11 Mar 2019 and 06 May 2019 Summary Judgment Hearings - Appellate Transcript

1 IN THE CIRCUIT COURT OF THE STATE OF OREGON
2 FOR THE COUNTY OF JACKSON
3 TIAA, FSB d/b/a/ EVERBANK, )

)
4 Plaintiff, )
) Trial Court
5
Vs. ) Case No. 18CV20011
6 )
KEVIN D. GOODRICH, ) A171228
7 aka Kevin Donald Goodrich )
Defendant. )
8 ______________________________)
9 TRANSCRIPT OF AUDIO-RECORDED PROCEEDINGS

10 APPELLATE TRANSCRIPT
11 Medford, Oregon
12
March, 11, 2019 - Motion Hearing
13 May 6, 2019 - Motion Hearing
14 BEFORE: THE HONORABLE T. Barnack, CIRCUIT JUDGE
15
16 -oOo-
17 APPEARANCES:
18
Stanton Shelby (3/11/19 & 5/6/19 - telephonic)
19 Attorney at Law, Portland, Oregon, of counsel of
Plaintiff;
20
Kevin D. Goodrich, Central Point, Oregon, Defendant Pro Se.
21
22
Transcript Prepared by:
23 Carlotta Hall
Court Transcriber
24 Yachats, OR 97498
25
i
1 GENERAL INDEX
3 March 11, 2019......................................1

4 Plaintiff’s Argument...........................2
5
Defendant’s Argument..........................16
6
Defendant’s Conclusion........................23
7
The Court’s Ruling............................24
8
Motion for Summary Judgement - Granted........26
9
May 6, 2019........................................29
10
Defendant’s Argument..........................33
11
12 Plaintiff’s Response..........................34
13 The Court’s Ruling............................37
14 Motion for Relief of Summary Judgement-Denied.37
15 Defendant’s Rebuttal..........................37
16 Certificate Page
17
18
19
20
21
22
23
24
25
1
1 Monday, March 11, 2019
2 (3:03 p.m.)
3 THE COURT: Do you want to get TIAA/FSB versus Kevin

4 Goodrich? I think Mr. Stanton (phonetic) Shelby is by phone,
5
and I don’t know if Goodrich is here. Is Kevin Goodrich here?
6
Come on up Mr. Goodrich. You can have a seat anywhere you would
7
like. You’re - - the other side is going to be appearing by
8
phone, if we can get ahold of them.
9
(Call Connecting to Plaintiff’s Counsel)
10
THE COURT: Is Mr. or Mrs. Stanton?
11
12 MR. SHELBY: Mr. Shelby, yeah.
13 THE COURT: Mr. Shelby, I’m - -
14 MR. SHELBY: Stanton is my first name.
15 THE COURT: All right, Mr. Shelby, so we’re in court
16 now, and the time set in the matter of - - I guess you

17 represent; I don’t know what TIAA/FSB is, but you represent that
18
party, and then Mr. Goodrich is here in court as well, and I - -
19
MR. SHELBY: Yes.
20
THE COURT: - - believe this is your motion. Is that
21
correct?
22
MR. SHELBY: It is, your Honor.
23
THE COURT: I believe you are asking for the
24
following, oh let’s see if I get it right here. Let’s see if I
25
Plaintiff’s Argument 2
1 can figure out what you’re asking for. You move for Summary
2 Judgment on that - - on its claims, and it you move for a
3 Declaratory Relief to rescind a prior Non-judicial Foreclosure

4 Sale, to rescind plaintiff’s deed of trust as a voluntary
5
encumbrance relating back to its original date of recording, a
6
Declaration in the amounts due and for judicial foreclosure, and
7
you say no genuine issues of material fact exist, and plaintiff
8
is entitled to a judgment as a matter of law. So it is your
9
burden then to show me that there’s not material issue of facts.
10
MR. SHELBY: Yes, your Honor.
11
12 THE COURT: Okay, go ahead.
13 MR. SHELBY: If I can summarize - -
14 THE COURT: Just give me, some - - yeah give me a
15 summary of the whole. I’m new to this case. This was Judge
16 Grensky’s case, and - -

17 MR. SHELBY: I - - yes.
18
THE COURT: - - I’m new, so you’re going to have
19
summarize it for me, okay.
20
PLAINTIFF’S ARGUMENT
21
MR. SHELBY: So, Judge are you familiar with the Court
22
of Appeals cases that struck down MERS assignments of trust
23
deeds?
24
25
1 THE COURT: I just went - - I just became familiar
2 with what MERS is a couple of weeks ago, so you’re going to have
3 to brief me.
4 MR. SHELBY: Okay. Okay, so.
5
THE COURT: So MERS can no longer assign trustees?
6
MR. SHELBY: Well let me - - let me tell you what I
7
believe those - - what those cases say. Now I’ve got to them.
8
THE COURT: Okay.
9
MR. SHELBY: Let me get to my - - let me get to my
10
legal spot here, so.
11
12 THE COURT: All right, that’s fine.
13 MR. SHELBY: We’ve got - - we got two cases from 2013,
14 Brandrup and Niday, and those were both Non-judicial
15 Foreclosures, so those were trustee sales of properties where
16 MERS appointed a successor trustee, as if they were the

17 beneficiary. Back in the 2000’s these loans, these loans and
18
deeds of trust, the lender would the beneficiary, then they
19
would also say MERS, Mortgage Electronic - - Mortgage Electronic
20
Registration System is the beneficiary, and the banks set up
21
their own little electronic registration system to keep track of
22
these loans as they swapped them back and forth, and didn’t
23
necessarily record any of those assignments until they got to
24
the point where they were ready to foreclose, then the MERS
25
1 would assign as “beneficiary”, assign a note to the current
2 beneficiary, and take action to appoint the successor trustee
3 who would in our notice of default and election of sale, they go

4 through a trustee sale, a Non-judicial Foreclosure.
5
Now Brandrup and Niday said that can’t happen because under
6
Oregon law a beneficiary, a “beneficiary” has to be able to take
7
the payments, has to be able to get the payments under the note,
8
under the loan, and MERS doesn’t do that so these cases are bad.
9
From our perspective what that means is that for all of
10
those old loans where MERS made some assignments as - - as MERS,
11
12 as the beneficiary, not as a nominee for the beneficiary,
13 basically that takes those cases, that takes loans like that and
14 transfers like that, takes them out of Non-judicial Foreclosure,
15 and basically kind of closed the door. And Mr. Goodrich had a
16 case, and this where our Declaratory Relief is talking about,

