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QWR: Bank Loan Printouts are Not Records; They are Summaries

Judgment as to amount in favor of the lender would be improper in the face of a denial by the debtors as to the amount sought.

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Capital City Developers, LLC v. Bank of North Georgia, 730 S.E.2d 99 (Ga. Ct. App. 2012)

JULY 5, 2012 | REPUBLISHED BY LIT: MAY 29, 2021

The Bank of North Georgia (the “Bank”) sued borrowers Capital City Developers, LLC; Anderson Avenue Partners, LLC; Giles Properties, LP; and Benjamin Michael Giles, along with guarantors Benjamin J. Giles, Jr.; Harold T. Pounders; and Keith D. Kantor (collectively, “Appellants”) to collect money owed, alleging that Appellants had defaulted on 24 promissory notes and related guaranties.

The trial court granted summary judgment in favor of the Bank and entered a final judgment against all Appellants in the total amount of $3,288,969.08 in principal, interest, and attorney fees.

On appeal, Appellants asserted that the trial court erred because:

1) their affirmative defense of estoppel precludes a grant of summary judgment in the Bank’s favor; and the Bank failed to establish the amounts owed through proper tendering of evidence into the record.

We affirm as to the first issue; as to the second issue, we affirm the judgment as to liability, but reverse the amount of damages and remand for further proceedings consistent with this opinion.

A grant of summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. “On summary judgment, after the movant makes a prima facie showing of its entitlement to judgment as a matter of law, the burden then shifts to the respondent to come forward with rebuttal evidence.

To do so, the respondent must set forth specific facts showing the existence of a genuine issue of disputed fact.” On appeal from the grant or denial of a motion for summary judgment, we apply a de novo standard of review, viewing the evidence and all reasonable inferences and conclusions drawn from it in the light most favorable to Appellants as the non-moving parties.

1 .OCGA § 9–11–56(c).

2 (Footnote omitted.) Shropshire v. Alostar Bank of Commerce, 314 Ga.App. 310, 724 S.E.2d 33 (2012).

3 Jenkins v. Wachovia Bank, Nat. Assn., 309 Ga.App. 562, 711 S.E.2d 80 (2011).

So viewed, the evidence shows that Appellants began acquiring real estate for the purpose of constructing single-family dwellings. In early- through mid–2009, they obtained acquisition and construction loans from a predecessor-in-interest to the Bank. For each acquisition of real estate, one of the borrowers executed a promissory note secured by the real estate purchased, and a subset of one or more guarantors executed related guaranties.

In October 2009, the Bank issued notices of default and demanded payment, and later sued for recovery on breach of the notes and guaranties. Appellants answered, denying that they owed the debt.

The trial court, without holding a hearing, granted the Bank’s motion for summary judgment as to liability only.

The trial court then entered a final judgment, from which this appeal arises, setting forth the amounts awarded to the Bank under the notes.

4 In a deposition, one of the guarantors, Pounders, acknowledged that Capital City did not fully pay its loans.

1. As a threshold matter, we note that the Bank provided the authenticated loan and guaranty documents evincing a debt, and Appellants did not dispute their authenticity. A plaintiff suing on promissory notes establishes a prima facie right to judgment as a matter of law by producing the notes and showing they were executed, and the trial court found that the Bank had met this burden.

Appellants do not challenge the trial court’s finding of a prima facie case. Rather, “[t]heir argument goes to the issue of the amount of money owed, not to liability vel non.”

They contend that the trial court erred in granting the Bank’s motion for summary judgment because the Bank failed to establish the amounts owed under the notes with admissible evidence.

We agree.

5 Alexander v. Wachovia Bank, Nat. Assn., 305 Ga.App. 641, 642, 700 S.E.2d 640 (2010).

6 (Emphasis in original.) Shropshire, supra at 315(3), 724 S.E.2d 33.

