Chapter 32
Plaintiff’s Case
That night Matt and Ryan went over their witness list. They had talked to most of their witnesses but hadn’t taken their depositions because they didn’t want Richmond to know what their trial strategy would be. There were potential problems with not taking a deposition. One was the danger that a witness might change his or her testimony and another that they wouldn’t show up for trial. If either happened, their entire case could be jeopardized. Since many of the witnesses had relationships with RMS, both of these were a distinct possibility.
Ryan had the task of making sure each of these witnesses showed up on time. They had all been subpoenaed, but if they didn’t show up the judge wasn’t likely to continue the case until they were found. Ryan called each of them on Monday night and told them to appear at nine a.m. on Tuesday. He reminded them that they could be arrested if they didn’t show up on time. Fortunately, they all did, so the first order of business when court convened was to swear each of them in and let the judge instruct them to wait in the hall until they were needed.
After the witnesses were sworn in Matt called Cindy as their first witness. For most of the morning and afternoon she testified pretty much as Matt had predicted in his opening statement. Matt felt good about how she had performed but wasn’t anxious to let Richmond take her on cross. A lot was riding on how she would hold up and he was afraid she’d get tripped up. Eventually, however, he had no choice but to stop asking questions and give the lectern to Richmond.
“Mr. Richmond, your cross,” the judge said.
Richmond got up and walked to the lectern. “Ms. Sharp. Isn’t it true that you and your husband signed the real estate lien note and deed of trust that has been introduced by your counsel and admitted into evidence as Exhibits 1 and 2?”
“Yes, sir.”
“And isn’t it true that you had a real estate agent represent you when you bought this property?”
“Yes, sir.”
“And isn’t it true you had a loan broker who helped you get the financing for your property?”
“That’s right.”
“Now, when you signed these two documents, had you read them?”
Cindy looked over at Matt. “Well, not really. I looked them over, but I’m no attorney. I can’t say I understood them.”
“Did your real estate agent or loan broker read them over?”
“I don’t know. The loan broker probably did. I doubt our real estate agent did.”
Richmond picked up a document and held it up. “Now, I’m going to show you what has been marked ‘Defendant’s Exhibit A’ and ask you to identify it.”
Richmond looked at the judge and asked, “May I approach the witness, Your Honor?”
“Yes, you may,” the judge replied.
Richmond took Cindy Exhibit A and handed it to her.
“Now, can you identify this document?”
“Yes, this is the sales contract we signed for the house.”
“Yes. And you and your husband signed it?”
“Yes.”
“Did you read this document?”
“No. We didn’t understand it. We relied on our real estate agent.”
“I would like to direct you to Article 27 of that contract. Do you see it?”
Cindy looked through the document. “Yes, I’ve found it.”
“Now, read that for the jury, would you?”
“Yes. Ah. It says: ‘You should have an attorney review this contract and all closing documents before you sign them.’ ”
“Yes. So, did you have an attorney review the contract and the closing documents before you and your husband signed them?”
“No,” Cindy replied.
“Why not?”
“We couldn’t afford one, plus we thought between the real estate agent and the loan broker we should be all right.”
“I see. Do you think you and your husband understood the note and deed of trust?”
Cindy shrugged. “More or less.”
“You knew you would have to make monthly payments, right?”
“Yes.”
“And you knew you would have to keep the property insured?”
“Yes.”
“Did you know you had to pay the taxes each year?”
“Yes. We always used our tax refund for that. “
“I see. Did you know that if you didn’t keep your payments up the lender could exercise its right to foreclose?”
Cindy sighed. “Yes. We knew that.”
“So, you will agree RMS had a right to foreclose your property for your failure to timely make all the payments on your note.”
“No. They agreed they wouldn’t.”
“So, your only defense to the foreclosure is this alleged forbearance agreement.”
“That and their repeated assurances that they would not foreclose until the modification had been accepted or rejected.”
“Those representations were verbal, is that correct?”
“For the most part, but there was one letter.”
“You’re referring to Plaintiff’s Exhibit 13?” Richmond asked.
“Yes. I believe so. And it specifically said they had received our application and that it was being considered.”
“Right. But read paragraph twenty-three.”
Cindy squinted. “You mean in the fine print at the bottom?”
Richmond smiled. “Just read paragraph twenty-three, please.”
“ ‘Nothing in this letter shall be construed as a waiver of any right or obligation contained in the note and/or deed of trust.’ ”
“So, that letter didn’t prohibit RMS from foreclosing, did it?”
“It seemed like it did to me, but I’m no lawyer,” Cindy said.
“Objection, nonresponsive as to being a lawyer,” Richmond said.
“Sustained,” the judge said.
“All right. Ms. Sharp. Now after the foreclosure you were upset with RMS and the RMS CEO Lucius Jones, is that correct?”