17 Mr. Goodrich had one of those. There was a MERS assignment of
18
some of his documents prior to a trustee sale, a trustee sale
19
went through. After the trustee sale went through Mr. Goodrich
20
was still in the home. There was an eviction proceeding. He
21
made the argument at the eviction proceeding that hey, this
22
underlying trustee sale is bad because of this Brandrup and
23
Niday decision, and it went up to the Court of Appeals, and the
24
Court of Appeals basically said yes that’s correct. That you
25
1 know these - - these assignments by MERS that we didn’t like in
2 Brandrup and Niday, that’s what happened in Mr. Goodrich’s case,
3 and therefore the underlying trustee sale was bad and you can’t
4 evict, and that’s what - - and Mr. Goodrich has that cited in
5
his, in several of his pleadings.
6
Now what, so what we have asked for, is we - - we recognize
7
what the Court said in those cases. That the prior assignment,
8
the prior Trustee’s Deed, those do need to be rescinded because
9
they were not in - - they were not in - - not in accord with the
10
law as we determine, as the court determined it to be in
11
12 Brandrup and Niday.
13 Okay, where Mr. Goodrich and plaintiff differ is, well
14 what’s the - - what’s the next option? Our motion is so, our
15 first motion is for Declaratory Relief to wipe all those deeds
16 out because they’re no good; the prior Substitution, the prior

17 Notice of Default, Election to Sale, the prior Trustee Deed.
18
Now what is the bank left with? Well what we’re left with
19
is judicial foreclosure, and under - - under a slightly
20
different theory which is that if the plaintiff at the time of
21
the complaint can show that they possess the note then they
22
have, and - - and prove that there’s a default, and prove there
23
was Notice of Default and an opportunity to cure and no cure,
24
plaintiff can maintain the foreclosure action. So essentially
25
1 in the main case on this is the Walmsley case, which is cited in
2 our motion, that is; well I just had it in front of me. That’s
3 Deutsche Bank versus Walmsley, and that is 277 ORAP 690. And
4 what that case stands for is that if the plaintiff in a
5
foreclosure action is a holder of a note, then they have a right
6
to foreclose, as long as the other claims, as long as the other
7
- - as long as the other elements are there.
8
In this case our argument is we are the holder of the note.
9
It’s basically - - basically the note becomes a negotiable
10
instrument. The actual loan, the actual original document and
11
12 the holder of the note is determined by the original lender will
13 endorse it. Endorse it to someone in particular, or endorse
14 into - - endorse it to blank. In this case the original note is
15 endorsed in blank.
16 So I go through the undisputed facts, from our point of

17 view it’s not disputed that Mr. Goodrich took out the loan. He
18
delivered the promissory note, its Exhibit 1, which is the law,
19
my law firm’s possession now. He signed the trust deed, which
20
is Exhibit 2. The plaintiff, TIAA/FSB dba as TIAA Bank,
21
formerly known as Everbank. It’s, I - - I just typically refer
22
to the plaintiff as the bank, has been in possession of that
23
original note, and was in possession of the original note at the
24
time of filing of this case, which was in 2016. They’ve
25
1 transferred it to our law firm in March 2016, and I can tell you
2 prior to filing my reply to the opposition. So we filed our
3 Motion for Summary Judgment. Mr. Goodrich filed an opposition,

4 and I replied to it. I requested that original note to my desk,
5
I did view it, and I will say as an Officer of the Court, that
6
what I wrote in my opposition that the endorsement in blank is
7
stamped on the back of the last page of the note. I will
8
represent that to the Court as something that I personally saw.
9
Plaintiff has been in possession of this note which is
10
essentially a negotiable instrument now. It’s endorsed in
11
12 blank, which converts it to a bearer instrument.
13 Mr. Goodrich does not dispute, I don’t believe he disputes
14 that he’s in default. He disputes whether plaintiff has the
15 right to maintain this action, but I don’t believe he disputes
16 that he’s in default on the loan, that we allege that a letter

17 was sent in October 2009 advising him of his default, providing
18
an opportunity to cure. He did not do that, and so since then,
19
since that time we’ve been allowed to maintain a foreclosure
20
action. Now you know, because I just told you that from 2009 to
21
gosh, I don’t know how long it took to get through - - through
22
the trustee sale, through - - through the eviction, up to the
23
Court of Appeals and back, but since then that’s what’s happened
24
with Mr. Goodrich’s case. There hasn’t been a cure of the
25
1 default since then. It’s just the case has went up and down to
2 the Court of Appeals, and we filed this instant action for
3 judicial foreclosure on this note.

4 So going through the rest of the motion, yes the trustee’s
5
deed that reported, that was recorded in November 2010 needs to
6
be rescinded. The warranty deed - -
7
THE COURT: Hang on a second. Go a little slower,
8
okay. So you’re saying the trustee - -
9
MR. SHELBY: Okay.
10
THE COURT: - - trustee’s deed, when, December?
11
12 MR. SHELBY: So if you follow - - if you follow along
13 on my Motion for Summary Judgment, there was a trustee,
14 trustee’s deed recorded - -
15 THE COURT: Oh, wait I got it. Let me see, okay, hang
16 on.
17 MR. SHELBY: No - -
18
THE COURT: Let’s see. It say, super of fact, dah,
19
dah, dah. Its dah, dah, dah, nah, nah, nah, note as security
20
for repayment. Okay. It says here plaintiff’s, you - -
21
MR. SHELBY: Yep.
22
THE COURT: - - seeks to rescind the prior Non-
23
judicial Foreclosure sale and to have its deed - -
24
MR. SHELBY: Yes.
25
1 THE COURT: - - reinstated as an encumbrance relating
2 back to the original recording, and to foreclose judicially.
3 That’s what you’re seeking first, correct?

4 MR. SHELBY: Yes. That is the original deed of trust
5
- -
6
THE COURT: That was - -
7
MR. SHELBY: - - signed by Mr. Goodrich back in, with
8
the original lender, back in June of 2005.
9
THE COURT: So is that what you - - what else are you
10
- - well I can; what are you seeking exactly? Let me see if I
11
12 can find it here. You’re - - you got your motion there, often
13 disputed facts there; hang on a second.
14 MR. SHELBY: Yeah.
15 THE COURT: Hang on, I’m almost there. It’s usually
16 at the bottom of all this stuff where you’re asking for.