“Admissibility of evidence on motion for summary judgment is governed by the rules relating to form and admissibility of evidence generally.” “A trial court’s decision to admit evidence as an exception to the hearsay rule will not be disturbed absent an abuse of discretion.”

7 (Citation and punctuation omitted.) Albertson v. City of Jesup, 312 Ga.App. 246, 251(2), n. 18, 718 S.E.2d 4 (2011).

8 (Footnote omitted.) Walter R. Thomas Assocs. v. Media Dynamite, Inc., 284 Ga.App. 413, 416(1), 643 S.E.2d 883 (2007).

With its motion for summary judgment, the Bank submitted the affidavit of its vice president, David O’Rear, the custodian of the Bank’s business records related to claims and loans at issue.

In his affidavit, O’Rear averred that he was personally familiar with the Bank’s routine practice for maintaining those business records and calculating amounts owed; that the loan documents and records were made and kept in the ordinary course of business; and that it was the Bank’s routine practice to record payments and changes in amounts owed at or near the time the relevant events occurred.

His affidavit was accompanied by what appear to be computer printouts listing the current balance, daily interest charges, late charges, and other fees. He testified that the printouts are bank records reflecting current amounts owed.

Appellants contend that the printouts are “summaries” unaccompanied by the underlying business records on which they are based, and that as such, they are inadmissible hearsay evidence.

The documents at issue are accompanied by the relevant guaranty or guaranties, the original loan documents, and default letters from the Bank.

OCGA § 24–3–14(b) defines the type of writings admissible as a hearsay exception under the business records exception as follows:

[a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.

These printouts are not such records; they are summaries of such records.

They were not made at or near the time of the transactions at issue. They were generated and printed between January 27 and February 4, 2011, yet they purportedly represent amounts owed on loans whose terms commenced between July 9, 2008, at the earliest and June 5, 2009, at the latest.

9 (Emphasis supplied.)

10 See Patterson v. Bennett Street Properties, 314 Ga.App. 896, 903(4), 726 S.E.2d 147 (2012).

“[A]lthough a summary prepared in support of a demand for payment may not qualify as a business record under OCGA § 24–3–14, … summarized statements of what records show are admissible if the records themselves are accessible to the court and the parties.”

Here, the Bank’s summaries were accompanied by some business records, but a search of the record reveals that crucial underlying business records related to fees and interest were not available to the this Court or Appellants.

11 (Citations omitted.) Morris v. Nat. Western Life Ins. Co., 208 Ga.App. 443, 444(1)(c), 430 S.E.2d 813 (1993).

Most of the summaries list “late charges,” but are unaccompanied by business records showing from what relevant dates and on what underlying amounts the late charges accrued. Some summaries list “other fees” that are not explained, and the Bank has pointed us to no supporting business records. Neither the Bank’s briefing nor O’Rear’s affidavit identifies any provision in the notes or guaranties obligating Appellants to pay the “other fees.” Additionally, all the summaries list “interest” charges and indicate the daily rate of accrual. The notes, however, provide that interest is variable based upon “Lender’s Prime” plus one percent prior to maturity, and a fixed rate after maturity. The summaries are unaccompanied by business records showing pre-maturity interest calculations and rate variations.

“[W]here, as in this case, such [documents] are neither introduced in evidence nor accounted for, it is erroneous to admit in evidence such summarized statement[s].” Absent evidence to establish a variable interest rate, judgment as to amount in favor of the lender would be improper in the face of a denial by the debtors as to the amount sought. Further, where business records do not adequately show a requirement to pay fees, the amount of damages has not been established.

12 Camp v. State, 31 Ga.App. 737, 740(6)(a), 122 S.E. 249 (1924); Patterson, supra. See also Walter R. Thomas Assocs., supra at 416–417(1)(b), 643 S.E.2d 883 (where summary lists fee but no supporting business records are presented, “that entry is hearsay and cannot be considered in determining the amount owed”) (footnote omitted).

