Note: This case is also instructive on how MERS works, as the LPS system is cloned after it...
IN RE: RON WILSON, SR.
LARHONDA WILSON DEBTORS
LARHONDA WILSON DEBTORS
CASE NO. 07-11862
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF LOUISIANA
EASTERN DISTRICT OF LOUISIANA
DATED: April 6, 2011
Appearer has reviewed and is familiar with the mortgage loan account of RON WILSON, Sr. And LA RHONDA WILSON ("Mortgagor") represented by the afore described note and mortgage and the records and data complications [sic] pertaining thereto, which business records reflect acts, events or condition made at or near the time by Dory Goebel, or from information transmitted by a person with knowledge thereof and which records and data complications [sic] are made and kept as a regular practice of the regularly conducted business activities of OPTION ONE MORTGAGE CORPORATION.
1. October 2007 payment- confirmation by Western Union that a money order was delivered to Option One on October 20, 2007, in the amount of $1546.64 and receipt was acknowledged by Option One on October 27, 2007.2. November 2007 payment- confirmation by Western Union that a money order was delivered to Option One on November 30, 2007, in the amount of $1546.64 and receipt was acknowledged by Option One on November 30, 2007.3. December 2008 payment-copy of a certified mail receipt showing delivery to Option One on January 2, 2008. Debtors alleged tender of a cashier's check #70060810000560554786 for $1546.84.
4. January 2008 payment-a copies of a cashier's check for $1000.00 and two money orders for $546.84 and $312.00 both dated January 25, 2008; certified mail receipts evidencing delivery to and acknowledging receipt by Option One on January 31, 2008.5. February 2008 payment- copies of a cashier's check for $1546.84 and a personal check for $78.00; as well as a receipt for certified mail delivery on February 28, 2008, and acknowledging receipt by Option One on March 3, 2008.6. March 2008 payment- copies of two cashier's checks for $1546.84 and $78.00; as well as a receipt for certified mail delivery on March 28, 2008, and confirmation of delivery to Option One by the United States Postal Service on March 31, 2008.8
1. Payment dated October 22, 2007, in the amount of $1546.84 applied to the installment due October 1, 2007;
2. Payment dated December 3, 2007, in the amount of $1546.84 applied to the installment due November 1, 2007; and3. Payments of $1546.84 and $78.00 dated April 2, 2008, applied to installment due December 1, 2007.
Fidelity does work for Option One, and basically Fidelity's role is almost as a conduit and storage of information and data. Option One will send their information to Fidelity, and then attorneys such as Clay [Wirtz] can access that information.19***...[B]asically Fidelity became-if you think if it almost as a library, various clients could put their information in that library. The attorneys would go to the library, check out the information, and that's how things would happen. One of the services that we provided, and no longer do, but one that we did is executing affidavits such
as the one in this case.20***Ms. Goebel is an employee of Fidelity. The various clients in this case, including Option One, would sign a corporate resolution, and I have a copy of a corporate resolution, that would give her limited authority as a vice president for particular purposes. And in this case one of the purposes was executing the affidavit.21***Court:...if Fidelity is merely storing information...why wouldn't Option One sign the affidavit?Cash:..a number of clients sign their own, Your Honor. Sometimes they would want us to, simply because we have people like Ms. Goebel who handle the accounts on a daily basis, who review the material, who have access to the material, and it was simply one less thing that the client had to do, that we would do.22***Cash: ...and when Ms. Goebel would execute the affidavit she would have access to the same information as someone at Option One. She would go into their system, look at what has been posted, what hasn't been posted. And I think what happened here was just a series of miscommunications...23***Cash: ...And I think that the simple explanation here,...and I think it's one that's clearly human error that can happen, is there was a payment sent. There was an error made where that payment was sent, because this was in bankruptcy....that payment was sent to the Boles Firm, rather than being posted. And that was basically, I think, someone in Mr. Wirtz's office had instructed Option One, "Send us the checks and we will send them back," or "we will take care of that."24
To execute such an affidavit, once I receive the affidavit, I will review the information that is in the affidavit with Option One's system. So, I will validate the information based on their system and the information that is there.25
Q: Mr. Simmons, what was the amount due on the...Wilson account on February, 28th, 2008? ...A: Actually, the loan was current, if in fact we would have accounted for all the monies received. ...Q: What about on March 10, 2008? What was the amount due on the mortgage loan at that date?A: Again, the loan would have been current . . . . 60
Q:...if you look at paragraph 2 at the bottom there is "see attached copy of the Notice, Exhibit A, certified copy of the mortgage is Exhibit B , and copy of the assignments is Exhibit C." Is your testimony that those documents were not attached to the affidavit when you signed it..?A: Typically, those exhibits would not be attached.Q:..So,...counsel would attach those after you signed..?A: ...we relied on the attorney. We believed the information that they were giving us and what they were going to attach, because this is their affidavit. It would be accurate.98***Q:...Did you check any screen to see if in fact there was a note, there was a mortgage, there were assignments?A: That would be the responsibility of the attorney.Q:..so you didn't verify that information at all?A: No...99***Q:...And you don't sign it [the affidavit] in the presence of the notary or the witnesses?
A: That's correct.100***Q: You weren't put under oath by a notary before you signed the Affidavit of Debt?A: No.Q: And you didn't really have personal knowledge of the contents [of the affidavit] because you just said the information involving the existence of the mortgage and the note and so on you relied on the Boles Law Firm to have that information correct.A: Right. As I stated earlier, it was the Boles Law Firm. Option One had hired them to kind of handle this work and had asked LPS to help clerically sign these. We relied on the Boles Law Firm.Q: So you considered this a clerical function?A: Part of our administrative services with LPS.Q: But you just used the word "clerical."A; Well, it's signing a document, more you know administrative work, clerical work, yes.101***Q: Ms Goebel...Have you ever refused to sign an affidavit for a reason other than the note payment amount was incorrect, the due date on the affidavit was incorrect, the number of installment payments that were past due was incorrect, or ...that you were not a [authorized] signatory...?A: Not to my recollection, no.Q:.. So if, ...you had know[n] that there were three payments that were not posted on this account...that were in the possession of either Option One or the law firm, would you have still signed the affidavit?A: In my opinion, yes. I was getting an affidavit from a law firm that I trusted. They're the legal experts on the matter and Option One is in charge of their cash
posting. I'm not the decision maker of, you know, should they proceed. The attorney would have that knowledge.102