17 MR. SHELBY: The prayer, yes.
18
THE COURT: The prayer, I’m trying to find your prayer
19
here, (inaudible) okay, Summary of Judgment, Memorandum of
20
Points of Authorities, Undisputed Facts, Default (inaudible),
21
Current Status. We kind of went through that. Foreclosure,
22
Standard of Review, went through that, went through that.
23
Defendant’s default, plaintiff’s a holder, when to that. That’s
24
25
1 a complaint. I’m looking at my computer right now going through
2 all this stuff.
3 MR. SHELBY: Sure.

4 THE COURT: So I’m getting there. Plaintiff, it
5
(inaudible) of Summary Judgement, Conclusion, uh-huh.
6
(inaudible reading) plaintiff’s entitled too, and then. I - -
7
is it in your conclusion, or do you have somewhere else you’re
8
asking for your prayer? Am I missing something?
9
MR. SHELBY: I think the best; our Motion for Summary
10
Judgement, it goes, I think it follows the advice of - - tell
11
12 them what you’re going to tell them, then tell them, then tell
13 them what you told them. For my part, I think - -
14 THE COURT: Well where can I find what you’re asking
15 for? I got; I kind of have - - yeah, where? Give me the place
16 where I can find what you’re asking for. Let me go back out of
17 my thing here. I’ve got your Motion for Summary Judgment; I got
18
it dated February 7th, 2019.
19
MR. SHELBY: Yes, yes.
20
THE COURT: And I got your Declaration - -
21
MR. SHELBY: And that’s - -
22
THE COURT: - - and then I got a Request Declaration
23
Opposition, Motion Telephone, Declaration, dah, dah, dah. So
24
25
1 your Motion for Summary Judgement dated February - - February
2 7th, 2007 - - 2019, that’s where your prayer is in that motion?
3 MR. SHELBY: Yes, that’s - - that’s where I - - that’s

4 what I’m going through right now.
5
THE COURT: Yeah, okay. So I went from the bottom up.
6
MR. SHELBY: So - -
7
THE COURT: Your bottom doesn’t really give me a lot.
8
It just gives me - -
9
MR. SHELBY: No, it doesn’t.
10
THE COURT: - - concludes.
11
12 MR. SHELBY: I think it’s more - - I think it’s more
13 included in the - -
14 THE COURT: The beginning there?
15 MR. SHELBY: The format - - the format we’re using
16 right now, I think it’s probably most helpful to start on page

17 eight, the standard of review.
18
THE COURT: Okay, hang on.
19
MR. SHELBY: And it takes you through - -
20
THE COURT: I got the Standard and Review, got it.
21
MR. SHELBY: Yeah.
22
THE COURT: And the argument.
23
MR. SHELBY: So we have our - - we have our first
24
argument. We have the standing of foreclose. We - - we do
25
1 possess the original note.
2 THE COURT: So you want me to grant you authority to;
3 well you see I’m asking what you - - okay I got all things you -
4 - well all the things you told me are in that summary.
5
MR. SHELBY: Yeah.
6
THE COURT: What I’m looking for is exactly,
7
specifically how you’re going to write up the; if I award you,
8
if I find in your favor, how are you going to write it out?
9
That’s what I’m looking for.
10
MR. SHELBY: I think that on the Declaration
11
12 rescinding the prior Non-judicial Foreclosure sale, I assume I’m
13 going to be using the language under number four page 11, if I
14 get it, if I get this judgement.
15 THE COURT: Number four on this stuff that I’ve got
16 right now?
17 MR. SHELBY: On the Motion - -
18
THE COURT: On the - -
19
MR. SHELBY: On the February 7th Motion for Summary
20
Judgement.
21
THE COURT: On the Motion for Summary - -
22
MR. SHELBY: The big - -
23
THE COURT: Hang on, don’t - - hang on, let me get
24
there. Hold on. Page seven on the motion?
25
1 MR. SHELBY: Page 11 on the motion.
2 THE COURT: Page 11, okay I got that wrong, hang on.
3 MR. SHELBY: That February 7th motion.

4 THE COURT: Yeah. So where it says page 11 starts
5
with?
6
MR. SHELBY: You see paragraph four, plaintiff
7
entitled to a Declaration rescinding?
8
THE COURT: On page 11, plaintiff is entitled to a
9
Declaration rescinding, the prior non-judicial notice.
10
MR. SHELBY: So what - - what I would expect my
11
12 language, if I was granted Summary Judgement, say we’re seeking
13 a Declaration that rescind, rescinding the prior Non-judicial
14 Foreclosure sale. We know it was bad - -
15 THE COURT: Okay.
16 MR. SHELBY: - - because of the MERS, and reinstating

17 his Deed of Trust. That is Mr. Goodrich’s deed of trust - -
18
THE COURT: Hang on a second. Hang on, you lived with
19
this forever, I’m getting it right now. That we’re rescinding
20
prior disclosure - - prior what, rescinding prior?
21
MR. SHELBY: Non-judicial Foreclosure sale.
22
THE COURT: Non-judicial Foreclosure sale.
23
MR. SHELBY: And reinstating its Deed of Trust.
24
THE COURT: Reinstating Deed of Trust.
25
1 MR. SHELBY: With priority relating back to its
2 original recording.
3 THE COURT: Deed of Trust with what, priority?

4 MR. SHELBY: With priority relating back to its
5
original recording.
6
THE COURT: Okay. And then is that your, that’s - -
7
you want a declaration there?
8
MR. SHELBY: Yes.
9
THE COURT: And then I have to make a - -
10
MR. SHELBY: Well - -
11
12 THE COURT: - - decision on your Summary Judgement.
13 MR. SHELBY: Yes. So from our perspective what we
14 first are asking for is a declaration that the non-judicial,
15 rescinding the Non-judicial Foreclosure, reinstate Mr.
16 Goodrich’s Deed of Trust from 2005, and then foreclose on that

17 Deed of Trust because of the default.
18
So from our perspective the - - the Declaratory Judgement
19
is the first step. We need to wipe that bad - -
20
THE COURT: Well you need to rescind. Let me see if I
21
got it right.
22
MR. SHELBY: Yeah. Yep.
23
THE COURT: You’re asking for me to declare that
24
you’re rescinding the prior Non-judicial Foreclosure, that
25
1 you’re reinstating the deed of - - deed of - - the original deed
2 with the priority relating back to the original recording - -
3 MR. SHELBY: Yes.