13 See also Shropshire, supra at 314(2)(b), 724 S.E.2d 33. See Garrett v. Atlantic Bank & Trust Co., 157 Ga.App. 103–104(1), 276 S.E.2d 152 (1981) (fact issue remained where bank introduced no evidence establishing interest rates during life of loan based on bank’s prime rate and debtor denied liability).

14 See Aniebue v. Jaguar Credit Corp., 308 Ga.App. 1, 6(2), 708 S.E.2d 4 (2011).

We find that the trial court abused its discretion by considering these summaries in its determination of the amounts awarded. We affirm judgment as to liability, but reverse the award of damages and remand for further proceedings consistent with this opinion.

2. Appellants argue that because they tendered into the record facts supporting the affirmative defense of estoppel, the trial court erred in granting summary judgment to the Bank.

We disagree.

Summary judgment law does not require the movant to show that no issue of fact remains but only that no genuine issue of material fact remains; and, while there may be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.

15 (Citation and punctuation omitted.) Hendricks v. Enterprise Financial Corp., 199 Ga.App. 577, 581(4), 405 S.E.2d 566 (1991).

Appellants contend that when they could not keep up their loan payments, Pounders, a guarantor, spoke with O’Rear and his superior, Terence Lewis. Pounders deposed that Lewis and O’Rear agreed to accept offers from third-party buyers of $70,000 “per house” regardless of the amount owed.

The record shows that Appellants had found third-party buyers for three of the notes.

Pounders deposed that O’Rear told him the Bank had accepted the offer from the third-party buyers, but the Bank later reneged on the deal.

Invoking both the doctrines of equitable estoppel and promissory estoppel, Appellants argue that they were prejudiced by the Bank’s refusal to sell the notes because the potential third-party buyers of the three notes also were planning to buy the remaining loan portfolio for $70,000 per completed house.

Appellants further allege that both the Bank and the third-party buyers had agreed not to pursue Appellants for any deficiency.

The Bank denies agreeing to sell the notes and denies any agreement not to pursue Appellants for a deficiency.

“In order for equitable estoppel to arise, there must generally have been some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence as to amount to constructive fraud, by which another has been misled to his injury.”

Appellants have pointed us to no portion of the record showing, nor have they made any argument, that the Bank, Lewis, or O’Rear “made the alleged representation with knowledge that a sale would not occur or intention that a sale would not be finalized.

Bare conclusions and contentions unsupported by an evidentiary basis in fact are insufficient to oppose a motion for summary judgment.”

Appellants have nowhere in their briefs addressed this requirement.

16 .OCGA § 24–4–27. Accord Medders v. Smith, 245 Ga.App. 323, 324(1), 537 S.E.2d 153 (2000) (party asserting estoppel must establish, inter alia, “conduct amounting to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert”). See also Fundus America (Atlanta) Ltd. Partnership v. RHOC Consolidation, 313 Ga.App. 118, 121(1)(a), n. 9, 720 S.E.2d 176 (2011) (party claiming equitable estoppel must prove it is free from fraud in the transaction, and must have acted in good faith and with reasonable diligence).

17 (Citation and punctuation omitted; emphasis supplied.) Griffin v. State Bank of Cochran, 312 Ga.App. 87, 91(1)(a), 718 S.E.2d 35 (2011).

A party asserting equitable estoppel also must show, among other things, that it changed its position prejudicially and justifiably relied to its detriment upon the representations at issue. A party asserting promissory estoppel must show reasonable reliance on the promise. Here, the affirmative defenses fail as a matter of law because Appellants could neither reasonably nor justifiably rely on what they allege were the Bank’s representations. The promissory notes specifically provide that “no modification of this agreement may be made without [the lender’s] express written consent.” The guaranties provide, “this guaranty may not be waived, modified, amended, terminated, released or otherwise changed except by a writing signed by the Undersigned and Lender.”

