A Whistleblower’s Tainted Defeat: CA Appellate Reversal Paves Way for Continued Bank Retaliation

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Yves here. A key element that this post’s author, whistleblower Michael Winston, does not mention is that he played an important role in the PBS documentary The Untouchables, which is probably best known for the scene in which Lanny Breuer said he stayed awake at night worrying that he might be hurting banks.

By Michael G. Winston, who served in executive positions for five Fortune 100 companies across three industries (high technology, aerospace and financial services) and has been included in several “Top Business Thought-Leaders” lists. He took a strong and visible stand against the malfeasance he witnessed at Countrywide

I have been called the whistleblower who “conquered Countrywide” by Pulitzer-Prize winning journalist Gretchen Morgenson of The New York Times. I have also been referred to as “Wall-Street’s Greatest Enemy: The Man Who Knows Too Much,” by the PBS show Moyers & Company and a revelatory article by David Dayen in Salon.

However, I do not feel like a conqueror at all. I feel like a victim who has been repeatedly re-victimized by a system that allows legal loopholes, misrepresentations, and fraud on a trial and appellate court. On May 8, 2014, I was informed that Bank of America, a $100,000,000,000 company with over $2.2 trillion in assets, has placed a lien on my Thousand Oaks home for $96,523.29. Ironic that this is the home I purchased to which I relocated my family when accepting a position for which Countrywide aggressively recruited me. This continues the retaliation that I have experienced by Countrywide and successor BAC for over 7 years. My offense? When they defrauded and abused employees, homeowners, shareholders and taxpayers, I stepped up and challenged them vigorously and took them to court. I won a convincing legal victory. Somehow they found a way to have my strong jury verdict and judicial ruling reversed in my absence (there was no new evidence) and now I must pay this behemoth’s court costs including nearly $65,000 for a bond that was ordered by the court, not requested by me.

The Court is leaning on me. Interestingly, no such efforts were made by the Court to collect my substantial financial award or court costs from BAC/CFC during the 26 months after my successful verdicts and judgments and before appellate reversal deemed to be unconstitutional and unlawful by a growing number of prominent attorneys. The damages were NEVER given to me. Not a penny! It is almost like they had planned to reverse judgment and verdict from the outset.

During litigation, BAC/CFC lost motions for summary judgment, disqualification for lack of court standing, lost jury verdict, judicial ruling, motion for judgment notwithstanding verdict and had very strong evidence against them. BAC/CFC, waited over two years thereafter, then was able to convince a court to support their appeal (consisting largely of lies under oath) and found a court willing to reverse these (in violation of law, constitution and despite evidence in my favor cited as “overwhelming” by trial judge). They claimed I had no evidence and therefore have to pay court costs to the “prevailing party.” They did this by manipulating some crucial evidence and eliminating or ignoring other crucial evidence. I am in possession of original evidence and court record. If an unbiased panel reviewed the actual evidence, they would affirm original verdicts and judgments against BAC/CFC. I believe I actually possess enough evidence for an unbiased Court to pursue criminal charges. These courts should have. I would like to call for just this action.

In the meantime, whistleblowers like me see once-impressive corporate careers collapse and strong financial positions implode. Why? Because we uncovered fraud, insider trading, and illegal business and safety practices, spoke against these unlawful practices and tried to protect the masses from them. In short, we are punished for doing the right thing and telling the truth about it while the guilty are rewarded for doing the wrong thing and lying to cover it up.

I recently returned from the American Whistleblower Tour at Syracuse University, during which I presented my saga to a number of audiences. Several of my colleagues suggested I share the new elements of this story, once-forgotten and now-recalled, that change the calculus and make it even more in the public interest.

The case of Winston vs. Bank of America/Countrywide has been reported upon for many reasons. The strong and decisive jury verdict in my favor with over $3.8 M in damages prompted the case to be newsworthy for over two years. So, too, did the unwillingness of any in the legal system to take action against CFC/BAC witnesses for an unending litany of lies as well as document alterations and fabrication while under oath. (See embedded document at the end of this post) There were no repercussions. A seemingly pretextual appellate reversal over two years after the favorable jury verdict has kept it in the news. Whistleblowers and others are concerned that an Appellate Court can deny due process and remove rights guaranteed by the constitution. They are also questioning the legality of this action. I am hoping to have this judgment amended.