“Yes. They’d lied to me and then took my house, what do you expect?”
“And, you in fact brought your protest to the offices of RMS, didn’t you?”
“If you mean I went to see Mr. Jones, that’s correct.”
“And when you couldn’t see him you left him a note, didn’t you?”
“Yes.”
Richmond picked up another document. “I’m going to show you what has been marked as ‘Defendant’s Exhibit B’ and ask you to identify it. . . . May I approach, Your Honor?”
“You may.”
Richmond took the exhibit to Cindy and then returned to the lectern. “All right. Could you identify Exhibit B for the jury?”
Cindy took a deep breath and let it out slowly. “Okay. it says:
“Dear Mr. Jones,
How could you foreclose on our home after you promised us in writing that you wouldn’t do it while our modification was pending? We trusted you and believed you were acting in good faith, and now my husband is in jail because you wrongfully evicted us.
What kind of a company do you operate? Do you really think you can get away with lying to people and taking advantage of them the way you do? It is clear now that you never intended to modify our loan and only offered the modification option to shut us up.
I know you think you’re pretty smart, but one day you’ll pay for the way you treat people. That’s a promise.
Cindy Sharp”
“So, what did you mean when you said one day Lucius Jones would pay for the way he treated people?”
“I mean evil people eventually get what’s coming to them.”
“Like a letter opener stuck in their throat?”
“Exactly, but I wasn’t the one who delivered justice to Mr. Jones. I’m not a violent person. I wouldn’t have done that.”
“Your husband com
mitted suicide, right?”
“Yes.”
“You blamed that on Lucius Jones, didn’t you?”
“I didn’t even know Lucius Jones. I was mad at RMS.”
“But he’s their CEO and he’s the one you threatened.”
“I didn’t threaten him. I just stated a fact that bad people eventually get punished for their sins. Not by me but by God.”
“But isn’t it true you went to RMS’s offices on the day of Lucius Jones’s murder?”
“No.”
“But you were a block away?”
Cindy nodded. “Yes, I bank near there and I went to the ATM.”
“Just coincidentally on the day and near the hour that he was murdered.”
“Yes. Coincidentally. Lucius Jones was the last person on my mind that day. I was getting money from the ATM to go shopping.”
“Right. So you say. Pass the witness.”
Matt thought about trying to rehabilitate Cindy’s testimony but then figured it was better to get her off the stand before any more damage was done. “No further questions.”
“You may stand down,” the judge said. “Mr. Coleman, call your next witness.”
“Yes, Your Honor. We call Joan Londry.”
“Bailiff, bring in Ms. Londry.”
“Yes, Your Honor,” the bailiff said and went out into the lobby. A moment he returned with a tall, stout, middle-aged lady with black hair. She walked to the stand without smiling. All the witnesses had already been sworn in, so she took a seat in the witness stand.
“Please state your name,” Matt said.
“Joan Londry.”
“And how are you employed?”
“I work as a supervisor in the division 301 customer service department of Reliable Mortgage Servicing Company.”
“And as supervisor do you run the division?”
“Yes. It’s my responsibility.”
“I assume the 301 designates some particular type of cases that you handle.”
“Yes, we handle collections, modifications, and forbearance agreements,” Londry replied.
“So, how many people do you supervise?”
“A dozen or so.”
“And how many loans does RMS manage?”
“Twenty thousand, roughly.”
“And how many land in your division 301?”
“About ten percent.”
“So two thousand accounts?”
“That’s correct.”
“And how many of these customers are seeking a modification?”
“Most of them want some sort of modification. Probably eighty percent.”
“Who handles modifications?”
“We take the application and then send it to underwriting.”
“Now, when you get an account, what do you do first?”
“We log it into our Foreclosure Documentation and Processing software, or FDP, as we call it.”
“Explain how that works,” Matt asked.
“Well, it’s an automated system that sends out all the required notices prior to foreclosure to each home owner who has been put into the system.”
“Okay. What happens after all the notices are sent out?”
“The account is turned over to our attorneys who complete the foreclosure process.”
“So, how would a home owner learn about the modification option?”
“One of the first letters that goes out is a government-mandated notice advising the home owner that they have various options rather than just let their property be foreclosed.”
“And what options are those?” Matt asked.
“Short sale, deed in lieu of foreclosure, deferral, and modification.”
“Okay, so if someone wanted a modification they would do what?”
“They would call the number in the letter, which would come to the 301 division.”
“So, when you got the call you would start the modification process?”
“Yes,” Londry replied.
“Would you stop the foreclosure process while the modification was being processed?”
“No. The foreclosure continues, but if the modification is completed before foreclosure occurs, then the note would be cured and the foreclosure stopped.”
“This is called dual processing, right?”
“I’ve heard it called that.”
