Brent Marks Legal Thriller Series: Box Set One

by Kenneth Eade

  Altogether, the trust would hold over $2 billion in mortgages, which would be sold off to investors as mortgage backed securities in a virtual free for all. Barton read into the record that portion of the Pooling and Service Agreement that required any transfer of any mortgage or deed of trust to be before the closing date of the trust.

  “Ms. Barton, can you please tell the Court when the closing date of the trust was?”

  “August 20, 2006.”

  “And when was the Marsh loan transferred to the trust?”

  “It was transferred by assignment on September 26, 2008.”

  “Objection and move to strike,” barked Stein. “Ms. Marsh has no standing to raise any issue with regard to the assignment.”

  “Counsel, please approach the bench with the Court reporter,” said Judge Masters. All the lawyers and the reporter came to the bench, outside the earshot of the jury.

  “Your Honor,” said Stein. “The Marshes were not privy to the Pooling Service Agreement, and it is not relevant to the issues of this case. Ms. Marsh has no standing to enforce the terms of the Agreement. ”

  “Mr. Marks, how does your client have standing to raise the issue of the assignment to the trust?”

  “Your Honor, if the assignment was made after the closing date of the trust, then Prudent Bank lacks the legal right to enforce the note. I cite Glaski v. Bank of America, 218 Cal. App. 4th 1079.”

  “Your Honor,” said Stein, “Neither the Plaintiff nor her parents were primary parties nor were they third party beneficiaries with respect to the pooling service agreement, and have no standing to enforce the terms of the PSA.”

  “What about that Mr. Marks?”

  “Your Honor, this is a declaratory relief action. If the transfer to the PSA was void because it was made after the closing, then nobody seeking to enforce that deed of trust who claims ownership or servicing rights pursuant to the PSA has the right to foreclose.”

  “Good point, Mr. Marks. Consistent with the Glaski case, I will allow it in, and leave it for the jury to decide its weight.”

  All counsel took their places in the courtroom.

  “You may proceed, Mr. Marks.”

  “The assignment occurred over two years after the closing date of the trust, correct?”

  “It appears so, yes.”

  “Calling your attention to Exhibit 5, can you identify this document?”

  “Yes, that is the assignment of the Marsh deed of trust to the Tentane Mutual Pass-Through Certificates, Mortgage Series 2006-TT53 Trust.”

  “Thank you. Your Honor. I move that Exhibit 5 be admitted into evidence.”

  “Exhibit 5 is received.”

  Brent next had Barton identify the Notice of Default on the Marshes’ deed of trust, which began a 90 day default period, and the Notice of Trustee’s Sale, which began a 21 day period, the last day of which would be the foreclosure sale.

  “Your Honor, I move Exhibits 6 and 7 into evidence.”

  “Any objection? Exhibits 6 and 7 are admitted.”

  Brent had already established that the Marshes’ loan had been transferred to the trust by Tentane Mutual after the closing of the trust. He went on to have Barton identify all of the filings of the trust with the S.E.C., which showed that Tentane Mutual had sold all of the deeds of trust in the trust to various investors as mortgage backed securities.

  “Now, Ms. Barton, I am showing you what has been marked collectively as Exhibit 9. Can you identify these documents?”

  “It looks like the payment and collection records on the Marsh loan from Tentane Mutual.”

  “And Exhibit 10?”

  “Exhibit 10 appears to be the payment and collection records on the Marsh loan from Prudent Bank.”

  “And from these records, can you determine who now services and collects payments under the Marsh loan?”

  “Prudent Bank services the loan and collects any payments made on it.”

  “Thank you Ms. Barton. Your Honor, I move Exhibits 9 and 10 into evidence.”

  “No objection? They are received.”

  “Finally, Ms. Barton, can you please identify Exhibit 11?”

  Barton flipped through Exhibit 11, which was voluminous.

  “Exhibit 11 appears to be the Agreement with the FDIC for the purchase of the assets of Tentane Mutual by Prudent Bank.”

  “And is this your certification on Exhibit 12 that Exhibit 11 is a true copy of that agreement?”