A prominent California attorney, Cliff Palefsky, recently went on the record regarding actions taken by the Appellate Court which deprived me of my constitutional rights reversing the favorable jury verdict (said to be “overwhelming” by the Trial Judge on the record). This sets a dangerous precedent.

Mr. Palefsky stated on the record, “This never happens…It isn’t legal.” He then said “The appeals court is not supposed to go back and cherry-pick through the evidence the way this court did. And if there is any doubt about a case, they are legally bound to uphold the jury’s verdict.”

Mr. Palefsky has been included as one of the Best Lawyers in America every year since that survey’s inception in 1986 and was named Best Lawyer of the Year in the San Francisco Labor and Employment Law category in 2011. In 2013, Best Lawyers named him Best Lawyer of the Year in the San Francisco Employment Law – Individuals category. He received his J.D. from Georgetown University in 1977.

Mr. Palefsky has been called one of the “Most Feared Lawyers” by Human Resources Magazine and the San Francisco Business Journal. In 2010 he received the California Lawyer Magazine Attorney of the Year Award for his work as part of a litigation team that obtained a $78.5 million settlement – the largest settlement in the history of the U.S. Department of Education. Chambers USA described him as “the leading plaintiff side employment lawyer in California” and named McGuinn, Hillsman & Palefsky as the leading plaintiff employment firm in the state.

If it is true that “they are legally bound to uphold the jury’s verdict,” I need a lawyer to enforce this for me. The Appellate reversal felt totally contrived, a product of an unholy alliance between the legal system and a too-big-to-fail bank.

The appellate process as it was applied to my case was deeply-flawed. It involved people who were not there and do not know what happened. They may not have even read the briefs, delegating this task instead to law clerks. Even then, the overworked clerks may only scan portions of the material. Appellate documents were pushed back and forth between the two parties. Three times each. With each successive receipt, more and more of the evidence that the jury relied upon in deciding my case was deleted. Vanished into thin air. Thus, this Appellate court decision was based upon sound-bites, half-truths, untruths, edited or radically-depleted records. I have been informed by leading attorneys that the process described above is highly unusual. Purposeful or not, the Appellate Court is depriving people of their civil rights and depriving society of the truth. How many others once victimized and seeking justice will be re-victimized by the legal process? How pervasive is this practice which denies us of constitutional rights?

Lawyer Clay Robbins told me the Appellate Court made a “draconian move. They did it deliberately. You got shafted. You had sufficient evidence to prevail with the Appellate Court. They should have affirmed the jury verdict. They deliberately circumvented your options. Their decision was not judicious.”

Why would a court be suppressing rather than enforcing my rights?

When I accepted an invitation to go work for this rapidly growing mortgage company in 2005, I was eager for a new opportunity and envisioned years of impact, performance and the satisfaction that comes from knowing we made a difference. I was excited to help them build a broadly diversified financial services firm. They told me they wanted me to help them build a “Goldman Sachs on the Pacific.” I served as Managing Director and Enterprise Chief Leadership Officer.

I had no idea I would wind up in a battle that would consume years of my life. I never dreamt the nation’s economy would soon lie in tatters, forcing millions from their jobs and, in record numbers, from their homes as well. I never suspected that my new employer would in a few years come to be known as one of the prime players in a global economic crisis of historical proportions—an institution that Senator Charles Schumer referred to as “ground zero of the financial crisis.” The Great American Dream had become the Great American Nightmare.

Right before my eyes, Bank of America/Countrywide Financial seemed to repeatedly break the law. I saw it and tried to correct it. I was retaliated against mightily for doing so. It is against the law to retaliate against an employee for engaging in a protected activity. I sacrificed my career, personal life and financial stability to do the right thing. I was completely vindicated by the jury. The Chief Justice admitted this saying in the L.A. Times “the California Court of Appeal ruling… did not dispute Winston’s account of how Countrywide executives, including then-Chairman Angelo Mozilo had turned against him.”

