Pinson v. JP Morgan Chase Bank, National Association et al

REPLY to 109 Response to Order Requiring Additional Briefing

S.D. Fla.February 6, 2015

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA W EST PALM BEACH DIVISION CASE NO. 9:13-cv-80720-IfAM John Pinson, Plaintiff FILED BY D.C. FEB 0 6 2215 STEVEN M, LARIMORE CLE9K U.S. DIS:I CI S.D. OF FLA. - W .RB. JPM ORGAN CHASE BANK, N.A., et. aI. Defendants/ PLAINTIFF'S REPLY TO DEFENDANT'S MEMORANDUM RESPONSE IDE 1091 TO ORDER REOUIRING ADDITIONAL BRIEFING IDE 1081 Plaintiff pro se, John Pinson, hereby files his memorandum of 1aw replying to Defendants' memorandum response (DE 1091 to order requiring additional briefing (DE 1081 which was filed on January 29, 2015. Plaintiff motioned to compel better discovery answers or for in camera review (DE 1001, to which Defendant responded (De 105) and therein at pg.2 !2 requested a second bite at the apple if the court considered their response Iacking. The Court granted the second bite, Ordering additional briefing (DE l08j. The Defendants filed their additional response (DE 1092 with attached proffered third party affidavit and attached alleged original documents (DE 109-11. Plaintiff submits this reply to Defendants Memorandum Response (DE 10% contemporaneously with his Motion to Strike gDE 109-1j. With their additional response (DE 1 09j the Defendants proffer a third party aftsdavit (DE 109-11 of Mr. Erik Del-'Etoile of Albertelli Law, non parties to the instant matter. Attached to the third party affidavit are alleged original documents (DE l 09-1 ) which Plaintiff objects to as being not properly authenticated and inadmissible as evidence. Plaintiff has moved to strike the third party affidavit and attached documents for the reasons detailed in his separate M otion to Strike filed today. Because the proffered third party affidavit is defective the court should disregard it in consideration of Defendants additional briefing response gDE 109j. Plaintiff s reply to Defendants Response (DE 1 0% to Order requiring additional briefing (DE 1 081 - Page 1 of 6 Case 9:13-cv-80720-KAM Document 115 Entered on FLSD Docket 02/09/2015 Page 1 of 6 Counsel for Defendants then asserts in a conclusory fashion that the unauthenticated documents are originals even though no witness with first hand fact knowledge appears on the record attesting to the documents authenticity. Statements of counsel, in their briefs or their arguments are not sufficient for a motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D .C. Pa. 1964, 229 F. Supp. 647. Because counsel advances arguments that lack foundation they should not be considered by this court. In the motion to compel (DE 1001 Plaintiff does more than insinuate that the alleged original documents are altered or spoiled. Plaintiff stated tçthe alleged original documents presented appeared distinctly different and included whiteout tape on each page covering portions of the documents and hand written notations that appear nowhere on any other alleged documents presented.' (DE 1001. The defective afidavit states whiteout was applied by Albertelly Law, but does not state exactly the individual person applying the whiteout, or exactly when the whiteout was applied; Elthe firm applied . . . and then drew' (DE l 09-1 !Jj. ln !5 Mr. Deta'Etoile asserts redactions were made to documents tdto prevent personal identification info from being disclosed'' but fails to state disclosed to whom? And exactly how they would be disclosed? M oreover, why re redactions necessary? And when were the redactions made? And who exactly made them? Evans v. Techs. Applications & Sel'v. Co., 80 F.3d 954, 962 (4th Cir. 1996), 80 F.3d at 962 (inadmissible hearsay cannot be considered). Bare allegations of fact, ultim ate or conclusory facts, and legal conclusions are not sufficient. Bellsouth Telecomms. V. W .R. Grace & Co., 77 F.3d 603, 6l5 (2d Cir.l996). These conclusory statements of Mr. Delv'Etoile are simply hearsay referring to facts not in evidence lacking proper evidentiary foundation. Despite the proffered third party statements asserting Albertelli was the responsible party for altering the documents, documents that are not Albertelli records, in a conclusory fashion counsel attempts to dispose of Plaintiffs contentions by asserting ttspoil' has no meaning. To the contrary, Dictionary.com defines ûspoliation' as 1 . the act or an instance of plundering or despoiling; 2. authorized plundering of neutrals at sea