  “It is.”

  “Your Honor, I move that Exhibits 11 and 12 be admitted into evidence.”

  “Any objection, Mr. Stein? 11 and 12 are admitted.”

  “Ms. Barton, can you please identify Exhibit 13?”

  “Yes. Exhibit 13 is a letter from Adelay Gioriano, the collection manager of Prudent Bank.”

  “And what do your records show was the purpose of this letter?”

  “To tell Mr. and Mrs. Marsh that Prudent had taken over their loan and to send further payments to Prudent Bank.”

  Brent moved the exhibit into evidence and it was admitted.

  “Thank you, Ms. Barton. No further questions, Your Honor,” said Brent.

  Brent knew that Stein would not benefit from asking any questions on cross-examination about most of the paperwork that was in evidence, and he couldn’t risk boring the jury any further, or emphasizing anything that was potentially damaging. However, since the judge had allowed the pooling and service agreement and the late assignment of the Marsh loan into evidence, he had to exercise some damage control.

  “Mr. Stein, your witness.”

  “Thank you, Your Honor. Ms. Barton, I call your attention to Exhibit 3, the pooling and service agreement. That agreement was made in August 2006, is that correct?”

  “Objection,” said Brent. “The Exhibit speaks for itself.”

  “It does,” said the judge, but this is cross examination. I will allow it.”

  “Yes, the agreement was made in August 2006,” said Barton.

  “And the Marsh loan closed in April 2006, isn’t that correct?”

  “Yes, it did.”

  “And neither Mr. Marsh nor Mrs. Marsh were parties to the pooling servicing agreement, isn’t that correct?”

  “Yes.”

  “So then, since their escrow had already closed, Mr. and Mrs. Marsh were not contemplated by the parties to the pooling service agreement to have any benefits flowing from that agreement, isn’t that correct?”

  “Objection! Lack of foundation, argumentative and calls for a legal conclusion,” said Brent.

  “Yes,” Barton blurted out.

  “Move to strike the answer,” said Brent.

  “Sustained. The jury will disregard the question and the answer. Ms. Barton, remember what I told you. Wait for the objection to be ruled on before you answer.”

  Too late, they already heard it. That was Stein’s plan. He had taken advantage of the fact that Barton would follow her pattern and jump to the answer before a ruling on the objection.

  Confucius said, Study the past if you would define the future. Brent should have been prepared to jump in with his objection before the ink had dried on Stein’s question. But Barton knew which side she was on. She knew she had to downplay what would be damaging to her employer. Thus, the seed for the defense was planted in each of the 12 brains in the jury box. Brent’s job would be to make sure that seed would never grow.

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  “The Plaintiff calls Ms. Adelay Gioriano.”

  Adelay Gioriano was a low level executive at Prudent Bank, charged with mortgage loan collections. She reluctantly took the witness stand in a floral print skirt with white blouse, and nervously avoided looking at the jury. Brent questioned her on her position with the bank and went over all the documents, then zeroed in for the kill.

  “Ms. Gioriano, in September 2008, when Prudent Bank took over the assets of Tentane Mutual, your department performed an inventory of all the mortgage loans that Prudent was taking over, isn’t that correct?”
>
  “Yes we did.”

  “And as part of that inventory, your department performed due diligence on the papers and records of every mortgage loan, isn’t that correct?”

  “Yes. It was a very big job.”

  “I’m certain that it was. Now, Ms. Gioriano, you are familiar with Exhibit 3, The Pooling Service Agreement for the Tentane Mutual Pass- Through Certificates, Mortgage Series 2006-TT53 Trust, are you not?”

  “I am.”

  “And, calling your attention to Exhibit 2, this is the assignment of the Marsh mortgage loan to this trust, isn’t it?”

  “Yes, it appears to be.”

  “What is the date of the assignment?”

  “September 26, 2008.”

  “And that was by Tentane Mutual to the trust, correct?”

  “Yes.”

  “What was the date of the agreement with the FDIC to take over Tentane’s assets?”

  “September 25, 2008.”