“So, do you explain to the home owners seeking modification that you are still going through with the foreclosure even though they have provided you a modification application?”
“Ah. We’re not supposed to bring that up, but if they ask us specifically about it we tell them the truth—that if the modification is approved before foreclosure, then the process will stop, as the default will have been cleared.”
“So, how long does the foreclosure process take?”
“In Texas it is about ninety days.”
“And how long does the typical modification take to process?”
“That varies usually from ninety to 120 days.”
“So, not many modifications get approved prior to foreclosure, do they?”
“A few make it through.”
“During your employment at RMS—do you mind if I call it RMS?”
“No. That’s fine.”
“While you were working at RMS in the 301 division, did you have occasion to work with a customer named Cindy Sharp?”
“Yes. I believe I did.”
“Did she inquire as to the possibility of a modification of her loan?”
“Yes, she did.”
“Did you tell her a modification might be possible?”
“Yes, I explained the program and sent her a packet to fill out.”
“And did she fill it out and send it in?”
“Yes, eventually.”
“Eventually?”
“Yes, she says she sent it in but we couldn’t find it, so she sent in another packet.”
“Didn’t she in fact send you the packet three times?”
“Well, I wouldn’t know. I’ve only seen one copy.”
“So, how much time was lost when her first packet was lost?”
“Objection,” Richmond spat. “Assumes facts not in evidence.”
“Sustained,” the judge replied.
“I’ll rephrase,” Matt said. “How long was it between the first default notice when you advised Ms. Sharp of her right to apply for a modification and when you finally received a modification application from her?”
“Thirty to forty-five days, according to the dates in the file.”
“So, by your timetable, a thirty- to forty-five-day delay would effectively eliminate any chance that the Sharps’ application could be processed in time to beat the foreclosure?”
Ms. Londry shrugged. “I guess that’s true unless the foreclosure date is reset.”
“Did you tell her that she was wasting her time in continuing to pursue a modification?”
“No. I don’t have authority to tell someone they are wasting their time. All I can do is tell them that if the modification is approved prior to the scheduled foreclosure date, then the foreclosure will not proceed.”
“What would cause a foreclosure date to be reset?”
“If the account were escalated.”
“What does that mean?”
“If the home owner demanded to speak to a supervisor and the supervisor found a defect in the foreclosure process, he could recommend a reset.”
“What kind of defect?”
“Usually it would be the notices going to the wrong address or a third-party intervention.”
“What’s a third-party intervention?”
“Like the home owner hires an attorney or calls his congressman or something, then sometimes the account is reset to allow more time for the modification.”
“So, resetting is . . . ?”
“Starting the foreclosure process over, which you have to do to comply with state law.”
“But there was no intervention in the Sharps??
? case?”
“No. They asked to contact me, but they didn’t claim a defect in the foreclosure process. They got their proper notices.”
“But didn’t you assure them that there would be no foreclosure?”
“No. I always tell them the same thing. I’ve got it memorized. We won’t foreclose if the modification is approved before your foreclosure date.”
“What if Ms. Sharp remembers differently? What if she says you told her not to worry about the foreclosure notice?”
“I wouldn’t have said that to her.”
“What about the employees you supervise?”
Londry shrugged. “I don’t know. I didn’t listen in to their conversations with Ms. Sharp.”
“But you could have?”
“Yes.”
“Are records of those phone calls available?”
“No. They are only kept for ninety days.”
“Well, that’s convenient. No further questions of this witness at this time.”
The judge nodded. “Mr. Richmond. Your witness.”
Richmond took Ms. Londry on cross and tried to undo the damage her testimony had done with limited success. Matt called Lois Ross, another supervisor at RMS and the person who had signed the affidavit attached to RMS’s motion for summary judgment.
“Ms. Ross. How long have you worked at RMS?”
“Since the beginning, and before that, I worked for North American Servicing for seven years.”
“And what is your position?”
“I am a supervisor in operations and also custodian of records for RMS.”
“Now did you have occasion to talk to Cindy Sharp about her account?”
“Yes I did, but only after her property had already been foreclosed.”
“I see. Did you tell her the foreclosure was a mistake?”
“No. I told her that if she thought it was a mistake she needed to put her thoughts in a letter and send it to the company—a phone call wouldn’t help.”
“I see. So, you didn’t think the foreclosure was a mistake?”
“No. Not at all. We did everything right.”
“Is that why you signed the ‘Affidavit of Lois Ross in Support of Defendant RMS Motion for Summary Judgment’?”
“Yes. That’s right.”
“So, knowing that Cindy Sharp had concerns about the propriety of the foreclosure, did you conduct an investigation to be sure she wasn’t right before you signed that affidavit?”
“Ah. Not a formal investigation. I looked over the paperwork the attorneys had sent to her and what was filed in the deed records. Everything seemed in order.”
