00:49:55,677 --> 00:49:57,677
Uh

1040
00:49:57,838 --> 00:50:01,677
Five payments or four payments the 2015 payments, okay

1041
00:50:02,797 --> 00:50:04,958
cozy council, unfortunately, I ran out of time

1042
00:50:05,817 --> 00:50:09,838
Questioning him, but he was convinced is convinced that the record

1043
00:50:10,476 --> 00:50:12,476
That the account the accounting records of the bank

1044
00:50:13,117 --> 00:50:14,557
prove

1045
00:50:14,557 --> 00:50:15,838
that

1046
00:50:15,838 --> 00:50:17,117
the payment

1047
00:50:17,117 --> 00:50:19,278
That that the bank kept the money

1048
00:50:19,838 --> 00:50:23,757
But my understanding from you is that the records say insufficient funds

1049
00:50:24,476 --> 00:50:29,677
The testimony of mr. Greenlee was that he didn't know why they were returned but it could have been sufficient funds

1050
00:50:29,677 --> 00:50:31,677
But let's assume what did the record say?

1051
00:50:31,677 --> 00:50:34,637
The records simply say payment reversed. They don't say they don't say

1052
00:50:35,356 --> 00:50:36,876
They say they have a minus sign

1053
00:50:36,876 --> 00:50:42,077
They show the payments being deducted right and the paid through date going back because the payments are being resolved

1054
00:50:42,317 --> 00:50:45,356
There's nothing in there about an actual check being mailed back

1055
00:50:45,597 --> 00:50:51,518
But let's assume for a second deductance in that. Well, where's the insufficient funds evidence come back the mr. Greenlee

1056
00:50:51,677 --> 00:50:57,677
That's not the records that's mr. Greenlee's speculation. He said that he wasn't sure why he speculated that could be one of the reasons

1057
00:50:57,677 --> 00:51:00,018
But he did that's not the record say they don't say insufficient

1058
00:51:01,037 --> 00:51:03,037
Or it could be that there was a mistake

1059
00:51:03,438 --> 00:51:08,797
Maybe maybe not so that's as believable as insufficient funds because he just doesn't know

1060
00:51:09,037 --> 00:51:13,356
He didn't know and there was nobody from dye tech that was called as a witness

1061
00:51:13,916 --> 00:51:16,238
No, and there was nobody from bank of america

1062
00:51:16,958 --> 00:51:20,876
Other than this witness who didn't know there was nobody else called to clarify it

1063
00:51:21,356 --> 00:51:24,018
I don't believe and there were no documents that specified

1064
00:51:24,717 --> 00:51:29,838
What happened to that money other than the the fernando's saying it wasn't sent back to me

1065
00:51:29,916 --> 00:51:35,037
Well, if if the bank still had the money judge and that's called the affirmative defense of payment, which was not pled

1066
00:51:35,597 --> 00:51:39,438
But either way i'm trying to bring the court's attention back to I get it

1067
00:51:39,916 --> 00:51:42,238
The bank probably could have done a better job with their records, you know

1068
00:51:42,238 --> 00:51:45,518
I I don't believe in all the years i've been in this court ever got up and said

1069
00:51:45,838 --> 00:51:50,557
Bank records are perfect in every case in every way. I certainly would have a job if they were but

1070
00:51:51,438 --> 00:51:58,557
Just because these payments were reversed improperly properly or not. The money was returned or not. It doesn't subtract from the

1071
00:51:59,177 --> 00:52:05,916
Ultimate issue of the fact the payment ceased the breach letter went out. Not only did they not cure

1072
00:52:05,998 --> 00:52:08,317
They said they didn't have the money to cure the fact

1073
00:52:08,717 --> 00:52:11,356
Credit whether these payments were credited or not back to them

1074
00:52:11,597 --> 00:52:15,677
Would not have changed the fact they had the inability to occur the default and wouldn't change where we are today

1075
00:52:15,998 --> 00:52:19,838
That's why i'm asking this court to reverse and remain for final judgment foreclosure

1076
00:52:19,916 --> 00:52:22,797
I have sympathy for the fernandez financial situation like anyone else can

1077
00:52:23,356 --> 00:52:28,398
but the contract has been breached and the right to foreclose and right to foreclose has been proven by

1078
00:52:29,356 --> 00:52:33,438
By preponderance of the evidence or confidential evidence and that's what we ask the relief in this court. So very good

1079
00:52:33,438 --> 00:52:40,317
Mr. Levine, you had the extra time that opposing counsel used so we're in equit equitable disposition here

1080
00:52:40,557 --> 00:52:42,557
All right. Thank you very much. Thank you both

1081
00:52:43,037 --> 00:52:46,476
You too and uh drive safely or fly safely. However

1082
00:52:47,438 --> 00:52:52,797
Right now back well, good luck with that. Hopefully fortunately you're going away from tampa so you shouldn't have a problem

1083
00:52:59,356 --> 00:53:01,356
Very good. Well, thank you both

1084
00:53:01,677 --> 00:53:07,458
The next case is hartford insurance versus structure sbl and enterprises precision