in time of war; 3. Law. the destruction or material alteration of a bill of exchange, will, or the like; 4. the act of spoiling or damaging something. The Plaintiff stated iispoiled'' and as noted tGthe act of spoiling'' or Sdthe act or instance of. .. despoiling'' is 'kspoliation''. Plaintiff is pro se and tries his best with terms and spellings. Plaintiff s reply to Defendants Response rDE 10% to Order requiring additicmal briefing IDE 1081 - Page 2 of 6 Case 9:13-cv-80720-KAM Document 115 Entered on FLSD Docket 02/09/2015 Page 2 of 6 Counsel also asserts spoil (or spoliation) has no meaning in the context of enforceability of negotiable instruments, yet Under FRCP Rule 37 possible sanctions are as follows: dism issal of the wrongdoer's claim', entering judgment against the wrongdoer; excluding expert testimony; and application of adverse inference rule. American Bar Association Rule 3.4 prohibits a lawyer from destroying or assisting another in destroying evidence pertaining to a case. Likewise Title 18 of United States Code Sections l 503, 1 5 l0, 1512 and 1519 prohibits a party from destroying or assisting another in destroying evidence, and provides for crim inal prosecution against the wrongdoer. Under Title l 8 United States Code Section 1 51 9, a wrongdoer can be fined in huge amounts and imprisoned up to 20 years. Additionally, FRCP Rule 37 imposes fines on the wrongdoer. Presumably Albertelli spoliated the documents on behalf of their client? tûSPOLIATION'': the intentional destruction, mutilation, alteration, or concealment of evidence. . . If proven, spoliation may be used to establish that the evidence was unfavorable to the party responsible. (Black's Law Dictionary, 8th Ed.) ln affidavit r5 Mr. Del-'Etoile asserts redactions were made to documents tEto prevent personal identification info from being disclosed'' and tûthe firm applied ... and then drew'. Thus it can be reasonably inferred that Albertelli altered the documents to conceal something! The Florida Fourth District Court of Appeals affirmed the trial court's decision in M artino v. Wal-Mart Stores. Inc., 835 So. 2d 1251 (Fla. 4th DCA 2003) and stated there were dtany number of sanctions and negative consequences ... available against parties to litigation,'' As counsel correctly points out l:-f'he term talteration,'' however, has a precise detinition in its own section within Florida's version of Article 3 of the Uniform Commercial Code Fla. Stat. j 673.4071 and if done fraudulently could discharge a party's liability under a promissory note'' (DE 109 pg.2 !21. W hy would thcy alter the documents to conceal something? As stated in his motion to compel, t:courts have found that the mortgage industry actively manufactured documents to submit to courts i.e. by Lender Processing Services central to the robosigning scandal. Plaintiff s inquiry here is most certainly a legitimate request for documentation in light of the discovery of rampant manufacturing of false mortgage documentation, especially in Florida.'' (DE 100 !151 Plaintiff disputes the authenticity of the documents. Are these original documents? W ith éldirect personal knowledge' Plaintiff asserts iétrue and correct' specific facts in his 5 January 23, 20 15 affidavit gDE 107, Ex. 1tA''): !12. liNo affidavit is on record attesting to the Plaintiff's reply to Defendants Response (DE 109J to Order requiring additional briefing gDE 108J - Page 3 of 6 Case 9:13-cv-80720-KAM Document 115 Entered on FLSD Docket 02/09/2015 Page 3 of 6 authenticity of the alleged mortgage.''; !13. ;ENo affidavit is on record attesting to the accuracy of the content of the alleged mortgage.''; !14. lDefendants have produced no affidavit, sworn and attested to by a responsible party legally authorized to act on behalf of the Defendants, that verifies or supports the exhibit or the document filed by Defendants in support of their motion to dismiss.''; !16. ûtplaintiff states that any loan documents executed by him were initialed the on lower Ieft side of each page not requiring a signature.'; :2 l . Eiplaintiff cannot state these are original documents.''; !22. ûûchase previously represented in Palm Beach County Court case no. 502009ca01 5823 that the alleged Note was lost or destroyed.''; !24. ûiNo affidavit is on file attesting to haw the alleged Note was found or retrieved.''; $27. itchase does not account for where documents come from, who owns documents, where documents are stored, or who the custodian of