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SJC-13510, Fannie Mae v. Anthony Michael Branch.
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Okay, Mr. Branch,
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Good morning, Your Honors.
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And if it pleases the Court,
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I wanna begin my argument
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around the off-record assignment
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that appears on the record in my appendix
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in the appellate brief.
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On August 7th of 2009,
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Pentagon Federal Credit Union sent me a notification
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that Fannie Mae had purchased both my note,
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excuse me, both my note and my mortgage.
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I relied on that representation from them.
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PenFed remained the servicer of my account.
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Excuse me.
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This document, undocumented foreclosures,
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were rejected under the Ebenezer case law.
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What I'm suggesting to this court today
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is that the wrong party foreclosed,
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that Fannie Mae actually remained owner
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of both the mortgage and note since 2009.
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In fact, Fannie Mae, when responding to my discovery request
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and the interrogatories indicated
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that they, in fact, had owned it since the inception,
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excuse me, the inception of the loan.
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And I believe you can find
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that a record Appendix 125 at seven.
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I'm confused.
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How could Fannie Mae have the loan?
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I thought you borrowed from Pentagon, right,
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or whatever they're called.
Yes.
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So at the inception of the loan,
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it must have been the other.
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It must have Pentagon at the inception loan, right?
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Thank you, Justice.
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Justice, that's my point.
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They, on August 7th, Fannie Mae,
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purchased both my note and my mortgage.
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They sent me notification of that.
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So, I see them as the party
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that should have brought this foreclosure,
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PenFed took payments, et cetera,
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but they were not the mortgage and note holder,
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which contradicts their presentation in the record.
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Mr. Branch, can you please identify the best...
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This obviously a really big record
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with many years of litigation.
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Could you identify your best record references
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for the point that you just made
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that at the time of the foreclosure
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PenFed was not the note holder?
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Yes, Justice, thank you for that.
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I'm referencing record of Appendix 125, note at seven.
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And I also have within my appendix,
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whereas the vice president of Fannie Mae,
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another case indicated that it is their public policy
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that the note and the mortgage are always,
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that they purchase them in unity,
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and they are never separated.
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And that has been my concern from the offset
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that the wrong party actually foreclosed.
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I considered it-
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Sorry, sorry, sorry.
I apologize.
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Can we just go back?
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I appreciate the additional references,
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but focusing on your case and your mortgage.
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Yes.
So I just wanna...
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I've turned to the page of your record that you referenced.
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I think it's really important.
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So it goes to the heart of one of your arguments.
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So I'd just like to go over it.
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Thank you.
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So you've referenced an interrogatory answer.
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Mhm, yes.
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And I'm just looking at this, just this one page,
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but I take it, these are interrogatory answers
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from Fannie Mae or from whom?
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From what I sent to Fannie Mae as my discovery.
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From Fannie Mae.
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So whose answer is this
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when it says answer number, interrogatory number seven,
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and then answer number seven?
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Whose answer is it?
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It would be Fannie Mae's answer.
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Fannie, that's okay, thank you.
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I just wanted to confirm that.
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So Fannie Mae is saying in this interrogatory answer
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Fannie Mae was the investor on the loan since its inception
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and became the owner of the property
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following an assignment of Pentagon's high bid.
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So that was years later.
Correct.
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Fannie Mae further refers to
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and incorporates the copy of the original note,
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the mortgage, et cetera, et cetera, et cetera.
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Fannie Mae objects the balance of this interrogatory,
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and there's a bunch of objections
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and then some cases about the objections.
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So what do you interpret in this answer number seven
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as saying that Fannie Mae was the note holder?
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Thank you, Justice.
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What Fannie Mae said in that particular...
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Excuse me, what Fannie Mae said
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in that particular interrogatory is consistent
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with the notification that they sent me,
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that they were in fact the owner of the mortgage in note.
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I requested that letter during discovery
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and was unable to get it.
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So for me, that's consistent
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with what I've been saying all along.
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So the best evidence that you're aware of,
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although it's not in our record, is a letter to you saying
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that Fannie Mae was now the note holder,
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but that letter is not in the record before this court.
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You are absolutely correct.
Okay.
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Thank you for clarifying.
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I really appreciate it.
Thank you.
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Again, my position in response to that,
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my affidavit in response to the summary process action
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was in fact that I received that notification
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and that at the offset of this case
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that the foreclosed, excuse me,
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that the foreclosure, again, was by the wrong party.
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And then we get to the-
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Can I ask you a consequence of the Appeals Court?
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The Appeals Court decision says the case is moot.
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What happens then?
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Are you paying use and occupancy at that point
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and then it stops?
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What happens at the Appeals Court?
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I don't understand how the case can be moot,
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but the Appeals Court says it's moot.
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What happens then?
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Do you stop doing something,
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or were you paying use and occupancy at that point?
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What happens when they do that?
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They vacated the use and occupancy pending Mr. Cardoso.
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Before the Appeals Court issues this decision,
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you're paying use and occupancy?
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I am, sir.
You're supposed to pay it.
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Yes, sir.
And you were paying it?
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Yes, sir.
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And then when they issued the decision,
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you stopped paying it?
Yes, sir.
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Okay, 'cause I'm gonna ask the same question
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to both of those parties
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'cause my own sense is that's...
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I have no understanding how this could be moot.
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Yes.
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But I also wanna understand the consequences of it
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'cause it seems to me,
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particularly if that's exactly the consequence
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that use and occupancy stops being paid,
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it seems like its case is clearly not moot.
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So, Justice, if I can address that for one minute or two,
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so the use and occupancy order was actually vacated
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by the Appeals Court at the request of Fannie Mae.
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My position has always been that if the order was vacated,
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there's nothing in law that allowed Cardoso
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to resurrect that without his own summary process case.
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So I've always taken the issue
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that if the plaintiff has vacated that order
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for whatever reason they did it,
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nonetheless, it's an order of the Court
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that has been vacated.
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I understand that the Appeals Court had dissented,
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had suggested after Mr. Cardoso made the argument
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that they can revisit that issue in the Housing Court,
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but I highly objected to that,
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again, because I couldn't figure out
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how you can resurrect something that's vacated.
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So if he's standing in the shoes of the plaintiff,
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the plaintiff has already made a legal decision.
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Maybe why the Appeals Court decision is wrong,
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that they shouldn't have said its moot,
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which results in the vacating of that
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and forcing him to have to go get a use and occupancy.
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That's why it's not moot.
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Right, so, Justice, this was the first panel.
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Excuse me, yes.
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This was a single justice in the Appeals Court
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that had initially vacated the use and occupancy order,
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but let me-
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But that's two single justices, right?
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Then there's a subsequent single justice, right,
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that imposes a use and occupancy,
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just lowers it to $500, right?
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Correct, right.
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And then Fannie Mae comes back in and vacates the $500, so-
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Was there ever a use and occupancy order
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in favor of Mr. Cardoso?