4 THE COURT: - - and that you want to foreclose,
5
foreclose - - I can’t read my writing - - foreclose default;
6
what was that?
7
MR. SHELBY: And then, back up to a degree of
8
foreclosure.
9
THE COURT: Well you want me to - - all right. We’ll
10
try it one more time, all right. The first one, you’re wanting
11
12 me to declare that - - you want me to make a declaration
13 rescinding the prior Non-Judicial Foreclosure, correct?
14 MR. SHELBY: Correct.
15 THE COURT: And then you want me to declare,
16 reinstating the deed with the priority, with the priority

17 relating back to the original record, correct?
18
MR. SHELBY: Correct.
19
THE COURT: And then what? Then the next thing you
20
wanted me to do? Something about foreclosing?
21
MR. SHELBY: Yes. Then our - - our argument is we’re
22
entitled to Summary Judgement on the issue of foreclosure. That
23
is a decree, a decree of foreclosure of our, or of the Deed of
24
Trust as against the borrower, Mr. Goodrich.
25
Defendant’s Argument 16
1 THE COURT: I think I got it.
2 MR. SHELBY: Okay.
3 THE COURT: So we’re going to hear from - - I’m going

4 to - - we’ll hear from Mr. Goodrich then, sir.
5
MR. GOODRICH: Yes, Judge.
6
THE COURT: Okay, so we’re dealing with the; you heard
7
him cite the case law, and I think I got an idea what - - what’s
8
happening in this case. So wherever you want to start, we can
9
start with that, okay? You know what they’re asking now,
10
correct?
11
12 MR. GOODRICH: Yes.
13 THE COURT: Okay. Go ahead.
14 MR. GOODRICH: Thank you, Judge.
15 DEFENDANT’S ARGUMENT
16 MR. GOODRICH: I - - I’m going to go on the record to

17 objecting to the rescission of the prior Non-Judicial
18
Foreclosure. This is the third bite of the same apple. I’ve
19
been through Circuit Court once, I went to the Court of Appeals,
20
I prevailed, and it was affirmed. So, I’m - - I’m just going to
21
object to that, okay.
22
THE COURT: Any other objections?
23
MR. GOODRICH: Pardon me?
24
THE COURT: Anything else, any other objections?
25
1 MR. GOODRICH: Yes. With regards to the Motion for
2 Summary Judgement, I’m going to refer to the reply which was
3 filed on Tuesday, March 5th. Do you - - do you happen to have

4 access to that?
5
THE COURT: Let me look, I probably do. Hang on.
6
Tuesday, I do not. Yes, I have a declaration. I got reply,
7
yes.
8
MR. GOODRICH: Great.
9
THE COURT: Let me pull that up. Okay. All right.
10
And this is your reply, standing?
11
12 MR. GOODRICH: Actually I responded before Mr. Shelby
13 replied.
14 THE COURT: Okay. Go ahead; you said you wanted to
15 refer to the reply.
16 MR. GOODRICH: Yes, Judge.

17 THE COURT: Let’s go ahead.
18
MR. GOODRICH: So in the undisputed facts, I wanted to
19
reinforce what was said here. Lines seven through nine on page
20
2, the judicial foreclosure requires the plaintiff to prove by a
21
preponderance of the evidence that one, they hold the original
22
note, which Mr. Shelby claims; number two, the note is secured
23
by a mortgage encumbering the property at issue; and number
24
25
1 three, the borrow - - borrower is in material default on the
2 terms of the note.
3 So I wanted to point out the conjunction ‘and’, it - - all

4 three must be met in order for the judicial foreclosure to
5
proceed. Mr. Shelby claims that he holds the original note, and
6
yet the original note has never been brought forth. He says
7
that he has seen it. I don’t know if he’s ever had it in his
8
hands, possessed it.
9
THE COURT: I think he said that he - - he has it up
10
there in his office. What he’s got a - - yeah. So he wants me
11
12 to, as an Officer of the Court, which he is, to - - to find that
13 he actually holds the note.
14 MR. GOODRICH: That would be great, but evidentiary of
15 standards precludes going forward without actual tangible
16 evidence of the original note, and the emphasis is on original.

17 The note has been floating around in copy throughout the filings
18
of this case.
19
THE COURT: Okay.
20
MR. GOODRICH: However, the original note must be
21
brought forward in order for this to be met, this - - this
22
element to be met.
23
(Slight pause)
24
MR. GOODRICH: Should I continue?
25
1 THE COURT: Yeah.
2 MR. GOODRICH: The existence of the original note is
3 yet to be proven, so I - - I’ve covered that.

4 The validity of the completion of the blank endorsement;
5
this is new information I just received in this reply on Friday.
6
They filed it on Tuesday, I got it in the mail on Friday, so.
7
Page three, lines 12 through 14, I quote Mr. Shelby, “the
8
signature evidence in the endorsement in blank is on the back
9
side of the last page of the original note. As such, the
10
endorsement is on the instrument itself, not on an allonge.” So
11
12 I want to go with that brand new understanding. That it is a -
13 - it is a part of page five of five on the back side. Original
14 blank endorsement on an original note, and that’s another reason
15 why I want to see that original note with the original blank
16 endorsement. He further - - I’ll break on that.

17 Reviewing the exhibit, this is Exhibit 1 in the reply. It
18
was in the original Motion for Summary Judgement as Exhibit 4,
19
so it appears a second time, and this is the five page note with
20
the sixth page as the blank endorsement, and if you wouldn’t
21
mind turning to that Exhibit 1 of the Motion for Summary
22
Judgement.
23
THE COURT: Yes.
24
25
1 MR. GOODRICH: This is rather forensic, if you will,
2 and I’m pointing out what appears to be two holes along the top
3 edge of that page. Are you - - are you at that page, Judge?
4 THE COURT: No, I’m not yet.
5
MR. GOODRICH: Okay.
6
THE COURT: What, exhibit what, one?
7
MR. GOODRICH: Exhibit 1 of the Motion for Summary
8
Judgement. And of course it was included in the original
9
complaint.
10
THE COURT: It would have to be on the declaration
11
12 because I don’t see it.
13 MR. SHELBY: Yes, technically it’s - - it’s attached
14 to the Plaintiff’s Declaration accompanying.
15 THE COURT: Well it’s a lot; hang on, let me get
16 there.
17 MR. SHELBY: Which is a separate entry - -
18
THE COURT: Right, I - -
19
MR. SHELBY: - - for your Honor.
20
THE COURT: Yeah.
21
MR. SHELBY: And I’m finding it myself. There we go.
22
THE COURT: Exhibit 1; I’m almost there. So I have
23
it. I guess it would be Exhibit 1 is actual fixed/adjustable
24
rate note? Is that what you’re referring to?
25
1 MR. GOODRICH: Do you see B.J. Cooley’s signature?
2 THE COURT: Is that what you’re referring to is the
3 fixed? It says fixed/adjustable rate note?