documents is.'' As to the documents, Counsel asserts facts not in evidence based on hearsay and speculation and unauthenticated evidence which is inadmissible. Statements of counsel, in their briefs or their arguments are not sufficient for a motion to dismiss or for summary judgment, Trinsev v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647. Because counsel advances arguments that lack foundation they should not be considered by this court. The reasonable inference is that the redactions and notations are to distract from the fact that these are not original documents. Plaintiffs January 23, 20 l 5 affidavit gDE l 07, Ex. %IA'j: uéchase previously represented in Palm Beach County Court case no. 502009ca01 5823 that the alleged Note was lost or destroyed.'; !24. tt'No affidavit is on file attesting to haw the alleged Note was found or retrieved-''; !27. itchase does not account for where documents come from, who owns documents, where documents are stored, or who the custodian of documents is.' The question remains where did these documents come from . Defendants have thus far provided no validation on the alleged loan. Plaintiffs January 23, 2015 affidavit (DE 107, Ex. :iA''1: V. iûNo owner of the Ioan is identified on the record.'; !5 ié-l'he identity of the public security owning the loan is unknown.''; !7. i'No owner of the loan security has identified specifically who all the investors are who own the unnamed public security that owns the loan, and have produced no affidavit by a competent person duly authorized by the unnamed public security and attesting to facts.''. There is no evidentiary foundation fOr the documents Counsel attempts to assert are originals, and the court should disregard them. Plaintiff's reply to Defendants Response rDE 109) to Order requiring additicmal briefing gDE 1081 - Page 4 of 6 Case 9:13-cv-80720-KAM Document 115 Entered on FLSD Docket 02/09/2015 Page 4 of 6 Initials do not appear on the alleged documents. Plaintiffs January 23, 201 5 affidavit (DE 107, Ex. GEA''): !16. ëEplaintiff states that any loan documents executed by him were initialed the on lower left side of each page not requiring a signature.'' CONCLUSION For these reasons, Plaintiff has raised several issues that shed doubt on the authenticity of the alleged original M ortgage and Alleged original Note. The proffered third party aftsdavit is invalid in form, not signed, is not based on personal knowledge, contains no admissible fact statements, and the affiant is not competent to testify to the facts. M oreover, because the documents are unauthenticated and are hearsay, and appear altered or spoiled, and they are not self-authenticating, they should not be considered by the court. W HEREFORE, the Plaintiff pro se, John Pinson, respectfully m oves this Honorable Court to issue an Order granting his motion to Compel (DE 1001, and for any other relief that the Court deems appropriate. Dated: February 6, 2015 Respltfplly Submitted, è. 3.F. j zj j ly &t. v Nx. ..: w> ' -. . ''tk s ) -..- .. i. h John Pinsbn,rro se )'526 W estwood Road W estpalm Beach, Florida 33401 561-329-2524 john@pinson.com Plaintiff's reply to Defendants Response (DI! 10% to Order requiring additional briefing IDE 1 08J - Page 5 of 6 Case 9:13-cv-80720-KAM Document 115 Entered on FLSD Docket 02/09/2015 Page 5 of 6 CERTIFICATE OF SERVICE l hereby certify that a true and correct copy of the foregoing document was filed with the Clerk of the Court, and is served by CM /ECF upon entry into the docket on alI counsel, by the mandatory CM /ECF system, on the Service List below. Siyned February 6, 2015 t . ' y John Pinson Thomas H Loffredo, Esq. tom.loffredo@gray-robinson.com Gray Robinson, P.A. 401 E. Las Olas Blvd., Ste. 1000 Ft. Lauderdale, FL 33301 Phone: (954) 761-81 1 1 Fax: (954) 761-81 12 Attornev for Defendants: JpM organ Chase Bank, N.A.; CPCC Delaware Business Trust, alk!a CPCC Delaware Statutory Trust; JpM organ Chase & Co. Service List . ) M ichael D. Lessne, Esq. Michael.lessne@gray-robinson.com Gray Robinson, P.A. 401 E. Las Olas Blvd., Ste. 1000 Ft. Lauderdale, FL 33301 Phone: (954) 76 1-81 1 l Fax: (954) 761-81 12 Attornev for Defendants: JpMorgan Chase Bank, N.A.; CPCC Delaware Business Trusts a/k/a CPCC Delaware Statutory Trust; JpM organ Chase & Co. PlaintifFs reply to Defendants Response (DE 1 09j te Order requiring addititmal briefing ëDE 1 08J - Page 6 of 6 Case 9:13-cv-80720-KAM Document 115 Entered on FLSD Docket 02/09/2015 Page 6 of 6