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No.
No, okay.
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And going back to your first argument, is it Pentagon,
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Pentagon did the foreclosure sale,
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and at that time, according to Fannie Mae,
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it was the owner of both the note and the mortgage
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and so the sole authority to foreclose
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would've been with Fannie Mae?
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Yes, Your Honor.
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Can you address the argument
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that Pentagon was an agent of Fannie Mae at the time?
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I think that that's the response.
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Right, that's their response, Your Honor.
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But again, well, not again 'cause I'm saying it now,
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that gets me back to the deceptive practice.
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What they're doing here in the Commonwealth
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is that basically Fannie Mae is hiding
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that they actually own both the mortgage and note,
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and that could be for various reasons,
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They're a very large semi-private corporation,
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but, nonetheless, it is in the record
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that this is their policy.
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Yes, I see that a couple of attorneys
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have sworn to some affidavits,
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but that also brings us back
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to the issue of genuine material facts
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where I'm coming in with an affidavit saying,
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"Hey, I had this notice here telling me
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"that you guys don't own the mortgage and the note,"
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and they're coming as members
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of the bar saying, "He's wrong."
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So I think there's an inherent conflict
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in what has occurred here causing me
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to, you know, putting these objections
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and suggesting that a jury should have made the decisions.
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Excuse me, Mr. Branch, can we just go backwards
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in time a moment 'cause I'm not sure if you misspoke?
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I just wanted to make sure we're all clear.
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So attached to your brief is an order
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of the Housing Court starting at in your addendum
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you have the decisions below appropriately attached.
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And addendum page 121, there's an order
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that came after the order,
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well, that is disputed about the joinder
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and intervention of Mr. Cardoso.
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And starting at addendum page 121,
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there's an order where it appears
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that the Court actually did order use and occupancy
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to Mr. Cardoso in the amount of $1,000.
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Am I misunderstanding that?
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Yes, I apologize.
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I got confused.
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I got confused, and I-
Totally understandable.
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There is a lot going on in this case.
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Yes, that's what I'm talking about
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whereas the plaintiff, Fannie Mae, vacated the $500.
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So for me, with respect to the record, that's extinguished,
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then the Appeals Court panel,
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when hearing the balance of the five questions,
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they sent the case back down
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because Mr. Cardoso made the argument
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that he's the new owner of the property,
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and he's entitled to use and occupancy,
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and that's what I oppose,
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but to your point, yes, he was granted that $1,000.
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And so today, as we stand here, has anything happened
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with that order, or that order's still in effect
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that you're supposed to pay $1,000
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to Mr. Cardoso as the current owner?
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The panel vacated that
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and has said that that would be a part of him getting it
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on a new case because he lacked possessory rights.
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So since the Appeals Court's decision,
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that has no longer been in effect,
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but it was in effect
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until the most recent Appeals Court decision?
266
00:12:11.670 --> 00:12:12.503
Absolutely, yes.
Okay.
267
00:12:12.503 --> 00:12:14.340
Thank you for that absolute clarity.
268
00:12:14.340 --> 00:12:17.100
So really your position is that Mr. Cardoso needs
269
00:12:17.100 --> 00:12:19.263
to start his own summary process?
270
00:12:20.460 --> 00:12:21.720
That is my position.
271
00:12:21.720 --> 00:12:25.290
And he actually, when the motions went
272
00:12:25.290 --> 00:12:26.430
before the Housing Court,
273
00:12:26.430 --> 00:12:31.430
in my reply brief identified the steps that he actually knew
274
00:12:31.560 --> 00:12:33.900
that he needed to go back to the Housing Courts
275
00:12:33.900 --> 00:12:35.520
because he initially had
276
00:12:35.520 --> 00:12:38.790
his own right summary process complaint.
277
00:12:38.790 --> 00:12:42.060
And I had asked for discovery in that.
278
00:12:42.060 --> 00:12:44.430
We had went past the discovery deadlines.
279
00:12:44.430 --> 00:12:48.450
So there was actually admissions that are probably binding.
280
00:12:48.450 --> 00:12:52.087
And he said that, "Hey, I want it dismissed
281
00:12:52.087 --> 00:12:54.667
"without prejudice 'cause I probably
282
00:12:54.667 --> 00:12:55.970
"are gonna have to come back."
283
00:12:55.970 --> 00:12:58.620
So the current status of this is you're in the house,
284
00:12:58.620 --> 00:13:01.110
but there's no use and occupancy?
285
00:13:01.110 --> 00:13:04.800
Correct.
And right.
286
00:13:04.800 --> 00:13:08.633
And the last time, okay, that's the current status
287
00:13:08.633 --> 00:13:10.800
of where we are.
Correct.
288
00:13:10.800 --> 00:13:15.090
And there's not been a subsequent Housing Court proceeding
289
00:13:15.090 --> 00:13:18.780
imposing use and occupancy in favor of Mr. Cardoso?
290
00:13:18.780 --> 00:13:22.560
No, he has presented this is we're here
291
00:13:22.560 --> 00:13:24.330
for further appellate review,
292
00:13:24.330 --> 00:13:27.723
and I assume that this court will be dealing with that.
293
00:13:28.590 --> 00:13:33.590
Why isn't it that when Mr. Cardoso was joined
294
00:13:33.900 --> 00:13:36.060
in the original action, why isn't it
295
00:13:36.060 --> 00:13:41.060
that he became the proper plaintiff, the plaintiff?
296
00:13:42.960 --> 00:13:47.167
Well, he intervened and-
297
00:13:47.167 --> 00:13:49.200
Well, no, he didn't just intervene.
298
00:13:49.200 --> 00:13:52.230
He became a party, right?
299
00:13:52.230 --> 00:13:53.610
He joined
300
00:13:53.610 --> 00:13:54.878
A party, right.
301
00:13:54.878 --> 00:13:57.360
Right.
Right, I would agree
302
00:13:57.360 --> 00:13:58.863
that he became a party.
303
00:13:59.970 --> 00:14:01.380
And the reason why I'm gonna agree with that
304
00:14:01.380 --> 00:14:03.843
because by becoming a party,
305
00:14:04.680 --> 00:14:07.233
he remains with the litigation as it was.
306
00:14:08.250 --> 00:14:11.340
But when looking at case law across the Commonwealth,
307
00:14:11.340 --> 00:14:14.580
I've seen nothing where he could do anything,
308
00:14:14.580 --> 00:14:17.520
but to bring his own summary process action
309
00:14:17.520 --> 00:14:18.900
to get possession.
310
00:14:18.900 --> 00:14:20.790
As a matter of fact, I think the Housing Court,
311
00:14:20.790 --> 00:14:23.190
in their ruling, kind of indicated that
312
00:14:23.190 --> 00:14:27.030
that we are gonna preserve Mr. Branch's rights.