4 MR. GOODRICH: No, Judge.
5
THE COURT: That’s Exhibit 1.
6
MR. GOODRICH: Yes, let’s go to page six of that
7
exhibit.
8
THE COURT: Four, five; okay I’m there, page six.
9
MR. GOODRICH: Okay. It looks like this. Okay. Two
10
through - -
11
12 THE COURT: Well it’s page six, the Deed of Trust.
13 MR. GOODRICH: Right, on the five page Deed of Trust.
14 THE COURT: I got six of six.
15 MR. GOODRICH: Right, which follows the original
16 note’s, five of five.

17 THE COURT: You want me to - - okay, so I’m at six of
18
six. Is that where you want me to be?
19
20
THE COURT: Okay. Go ahead - -
21
MR. GOODRICH: Thank you.
22
THE COURT: - - what about it?
23
MR. GOODRICH: This is the blank endorsement that Mr.
24
Shelby is referring to, and I wanted to - - okay. I wanted to
25
1 point out two circular marks, approximately six millimeters in
2 diameter appearing on the - - on this page, horizontally
3 centered along the top of the blank endorsement copy, not the
4 original.
5
THE COURT: Yeah.
6
MR. GOODRICH: These two marks appear to be punched
7
holes, your Honor, of course only separated by approximately 70
8
millimeters, which is two and three-quarter inches from center,
9
leaving an indelible impression, evidently sourced by a standard
10
two-hole punch. Now if the original endorsement, as described
11
12 plaintiff, counsel, occupies the backside of the note’s fifth
13 and final page, what’s the purpose of using a two-hole punch?
14 And wouldn’t it - - wouldn’t it also lead to the expectation to
15 see two-hole marks on the opposite side of that same page?
16 So I’m - - I’m questioning the validity of the blank

17 endorsement, your Honor, I - - and I - - and I wish to see the
18
original.
19
THE COURT: Is that it? Anything else?
20
MR. GOODRICH: Well if it requires a Motion for
21
Discovery, then I’m more than happy to proceed with that.
22
THE COURT: Any other objection to the Summary
23
Judgement?
24
25
Defendant’s Conclusion 23
1 MR. GOODRICH: No further objections, I have
2 conclusion preferably.
3 THE COURT: You have a conclusion? Do you want to

4 make a conclusion? Is that what you’re asking to do?
5
MR. GOODRICH: If now is the time.
6
THE COURT: Yes.
7
MR. GOODRICH: Okay.
8
DEFENDANT’S CONCLUSION
9
MR. GOODRICH: Plaintiff has mistakenly asserted that
10
defendant has not alleged fraud or illegality affecting the
11
12 instrument. Defendant made clear in its pleading that without a
13 preponderance of evidence as defined by ORS 40.455, hearsay is
14 not admissible except as provided in ORS 40.450 Rule 801 to
15 40.475 Rule 806, as otherwise provided by law (1981)(c) 892(63).
16 Operating on hearsay alone is grounds for involuntary

17 dismissal based on factual insufficiency, and that’s in my
18
pleading, page four of my Answer.
19
Three missing pieces of key evidence are needed for this
20
action to proceed. Certified copies of the original note’s
21
document transfer records, chain of custody; certified copies of
22
any pooling and services agreement, or agreements that have been
23
tied to the subject property since June 2nd of 2005, and that was
24
the date of the signing of the note to present; and number
25
The Court’s Ruling 24
1 three, the note itself which allegedly includes original blank
2 endorsement on the back side of its last page, as Mr. Shelby
3 alleges.
4 This evidence is required for this action to proceed.
5
Regardless of how often the plaintiff asserts its power to
6
enforce, claiming its authority is limited by the existence of
7
said key evidence, which needs to be physically present in this
8
venue for review and legal determination of its authenticity and
9
subsequent claimant status, otherwise most reasonable jurors
10
could conclude that this action was brought with unclean hands,
11
12 brought with unclean hands. Prayer for relief, Judge?
13 THE COURT: Well, is that your summary?
14 MR. GOODRICH: That’s my conclusion --
15 THE COURT: Okay.
16 MR. GOODRICH: -- and I have a prayer for relief.

17 THE COURT’S RULING
18
THE COURT: All right, so I am going to grant your
19
Motion for Summary Judgement, prior to that I’m going to declare
20
as follows, rescinding the prior Non-judicial Foreclosure. Will
21
reinstate the Deed of - - Deed of Trust with priority relating
22
back to the original record. And if I’m getting wrong, counsel,
23
will you correct me, please?
24
MR. SHELBY: I - - I will, and we’ll you know - -
25
1 THE COURT: All right.
2 MR. SHELBY: - - of course send a proposed order out
3 for - -
4 THE COURT: Okay.
5
MR. SHELBY: - - objections before - -
6
THE COURT: All right.
7
MR. SHELBY: - - submitting it to the Court.
8
MR. GOODRICH: Judge, object - -
9
THE COURT: Foreclosure - - the foreclosure, let’s
10
see. I’ll find you foreclosure that - - that the note is in
11
12 default. That in this particular case, counsel, the plaintiff
13 is entitled to Summary Judgement. And I think; is there
14 anything else you want me to find, Mr. Shelby?
15 MR. SHELBY: Well, so I - - I; one thing that Mr.
16 Goodrich said that he was - - asking for his Relief of

17 Dismissal. I, if - - if it’s necessary, I was only going to
18
point out that he pled and argued a Motion for Dismissal on
19
basically these same grounds, which was already denied
20
previously. So, I don’t - -
21
THE COURT: All right, well - -
22
MR. SHELBY: - - I don’t know if it’s really
23
necessary to include that in this order.
24
25
1 THE COURT: So you’re also; why don’t we do a - - why
2 don’t we also - - what I just said, put in an order, please - -
3 MR. SHELBY: Uh-huh.