This case involved my refusal to misrepresent material facts to a securities rating agency (Moody’s Investors Services, Inc.) and other business integrity issues and my whistleblowing activities (reporting serious health concerns to Cal-OSHA). These acts are protected by the law as a matter of public policy. I tried to stop the malfeasance I observed at Countrywide. I had witnessed what I believed to be blatant Countrywide insider trading, securities fraud and market manipulation. So, too, did the authorities. I had hoped the Board would step in but it was not to be. It was later revealed by Moody’s that there was a reason the outside directors did not act. Moody’s cited as concerns “Limited large public-company senior executive experience among directors” and “Director pay out of line with peers.” (Note- Outside directors were paid twice as much as their peer group, according to Moody’s.)

My warnings were dismissed or ignored by management as well as the SEC. Instead of being rewarded for doing the right thing, I was punished, isolated, tormented, financially harmed and ultimately dismissed.

I may be the only plaintiff who has been able to convince a court of the direct involvement of the top officers of Countrywide Financial – including cofounder, CEO and chairman of the board Angelo Mozilo – in wrongdoing and thus compel their testimony.

My case was a retaliation case, not a wrongful termination case. It is true I was terminated a month after BAC took over, however my case was about the ongoing, relentless, egregious retaliation that took place at least once monthly (usually multiple times) from August, 2006 until termination in end of July, 2008. The jury heard about and saw proof of over eighty adverse employment actions taken against me by Countrywide over a two-year period, starting immediately after my alert to Cal-OSHA about dangerous conditions of a “sick building.” The jury heard and saw proof that dozens of people complained of difficulty breathing, headache and stomach ache, a metallic taste in their mouths and dizziness. Many sought medical attention for these sudden conditions. The jury also saw proof that I had sought mitigation from every level internally at Countrywide before contacting OSHA. It was only when I saw proof of their intent to cover-up, not mitigate, the environmental hazards that I took action. Many witnesses testified that my team and I were retaliated against. The jury heard this. Such retaliation was blatant, relentless and done in plain sight.

The retaliation actually increased when I refused to lie when asked, to Moody’s Investors Service, a ratings agency. I was asked to misstate the truth about the company’s succession plan and other governance issues by Countrywide’s President and COO as well as the Chief Human Resources Officer. My report acknowledged the succession gap clearly noticed by employees and ALL ratings agencies and attributed this to rapid growth, intense market demand and paucity of skills in this area (which is, in part, why my team and I were hired). This was the truthful and appropriate response. I was not going to outright lie and claim there was no gap in leadership. There was. In fact, I urged CFC to file an 8 K form to notify investors of the departure of the President and Chief Operating Officer, considered a material event that is important to shareholders and the United States Securities and Exchange Commission. As early as 2005, well before the mortgage crisis brought the economy to a halt, I had also informed the President of Countrywide Home Loans that their policy of a loan for everyone was neither responsible nor sustainable. I offered to help them change their business model.

When the retaliation, fraud and market manipulation picked up speed, I decided to sue as a means to hold them accountable. Wrongful termination was only the last of over eighty adverse employment actions. The case-in-chief we filed and pled was “Retaliation in violation of public policy.” The wrongful termination claim is much narrower and is not what we argued. The term was never even used during trial until the jurors were asked, after rendering their verdict, to initial a “special verdict form.”

The Appellate Opinion written by the Court was eerily similar to the initial Appellate Brief written by Bank of America’s lawyers. It seemed as if both were written by the same people or one was simply lifted from the other. I found this very worrisome. The Appellate Court seemed to be attempting to rewrite history. They edited evidence, re-sequenced evidence, misinterpreted evidence and completely deleted evidence. They re-weighed the evidence though this is not allowed. They failed to credit the overwhelming jury verdict to me though they are supposed to. My trial lawyer told me after the hearing that the Chief Justice gave BAC the benefit of the doubt in virtually every instance. Yet, the law requires that such benefit go to me, the person who won the jury verdict. Why would Justices show such bias?

Further, instead of fully crediting the jury verdict, the court fashioned some form of additional de facto direct-evidence requirement of what was said behind closed doors. In doing the above they have denied me of rights granted all citizens under the U.S. Constitution.