313
00:14:27.030 --> 00:14:29.010
Reverend Branch's rights are preserved
314
00:14:29.010 --> 00:14:30.810
in order for him to come back
315
00:14:30.810 --> 00:14:35.310
to challenge Mr. Cardoso seeking possession.
316
00:14:35.310 --> 00:14:37.770
Well, what the Court did was
317
00:14:37.770 --> 00:14:40.320
because the Court wouldn't let Fannie Mae out of the case,
318
00:14:40.320 --> 00:14:43.770
the Court preserved your claims against Fannie Mae, right,
319
00:14:43.770 --> 00:14:47.010
because you had filed claims against Fannie Mae,
320
00:14:47.010 --> 00:14:49.200
or, sorry, yes, against Fannie Mae, correct,
321
00:14:49.200 --> 00:14:51.900
or you had filed counterclaims, correct?
322
00:14:51.900 --> 00:14:53.040
I did, but I think the order
323
00:14:53.040 --> 00:14:55.860
with respect to Cardoso's intervention
324
00:14:55.860 --> 00:14:58.620
and the use of occupancy was really specific
325
00:14:58.620 --> 00:15:01.920
that Reverend Branch would be allowed
326
00:15:01.920 --> 00:15:04.710
to challenge Mr. Cardoso's possession.
327
00:15:04.710 --> 00:15:08.550
And this is why it gets a little muddy and a bit confusing.
328
00:15:08.550 --> 00:15:10.140
And that's what we have in front of us, right?
329
00:15:10.140 --> 00:15:11.880
Though we have those issues in front of us, right,
330
00:15:11.880 --> 00:15:16.470
because your arguments with respect to Mr....
331
00:15:16.470 --> 00:15:17.610
Well, here's a question for you.
332
00:15:17.610 --> 00:15:18.947
Are your arguments about possession
333
00:15:18.947 --> 00:15:22.110
with respect to Mr. Branch really any different
334
00:15:22.110 --> 00:15:24.210
than, sorry, with respect to Mr. Cardoso
335
00:15:24.210 --> 00:15:25.860
really any different than your arguments
336
00:15:25.860 --> 00:15:29.160
with possession against in the case earlier?
337
00:15:29.160 --> 00:15:31.260
Because it's all about whether the foreclosure,
338
00:15:31.260 --> 00:15:33.930
which happened years ago, was lawful, right?
339
00:15:33.930 --> 00:15:38.754
Correct.
So in other words,
340
00:15:38.754 --> 00:15:43.200
on those issues, Mr. Cardoso is really stepping
341
00:15:43.200 --> 00:15:46.713
into the shoes of the prior owner, correct?
342
00:15:47.790 --> 00:15:50.670
I would have to say yes.
343
00:15:50.670 --> 00:15:53.433
And so, and the Court under Rule 25,
344
00:15:54.630 --> 00:15:57.060
the Court didn't just allow intervention under Rule 24,
345
00:15:57.060 --> 00:16:00.390
but also allowed joinder and substitution under Rule 25,
346
00:16:00.390 --> 00:16:02.750
and we have a little bit of a fight about that.
347
00:16:02.750 --> 00:16:05.580
Do you wanna comment on whether you see a difference
348
00:16:05.580 --> 00:16:09.810
between the Court merely allowing Mr. Cardoso to join
349
00:16:09.810 --> 00:16:14.810
versus allowing Mr. Cardoso to be substituted under Rule 25?
350
00:16:15.000 --> 00:16:18.810
My familiarity with Rule 25 is at minimum,
351
00:16:18.810 --> 00:16:19.860
but I would say this.
352
00:16:19.860 --> 00:16:23.280
When I look at the distinction between the two,
353
00:16:23.280 --> 00:16:28.280
I think that Mr. Cardoso trying to collapse 'em into one,
354
00:16:28.500 --> 00:16:30.360
it looked to be very concerning,
355
00:16:30.360 --> 00:16:35.220
but more importantly to that, there was a specific motion
356
00:16:35.220 --> 00:16:39.480
that asked for the amendment of the order
357
00:16:39.480 --> 00:16:40.770
of possession of judgment.
358
00:16:40.770 --> 00:16:43.130
So Cardoso never returned back
359
00:16:43.130 --> 00:16:44.970
at the Housing Court justice
360
00:16:44.970 --> 00:16:46.537
and said, "Justice Sheridan, you know,
361
00:16:46.537 --> 00:16:48.397
"we missed something here.
362
00:16:48.397 --> 00:16:52.230
"You didn't amend this, so I'll be able to get a judgment."
363
00:16:52.230 --> 00:16:57.230
So that was his specific choice not to do that.
364
00:16:57.570 --> 00:16:59.700
In addition to that, let me also say,
365
00:16:59.700 --> 00:17:03.510
so this case not only
366
00:17:03.510 --> 00:17:06.780
has some significant procedural issues,
367
00:17:06.780 --> 00:17:10.950
but there was an appeal to the single justice
368
00:17:10.950 --> 00:17:15.950
when the initial motions to join and substitute,
369
00:17:19.590 --> 00:17:22.170
when the Judge Sheridan initially denied him,
370
00:17:22.170 --> 00:17:24.300
he did go to the single justice of Appeals Court,
371
00:17:24.300 --> 00:17:25.807
and the single justice of Appeals Court said,
372
00:17:25.807 --> 00:17:27.007
"This is not the avenue.
373
00:17:27.007 --> 00:17:31.710
"This is a part of of you filing a full appeal."
374
00:17:31.710 --> 00:17:33.120
He didn't do that.
375
00:17:33.120 --> 00:17:35.940
My concern with the panel, when they made the decision
376
00:17:35.940 --> 00:17:38.940
to allow him to go back, that somehow got missed.
377
00:17:38.940 --> 00:17:41.224
So procedurally, it looked like he was barred
378
00:17:41.224 --> 00:17:46.224
from doing anything else, but somehow he got back without
379
00:17:46.680 --> 00:17:48.128
because that was not on the record.
380
00:17:48.128 --> 00:17:48.990
(bell rings)
381
00:17:48.990 --> 00:17:50.520
Sorry.
Is that this?
382
00:17:50.520 --> 00:17:51.693
That's me.
Oh, oh.
383
00:17:53.100 --> 00:17:53.970
No, Justice, that's fine.
384
00:17:53.970 --> 00:17:55.380
Mine goes off for my diabetes.
385
00:17:55.380 --> 00:17:57.395
So I'm sorry about that too.
386
00:17:57.395 --> 00:17:58.380
(justices laugh)
387
00:17:58.380 --> 00:18:02.940
So because he did not appeal it from the Appeals Court,
388
00:18:02.940 --> 00:18:06.090
I thought that it would be a bar from him to continue on.
389
00:18:06.090 --> 00:18:07.680
And this is what happens.
