Bank sues itself

[Zanza]

Al Lewis -- A DOW JONES NEWSWIRES COLUMN
FOXBusiness


You can't expect a bank that is dumb enough to sue itself to know why it is suing itself.

Yet I could not resist asking Wells Fargo Bank NA why it filed a civil complaint against itself in a mortgage foreclosure case in Hillsborough County, Fla.

"Due to state foreclosure laws, lenders are obligated to name and notify subordinate lien holders," said Wells Fargo spokesman Kevin Waetke.

Being a taxpayer-subsidized, too-big-to-fail institution, it's possible that one of the few ways for Wells Fargo & Co. (WFC) to know what it is doing is to notify itself with a court filing.

In this particular case, Wells Fargo holds the first and second mortgages on a condominium, according to Sarasota, Fla., attorney Dan McKillop, who represents the condo owner.

As holder of the first, Wells Fargo is suing all other lien holders, including the holder of the second, which is itself.

"The primary reason is to clear title and ownership interest in a property to prepare it for sale," Waetke said in an email exchange. "So it really is not Wells Fargo vs. Wells Fargo."

Yet court documents clearly label "Wells Fargo Bank NA" as the plaintiff and "Wells Fargo Bank NA" as a defendant.

Wells Fargo hired Florida Default Law Group., P.L., of Tampa, Fla., to file the lawsuit against itself.

And then Wells Fargo hired another Tampa law firm -- Kass, Shuler, Solomon, Spector, Foyle & Singer P.A. -- to defend itself against its own lawsuit, according to court documents.

Wells Fargo's defense lawyers even filed an answer to their client's own complaint.

"Defendant admits that it is the owner and holder of a mortgage encumbering the subject real property," the answer reads. "All other allegations of the complaint are denied."

This is even dumber than the lending practices that led to this foreclosure mess, yet this is what the court record says. I learned about this from "The Consumer Warning Network" Web site, which posted an article by Angie Moreschi titled, "Have The Banks Gone Crazy?"

"We've apparently reached the perfect storm for complete and utter idiocy by some banks trying to foreclose on homes," Moreschi wrote.

McKillop, the condo owner's attorney, told me he thinks Wells Fargo doesn't know what it's doing, and that its lawyers figure it is all billable hours to them.

"You can't sue yourself," McKillop said. "It's just so ridiculous. .. It's a waste of paper. It's a bastardization of the legal process."

Wells Fargo's two law firms didn't return messages to explain their filings.

The condo owner is belly up and hired McKillop to pursue a "friendly foreclosure," attempting to escape any lingering liabilities after the foreclosure sale.

"It was a property they thought they were buying as a good investment as a lot of people did back in 2005 and 2006," McKillop said. "All we want to do now is get this property taken care of as fast and as easily as possible for all parties."

Rather than suing itself -- a stunt that was never even attempted on the MTV show "Jackass" -- wouldn't it be easier for Wells Fargo to release one of the liens to itself? Or pursue some other internal accounting strategy rather than tie up the court with nonsense?

"This is just folks cranking out paperwork without conscious thought," said Anthony Sabino, a law professor at St. John's School of Law in New York City.

Sabino added that it is possibly more confirmation of the old saw that a lawyer is one who can speak from both sides of the mouth.

Still trying to comprehend this legal lunacy, I called the Florida Bar, which put me in touch with Florida mortgage foreclosure lawyers. One of them, Tampa attorney Kristofer Fernandez, said he's seen several cases where a large bank has sued itself for foreclosure as the holder of both first and second mortgages.

"Four or five years ago, you would have never seen this," Fernandez said. "Now, it's very common."

In the final years of the housing boom, banks were lending to homeowners with no money down. To do this, they often made 80/20 loans, giving homeowners an 80% first mortgage and a 20% second mortgage.

Now, it seems these moronic mortgages require moronic foreclosures.

Perhaps this strategy may speed up a summary judgment. Or maybe it preserves the position of the second lien holder so it is next in line to collect surplus funds after the first lien is satisfied, Fernandez said.

But fat chance of surplus proceeds in the Florida condo foreclosure market these days.

It takes some pretty shameless lawyers and a rich culture of corporate stupidity for a company to sue itself. I hope Wells Fargo loses this case and ends up having to drag itself all the way to the Supreme Court.

Stolen from Paradox. Does this make any sense at all to the lawyers here? Because it sure doesn't make sense for me.

[ulmont]

"Due to state foreclosure laws, lenders are obligated to name and notify subordinate lien holders," said Wells Fargo spokesman Kevin Waetke.

In this particular case, Wells Fargo holds the first and second mortgages on a condominium, according to Sarasota, Fla., attorney Dan McKillop, who represents the condo owner.

As holder of the first, Wells Fargo is suing all other lien holders, including the holder of the second, which is itself.

Stolen from Paradox. Does this make any sense at all to the lawyers here? Because it sure doesn't make sense for me.

