Sunday, March 06, 2011

How a $83 fountain pen helped save a family home from foreclosure

Written by Biloxi

Michael Alex Wasylik, a Florida lawyer, wrote this interesting foreclosure case on his blog on how a $83.00 fountain pen an a clever homeowner helped save his client's home from foreclosure. From Mr. Wasylik's blog:

Several months ago, I got a call from a couple facing foreclosure. They were convinced, and soon convinced me, that the bank had forged certain key documents in the case. I asked several pointed questions, got the facts I needed, and drafted both an answer to the complaint and an affidavit from my client about the fraud.

The answer, which stated the facts in mostly general terms, I filed right away, and “kept my powder dry” with the affidavit. At first, the bank freaked out. They heaped scorn our defenses, calling them “frivolous” and “without basis.” Judges balked—even in the face of overwhelming evidence that they do it every day—at the thought that a bank could commit foreclosure fraud. Shamefully, one judge even threatened my client with criminal charges for perjury.

But we did not waver. We used our secret to its best effect, and properly prepared,  we survived the summary judgment hearing. The court set a trial date. I began the process of assembling our trial evidence and witnesses, including an expert witness to testify about the fraud we’d uncovered. And then the strangest thing happened: the bank gave up.

Yes, the bank faxed Mr. Wasylik's a Notice of Voluntary Dismissal. And why did the bank caved in and threw in the towel on the case? Well, it is what Mr. Wasylik and his client uncovered:

What dark secret had we uncovered that sent the bank running for cover? Simple: we found that they had filed with the court an “original note” that was, in fact, a forgery. My client had gone to the courthouse herself to view the so-called original note, and when she opened the court file, she made a stunning discovery: her signature at the bottom of the page was in blue ink.

My client, a former paralegal, happened to be a fountain pen collector. For signing legal documents, she had a particular pen that she always used: an Oriental Red, Expert II Waterman pen, which she always kept loaded with blue Waterman ink. But when she got to the closing, the notary refused to let her use that blue-ink pen to sign the documents. Black ink only, he told her, it photocopies better.

She was, to put it mildly, pretty upset. That’s exactly why she wanted to use blue ink, so she could tell the photocopies from the originals. But the notary refused to notarize anything but a black-ink signature and she relented.

So imagine her surprise when she saw the bank’s “original note” was in blue ink. Imagine the bank’s surprise when they learned the notary had insisted on black ink—after they went to the trouble of creating a so-called original with a blue-ink signature they must have duplicated from a high-quality scan. Faced with the prospect of proof, at trial, that their “original” was a fake, they opted instead to drop the case. Victory!

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