390
00:18:07.680 --> 00:18:10.470
There was not enough information
391
00:18:10.470 --> 00:18:13.200
before the panel that said, okay,
392
00:18:13.200 --> 00:18:15.690
I'm gonna send this back down to the Housing Court
393
00:18:15.690 --> 00:18:17.610
to see if you're able to get use
394
00:18:17.610 --> 00:18:20.670
and occupancy intervention and substitution,
395
00:18:20.670 --> 00:18:22.470
but it got back down to the Housing Court.
396
00:18:22.470 --> 00:18:25.530
Then you have that motion before the Housing Court.
397
00:18:25.530 --> 00:18:29.130
Cardoso makes the argument with respect to the FRA
398
00:18:29.130 --> 00:18:31.790
that, well, you know, the justice of the Appeal Courts
399
00:18:31.790 --> 00:18:35.257
is saying, "You didn't get the specific order
400
00:18:35.257 --> 00:18:38.187
"that gives you possessory rights."
401
00:18:38.187 --> 00:18:40.890
And that is absolutely true.
402
00:18:40.890 --> 00:18:44.250
The Housing Court justice never amended the judgment.
403
00:18:44.250 --> 00:18:46.350
Now with respect to-
404
00:18:46.350 --> 00:18:47.190
Sorry.
Yes?
405
00:18:47.190 --> 00:18:49.110
Let me just because you're three minutes over,
406
00:18:49.110 --> 00:18:51.360
I'm just gonna make sure that we don't have any...
407
00:18:51.360 --> 00:18:52.830
No, I mean, this happens.
408
00:18:52.830 --> 00:18:54.120
It goes by like that.
Okay.
409
00:18:54.120 --> 00:18:58.083
So does anybody have any other questions for Mr. Branch?
410
00:18:58.920 --> 00:19:00.900
I assume everything else is in your brief.
411
00:19:00.900 --> 00:19:01.950
Yes, it is.
412
00:19:01.950 --> 00:19:05.070
Okay.
I'm done. (laughs)
413
00:19:05.070 --> 00:19:07.680
Thank you very much.
Thank you, Your Honors.
414
00:19:07.680 --> 00:19:09.180
I'll rely on my brief, thank you.
415
00:19:09.180 --> 00:19:11.103
Yep, okay, Attorney Stammen.
416
00:19:15.720 --> 00:19:16.553
Good morning.
417
00:19:17.460 --> 00:19:18.703
May it please the Court
418
00:19:18.703 --> 00:19:22.611
I represent Roberto Pina Cardoso who intervened
419
00:19:22.611 --> 00:19:25.710
and was substituted as plaintiff in this action,
420
00:19:25.710 --> 00:19:29.160
the Housing Court, upon the direction of the Appeals Court
421
00:19:29.160 --> 00:19:31.260
after he had intervened in an appeal
422
00:19:31.260 --> 00:19:33.470
that Mr. Branch had filed relative
423
00:19:33.470 --> 00:19:36.270
to use and occupancy payments.
424
00:19:36.270 --> 00:19:38.670
The docket admittedly in the Housing Court
425
00:19:38.670 --> 00:19:41.250
does not specifically make an entry
426
00:19:41.250 --> 00:19:45.900
where Mr. Cardoso is substituted as plaintiff.
427
00:19:45.900 --> 00:19:48.930
However, his motion to be substituted as plaintiff,
428
00:19:48.930 --> 00:19:50.370
because he is the current owner
429
00:19:50.370 --> 00:19:52.473
of the property, was allowed.
430
00:19:55.125 --> 00:19:59.220
The fact that Mr. Cardoso appropriately steps
431
00:19:59.220 --> 00:20:01.800
into the shoes of Fannie Mae was then affirmed
432
00:20:01.800 --> 00:20:04.200
by the Housing Court when the Housing Court
433
00:20:04.200 --> 00:20:06.930
awarded Mr. Cardoso use and occupancy payments
434
00:20:06.930 --> 00:20:08.850
of $1,000 a month.
435
00:20:08.850 --> 00:20:11.490
And that affirmation was affirmed
436
00:20:11.490 --> 00:20:14.193
by a single justice of the Appeals Court.
437
00:20:15.390 --> 00:20:19.170
Does Mr. Cardoso step into the shoes of Fannie Mae
438
00:20:19.170 --> 00:20:23.460
for all purposes including the counterclaims,
439
00:20:23.460 --> 00:20:27.300
or those stay with Fannie Mae?
440
00:20:27.300 --> 00:20:28.380
Those stay with Fannie Mae.
441
00:20:28.380 --> 00:20:30.570
Mr. Cardoso was not involved in the events
442
00:20:30.570 --> 00:20:33.180
that led to the counterclaims.
443
00:20:33.180 --> 00:20:35.580
Mr. Cardoso steps into Fannie Mae's shoes
444
00:20:35.580 --> 00:20:39.000
because the judgment entered for possession
445
00:20:39.000 --> 00:20:40.530
for in favor of Fannie Mae,
446
00:20:40.530 --> 00:20:43.350
and Fannie Mae subsequently transferred its interest
447
00:20:43.350 --> 00:20:45.840
in the real estate to Cardoso.
448
00:20:45.840 --> 00:20:46.673
So on the issue of possession-
449
00:20:46.673 --> 00:20:47.880
So that's the order of events.
450
00:20:47.880 --> 00:20:49.650
There was a judgment for possession
451
00:20:49.650 --> 00:20:51.510
in favor of Fannie Mae,
452
00:20:51.510 --> 00:20:54.090
then your client purchases the property?
453
00:20:54.090 --> 00:20:55.110
That's correct.
Okay, thank you.
454
00:20:55.110 --> 00:20:56.507
And then filed a motion to (indistinct)
455
00:20:56.507 --> 00:20:57.390
Happens after.
456
00:20:57.390 --> 00:20:59.760
The Appeals Court decides this is moot.
457
00:20:59.760 --> 00:21:00.990
What happens?
458
00:21:00.990 --> 00:21:05.940
You have a use and occupancy order in place at this point,
459
00:21:05.940 --> 00:21:10.140
and then when it's declared moot, that disappears?
460
00:21:10.140 --> 00:21:11.010
Is that what happens?
461
00:21:11.010 --> 00:21:11.843
That's correct.
462
00:21:11.843 --> 00:21:12.750
That's what happened.
463
00:21:12.750 --> 00:21:14.730
And and they still just...
464
00:21:14.730 --> 00:21:16.740
Someone tries to tell that to the Appeals Court
465
00:21:16.740 --> 00:21:19.980
that afterwards you file any kind of-
466
00:21:19.980 --> 00:21:22.440
I filed a motion to reconsider,
467
00:21:22.440 --> 00:21:24.283
which was denied summarily.
468
00:21:24.283 --> 00:21:25.773
Is that in our record too?
469
00:21:25.773 --> 00:21:28.530
That is in the record, yes.
It seems I'm mystified
470
00:21:28.530 --> 00:21:29.363
of how this can be moot.