4 THE COURT: - - and then in addition to that you can
5
put in there an issue. What is it, claim preclusion? Is that
6
correct? Is that how you say it counsel, when the issues have
7
already been - -
8
MR. SHELBY: I - -
9
THE COURT: - - the issues have already been dealt
10
with, and based on that as well, his motion, your Motion for
11
12 Summary Judgement is granted.
13 I just want to make sure I get your declaratory stuff down
14 correctly. So explain to me exactly what you want me to
15 declare, and I’ll either give you the yes or no, and you can put
16 that in the order, okay.

17 MR. SHELBY: The declaratory part. We would like the
18
- -
19
THE COURT: Yes.
20
MR. SHELBY: - - a Declaratory Judgment rescinding
21
the prior Non-Judicial Foreclosure.
22
THE COURT: All right, I’ll do that.
23
MR. SHELBY: To reinstate the Deed of Trust in this
24
case - -
25
1 THE COURT: I will do that.
2 MR. SHELBY: - - the original Deed of Trust, with
3 priority back to the original recording.

4 THE COURT: I will do that. Is it - -
5
MR. SHELBY: And then note that defendant is in
6
default, plaintiff entitled to Summary Judgement on the decree
7
of foreclosure.
8
THE COURT: All right, I’ll find that as well. So put
9
that in your order. Send that in. Also, I know I didn’t give
10
you an opportunity to argue this. So if - - that to me is
11
12 enough for the Summary Judgement and Declaratory - - in the
13 declaratory matter, but I would note at this point also that if
14 counsel wants to - - if you file something else counsel, in
15 dealing with this exact kind of stuff, counsel can send out, I
16 guess it’s a claim preclusion basically saying that this has

17 already been litigated and dealt with, and therefore bringing
18
the same thing back up again. So we’ll ask for another - -
19
MR. GOODRICH: You’re not going to rule?
20
THE COURT: - - Summary Judgement.
21
MR. GOODRICH: You’re not going to rule on that as a -
22
-
23
THE COURT: What?
24
25
1 MR. GOODRICH: You’re not going to rule on the Claim
2 Preclusion?
3 THE COURT: No I’m not.

4 MR. GOODRICH: All right.
5
THE COURT: But I’m just saying that that’s something
6
else they bring up, if this thing happens again. But basically
7
I just made my ruling, so if you will submit the order, please.
8
MR. SHELBY: I will, your Honor.
9
THE COURT: All right, thank you. Thank you.
10
MR. SHELBY: When I - - you’re welcome.
11
12 THE COURT: Thank you, Mr. Green.
13 MR. GOODRICH: Judge, are you going to ignore the
14 actual markings on the - -
15 THE COURT: So thank you very much.
16 MR. GOODRICH: - - blank endorsement?

17 THE COURT: Thank you.
18
19
(Proceedings concluded)
20
21
22
23
24
25
29
May 6, 2019
1 Monday, May 6, 2019
2 (2:18 p.m.)
3 THE COURT: - - Shelby?

4 THE CLERK: He’s the plaintiff counsel.
5
THE COURT: Oh, I got Hunter Zook.
6
THE CLERK: They’re in the same firm.
7
THE COURT: And then we have Kevin Goodrich and Cedar
8
Shadows Homeowner?
9
THE CLERK: Yeah, uh-huh.
10
THE COURT: All right, go ahead and get him on the
11
12 line. Is Kevin Goodrich, the Cedar Shadows Homeowners
13 Association?
14 (Calling counsel)
15 THE CLERK: (inaudible)
16 THE COURT: Well he’s - - hello, this is Judge

17 Barnack. Who am I - - who am I Speaking with?
18
MR. HELD: Hello, this is Nathan Held for the
19
defendant.
20
THE COURT: Nathan Health?
21
THE CLERK: Held.
22
MR. HELD: Held, H-E-L-D, your Honor.
23
THE COURT: H-E-L-D.
24
25
30
May 6, 2019
1 MR. SHELBY: Also on the line is Stanton Shelby for
2 the Everbank versus Goodrich case.
3 THE COURT: Shelby. Okay, and this the time set for;
4 who’s bringing this motion?
5
MR. GOODRICH: I am, your Honor. I’m not sure who
6
that first caller was that had been - -
7
THE COURT: The first call is Mr. Health, Held.
8
THE CLERK: He’s on a separate case.
9
THE COURT: What?
10
MR. HELD: That - - that’s for Olive V. Jones et al.
11
12 (phonetic)
13 THE CLERK: You got them both on there.
14 THE COURT: What?
15 THE CLERK: So, you have two attorneys, one for each
16 case.
17 THE COURT: Those are two separate cases.
18
THE CLERK: Yeah.
19
THE COURT: Separate people?
20
THE CLERK: Uh-huh. Mr. Held will just sit tight
21
until you call his case.
22
THE COURT: All right, so - - well why don’t we just
23
let him; we’ll recall him.
24
25
31
May 6, 2019
1 THE CLERK: I called him long distance. I can recall
2 him if you want.
3 THE COURT: All right, well I guess you don’t need to.
4 So I’m dealing with Shelby then. So Mr. Held, if you want to
5
hold on we’ll deal with one other case before yours, okay.
6
MR. HELD: All right, your Honor.
7
THE COURT: All right, so now I’m dealing with TIAA
8
versus Kevin Goodrich, correct?
9
MR. GOODRICH: Correct.
10
THE COURT: And do you - - so Mr. Goodrich?
11
12 MR. GOODRICH: Yes.
13 THE COURT: You can have a seat, if you’d like, Mr.
14 Goodrich. This is your motion, is that correct, for Relief?
15 MR. GOODRICH: It is, yes.
16 THE COURT: Is this the one that (inaudible).

17 THE CLERK: Yeah.
18
THE COURT: (inaudible) Okay. And Mr. Shelby, so what
19
is your motion exactly? Yeah.
20
MR. GOODRICH: Okay.
21
THE CLERK: I got to swear him in, Judge.
22
MR. GOODRICH: Well your Honor - -
23
THE COURT: Well you got to swear him, sorry. Do we
24
need to swear him in on these? I don’t think - -
25
32
May 6, 2019
1 THE CLERK: (inaudible)
2 THE COURT: No we don’t. Go ahead.
3 THE CLERK: Okay.