18 Medders, supra at 324–325(1), 537 S.E.2d 153.

19 State Farm Mut. Automobile Ins. Co. v. Penrow, 142 Ga.App. 463, 466(4), 236 S.E.2d 275 (1977).

20 Fidelity & Deposit Co., etc. v. West Point Constr. Co., 178 Ga.App. 578, 580(1), 344 S.E.2d 268 (1986).

Appellants have presented no evidence of the Bank’s written consent to any of the note sales, nor have they alleged that the Bank consented in writing.

Although Pounders deposed that a broker helped Appellants find buyers who executed a promissory note purchase agreement for three of the properties, that agreement contains a number of blank spaces and never was signed by the Bank.

Appellants could not reasonably rely on the alleged oral promises of Bank officials to sell the notes. Given the language in the notes and guaranties, those

21 Griffin, supra at 95(2)(a), 718 S.E.2d 35 (no reasonable reliance on oral representations for sale of bank where note and guaranty contained integration clauses providing that those documents constituted the entire agreement of the parties).

clear and unambiguous provision[s] served to place [Appellants] on due notice that [they] could not thereafter reasonably rely upon any words or other course of dealing to [their] inducement, other than a modification agreement actually reduced to writing….

Likewise, in view of this provision [the Bank] could not reasonably expect that [its] particular conduct, even when such conduct is viewed in the light most favorable to [Appellants], would induce the asserted action or forbearance.

22 (Citations and punctuation omitted.) Gerdes v. Russell Rowe Communications, Inc., 232 Ga.App. 534, 536(2), 502 S.E.2d 352 (1998) (reliance on oral agreement not reasonable where contract provides only for written modification).

Accord OCGA § 13–3–44(a). See, e.g., Dukes v. Board of Trustees, etc., 280 Ga. 550, 553, 629 S.E.2d 240 (2006) (detrimental reliance, as an essential element of equitable estoppel, is not a factor where estoppel cannot be applied as a matter of law).

The trial court did not err in granting summary judgment to the Bank on Appellants’ estoppel claim.

Judgment affirmed in part and reversed in part, and case remanded.

MILLER and BLACKWELL, JJ., concur.

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Florida

Florida Supreme Court Shirk Florida Bar

The Florida Bar filed a formal complaint against Matt Shirk at request of the Florida Supreme Court, which rejected a conditional guilty plea.

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Referee appointed to review Florida Bar complaint against Matt Shirk

Case stems from alleged ethics violations from Shirk’s tenure as Public Defender for the Fourth Circuit

JUL 1, 2021 | REPUBLISHED BY LIT: JUL 22, 2021

A court-appointed referee is reviewing the Florida Bar’s complaint against former Fourth Circuit Public Defender Matt Shirk and could recommend potential sanctions for him, according to court records.

The Florida Bar filed a formal complaint against Shirk at the request of the Florida Supreme Court, which rejected a conditional guilty plea the former public defender entered earlier this year to resolve alleged ethics violations that occurred while he held public office.

Chief Judge Raul Zambrano of the Seventh Judicial Circuit was appointed to serve as referee and investigate the contents of the Bar’s complaint by hearing witnesses and reviewing evidence. If the referee recommends guilt, he will also recommend appropriate sanctions. Barring an extension, Zambrano has until Oct. 11 to submit his findings.

The court proceedings stem from Shirk’s time in office as public defender from 2009 to 2017.

Among other things, Shirk was accused of hiring three young women outside of normal hiring practices and later firing them to save his marriage. He was also accused of serving or consuming alcohol in a city building, and of revealing privileged client information to a film crew.

Those accusations led to a grand jury investigation whose findings were sent to the Florida Commission on Ethics, which resulted in public censure, reprimand and a $6,000 fine. The ethics commission found Shirk’s conduct violated ethics rules relating to professional behavior.