471
00:21:29.363 --> 00:21:32.220
I was somewhat stunned myself when I was presented
472
00:21:32.220 --> 00:21:33.330
with that issue at oral argument.
473
00:21:33.330 --> 00:21:34.590
That was the first thing
474
00:21:34.590 --> 00:21:37.110
that Justice Ditkoff raised with me.
475
00:21:37.110 --> 00:21:38.600
And I said, "Of course, it's not moot.
476
00:21:38.600 --> 00:21:42.697
"We're litigating the issue of the appeal
477
00:21:42.697 --> 00:21:43.530
"of the judgment for possession."
478
00:21:43.530 --> 00:21:45.870
So essentially they do this.
479
00:21:45.870 --> 00:21:48.300
They've cut you off from use and occupancy.
480
00:21:48.300 --> 00:21:50.280
You have to start over,
481
00:21:50.280 --> 00:21:52.500
and also, you've got a pending.
482
00:21:52.500 --> 00:21:53.700
You're appealing their decision
483
00:21:53.700 --> 00:21:56.160
so it makes it problematic
484
00:21:56.160 --> 00:21:58.680
to proceed in Housing Court as well, right?
485
00:21:58.680 --> 00:21:59.910
That's right, well, I would suggest
486
00:21:59.910 --> 00:22:03.570
that Mr. Cardoso could not proceed in Housing Court
487
00:22:03.570 --> 00:22:07.200
until Mr. Branch's appeal of the judgment
488
00:22:07.200 --> 00:22:09.900
that ended in favor of Fannie Mae was resolved
489
00:22:09.900 --> 00:22:11.640
because there'd be a pending action relating
490
00:22:11.640 --> 00:22:15.900
to whether the foreclosure that Fannie Mae,
491
00:22:15.900 --> 00:22:16.797
well, or Pentagon-
492
00:22:16.797 --> 00:22:21.270
Right now is not in the house, has no use and occupancy.
493
00:22:21.270 --> 00:22:23.310
Appeals Court declared the case moot.
494
00:22:23.310 --> 00:22:24.990
And he's been paying the taxes and water
495
00:22:24.990 --> 00:22:27.360
and all of that since 2018.
496
00:22:27.360 --> 00:22:29.580
And you filed a motion for reconsideration
497
00:22:29.580 --> 00:22:31.170
with the Appeals Court on the mootness point
498
00:22:31.170 --> 00:22:33.093
and they still ignored it.
Yes.
499
00:22:36.508 --> 00:22:40.380
So, I can get into the issues associated
500
00:22:40.380 --> 00:22:42.243
with the foreclosure.
501
00:22:44.580 --> 00:22:48.090
Mr. Branch suggests that there is something untoward
502
00:22:48.090 --> 00:22:52.200
about the fact that Pentagon brought this foreclosure
503
00:22:52.200 --> 00:22:54.390
under Eaton that's clearly permissible.
504
00:22:54.390 --> 00:22:57.753
The appropriate affidavits were filed under-
505
00:22:58.650 --> 00:22:59.897
I understand you're not
506
00:22:59.897 --> 00:23:03.090
in the Pinti strict compliance era.
507
00:23:03.090 --> 00:23:04.890
The notice that was sent
508
00:23:04.890 --> 00:23:07.653
satisfies the substantial compliance.
509
00:23:08.850 --> 00:23:09.730
How does that-
510
00:23:09.730 --> 00:23:11.520
There there were three notices sent.
511
00:23:11.520 --> 00:23:13.920
Two of them satisfied the strict compliance.
512
00:23:13.920 --> 00:23:16.830
And, again, this is not an area
513
00:23:16.830 --> 00:23:18.450
where I remember these cases
514
00:23:18.450 --> 00:23:20.910
unless I read them over and over again.
515
00:23:20.910 --> 00:23:25.260
If you send a subsequent notice
516
00:23:25.260 --> 00:23:27.930
that is strictly in compliance,
517
00:23:27.930 --> 00:23:30.513
you've satisfied even Pinti or-
518
00:23:33.073 --> 00:23:37.050
There was 150 day notice to cures
519
00:23:37.050 --> 00:23:40.447
sent under 244.35a,
520
00:23:41.765 --> 00:23:44.987
which it isn't subject to Pinti analysis.
521
00:23:44.987 --> 00:23:47.515
After that, two notices of default,
522
00:23:47.515 --> 00:23:50.280
which Pinti applies to, were sent,
523
00:23:50.280 --> 00:23:51.540
which strictly comply
524
00:23:51.540 --> 00:23:52.373
towards Pinti
Excuse me, I think-
525
00:23:52.373 --> 00:23:53.206
Not that they would have to.
526
00:23:53.206 --> 00:23:55.380
Counsel wasn't the order actually the opposite
527
00:23:55.380 --> 00:23:57.660
so there were two notices of default sent,
528
00:23:57.660 --> 00:23:59.940
and I think I'm gonna mash up the years,
529
00:23:59.940 --> 00:24:02.010
but in 2013, I believe, and-
530
00:24:02.010 --> 00:24:02.843
That's correct.
531
00:24:02.843 --> 00:24:03.750
I apologize, right.
And there are
532
00:24:03.750 --> 00:24:06.833
two default notices and at least one of them, I think,
533
00:24:06.833 --> 00:24:11.640
that Mr. Branch argues that one of them
534
00:24:11.640 --> 00:24:15.660
was strictly complied with Pinti and the other one does not.
535
00:24:15.660 --> 00:24:20.100
One of them strictly complied with Pinti he even concedes,
536
00:24:20.100 --> 00:24:23.070
but then a year later, they send another notice,
537
00:24:23.070 --> 00:24:26.520
which I think, it's fair to say, has some of the defects
538
00:24:26.520 --> 00:24:29.100
identified in Pinti that it doesn't say
539
00:24:29.100 --> 00:24:32.680
that he has to positively initiate litigation
540
00:24:32.680 --> 00:24:35.010
in order to fight the disclosure was because of the way
541
00:24:35.010 --> 00:24:37.290
that our system is here in Massachusetts.
542
00:24:37.290 --> 00:24:39.570
Can you address, is there a problem with the fact
543
00:24:39.570 --> 00:24:41.550
that even though there was a Pinti,
544
00:24:41.550 --> 00:24:42.630
assuming that Pinti applies,
545
00:24:42.630 --> 00:24:47.610
which does not apply retroactively under our case law,
546
00:24:47.610 --> 00:24:52.610
if you've argued that in any case it's fine.
547
00:24:53.010 --> 00:24:55.440
So can you address the subsequent notice
548
00:24:55.440 --> 00:24:58.080
that I think you're not even now trying
549
00:24:58.080 --> 00:24:59.643
to claim is Pinti-compliant?
550
00:25:00.630 --> 00:25:03.240
Can you address whether that's a problem, and that-
551
00:25:03.240 --> 00:25:05.940
What notice is a notice of right to cure
552
00:25:05.940 --> 00:25:08.473
under the provisions of 244.35a.