It's goofy as shit, but I can see why it's happening.

It appears that Wells Fargo financed the condominium with 2 separate mortgages (this was commonly done in an 80% first mortgage and a 20% second mortgage, or an 80% first mortgage, 15% second mortgage, and a 5% down payment).

Now Wells Fargo wants to foreclose on the condominium (as the first mortgage holder).  To put the world on notice that the second mortgage has been extinguished, they have to sue every other person in the world with a recorded security interest in the condominium.  This includes themselves.

I can imagine about 8 different ways that this could be done better, and question whether Wells Fargo couldn't have managed a better procedure if they had thought for a minute.

[Scipio]

Sounds like a procedure peculiar to Florida.  In Mississippi, this would have been handled with an assignment.

[ulmont]

Sounds like a procedure peculiar to Florida.  In Mississippi, this would have been handled with an assignment.

It looks to me like an ethics violation for the plaintiff and defense lawyers on the case...I can't see how you could possibly represent someone on both sides of the "v" simultaneously without a conflict of interest.

But yes, Florida apparently has some quaint folkways here.

[grumbler]

It looks to me like an ethics violation for the plaintiff and defense lawyers on the case...I can't see how you could possibly represent someone on both sides of the "v" simultaneously without a conflict of interest.

Wells Fargo hired Florida Default Law Group., P.L., of Tampa, Fla., to file the lawsuit against itself.

And then Wells Fargo hired another Tampa law firm -- Kass, Shuler, Solomon, Spector, Foyle & Singer P.A. -- to defend itself against its own lawsuit, according to court documents.

Who is representing "someone on both sides of the "v" simultaneously?"

[ulmont]

\

Wells Fargo hired Florida Default Law Group., P.L., of Tampa, Fla., to file the lawsuit against itself.

And then Wells Fargo hired another Tampa law firm -- Kass, Shuler, Solomon, Spector, Foyle & Singer P.A. -- to defend itself against its own lawsuit, according to court documents.

Who is representing "someone on both sides of the "v" simultaneously?"

Florida Default Law Group, P.L. and Kass, Shuler, Solomon, Spector, Foyle & Singer P.A. both are.  Wells Fargo, N.A. is both the plaintiff and the defendant; any actions taken in favor of Wells Fargo, N.A. as plaintiff are not in the best interests of Wells Fargo, N.A. as defendant, and vice-versa.

[grumbler]

Florida Default Law Group, P.L. and Kass, Shuler, Solomon, Spector, Foyle & Singer P.A. both are.  Wells Fargo, N.A. is both the plaintiff and the defendant; any actions taken in favor of Wells Fargo, N.A. as plaintiff are not in the best interests of Wells Fargo, N.A. as defendant, and vice-versa.

I am not a lawyer, though I play one on TV, but it seems to me that if you are hired to present a case in court, it is no ethics violation to do so even if it is in your client's "best interests" to do so (so long as they have given informed consent).

[Martinus]

Indeed. It's not an ethics violation to act for a client that is stupid.

Besides, as AmScip said this seems like a technicality issue, not some scheme or anything. As is often the case, this is the case of stupid lawmakers, not stupid lawyers.

[ulmont]

I am not a lawyer, though I play one on TV, but it seems to me that if you are hired to present a case in court, it is no ethics violation to do so even if it is in your client's "best interests" to do so (so long as they have given informed consent).

Yes, yes, no argument here, and clearly it is standard Florida procedure.  It still looks weird as hell.

[Razgovory]

Indeed. It's not an ethics violation to act for a client that is stupid.

Besides, as AmScip said this seems like a technicality issue, not some scheme or anything. As is often the case, this is the case of stupid lawmakers, not stupid lawyers.

In this country they are often the same thing.

[DontSayBanana]

There's no conflict of interest that I can see, since the action is being performed on the accounts and not the corporations themselves, but I'm confused as to why Florida wouldn't insist on identifying the accounts separately (even just "Account A/B, Wells Fargo Bank NA holding")in the court filings, if only to avoid this appearance of conflict of interest.

[Scipio]

There's no conflict of interest that I can see, since the action is being performed on the accounts and not the corporations themselves, but I'm confused as to why Florida wouldn't insist on identifying the accounts separately (even just "Account A/B, Wells Fargo Bank NA holding")in the court filings, if only to avoid this appearance of conflict of interest.

No, I'm sorry.  I was going to let this pass, but it's simply impossible.

A mortgage is not a real party in interest.  Period.  A bank account cannot file a suit.  The account is an asset of the bank; the bank has to file the suit.

[The Minsky Moment]

A bank account also can't hire a law firm.

[ulmont]

A bank account cannot file a suit.

A bank account (or the contents thereof) can be a defendant, though...as can "Forty Barrels and Twenty Kegs of Coca-Cola."

[Neil]

Well, hopefully the bank will be able to resolve its differences with itself and find a reasonable settlement.