In February, Shirk agreed to enter a conditional guilty plea in which he admitted violating several rules of the Florida Bar, including the Rules of Professional Conduct, in exchange for a six-month suspension from practicing law. The state Supreme Court rejected the conditional plea and ordered the Bar to file a formal complaint against Shirk.

Court records show a case management conference is set for July 9.

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Eleventh Circuit

Southern Florida Judge Orders Retrial for Fraud by Prosecutors. It Wasn’t Lyin’ Judge Marra

Judge Darrin P. Gayles claims during a court hearing the original prosecutors “deliberately misled this court.” He orders a new AUSA team.

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July 16, 2021: S.D. Fl. Judge Orders New Trial After AUSAs ‘Deliberately Misled’ Him

A Florida federal judge said Friday he would be ordering a new trial — with a new prosecution team — for a trio of men found guilty of swiping millions of dollars from elderly people in a sweepstakes scheme, saying during a hearing that the original prosecutors “deliberately misled this court.”

A federal judge in Miami has ordered a new trial for three men found guilty in a fraudulent sweepstakes scheme after concluding that federal prosecutors had “knowingly invaded the defense camp” while lying to the court about it.

U.S. District Judge Darrin Gayles of the Southern District of Florida said two initial prosecutors in the case “deliberately misled this court.”

Law360 and the Miami Herald have coverage of Gayles’ remarks, made during a hearing Friday.

Gayles said he had allowed the three Florida men to be tried without knowing the extent of prosecutors’ alleged wrongdoing, according to the coverage.

Prosecutors had received handwritten notes from a fourth defendant who attended defense meetings without disclosing that he had obtained a plea deal with prosecutors, Gayles said during the hearing. The other defendants were working together under a joint defense agreement.

The fourth defendant, 53-year-old John Leon of Wilton Manors, Florida, had received government authorization to attend strategy meetings. Yet prosecutors lied about whether Leon had attended more than one meeting and whether they approved his participation, Gayles said.

One of the federal prosecutors had countered in a court filing that Leon’s cooperation was “kept covert” because he was cooperating with the government against a noncharged defendant, according to the Miami Herald. The prosecutor also said Leon had been instructed not to share privileged information.

The Florida defendants—46-year-old Matthew Pisoni of Fort Lauderdale, Florida; 42-year-old Marcus Pradel of Boca Raton, Florida; and 39-year-old Victor Ramirez of Aventura, Florida—had been convicted of conspiracy to commit mail fraud in 2017. They were accused of telling their scam victims that they had won a sweepstakes prize, and they had to pay $20 to $50 to redeem it.

The defendants sought a new trial after receiving new evidence obtained during an investigation by the U.S. attorney’s office and the Department of Justice’s Office of Professional Responsibility.

The government countered that much of the “newly discovered” evidence cited by the defendants wasn’t material and had no exculpatory value.

Department of Justice
U.S. Attorney’s Office
Southern District of Florida

FOR IMMEDIATE RELEASE

Four South Florida Residents Sentenced to Prison for Conspiring to Commit Sweepstakes Mail Fraud

Wednesday, November 29, 2017 | REPUBLISHED BY LIT: JUL 19, 2021

Four Florida residents were sentenced to prison terms ranging from 42 months imprisonment to 84 months imprisonment for participating in a sweepstakes mail fraud scheme.

Benjamin G. Greenberg, Acting United States Attorney for the Southern District of Florida, Kelly R. Jackson, Special Agent in Charge, Internal Revenue Service, Criminal Investigation (IRS-CI), and Antonio J. Gomez, Inspector in Charge, U.S. Postal Inspection Service (USPIS), Miami Division, made the announcement.

Matthew Pisoni, 44, of Fort Lauderdale, Marcus Pradel, 41, of Boca Raton, and Victor Ramirez, 38, of Aventura, were found guilty of conspiring to commit mail fraud, in violation of Title 18, United States Code, Section 1349, after a five-week trial that ended on July 26, 2017. John Leon, 50, of Fort Lauderdale, previously pled guilty to conspiring to commit mail fraud, in violation of Title 18, United States Code, Section 371.