553
00:25:08.473 --> 00:25:10.380
It's not a notice of default.
554
00:25:10.380 --> 00:25:11.964
They're different notices.
555
00:25:11.964 --> 00:25:14.834
They said that it's-
But it talks to the person
556
00:25:14.834 --> 00:25:17.040
who receives the notice about their options,
557
00:25:17.040 --> 00:25:19.863
correct, to avoid foreclosure?
558
00:25:21.570 --> 00:25:22.890
I think it gives them a right to cure
559
00:25:22.890 --> 00:25:24.535
of 150 days, nothing more.
560
00:25:24.535 --> 00:25:26.430
The final-
It's not a notice
561
00:25:26.430 --> 00:25:28.710
of default toward foreclosure.
562
00:25:28.710 --> 00:25:31.822
Well, let's look-
It's a statutory notice.
563
00:25:31.822 --> 00:25:34.322
Totally understood that it's a statutory notice.
564
00:25:35.850 --> 00:25:37.900
Hold on, I'm trying to pull up the notice
565
00:25:38.760 --> 00:25:41.973
because I think it's a little important potentially.
566
00:25:55.199 --> 00:25:57.700
All right, I think it's that RA,
567
00:25:57.700 --> 00:26:01.980
Mr. Branch's record appendix starting at RA55
568
00:26:01.980 --> 00:26:04.570
is the June 30th, 2014 notice
569
00:26:04.570 --> 00:26:09.099
that I think you haven't contended complies with Pinti.
570
00:26:09.099 --> 00:26:10.680
Yeah, I have it here in front of me.
571
00:26:10.680 --> 00:26:13.320
And then on RA57, the final page of the notice,
572
00:26:13.320 --> 00:26:14.610
says, you know, please consider
573
00:26:14.610 --> 00:26:19.260
you can contact the Home Ownership Preservation People.
574
00:26:19.260 --> 00:26:22.080
You can con contact the Division of Banks.
575
00:26:22.080 --> 00:26:23.194
You can still avoid foreclosure
576
00:26:23.194 --> 00:26:27.210
by paying the total before a sale.
577
00:26:27.210 --> 00:26:28.380
Depending on the terms,
578
00:26:28.380 --> 00:26:30.210
there can be other ways to avoid foreclosure
579
00:26:30.210 --> 00:26:32.310
such as selling your property, refinancing,
580
00:26:32.310 --> 00:26:34.200
or voluntarily transferring ownership.
581
00:26:34.200 --> 00:26:35.760
And then there's a big bold paragraph.
582
00:26:35.760 --> 00:26:37.830
If you do not pay the total past due amount
583
00:26:37.830 --> 00:26:40.290
and any additional payments,
584
00:26:40.290 --> 00:26:44.580
you may be evicted from your home after a foreclosure sale.
585
00:26:44.580 --> 00:26:47.130
Sorry, you get the general idea.
586
00:26:47.130 --> 00:26:48.060
Yes, I do.
587
00:26:48.060 --> 00:26:49.140
There's nothing in this notice
588
00:26:49.140 --> 00:26:51.989
that negates what was in the prior notice as the default,
589
00:26:51.989 --> 00:26:54.240
Those are Pinti-compliant.
590
00:26:54.240 --> 00:26:55.980
They didn't have to be, but they were.
591
00:26:55.980 --> 00:26:58.980
And this notice is a notice served under statute
592
00:26:58.980 --> 00:27:01.568
that doesn't negate anything that was in the prior notices.
593
00:27:01.568 --> 00:27:02.970
And you would concede
594
00:27:02.970 --> 00:27:05.520
that this is not substantially compliant,
595
00:27:05.520 --> 00:27:09.450
even if strict compliance is not required with?
596
00:27:09.450 --> 00:27:11.820
This does not comply with Pinti,
597
00:27:11.820 --> 00:27:14.460
but it's not a default notice,
598
00:27:14.460 --> 00:27:16.560
and Pinti applies to default notices.
599
00:27:16.560 --> 00:27:19.620
And, all right, could you just elucidate
600
00:27:19.620 --> 00:27:22.140
what the difference between a default notice
601
00:27:22.140 --> 00:27:23.550
and a right to cure notice is
602
00:27:23.550 --> 00:27:27.750
where the third page here contains a lot of the information
603
00:27:27.750 --> 00:27:29.523
that is in a default notice?
604
00:27:31.320 --> 00:27:35.940
Well, a default notice is a notice that has to be served
605
00:27:35.940 --> 00:27:40.940
to notify the mortgagee that they're in default.
606
00:27:41.700 --> 00:27:42.867
Well, but the page...
607
00:27:42.867 --> 00:27:46.170
I'm genuinely asking like out of my own ignorance,
608
00:27:46.170 --> 00:27:47.003
to be honest.
609
00:27:47.003 --> 00:27:48.870
I'm not trying to take issue with what you're saying,
610
00:27:48.870 --> 00:27:52.410
but page 55 and page 56 are a lengthy list
611
00:27:52.410 --> 00:27:54.690
of all the times he's not paid.
612
00:27:54.690 --> 00:27:57.960
Right, it's listing all of the reasons why he's in default.
613
00:27:57.960 --> 00:28:00.630
And I totally understand.
614
00:28:00.630 --> 00:28:05.100
And the title of it is 150 day right to cure
615
00:28:05.100 --> 00:28:07.530
your mortgage default.
616
00:28:07.530 --> 00:28:10.170
So what I'm understanding you to say
617
00:28:10.170 --> 00:28:13.650
is that this is only about the right to cure,
618
00:28:13.650 --> 00:28:16.170
and it's not about the nature of the default.
619
00:28:16.170 --> 00:28:17.003
Is that-
Right.
620
00:28:17.003 --> 00:28:20.730
This is a notice that's required under 244.35a.
621
00:28:20.730 --> 00:28:22.500
I understand.
The default notices
622
00:28:22.500 --> 00:28:23.850
are something different than that.
623
00:28:23.850 --> 00:28:24.856
So even though they overlap-
624
00:28:24.856 --> 00:28:26.250
And Pinti applies to default notices.
625
00:28:26.250 --> 00:28:27.083
And understood.
626
00:28:27.083 --> 00:28:29.700
And so even though this overlaps in content a lot
627
00:28:29.700 --> 00:28:31.200
with a notice of default, it's not subject
628
00:28:31.200 --> 00:28:32.280
to the same standard in your view?
629
00:28:32.280 --> 00:28:33.113
That's correct.
It's subject
630
00:28:33.113 --> 00:28:36.030
to the substantial compliance standard though, right?
631
00:28:36.030 --> 00:28:36.884
Oh yeah, it's not.
632
00:28:36.884 --> 00:28:37.905
It's not a notice of default.