When a jury verdict is overturned, it always raises the concept of a denial of the right to a jury trial if based on a reevaluation of the facts instead of the law. This would be a violation of one’s civil rights. Further, the Appellate Court re-weighed the evidence on a cold case. There was no new evidence. The case had been over for more than two years when they looked at it. The Appellate Justices were not there and thus, could not hear the intonation, inflection and other manifestations of verbal (and non-verbal) communication that persuaded the jury to grant him a favorable verdict and note BAC/CFC guilt. All they could do was read a cold, dry record.

According to an amicus brief filed by Government Accountability Project (GAP) to the California Supreme Court and signed by Senior Counsel Richard Condit,

The Court of Appeal carved out an exception to the longstanding rule of law leaving matters of credibility, the drawing of inferences, and making judgments concerning the weight of evidence to the jury. Instead, the Court of Appeal nullified the jury’s determinations and substituted its assessment of the record for those of the jury and trial judge. Such a departure from well-established principles of law creates a conflict among the Courts of Appeals and conflicts with the prior rulings of this Court.

Mr. Condit then stated that “respect for the jury’s determinations is the rule in California and likewise the rule in the federal system.” The Justices are supposed to credit the jury’s interpretation. They did not. GAP’s Senior Counsel continued, stating “this result is contrary to and in conflict with California precedent and prevailing federal precedent in whistle blower cases.”

Further, attorney Palefsky notes that the Appellate Court not only re-weighed the evidence, but pretended not to. He noted the Court gave full credit to BAC/CFC testimony (which was proven to be fraught with countless lies on issues material to my case.) This is unlawful. Further, he opined that the Court gave NO credit to me for getting the jury verdict. This is also unlawful.

Still further, according to the Trial Judge Bert Glennon Jr., when denying BAC’s claim for a Judgment Notwithstanding Verdict and supporting my victory, “there was a great deal of evidence that was provided to the jury in making their decision, and they went about it very carefully and took their time. As this Court has noted, trial judges have the unique opportunity to consider the evidence in the living courtroom context, while appellate judges see only the cold paper record.” This, too, is on the record.
Given the above, how is reversal even possible? How is reversal even legal? I am told it is not. I believe the Appellate Court violated my constitutional rights. The precedent this sets is too dangerous to go unchallenged.

The facts speak for themselves. So did the jury, which voted overwhelmingly in my favor and gave me the verdict. The weight of the evidence supported the jury verdict. Thus, while the Appellate Court states they have “scoured the record” and found no support for the claim, the record actually shows abundant evidence. In fact, our evidence was so overwhelming that the trial judge informed us twice that we had met the sufficiency criterion and instructed us to submit no further evidence as the Judge and jury had heard and seen more than enough. It is on the record.

It appears the Appellate Court overlooked or ignored the evidence. It is the purported absence of evidence where such evidence is abundant that the alarm bells should go off.

The real story is that the appeal court can manipulate facts, law and legal issues to justify the conclusions they want to reach. I have learned firsthand that the case one reads about in the published opinion can bear little resemblance to the case actually presented to the lower court. To make matters worse, judges have absolute immunity to any suit seeking remedy for grossly erroneous decisions no matter how negligently, recklessly or maliciously the judge acted in depriving a deserving party of a just judgment. This is almost farcical. Who judges the judges?

I am advised this occurrence – a high profile case in which a seven figure verdict was reversed on appeal with no option for remand or retrial – is extremely rare. Then the California Supreme Court declined my petition for certification. Case closed. This is rarer still.

I can refute with evidence virtually every conclusion reached by the Appellate Court. In most instances, the opposite was true as reflected in a document which uses actual trial testimony to refute most assertions by Appellate Court. Documentary evidence refutes the remainder. This must not stand. If it does, it will happen set precedent and happen indiscriminately to others. Is this yet another way the too-big-to-fail banks are protected?

Why is the Appellate Court breaking its own precedent? Why is the Appellate Court breaking federal precedent?

Because of this, so many wonder what is the true nature of the relationship between the Courts and Bank of America? These kinds of wrongful actions are contributing to a trust deficit in our legal system, according to Harvard’s Kennedy school).