Today, United States District Court Judge Gayles sentenced Pisoni and Ramirez to 84 months imprisonment; Pradel to 78 months imprisonment; and Leon to 42 months imprisonment.

The trial evidence established that the four defendants, Pisoni, Pradel, Ramirez and Leon, falsely notified individuals by mail that they had won a substantial prize. The letters the defendants sent fraudulently represented that the recipients needed to pay a fee ranging from $20 to $50 to the defendants in order to redeem their purported winnings. During the course of the mail fraud conspiracy, more than 100,000 victims in the United States and abroad were fraudulently induced to pay the fees by the defendants’ misleading claims that they had won a prize. The fraudulent letters directed victims to pay the fees in cash or by check or money order payable to fictitious companies. The defendants then either processed the victims’ payments through independent payment processors or deposited them into shell bank accounts controlled directly and indirectly by the defendants and their co-conspirators. In total, over $25 million in victim payments went into the defendants’ and co-conspirators’ bank accounts.

Mr. Greenberg commended the investigative efforts of the IRS-CI, USPIS, Federal Trade Commission, Aventura Police Department, and other local and international law enforcement agencies. The case is being prosecuted by Assistant U.S. Attorneys Elijah Levitt, and H. Ron Davidson.

Related court documents and information may be found on the website of the District Court for the Southern District of Florida at www.flsd.uscourts.gov or on http://pacer.flsd.uscourts.gov.

‘Breathtaking’ revelation delays start of prison term for men in $25M sweepstakes fraud

JAN 12, 2018 | REPUBLISHED BY LIT: JUL 19, 2021

Three South Florida men convicted of operating a $25 million sweepstakes fraud were supposed to turn themselves in to start serving their punishments on Friday afternoon.

But a judge has agreed to delay their prison surrenders after what the defense calls outrageous last-minute revelations from federal prosecutors.

It’s the latest twist in a controversial case in which victims, mostly seniors, were tricked into sending money to claim a fictitious cash prize.

“The government has disclosed breathtaking new evidence … demonstrating that its witnesses testified falsely … and that the prosecutors made misleading arguments to the court,”

appeals attorney David Oscar Markus wrote in a court filing.

Matthew Pisoni, 45, of Fort Lauderdale, Marcus Pradel, 41, of Boca Raton, and Victor Ramirez, 38, of Aventura, were found guilty of mail fraud conspiracy after a jury trial last year. John Leon, 50, of Wilton Manors, pleaded guilty to the same charge in 2016 and cooperated with investigators.

Leon was going to testify against the other three men but U.S. District Judge Darrin Gayles barred him from doing so in late 2016.

At the time, the judge also blasted the U.S. Attorney’s Office for allowing Leon to spy on his co-defendants — and their attorneys — after Leon had secretly made a plea deal with the prosecution.

The judge called the prosecution’s handling of the case “extraordinary.”

Judge blasts federal prosecutors over secret deal that led to spying on defense

“I don’t know what’s happening at the U.S. Attorney’s Office. This is the latest of a series of incidents that is affecting the credibility of this office,”

the judge said during the 2016 hearing.

“Someone has got to look at this thing … There’s a problem here that needs to be rectified in some way.”

Defense attorneys for the three men said they were blindsided by prosecutors and Leon’s defense attorney, Omar Johansson.

The problem was different from regular snitching by informants, they said, because all four men had pleaded not guilty in 2015 and, at the time, they and their attorneys had a formal agreement to work together and come up with defense strategies.

Anyone who wanted out was supposed to give 48 hours’ notice to the others.

The judge rejected their request to throw out the charges before trial because of what the defense called an illegal “invasion of the defense camp” by the prosecution.

During the 2016 hearing, prosecutors H. Ron Davidson and Elijah Levitt told the judge they had thought it was essential to keep Leon’s cooperation secret because he was working undercover for them on another related investigation.