633
00:28:37.905 --> 00:28:41.190
No, yeah, the 150 day notice to quit is just,
634
00:28:41.190 --> 00:28:43.860
by the way, you defaulted twice, we've told you,
635
00:28:43.860 --> 00:28:46.770
and now you have 150 days
636
00:28:46.770 --> 00:28:47.910
to get out, right?
Right, right.
637
00:28:47.910 --> 00:28:48.743
It's a window that this legislation..
638
00:28:48.743 --> 00:28:50.880
There's a totally different statutory function.
639
00:28:50.880 --> 00:28:51.930
Right, right, its only serves
640
00:28:51.930 --> 00:28:53.370
a statutory function, correct.
641
00:28:53.370 --> 00:28:55.140
And it doesn't have any...
642
00:28:55.140 --> 00:28:57.930
Has no sort of substantive requirements at all
643
00:28:57.930 --> 00:29:00.647
except for just to tell you this is your chance to cure.
644
00:29:00.647 --> 00:29:02.520
Is that how it works?
645
00:29:02.520 --> 00:29:05.010
It's to notify them with what they owe,
646
00:29:05.010 --> 00:29:08.283
and has to give 'em 150 days to cure.
647
00:29:11.430 --> 00:29:13.799
Unless you have any other questions, I think my time's up.
648
00:29:13.799 --> 00:29:15.720
Okay.
Thank you very much.
649
00:29:15.720 --> 00:29:16.553
Yeah.
650
00:29:17.963 --> 00:29:20.380
Okay, Attorney Santolucito.
651
00:29:21.402 --> 00:29:24.235
That's correct, your Honor, yes.
652
00:29:28.020 --> 00:29:29.520
And oh, sorry.
653
00:29:29.520 --> 00:29:30.353
Good morning, Your Honors,
654
00:29:30.353 --> 00:29:32.580
and may it please the Court, Thomas Santolucito
655
00:29:32.580 --> 00:29:35.010
for Federal National Mortgage Association,
656
00:29:35.010 --> 00:29:36.960
better known as Fannie Mae.
657
00:29:36.960 --> 00:29:38.910
Fannie Mae participates in this appeal
658
00:29:38.910 --> 00:29:40.710
for the sole purpose of requesting
659
00:29:40.710 --> 00:29:43.890
that the Court affirm the Housing Court's decision
660
00:29:43.890 --> 00:29:47.370
dismissing Reverend Branch's counterclaims against it.
661
00:29:47.370 --> 00:29:49.980
Before you go there, though, that you're affected
662
00:29:49.980 --> 00:29:51.543
by this mootness order.
663
00:29:52.890 --> 00:29:53.760
Tell me why.
664
00:29:53.760 --> 00:29:55.710
Is the mootness order...
665
00:29:55.710 --> 00:29:57.390
Is the case moot or regarding to you,
666
00:29:57.390 --> 00:29:59.460
or it's not even moot in regards to you, right?
667
00:29:59.460 --> 00:30:02.700
I don't, not at this stage, Your Honor.
668
00:30:02.700 --> 00:30:04.290
Obviously we have these counterclaims
669
00:30:04.290 --> 00:30:05.760
still pending against my client.
670
00:30:05.760 --> 00:30:07.028
That's my client's sole reason
671
00:30:07.028 --> 00:30:09.090
for participating in the case.
672
00:30:09.090 --> 00:30:11.550
Had the counterclaims not been present,
673
00:30:11.550 --> 00:30:13.050
it would've been sub-
674
00:30:13.050 --> 00:30:15.450
When the Appeals Court declares the case moot,
675
00:30:15.450 --> 00:30:16.443
what do you do?
676
00:30:17.580 --> 00:30:19.943
Do you say it's not moot, or what do you do?
677
00:30:19.943 --> 00:30:22.410
My argument, Your Honor, has been that
678
00:30:22.410 --> 00:30:25.560
that the possession issue is moot as to Fannie Mae.
679
00:30:25.560 --> 00:30:27.630
Fannie Mae doesn't own this property anymore
680
00:30:27.630 --> 00:30:29.790
and doesn't have the right to seek possession.
681
00:30:29.790 --> 00:30:32.730
So as to Fannie Mae specifically,
682
00:30:32.730 --> 00:30:35.270
the issue of whether it is entitled to possession,
683
00:30:35.270 --> 00:30:36.103
it's moot.
684
00:30:36.103 --> 00:30:37.660
It's not entitled to possession.
685
00:30:40.023 --> 00:30:40.980
But the case is like sort of-
686
00:30:40.980 --> 00:30:43.140
Correct, the case is still lingering,
687
00:30:43.140 --> 00:30:45.180
Lingering the counterclaims against you
688
00:30:45.180 --> 00:30:48.900
or are still present although they dismissed them
689
00:30:48.900 --> 00:30:50.064
at the same time Mr. Cardoso
690
00:30:50.064 --> 00:30:52.743
can't collect any use and occupancy?
691
00:30:53.790 --> 00:30:55.860
When he filed a motion to reconsider,
692
00:30:55.860 --> 00:30:58.290
did you weigh in on this at all too?
693
00:30:58.290 --> 00:30:59.678
No, Your Honor, no, no.
At that point,
694
00:30:59.678 --> 00:31:02.250
you had won, right?
Yes.
695
00:31:02.250 --> 00:31:04.007
The Appeals Court had affirmed-
696
00:31:04.007 --> 00:31:06.133
At some point, you know, you gotta stop winning.
697
00:31:06.133 --> 00:31:07.632
(both laugh)
Yeah.
698
00:31:07.632 --> 00:31:09.870
So that's why you didn't reconsider.
699
00:31:09.870 --> 00:31:13.860
So if the Appeals Court decision stayed as is
700
00:31:13.860 --> 00:31:17.220
for Fannie Mae's purposes, you're fine, right,
701
00:31:17.220 --> 00:31:19.530
because it affirmed the dismissal of the counterclaims.
702
00:31:19.530 --> 00:31:21.230
Absolutely, Your Honor, correct.
703
00:31:22.620 --> 00:31:25.187
Can I ask a question that admittedly may verge
704
00:31:25.187 --> 00:31:26.850
beyond the record somewhat?
705
00:31:26.850 --> 00:31:27.903
But there's a fight.
706
00:31:28.770 --> 00:31:31.655
There's a discussion about the lack of a judgment
707
00:31:31.655 --> 00:31:36.655
specifically naming Mr. Cardoso, right?
708
00:31:37.020 --> 00:31:39.753
The Rule 25 motion was granted, but-
709
00:31:39.753 --> 00:31:41.035
That's correct, Your Honor.
710
00:31:41.035 --> 00:31:44.214
The rule 25 motion and the sale of the property
711
00:31:44.214 --> 00:31:46.104
happened post-judgment.
Understood.