We won the Motion for Summary Judgment.

We defeated their motion claiming lack of standing.

We successfully defeated their Motions in Limine. As a result, testimony was compelled from the Top 5 Countrywide officers.

We won a jury verdict after a nearly month-long trial. The victory was referred to as “overwhelming” by the Trial Judge.

We defeated their Motion for Judgment Notwithstanding Verdict (JNOV).

Over two years later, the Appellate Court re-evaluated the evidence. It is like they are erasing evidence already on record. The Appellate Court fully credited BAC/CFC testimony, which was rightly deemed to be perjured by the jury. The Appellate Court did NOT credit my favorable jury verdict. I am told this is against the law and unconstitutional.

We petitioned for Rehearing by the Appellate Court. They refused.

We petitioned for Hearing by the California Supreme Court. They refused.

On July 14, 2013, President Obama urged Americans on a totally different issue to respect the jury’s verdict saying “But we are a nation of laws, and a jury has spoken.”

Well, the jury has spoken in the matter of Winston vs. Bank of America/Countrywide. We must respect the jury verdict.

The jury system was created to prevent judicial bias and influence peddling by the rich, connected and powerful. The idea was to achieve balance by introducing the perspectives of a jury of twelve of one’s peers. Instructions to the jury in my case in January and February 2011 advised them that they were “the sole and exclusive judges of the believability of the witnesses and the weight to be given the testimony of each witness.” The instructions added: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others.” The role of juror was stated to jurors by the trial judge as “trier of fact and determiner of fact.”

The jury in my case deliberated long and carefully for 2½ days. After a process spanning nearly a month, the jury rendered their verdict in my favor. They concluded I did the right things and told the truth about them. Further, they concluded, BAC/CFC did the wrong things and lied to cover them up. Why convene a jury only to totally ignore its verdict? The American system is based upon respecting, not usurping, the jury verdict.

In fact, the Los Angeles County Appellate Court’s own website affirms that it must accept the jury’s findings as fact. And that the Appellate Court cannot retry or renegotiate facts: “On an appeal from a judgment after a trial, the appellate court will reverse the judgment only if it finds the trial court committed legal errors that were prejudicial during the trial.”

However, legal errors were not committed. Clearly, the evidence was reevaluated by the Appellate Court. However, this reweighing of the evidence is specifically NOT the charter of the Appellate Court. Reviewing the evidence is the charter of the Trial Court only. California law mandates that the Court “view the evidence in the light most favorable to the jury’s verdict.” By failing to do so, the Appellate Court is breaking the law they are sworn to defend. Further, the law states, “Trial courts resolve both legal and factual disputes, but appellate courts consider only legal questions. They do not reweigh the evidence, and they do not reassess witness credibility.”

I am filled with worry, not only for my case but for our country. Why are the rules being violated by Justices who are expected to follow them? How can we ensure a Court free of bias? Will this decision thwart the seating of future juries when they learn their time, talent and opinion can so easily be “tossed?” And now in the face of fraud, abuse and wrongdoing, will anyone stand up and speak truth to power when a jury verdict broadly vindicating their actions is so easily ‘tossed out’? This is bound to have a chilling effect on whistleblowers everywhere.

My worry intensifies. Why are the justices not focused on the real issues in this case? We documented hundreds of lies by witnesses for the defense (Countrywide and their successor Bank of America)… deliberate, egregious, blatant, and no one has been held to account. Likewise, we fully documented witness tampering and obstruction of justice. Countrywide was proven to have falsified documents and fabricated others. These offenses are against the law. Are Bank of America and Countrywide above the law? Is the reversal of the jury verdict and court ruling just another example of unwillingness to punish too-big-to-fail firms? The Untouchables, indeed.

Over two years after our legal victory called “overwhelming” by the trial judge, the jury verdict was “tossed out.” On what grounds? There was no new evidence. My winning jury verdict was reversed on the same day and time as I was presenting at a Government Accountability Project conference on whistleblowing in Florida. Coincidence? I think not. More likely, a warning to whistleblowers everywhere.

Seven years ago, we began this process seeking justice. Justice was denied. The bad guys get away “scot-free.” The good guys get punished. How does one get justice in California?