4 MR. GOODRICH: Right. You’ll recall the March 11th
5
hearing, Motion for Summary Judgement.
6
THE COURT: I’m trying to.
7
MR. GOODRICH: I know you’ve seen a lot since then.
8
This is - -
9
THE COURT: Remind me the case again.
10
MR. GOODRICH: This had to do with three-legged stool
11
12 as the primary argument against the Summary Judgement, and the
13 basis for the Motion for Relief. So what I brought was evidence
14 that the - -
15 THE COURT: The three - - don’t; go a little more
16 detail into that for me, please.

17 MR. GOODRICH: Okay, sure. Both parties in this
18
action agree that there’s - - there are three elements that must
19
be met in order for the foreclosure action to proceed, and this
20
is based on Staffordshire Investments, Inc. V. Cal-Western
21
Reconveyance Corp. 209 O-R-A-P-P 528, 534 (2006) authorizing
22
foreclosure where there is a present default.
23
THE COURT: Okay. All right.
24
MR. GOODRICH: Coming back?
25
Plaintiff’s Response 33
1 THE COURT: So you’re asking me to reconsider the
2 judgement?
3 MR. GOODRICH: I’m asking for relief of - - of the

4 order - -
5
THE COURT: To reconsider the judgement - -
6
MR. GOODRICH: Yes.
7
THE COURT: - - that I made?
8
MR. GOODRICH: Yes.
9
THE COURT: Okay. Go ahead and make your argument
10
then.
11
12 MR. GOODRICH: Sure.
13 DEFENDANT’S ARGUMENT
14 MR. GOODRICH: In the hearing for Motion for Summary
15 Judgement I brought evidence that the - - that the blank
16 endorsement showed holes because the exhibit was a copy, it

17 showed holes, two holes in the top of the blank of endorsement.
18
And in this document described by the plaintiff as being
19
physically located on the back side of page five of the five
20
page note, okay; so there were no holes, evidence of holes on
21
page five of the five page note. So there was - - there was a
22
mismatch, and I didn’t understand it. If that - - if those two
23
documents shared the same physical page, there should be
24
25 evidence of holes on both sides of the same page. So at the

1 opposing counsel’s invitation, I went up to Portland and I
2 physically visually, viewed and inspected, examined the note and
3 the blank endorsement. Both are purportedly original by the

4 opposing counsel.
5
After having the opportunity to look at this, these two
6
documents, purportedly original, I questioned the validity, the
7
authenticity of these two documents which require, based on the
8
case that I mentioned, that both parties agree, must be met that
9
the three elements of the three legged stool must be met in
10
order for the foreclosure action to proceed. So, my prayer for
11
12 relief is to have a professional, as an arbiter, if you will,
13 examine the document and determine its authenticity. Is it
14 original or is it not?
15 THE COURT: Okay. Mr. Shelby, any response to that?
16 Mr. Shelby?
17 MR. SHELBY: Sorry, your Honor. I had it on mute
18
there for a moment. I was told I have a - -
19
THE COURT: Okay, is there any response - -
20
MR. SHELBY: - - chair here.
21
THE COURT: Any response to that?
22
PLAINTIFF’S RESPONSE
23
MR. SHELBY: Judge, this came on for Motion for
24
25 Summary Judgement Hearing March 11th. At that time we

1 established, plaintiff established all of the elements necessary
2 to foreclose.
3 Mr. Goodrich, in his opposition to Motion for Summary

4 Judgement, made an argument based on his mistaken belief that
5
the endorsement of this note was an allonge that is a separate
6
piece of paper, not an endorsement in blank which is a signature
7
on the actual note itself. So I responded, I filed a reply, I
8
said no it’s actually an endorsement in blank. It’s not a
9
separate sheet of paper.
10
In my opinion the - - the holes, the whole argument about
11
12 the hole punches was in furtherance of this allonge argument
13 which was in opposite.
14 So having gone to that hearing, having made his argument on
15 a mistaken belief of fact about what the note is, you granted
16 the Motion for Summary Judgement. Mr. Goodrich subsequently

17 came up to Portland, examined the note, and now wants another
18
bite at the apple. Wants to say that there’s ORCP 71 claim for
19
Relief from Judgement for Newly Discovered Evidence, but in fact
20
it’s not newly discovered. It could have been discovered by Mr.
21
Goodrich, and he could have made a different argument, had he
22
come - - he could have come to the Portland office at any point
23
in the last year or two, or gosh when did we file this one,
24
25 2018?
1 So, what - - from plaintiff’s point of view, what Mr.
2 Goodrich now wants to do is ask you to take back your Motion for
3 Summary Judgment Order that you granted so that he can make some
4 different arguments when he submits to you what a document
5
expert might say, if they were - - if they were used by the
6
defendant, but he doesn’t really know that.
7
THE COURT: Okay.
8
MR. SHELBY: As far as you know whether the note is
9
genuine or not, I mean for what it’s worth, I certainly believe
10
it’s genuine. He, Mr. Goodrich, is not ever until after coming
11
12 to see this note the first time, now he’s sort of hinting that
13 he thinks it’s counterfeit, and I would note that he’s not
14 denying that the signature looks like his. He’s not denying
15 that he ever signed the note. He’s not telling you that he’s
16 current in his payments because he’s not.

17 Your Honor, I would ask you deny the Motion because well
18
for one, he makes ORCP 71 note Motion for Newly Discovered
19
Evidence, but it’s not newly discovered. He could have
20
discovered this with reasonable diligence. And the ORCP 64
21
Motion for Insufficiency of Evidence is basically telling you,
22
you were wrong when you granted the Motion for Summary
23
Judgement, and that’s - -
24
25 THE COURT: Okay.

Defendant’s Rebuttal 37
1 MR. SHELBY: - - of course we don’t think that you
2 were wrong.
3 THE COURT: All right. Thank you, Mr. Shelby. So you

4 have anything else?
5
THE COURT’S RULING
6
THE COURT: Okay, so I do find based on the hearing
7
the party’s arguments here today, I do deny your Motion for
8
Relief of Summary Judgement, okay?
9
MR. GOODRICH: Your Honor, both parties did not want
10
to have this hearing. You insisted that we have the hearing
11
12 today, before it goes to the Court of Appeals. I just want to -
13 -rebuttal. May I?
14 THE COURT: Yeah.
15 MR. GOODRICH: Okay.
16 THE COURT: You rebuttal what?

