June 14, 2016
by Ben Staskiewicz
Hunt Leibert – USFN Member (Connecticut)
The Superior Court issued a twenty-page Memorandum of Decision on April 29, 2016 granting the plaintiff judgment of foreclosure and reformation of the mortgage (the word “Corporation” was left off lender’s name) after a two-day trial in PHH Mortgage Corporation v. Cameron, HHD-CV-10-6012369-S.
The court referenced the protracted and tortuous history of litigation between the parties going back to a prior dismissed foreclosure action in 2008 where the plaintiff utilized a lost note affidavit. Subsequent to the new action being started in 2010, the original note was located by the servicer.
The defendants alleged 18 special defenses and a counterclaim, focusing on: (1) the borrower’s claim of adding a clause to the note at the loan closing, which stated that if the note was lost then it was not enforceable; (2) the lender’s name as listed on the mortgage; (3) FNMA’s status; (4) the plaintiff’s holder in due course status; and (5) the validity of a written notice of default. The counterclaim related to the alteration of the note by the defendant. The defendants claimed that they obtained a copy of the note, which contained the additional clause, from the closing attorney’s office in 2009.
Among the plaintiff’s trial witnesses was a partner from the closing attorney’s office to address those claims. The trial court reviewed the original note, and a copy of the original note without the alleged additional clause was introduced as a trial exhibit, contradicting the alleged defenses. The plaintiff also introduced a second copy of the note without the alleged additional clause from the loan origination package, which copy bore a “true and accurate” stamp by the trial witness. The copy also contained a stamped “received date.” The stamped date was shortly after loan origination.
The trial court made fourteen pages of factual findings, including that the defendant went to the closing attorney’s office in 2009 and modified the copy of the note in the file by inserting the additional clause about enforceability, and replaced the accurate copy with the altered version. Further, the defendant’s conduct was “not simply untruthful and fraudulent, but constitutes committing perjury under oath. The court concludes that the defendant deliberately engaged in a fraudulent attempt to manufacture the evidence.” The trial court attached no weight to the testimony of either defendant, found that two of the defendants’ witnesses through their testimony committed outright perjury, and rejected all of the defendants’ special defenses and the counterclaim.
In order to uphold the integrity of the court and the judicial process, the plaintiff’s counsel requested the court to take sua sponte action against the offending parties. The trial court agreed, stating “action is not only warranted but obligatory.”
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