“What about the payment that was sent to North American Servicing? Did that get properly applied to the account?”
“Ah. I don’t know about that.”
“You don’t? So, how could you testify to the balance that the Sharps owed on their account if you hadn’t dealt with the missing payment?”
“I’m sorry. I didn’t know about it.”
“You mean you didn’t review all the correspondence and telephone conversations on the account?”
“I thought I did.”
“What about the premature payment of property taxes? How do you justify paying taxes before they were even due when the Sharps had been paying their taxes all along themselves?”
“Oh, well, under the deed of trust we have the right to pay taxes if the home owner doesn’t pay them.”
“Right. But they weren’t due until January, and you paid them the previous November and immediately increased the Sharps’ house payment by $300. Isn’t that correct?”
“Ah. Well, the computer did that automatically because the account was in default.”
“Right. In default because you hadn’t applied a payment properly made to North American Servicing before you were assigned servicing of the account.”
“Well, I had nothing to do with that.”
“Okay. How do we even know that RMS owns the note?”
“Huh? What do you mean?”
“Well, RMS sends a letter and says they own the account and you certify that RMS does own it and it’s in default, but where is the paper trail? Where are the assignments of the note and deed of trust to North American Servicing and then to RMS?”
“The attorneys handle that. I don’t have anything to do with it.”
“So, you certify something that you have no way of knowing is true or not?”
“No. I know we own it.”
“How? Where are the assignments?” Matt asked.
Lois swallowed hard.
Matt picked up a document. “Your Honor, may I approach the witness with a couple of exhibits?”
“Yes,” the judge replied.
Matt took the document, walked up to Ms. Ross, and handed it to her. “Ms. Ross. I’m handing you what has been marked as ‘Plaintiff’s Exhibit 3’ and asking you to identify it.”
“It says it is an assignment of lien.”
“Okay. And would you examine it more carefully—look at the legal description and confirm that it is an assignment of the original lien on the Sharps’ homestead from Pacific Glen Partners LP to North American Servicing?”
“Yes. That appears to be correct.”
“Have you seen this document before?”
“Yes, I believe I have.”
“Is there another assignment from North American Servicing to RMS?”
“I would assume so, but I’m not sure I’ve seen it. Our attorneys probably have it.”
“Yet, you certified that RMS owned the Sharps’ note?”
Ross sighed. “Yes, well I’ve probably seen it, but I deal with so many properties you can’t expect me to remember every single one.”
“You mean it’s okay if you foreclose on a property where RMS doesn’t own the note?”
“Objection!” Richmond said. “Argumentative.”
“Overruled,” the judge said.
“You may answer,” Matt said.
“No. I’m sure we owned all the notes on the properties we foreclosed on.”
“All right, who signed the assignment of lien which is labeled as ‘Plaintiff’s Exhibit 3’?”
Ms. Ross squinted and said, “ ‘Thomas J. Hamilton, vice president of PG Managers LLC, general partner of Pacific Glen Partners LP.’ ”
“Now would you take a look at Exhibit 4. It is under Exhibit 3.”
Ms. Ross took a deep breath and then fumbled with the documents until she found Plaintiff’s Exhibit 4. “Okay.”
“Please identify that document,” Matt said.
“It’s the certificate of formation of Pacific Glen Partners LP.”
“Objection, Your Honor. This document is irrelevant,” Richmond complained.
“If the court will give me a little leeway, its relevance will become quickly apparent.”
“I’ll allow it,” the judge said.
“Now, did Thomas J. Hamilton sign that document?”
Ms. Ross squinted again. “Yes, he did at the bottom.”
“Now compare his signature with the one on the assignment of lien from Pacific Glen Partners LP to North American Servicing. Are they the same?”
“Objection, Your Honor. Ms. Ross is not a handwriting expert.”
“Your Honor,” Matt replied, “I’m only asking for her lay opinion.”
“Overruled. You may answer.”
Lois Ross’s mouth dropped, and she turned a little pale. She looked at Richmond and then at Matt. “Ah, well. No. Actually, they look quite different.”
The gallery stirred and Matt smiled.
“So, which document bears the real signature of Thomas J. Hamilton?” Matt asked innocently.
Richmond squirmed in his chair. “Objection! Assumes facts not in evidence. She’s not an expert.”
“Fair enough, withdrawn,” Matt said. “No further questions of this witness at this time.”
The judge looked at the clock and said, “We’ll take a fifteen-minute break. Be b
ack at ten thirty p.m.”
The courtroom suddenly got noisy as the spectators reacted to a witness on the ropes and the revelation of a forged document. Matt kept one eye on Richmond and noted a look of concern on his face. This confirmed that his case was going well, which gave him much relief, particularly since the best was yet to come.