In early 2011, twelve jurors listened and watched for nearly one month, and then deliberated for two and a half days, returning a verdict finding serious violations of the law. A learned and highly experienced trial judge, after hearing and seeing the same evidence, concluded there was, indeed, legally sufficient evidence to support the jury’s verdict.

Over two years later, on a demonstrably “cold case,” three justices on the Appellate Court claimed they found no evidence and that judgment should accordingly be rendered against the verdict. This is just factually untrue. They then said that Bank of America was not responsible for Countrywide’s misdeeds. This is also factually untrue.

There is something very wrong here. The Appellate Court has not been granted the power to ignore or undermine the law. They cannot decide which laws they will comply with and which they won’t. Indeed, the Judges have an obligation to the American people to faithfully execute and uphold the law. Like you, I am worried about the possibility of an eroding rule of law in my own country. I believe the Appellate deck was stacked. This is unconstitutional. The Court is expected to enforce the law, not ignore it, distort it or subvert it. Justice was not only denied; it was undone.

I am seeking a strong legal advocate to help me get justice.

Countrywide Trial Perjury – Supporting Documents

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  1. Banger

    Reading your post saddened me and my heart goes out to you so peace be with you. You did the right thing on down the line and as we used to say (all the time) in Washington “no good deed goes unpunished” and we weren’t joking either–it was, by the end of my career in Washington implied in everything one did–ok, I’m exaggerating just a bit for effect.

    The U.S. Justice system is, like every other major political sector in the U.S. deeply and, in my view, hopelessly corrupt. Not every judge or prosecutor or lawyer is a weasel but enough are and they are seldom punished and usually rewarded. It would almost be easier if rampant corruption was the case (and it will probably be, eventually) because at least you’d have a predictable system rather than the capricious one we have today. The system as a system is is corrupt and that is worse than a system with individuals who are corrupt. What you have experienced is the same sort of bizarre “justice” that is administered in criminal courts to the poor. Some people get years of jail time for minor offenses, some people get 18 months for rape or a few years for murder, many people get off and many people are falsely accused and are executed for crimes they did not commit but confessed to under torture.

    We are at the point, as I’ve said many times here, when it is time to create alternative political structures, alternative economics that need to spring up between the cracks of this broken system. The good news is that this is still possible but it requires a major change in consciousness and the understanding we no longer live in a Constitutional Republic but in some transition-state. This understanding will eventually motivate people of good will to seek alternatives–it doesn’t take that many, say five million.

    1. diptherio

      I read somewhere not to long ago that social movements that get 3% of the population to actively support them are virtually guaranteed victory.

      1. John Mc

        The math suggests this is 9.54 million Americans.

        There are probably more people eating breakfast at McDeath this morning.

        The question is not harnessing numbers. Numbers will increase with the quality of the underlying idea. What idea(s) is/are important enough to invigorate participation through direct action?

        1. Banger

          The organizing idea consists of the fact we we are living in a civilization that has ignored its designated wise-people (scientists) upon whom our civilization, to an large extent, is based. Climate change and environmental degradation is the issue and idea upon which to organize all political and economic institutions. All other issues are almost irrelevant even if the scientists are radically wrong. What human beings are doing, essentially, is destroying civilization out a sense of nihilism and collective madness. The fact this is so glaringly obvious is a testament to that madness. We need healing and then more healing.

          To the degree we cooperate with this system and don’t actively try to build alternatives we are culpable–and we are all culpable myself included.

          1. diptherio

            Agree. We have to act on our knowledge and our convictions, else that knowledge and those convictions are meaningless.

            You’re down South, no? If you haven’t already, you might like to visit Dancing Rabbit Ecovillage in MI. A recognizably middle-class lifestyle on 10% the standard ecological footprint:

            https://www.youtube.com/watch?v=k3UNL6ueUjU (20 min. talk and slide show from a founder)

      2. Vatch

        The key word is “actively”. Few people actively support any political movement. Exceptions are religious fanatics and people who are paid to support a movement.