  “So Tentane Mutual assigned the Marsh loan to the trust the day after Prudent Bank took over Tentane’s assets?”

  “Objection argumentative,” said Stein.

  “Overruled,” said Judge Masters.

  “I’m not sure,” said Gioriano.

  “How could you not be sure, Ms. Gioriano? September 26th comes after September 25th usually, doesn’t it?”

  “Objection, argumentative!” barked Stein.

  “Sustained!”

  “Now I would like to call your attention to Exhibit 13.”

  “Okay.”

  “Is this a letter from you to Mr. and Mrs. Marsh?”

  “Yes it is.”

  “And the date of that letter?”

  “September 25, 2008.”

  “Ms. Gioriano, can you please read the letter into the record?”

  “Yes. Dear Mr. and Mrs. Marsh, I am writing to advise you that, as of September 25, 2008, Prudent Bank has taken over the assets of Tentane Mutual Bank, which assets include the servicing of the above-referenced loan and deed of trust. Please make all future loan payments to the address on the bottom of this letter, and reference your new loan number, which is indicated in the reference section. Welcome to the Prudent Bank family. We look forward to a long and mutually beneficial banking relationship.”

  “Ms. Gioriano, you state in the letter that, as of September 25, 2008, Prudent Bank has taken over the servicing of the Marsh loan and deed of trust, correct?”

  “Yes.”

  “But that’s not true, is it?”

  “What?”

  “It’s a false statement, Ms. Gioriano, isn’t it?”

  “Objection, argumentative,” barked Stein.

  “Overruled. The witness may answer.”

  “We did take over Tentane Mutual.”

  “Yes, but not the Marsh loan, isn’t that true?”

  “Well, I…”

  “Objection!”

  “Sustained. Mr. Marks, please rephrase your question.”

  “The Pooling Service Agreement Trust closed in 2006.”

  “Yes.”

  “And the terms of the Pooling Service Agreement that we went over earlier state that all loans must be assigned by the closing of the Trust, correct?”

  “Yes.”

  “This loan was not assigned by the closing date, isn’t that correct?”

  “It was in our inventory.”

  “Move to strike as non-responsive.”

  “Granted,” said Masters. “The jury will disregard the answer.”

  “The loan was not assigned pursuant to the terms of the Pooling Service Agreement, isn’t that true?”

  “Yes, but…”

  “And the assignment states that it was made by Tentane Mutual one day after Prudent took over its assets.”

  “Yes.”

  “So, on September 25, 2008 the day your letter went to Mr. and Mrs. Marsh, Prudent Bank did not yet have the right to service their loan, correct?”

  “Well, I suppose so. But…”

  “And, in fact, Prudent never had the right to service the loan, isn’t that true?”

  “No that is not true.”

  “Not only was the assignment a forgery, the collection letter was a lie, and Prudent collected money from Mr. and Mrs. Marsh under false pretenses, isn’t that true?”

  “Objection, argumentative!” said Stein.

  “Sustained!”

  “Ms. Gioriano, after your letter, do the collection records show payments made by Mr. and Mrs. Marsh?”

  “Yes.”

  “To Prudent Bank?”

  “Yes.”

  “No further questions, Your Honor.”

  They used to say in law school, “If the facts are on your side, argue the facts; if the law is on your side, argue the law; and if you have neither on your side, blow smoke.” Stein had a difficult time rehabilitating this witness, because the ink had been dry on the documents for so long, but his undeniable skills and experience in blowing smoke lessened the blow of her testimony on the jury.

  39

  Brent’s next witness was Judy Solomon, the notary who had allegedly signed the assignment of the Marsh loan to the trust. She was the teacher type, in her late 40’s to early 50’s, with tortoise shell glasses over topaz eyes, black straight leg slacks and a white oxford shirt. She appeared to be very likeable, which was not good for Brent.

  “Ms. Solomon, you are a notary public for the state of Minnesota, is that correct?”

  “Yes I am.”

  “Calling your attention to Exhibit 5, can you identify the notary stamp on this assignment?”

  “It looks like my stamp.”

  “How about the signature, can you identify that?”