17 MR. GOODRICH: I’m rebuttling (phonetic) what - -
18
THE COURT: Oh okay, go ahead.
19
MR. GOODRICH: - - opposing counsel just said.
20
THE COURT: Go ahead.
21
DEFENDANT’S REBUTTAL
22
MR. GOODRICH: So we have, I mean forensic evidence
23
has - - has definitely been submitted. It’s in the pleadings,
24
and I’m referencing Exhibit 1 of the - - of the Motion for
25
Relief.
Defendant’s Rebuttal 38
1 If you wouldn’t mind, page six of six. And comparing that page
2 with Exhibit 2 of the same pleading we have the blank
3 endorsement. Should I wait till you see it, look at the - -

4 THE COURT: No, go ahead.
5
MR. GOODRICH: Okay. What we have on the page six of
6
six, Exhibit 1, is a darker representation of the two-hole
7
punch. On page ten of ten of Exhibit 2 we have a lighter
8
representation of the same page with the two-hole punch.
9
Now when you run a copy through the same copier just
10
multiple times, defects appear darker and darker.
11
12 Exhibit 2 page ten of ten is the first generation copy of
13 the document. It’s purportedly original and I’m questioning
14 that. After I’ve examined it, I filed a Declaration. I’ve - -
15 I don’t have evidence to say that it is original, so I’m left to
16 say that it’s not. This is a genuine issue of material fact

17 that I raised during the hearing and I’m raising again today.
18
THE COURT: Okay. All right, thank you.
19
Again, my finds stay, regarding this motion stands after
20
hearing the arguments of the attorneys, or of the parties. I do
21
deny your relief. Thank you.
22
MR. GOODRICH: Thank you, Judge.
23
(Proceedings concluded)
24
25
Certificate Page
1 STATE OF OREGON )
) ss.
2 County of Jackson )
3
I, Carlotta Hall hereby certify that I am a Court
4
Transcriber for the Circuit Court for Jackson County, that the
5
6 foregoing proceedings were electronically recorded by FTR, and
7 that I thereafter caused said tape to be typed into typewritten
8 transcript, all inclusive; and that the said transcript
9 constitutes a full, true and accurate record of the proceedings,

10 as requested, to the best of my knowledge, ability, and belief.
11
12
DATED this 12th day of August, 2019 at Yachats,
13
Oregon.
14
15 Carlotta Hall
16 Official Court Transcriber
17
18
19
20
21
22
23
24
25

11 Mar 2019 and 06 May 2019 Summary Judgment Hearings - Appellate Transcript

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11 Mar 2019 and 06 May 2019 Summary Judgment Hearings - Appellate Transcript

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1 IN THE CIRCUIT COURT OF THE STATE OF OREGON

2 FOR THE COUNTY OF JACKSON

3 TIAA, FSB d/b/a/ EVERBANK, )

9 TRANSCRIPT OF AUDIO-RECORDED PROCEEDINGS

14 BEFORE: THE HONORABLE T. Barnack, CIRCUIT JUDGE

3 March 11, 2019......................................1

13 The Court’s Ruling............................37

14 Motion for Relief of Summary Judgement-Denied.37

1 Monday, March 11, 2019

3 THE COURT: Do you want to get TIAA/FSB versus Kevin

12 MR. SHELBY: Mr. Shelby, yeah.

13 THE COURT: Mr. Shelby, I’m - -

14 MR. SHELBY: Stanton is my first name.

15 THE COURT: All right, Mr. Shelby, so we’re in court

16 now, and the time set in the matter of - - I guess you

2 Judgment on that - - on its claims, and it you move for a

3 Declaratory Relief to rescind a prior Non-judicial Foreclosure

12 THE COURT: Okay, go ahead.

13 MR. SHELBY: If I can summarize - -

14 THE COURT: Just give me, some - - yeah give me a

16 Grensky’s case, and - -

1 THE COURT: I just went - - I just became familiar

2 with what MERS is a couple of weeks ago, so you’re going to have

12 THE COURT: All right, that’s fine.

13 MR. SHELBY: We’ve got - - we got two cases from 2013,

14 Brandrup and Niday, and those were both Non-judicial

15 Foreclosures, so those were trustee sales of properties where

16 MERS appointed a successor trustee, as if they were the

1 would assign as “beneficiary”, assign a note to the current

2 beneficiary, and take action to appoint the successor trustee

3 who would in our notice of default and election of sale, they go

12 as the beneficiary, not as a nominee for the beneficiary,

14 transfers like that, takes them out of Non-judicial Foreclosure,

16 case, and this where our Declaratory Relief is talking about,

1 know these - - these assignments by MERS that we didn’t like in

2 Brandrup and Niday, that’s what happened in Mr. Goodrich’s case,

12 Brandrup and Niday.

13 Okay, where Mr. Goodrich and plaintiff differ is, well

15 first motion is for Declaratory Relief to wipe all those deeds

16 out because they’re no good; the prior Substitution, the prior

1 in the main case on this is the Walmsley case, which is cited in

12 the holder of the note is determined by the original lender will

13 endorse it. Endorse it to someone in particular, or endorse

14 into - - endorse it to blank. In this case the original note is

16 So I go through the undisputed facts, from our point of

2 prior to filing my reply to the opposition. So we filed our

3 Motion for Summary Judgment. Mr. Goodrich filed an opposition,

12 blank, which converts it to a bearer instrument.

13 Mr. Goodrich does not dispute, I don’t believe he disputes

14 that he’s in default. He disputes whether plaintiff has the

15 right to maintain this action, but I don’t believe he disputes

16 that he’s in default on the loan, that we allege that a letter

2 the Court of Appeals, and we filed this instant action for

3 judicial foreclosure on this note.

12 MR. SHELBY: So if you follow - - if you follow along

13 on my Motion for Summary Judgment, there was a trustee,

14 trustee’s deed recorded - -

1 THE COURT: - - reinstated as an encumbrance relating

2 back to the original recording, and to foreclose judicially.

3 That’s what you’re seeking first, correct?

13 disputed facts there; hang on a second.

14 MR. SHELBY: Yeah.

15 THE COURT: Hang on, I’m almost there. It’s usually