        Look at the issue of internet neutrality, which is important for the dissemination of news stories such as the persecution of Michael Winston. Millions of people support internet neutrality, but few actively support it. 318 million people live in the United States, but only 74,684 people have taken the simple step of signing the petition at the White House petitions web site. If 25,316 more people don’t sign by May 24, the White House won’t have to make a formal response, and The Powers That Be will know just how weak the support for an open internet is. The Oligarchs are winning.

    2. Michael G. Winston

      Many thanks for your sage, kind and sensitive comments.

      As for a change in the system, count me in. The system is working for no one but those who abuse it and others. We must put down our politically correct rhetoric and embrace our humanity and do the right thing. Count me in on any movement started toward those objectives.

      Michael G. Winston

  2. h_rostam

    shitty story… these people are hard to mess with. Primarily, I find that the media needs to do a better job… someone call David Simon… however that PBS documentary is pretty good.

    1. Nathanael

      You need to get this into the Los Angeles Times.

      And the Appellate Court “judges” need to be named and shamed, too.

      There’s also a federal case here. Expensive (sigh), but local appellate judges violating bedrock principles of the legal system is grounds for a federal due process claim.

      1. Michael Winston

        My experience is the Los Angeles Times leans heavily toward the big banks, especially BAC/CFC. I am not confident they would print anything critical of them, no matter how unassailable the evidence.

        Regarding the need to name and shame Appellate “Judges,” many people have been imploring me to do this for a significant period of time. This is an idea whose time has come. Lastly, what is your degree of confidence regarding a federal case? If this is true, I will pursue it as I have felt denied of all rights since the wrongful reversal.

        Thank you very much.

        Michael G. Winston

        1. Michael Winston

          Does any reader know of an amazing lawyer who can help me achieve justice in this polluted legal envoronment? For what are obvious reasons, I have little faith in Courts, lawyers, the system itself and, especially, judges. I need somebody very good, who is also guided by integrity and morals.


  3. diptherio

    Reminds me of the bad old days of the Copper Kings here in Montana. The courts have been purchased with the criminals’ ill-gotten gains. The rot has become so bad that it is now plainly visible, but nothing will be done. Who judges the judges? Why no one, my dear, no one at all. Those with the authority to stop the abuses are themselves complicit in them. The rot proceeds from the head–the worst are full of passionate intensity–the center cannot hold.

    If we keep down this road (which we will) we’re headed for either nastier and nastier oppression by our criminal overlords, or complete societal breakdown, as gov’t authorities lose all credibility. My bet is the former, though I hold out hope that people are courageous enough to prefer the latter. We’ll see…

    1. Lambert Strether

      “nastier and nastier oppression by our criminal overlords, or complete societal breakdown”

      Or? I think people will be courageous enough, but it might vary by region and could vary by motive. My recollection, too, is that nobody thought that another continental, imperial, multinational, multilingual federated sclerotic police state would fall apart either. Then it did. It would be pretty funny to see economic experts from Moscow University flying into Jesusland to advise on neo-liberal reforms…

  4. ToniM

    At this point, they no longer need to hide or pretend to follow the (already heavily flawed) processes supposed to govern their power. I applaud you for not retreating from your principles, and wish you good luck finding recourse.

  5. tiger

    This is indeed one of the most sad things I ever read on America. Really worries me. What exactly is going on? What are the mechanics of courts being compromised? This needs thorough investigation

    1. Michael G. Winston

      Thank you for your comment. I am pushing for an independant review of the Appellate Court actions. When several prominent lawyers go on the record and state that laws were broken, you can bet they were. I have been in the eye of this storm since 2006 and I would swear laws were broken.

      A government expected to protect us from white-collar criminals is instead protecting white collar criminals from us. The protections supposedly afforded us by this great country have vanished into a melee of blatant, over-the-top fraud, misrepresentation, and corruption. Our legal system looks the other way, giving them a pass. It’s not right and will continue to erode the rule of law, and therefore our stature on the world stage.


      1. Nathanael

        You should have a federal case for denial of due process, or something similar. The Appellate Court action appears to be ultra vires.

        1. MaroonBulldog

          Ultra vires? Really, Nathanael? Really?