They said they later regretted not running their decision up the chain of command at the U.S. Attorney’s Office in Miami.

The judge said that, at a minimum, they should have told their bosses and asked for the judge’s explicit approval.

The prosecutors also told the judge at the hearing they had never received any documents from Leon.

The three men went to trial and were convicted, without Leon’s testimony.

Pisoni and Ramirez were sentenced to seven years in federal prison, Pradel to 6 ½ years and Leon to 3 ½ years. Leon is still expected to begin serving his sentence on Tuesday.

Judge Gayles agreed Thursday to let the other three men remain free until at least March 16. Their attorneys have requested a court hearing to find out more about the newly released information.

They may seek a new trial or use it on appeal.

Earlier this week — three days before the men were due to go to prison — prosecutors filed a court document saying they wanted to “correct” the record. They revealed that Leon gave prosecutor Levitt a document that they now believe may have been a chart or timeline — compiled for the defense by Pradel — which they had claimed they never received.

They now can’t find the document, they wrote.

“The government believes that this document may have been the timeline discussed during the hearings, but the government cannot be certain because the document was placed in a sealed file folder without being examined and no federal agent or Assistant United States Attorney has ever opened the sealed file folder and read the document contained therein,”

they wrote.

“Moreover, Assistant United States Attorney Levitt has exhaustively searched his office’s records but has been unable to locate the sealed file folder with the document.”

Prosecutors, who previously said in court they had rejected Leon’s offer of the chart, also revealed that Leon gave handwritten notes to an IRS agent.

Pisoni, the son-in-law of the late self-help guru Wayne Dyer, was the ringleader of the fraud, according to prosecutors.

Markus, the attorney handling Pisoni’s appeal, declined to comment on the legal aspects of the case.

Pisoni returned home when he learned of the two-month reprieve on Thursday after he had already taken a flight to New Orleans on his way to surrender at his designated prison, Markus said.

The new filing raises more questions than it answers and calls “into question the credibility of the government’s presentation, witnesses, and evidence,” Markus wrote.

A spokeswoman for the U.S. Attorney’s Office declined to comment on the pending case, citing Department of Justice policy.

The U.S. Attorney’s Office has had similar issues in the past, Judge Gayles noted in the 2016 hearing.

He mentioned a reprimand issued in 2009 by a judge who ordered prosecutors to pay a defendant more than $600,000.

That judge ruled prosecutors and a Drug Enforcement Administration agent acted “vexatiously and in bad faith” when they secretly recorded a Miami defense lawyer, Markus, and his investigator in a questionable witness-tampering investigation.

An appeals court later ruled Dr. Ali Shaygan, who was found not guilty of prescription drug charges, was not entitled to the money because of how Judge Alan Gold handled the reprimands of the prosecutors.

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Acceleration

Who is Presiding Judge Andrea Gundersen, Mortgage Foreclosure Division, Seventeenth Judicial Circuit?

Judge Gundersen presides over all foreclosures in Broward County. She has been referred to JQC, asking that she be removed from the bench.

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FL Honest Lending Report

REPUBLISHED BY LIT: JUL 5, 2021

After orchestrating one of the largest consumer frauds in American history, the banking industry continues the unethical and illegal servicing and foreclosure practices that were uncovered during the “robo-signing” scandal which eventually led to the $25b settlement with 49 State Attorneys General in 2012.

While some of the unethical practices regarding origination were curbed after the settlement, unethical servicing and fraudulent foreclosures continue to plague homeowners.

Floridians for Honest Lending (FHL) reviewed several hundred foreclosure complaints filed in 2019 by Bank of America, the Bank of New York Mellon, and JP Morgan Chase in the Eleventh and Seventeenth Judicial Circuit Courts that comprise Miami-Dade and Broward counties respectively. Upon that review, FHL found 369 foreclosure complaints were filed with rubber-stamped blank endorsements with signatures of David SpectorLaurie MederMichele Sjolander, and Cynthia Riley, whose names became synonymous with the robo-signing scandal. Of those, 325 were loans originated by Countrywide, the disgraced mortgage company that was bought by Bank of America in 2008.