  “Well, as a notary for Prudent Bank, I sign my name thousands of times.”

  “Please answer the question, Ms. Solomon, can you identify the signature?”

  “Well, it looks like it could be mine.”

  “Are you not sure if it’s yours?”

  “Well, I sign my name so many times, you know? It looks like mine, but I’m not sure.”

  “Do you remember signing this document?”

  “I can’t say that I do, no. I sign so many of these.”

  “Your Honor, may I?”

  “Please proceed, Mr. Marks.”

  Brent put the exhibit on the overhead projector, and it projected a large image on half of the screen adjacent to the jury box. He handed Solomon a blank piece of paper.

  “Ms. Solomon, would you please sign your name ten times on this blank piece of paper?”

  “Objection, Your Honor, lack of foundation!” barked Stein.

  “This is demonstrative, Your Honor. I have not moved its admission.”

  “Overruled.”

  Solomon signed her name ten times, and Brent put it on the screen next to the notarized signature. The signatures obviously did not match.

  “What do you say now, Ms. Solomon? Is this your signature?”

  “I’m still not sure,” said Solomon.

  “Ms. Solomon, did you authorize anyone at Prudent Bank or Tentane Mutual to sign your name and use your notary stamp?”

  “Why no, that would be illegal.”

  “And you mentioned before that you signed a lot of documents for Prudent Bank. Were you employed by Prudent Bank at the time this document was signed?”

  “Yes I was.”

  “This is an assignment to the trust pool created by Tentane Mutual in 2006. Why did you notarize this assignment transfer the day after Prudent took over Tentane Mutual?”

  “Objection!” said Stein, lack of foundation, argumentative.”

  “Sustained.”

  Stein had coached Solomon well. Not only was she unable to express that the document contained a forgery of her signature, she waited for the objection to be ruled on before she answered. But the jury had already heard the question, and you could bet that they would be wondering why a Prudent Bank notary would be notarizing an assignment by Tentane Mutual after the takeo
ver.

  Neither Stein nor Black had any questions for this witness, and she was excused. The morning had been productive; full of victories and losses that would mean nothing unless the jury processed them correctly. Brent had noticed some of them nodding off, trying to fight the fact that their brains, sensing boredom, had hit the “hibernate” switch. The judge had called for a lunch break just in time.

  40

  Michael Shermer, in his book, The Believing Brain, pointed out that human brains are “belief engines,” designed to recognize patterns and create meaning out of them. Brent knew that once a belief had formed in the minds of the jury about the case, no amount of evidence or argument could shake the jury from that belief, and the fact that they would later deliberate and discuss their beliefs would reinforce similar beliefs of the other jurors.

  Brent used the break to turn over Solomon’s original signature samples to his handwriting expert, Dr. Albert Dutoit, who took the signature samples from the demonstration back to his lab to examine them. Dutoit was a board certified forensic document examiner, with a Masters in Forensic Science from George Washington University, an M.D. from Stanford, and a charismatic personality. Since the signature on the assignment was obviously not Solomon’s, he was probably over qualified for the job. With the precious time Brent had left on the break, he called Angela.

  “Don’t tell me you’re inviting me to lunch?” she quipped.

  “No time, I just wanted to know if we had a match on that hair sample from the bar yet.”

  “Not yet. How’s it going?”

  “To early to tell. I’m hanging in.”

  “Well keep hanging.”

  Brent also checked in with Jack Ruder for an update. The District Attorney had decided to move forward with prosecuting Joshua Banks for the attack on Brent, citing the strength of his confession and the lack of any other suspects. Brent knew their case was hollow as an empty bottle.

  41

  After the break, Dutoit took the witness stand, and Brent spent a great deal of time going over his qualifications and accolades. Dutoit ran his own forensic lab and had testified as a handwriting expert in countless trials. Brent knew that Stein would not even attempt to challenge his expert, but this show was more important to put on for the jury than anything else. Since it was his most important piece of evidence, Brent had to make sure that the bell rang in each of the twelve’s heads and that it festered in them like an ear worm until they got to the jury room to deliberate.