712
00:31:46.104 --> 00:31:48.810
So after the Housing Court had awarded possession
713
00:31:48.810 --> 00:31:50.640
and dismissed the counterclaims,
714
00:31:50.640 --> 00:31:52.849
Fannie Mae then sold the property to Mr. Cardoso
715
00:31:52.849 --> 00:31:54.990
who looked to intervene at that point.
716
00:31:54.990 --> 00:31:57.060
So your your analysis is correct.
717
00:31:57.060 --> 00:31:59.400
So is there significance
718
00:31:59.400 --> 00:32:02.520
where a Rule 25 motion has been granted?
719
00:32:02.520 --> 00:32:03.946
Is there significance to whether
720
00:32:03.946 --> 00:32:07.260
or not the underlying judgment
721
00:32:07.260 --> 00:32:10.200
that already existed names the new person
722
00:32:10.200 --> 00:32:13.200
with respect to whom the Rule 25 motion was granted?
723
00:32:13.200 --> 00:32:14.550
I'm not sure, Your Honor.
724
00:32:14.550 --> 00:32:18.240
Obviously the Housing Court did not substitute Mr. Cardoso.
725
00:32:18.240 --> 00:32:20.670
He's not named in the judgment itself,
726
00:32:20.670 --> 00:32:23.073
but the case had been on appeal at that time.
727
00:32:24.150 --> 00:32:29.150
So Mr. Cardoso had intervened, had been substituted
728
00:32:30.720 --> 00:32:32.696
as essentially a co-plaintiff in the case,
729
00:32:32.696 --> 00:32:33.720
even though my client
730
00:32:33.720 --> 00:32:36.070
was no longer seeking possession at that point.
731
00:32:36.960 --> 00:32:39.930
And again, back to my original statement,
732
00:32:39.930 --> 00:32:41.430
Fannie Mae's sole purpose,
733
00:32:41.430 --> 00:32:45.210
sole interest in the litigation is these counterclaims.
734
00:32:45.210 --> 00:32:47.130
Once these counterclaims have been resolved,
735
00:32:47.130 --> 00:32:49.620
assuming they're resolved in my client's favor,
736
00:32:49.620 --> 00:32:53.370
then that facilitates its exit from the litigation,
737
00:32:53.370 --> 00:32:54.630
and the parties can continue
738
00:32:54.630 --> 00:32:56.430
to argue the issue of possession,
739
00:32:56.430 --> 00:32:59.250
assuming that there's still any issue
740
00:32:59.250 --> 00:33:00.387
to be litigated at that time.
741
00:33:00.387 --> 00:33:02.490
Can I ask you what the significance is
742
00:33:02.490 --> 00:33:05.328
of the quitclaim deed that your client signed
743
00:33:05.328 --> 00:33:06.810
to Mr. Cardoso?
744
00:33:06.810 --> 00:33:11.550
Isn't that, as I understand it, what Fannie Mae is doing
745
00:33:11.550 --> 00:33:16.550
is saying whatever rights we have in this property,
746
00:33:16.920 --> 00:33:19.560
we now bequeath to you Mr. Cardoso?
747
00:33:19.560 --> 00:33:21.810
Absolutely, Your Honor.
And one of those rights
748
00:33:21.810 --> 00:33:24.690
that Fannie Mae had in this property
749
00:33:24.690 --> 00:33:26.040
was the right to possession.
750
00:33:26.040 --> 00:33:27.000
Isn't that correct
751
00:33:27.000 --> 00:33:28.230
at that time?
Absolutely, yes.
752
00:33:28.230 --> 00:33:29.713
Yes, your Honor.
Okay.
753
00:33:30.840 --> 00:33:32.210
So I am quickly running out of time,
754
00:33:32.210 --> 00:33:36.562
but to address the counterclaims as briefly as I can,
755
00:33:36.562 --> 00:33:38.940
most of Reverend Branch's counterclaims
756
00:33:38.940 --> 00:33:41.079
against Fannie Mae arise from this agreement
757
00:33:41.079 --> 00:33:44.302
that arose in the context of the Bankruptcy Court.
758
00:33:44.302 --> 00:33:47.970
Page 52 of the record appendix shows an order
759
00:33:47.970 --> 00:33:49.800
from the Bankruptcy Court indicating
760
00:33:49.800 --> 00:33:52.350
that there had been an agreement reached
761
00:33:52.350 --> 00:33:56.130
on the record between Mr. Branch
762
00:33:56.130 --> 00:33:57.990
and the bankruptcy trustee
763
00:33:57.990 --> 00:34:01.560
by which the trustee had agreed to abandon the property,
764
00:34:01.560 --> 00:34:04.173
which would allow Reverend Branch to sell it.
765
00:34:05.310 --> 00:34:08.250
Pentagon, the holder of the mortgage at the time,
766
00:34:08.250 --> 00:34:11.580
agreed merely to withdraw its motion for relief from stay.
767
00:34:11.580 --> 00:34:13.800
There's nothing in the summary judgment record
768
00:34:13.800 --> 00:34:16.200
that could cause or could have caused the Court
769
00:34:16.200 --> 00:34:19.290
to conclude that any agreement had been made
770
00:34:19.290 --> 00:34:20.970
to forebear from foreclosing
771
00:34:20.970 --> 00:34:23.388
once that bankruptcy case had been dismissed
772
00:34:23.388 --> 00:34:26.880
and once the automatic stay had been removed.
773
00:34:26.880 --> 00:34:29.760
Nothing in record which talks about this
774
00:34:29.760 --> 00:34:32.430
is subject to his divorce action.
775
00:34:32.430 --> 00:34:34.140
That's correct, Your Honor.
776
00:34:34.140 --> 00:34:36.780
My client filed an affidavit stating
777
00:34:36.780 --> 00:34:38.670
that its understanding of that agreement
778
00:34:38.670 --> 00:34:40.015
was that the property would be marketed
779
00:34:40.015 --> 00:34:41.910
for sale immediately.
780
00:34:41.910 --> 00:34:43.793
Reverend Branch filed an affidavit stating
781
00:34:43.793 --> 00:34:47.010
that his understanding was that he was unable to sell it
782
00:34:47.010 --> 00:34:48.510
due to a pending divorce.
783
00:34:48.510 --> 00:34:51.900
Irrespective of the timing, there was never an agreement
784
00:34:51.900 --> 00:34:55.500
by which Pentagon agreed to not foreclose the mortgage
785
00:34:55.500 --> 00:34:57.150
once that bankruptcy impediment,
786
00:34:57.150 --> 00:35:01.170
once that automatic stay had been resolved
787
00:35:01.170 --> 00:35:02.343
and had been vacated.
788
00:35:04.230 --> 00:35:05.088
I see my time is running down,
789
00:35:05.088 --> 00:35:07.440
so I welcome any other questions the Court may have.
790
00:35:07.440 --> 00:35:08.928
Otherwise, I'm happy to rest on my brief.
791
00:35:08.928 --> 00:35:09.761
(buzzer beeps)