In addition, FHL found that in Miami-Dade alone, 310 homes had been sold at auction since January 2019 that included these same rubber-stamped blank endorsements from these same rubber-stamped blank endorsements, 21 of which were sold during the COVID-19 pandemic.

The fraudulent rubber-stamped blank endorsements are used to establish standing and the banks’ right to foreclose on homeowners, the same homeowners that were sold predatory loans and pushed into foreclosure with unethical servicing practices.

This practice of filing false documents was documented by 60 Minutes in 2011 and was part of the complaint filed by the 49 State Attorneys General.

It was discovered after the $25b National Mortgage Settlement that Bank of America and JP Morgan Chase continued to submit forged documents, now relying on forgery and perjury, in foreclosures across the nation.

Unfortunately, the banks’ reckless greed left millions of properties with mortgages and promissory notes corrupted and the chain of title on those properties broken, putting trial court judges in an uncomfortable position of either taking the banking industry to task for these forged documents or kicking a family out of their home.

Unfortunately, with little scrutiny from the media, legislators, or regulators, our court system has heavily favored the latter.

In fact, FHL’s review found that in Broward county, 217 of the 219 foreclosure complaints filed in 2019 that included fraudulent rubber stamps were assigned to Judge Andrea Gundersen.

Of these cases assigned to Judge Gundersen, 126 of them have been closed, none of which were ruled in favor of the defendant.

Currently, Judge Gundersen presides over all foreclosures in Broward County.

She was reassigned from Family Court and does not have prior experience in foreclosure litigation.

Since her reassignment, defense attorneys have filed motions for judicial disqualification against Judge Gundersen for allowing attorneys for Bank of America to misrepresent the law and argue that “fraud on the court” is allowed in foreclosure because of a “litigation privilege” and ordering the defendant to pay the Bank’s attorney’s fees for challenging the fraud.

In April 2021, Judge Gundersen granted nineteen motions for disqualification in cases she presided over.

The clients have referred Judge Gundersen to the Judicial Qualifications Commission asking that she be removed from the bench.

These fraudulent foreclosures impact real people like Ana Rodriguez, an 82-year-old homeowner who was a former Cuban political prisoner, who now faces eviction because she was sold a predatory loan by Countrywide.

It impacts people like Mrs. Marie Williams-James who never missed a mortgage payment but Bank of America foreclosed on her anyway and Mr. and Mrs. Simpson who were working on a mortgage modification when the Judge refused the bank’s motion for continuance and forced the Simpsons into a fraudulent foreclosure judgment.

There is a new foreclosure crisis looming due to the economic effects of the COVID-19 pandemic. As we get the pandemic under control, the federal government will be under increased pressure from the banking industry to lift the FHFA moratorium for federally-backed mortgages from Fannie Mae and Freddie Mac.

That moratorium only protects borrowers who had strong enough credit scores to qualify for government-backed mortgages. The elderly, communities of color, and first-time homebuyers who took subprime mortgages are not protected by any moratorium and are still being evicted during the pandemic.

The issue of fraudulent foreclosures must be resolved before this new crisis begins. This is an issue that demands action at the local, state, and federal levels from legislators, regulators, and our judicial system.

We cannot continue to allow fraud in our justice system for the convenience of the banking industry and at the expense of homeowners’ American Dream.

Floridian for Honest Lending is a project of Opportunity For All Floridians, a 501c4 non-profit organization. We believe that our system will only work with transparency, honesty, and accountability. Our research can be found here.

Each complaint filed by the banks’ attorneys is linked in the second column. The forged rubber stamps can usually be found on the promissory notes that are included in the exhibits.

Below you can also find a sample of the varied David Spector signatures.

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