          Here’s an excerpt of relevant language in Section 629 of the California Code of Civil Procedure, [with added comments tying its prescriptions to the decision to this case]:

          “If the motion for judgment notwithstanding the verdict be denied [as the trial judge denied it in this case] … the appellate court shall, [‘shall’ is mandatory] when it appears that the motion for judgment notwithstanding the verdict should have been granted [as the appellate court said was shown in this case] order judgment to be so granted [“so granted” here refers to “judgment notwithstanding the verdict]’ on appeal from the judgment or the order denying the motion for judgment notwithstanding the verdict.”

          In short, this statute explicitly authorizes the Court of Appeal to substitute its own judgment for that of the trial court concerning whether a judgment notwithstanding the verdict should have been granted.

          You really should read the appellate court’s actual decision, not just a description of that decision, before making statements about what its action “appears to be.” It is not ultra vires to do what the statute authorizes the court to do. The federal courts would have a hard time saying it’s a denial of due process, when the federal courts of appeals do the same thing themselves.

          You may have to type this link into your browser to retrieve the actual opnion, but it will work if. Read this and you’ll see for yourself what I mean.


  6. Goyo Marquez

    I wish this was better written.
    It’s hard to discern from this very long article what the underlying facts are.

    He asserts that he won summary judgment and then won a verdict at trial. That’s generally not possible. Summary judgment’s, which are very, very, very hard to win, are, as the name implys, judgments. If he really won a summary judgment there’d be no reason to proceed to trial. I’m guessing he means they didn’t loose the defense’s motion for summary judgment, the judge ruled in their favor, a ruling which means that there are questions of fact which need to be presented to a jury. He should have said, we prevailed against the Banks motion for summary judgment.

    I’m on his side. I want to believe that the appelate court was wrong, but he hasn’t done a very good job of presenting his case.

    1. John Mc

      I think this speaks to the need to create some images of what has and is happening to this man. When we are wronged, we tend to get into the minute facts as if they are water. The average person would have difficulty reading this and really fathoming how extensive this operation has been on the writer.

      In the current crapified world, I am not sure people will understand this to the extent this story demands. Unfortunately, in a decaying society, the masses need images, narratives, and characters to contextualize. This lack of imagination is startling, but then again the more we see Angelo Mozilo, the more understandable this entire charade becomes.

    2. Vatch

      I don’t think he won a summary judgment for the case to be decided in his favor. I think he defeated the Bank’s request for a summary judgment to have the case thrown out before the trial. By winning against the summary judgment motion, he won the right to a trial.

      1. Michael Winston

        BAC/CFC filed for summary judgment, claiming we had no evidence. After a two week hearing, revealing hundreds, if not thousands of documents in evidence, the Judge denied them their motion. Then, after nearly a month, we won an overwhelming jury verdict.

        I am not a lawyer. Going up against BAC/CFC was my first time in Court. Some of the verbiage may have been imprecise. However, the quotes are clear. The Appellate Court ruling is unlawful and unconstitutional. I must find a lawyer who will advocate for me. BAC has squadrons of lawyers helping them once again, defraud to Court and obfuscate the issues. The Appellate Court was obligated to affirm the jury verdict.

        Thank you for your comment.

        Michael G. Winston

        1. David

          Brother – you are hero for your actions. I’d recommend taking your evidence public for ALL TO SEE. Frankly, I believe we need a militia to take-on these corrupt institutions starting at the attorney level. Once these lying thieves start witnessing the retribution they’ve certainly earned – their weasel house of cards will tumble. It is clear we can no-longer depend on our government or so-called legal system to protect the regular citizens. I don’t normally ever recommend violence but maybe the Bundy-herdsmen have tapped on-to a truly American idea… I think Jefferson suggested the same in our Declaration of Independence… but hey, maybe that’s just me.

          What will it take to make them stop and listen?
          Keep the powder dry

          1. Michael Winston

            Thank you for your comments. I am contemplating how to do just what you suggest regarding making all evidence public.


            1. David

              Hi Michael,
              If others (borrowers) may use your evidence to fight foreclosures, it might be worth it to selectively find several key cases and create a “mass-action” suit – note this is not the same as a class-action. In doing-so, you will reek havoc on them especially if it is well organized and the attacks were made in multiple states at the same time. I highly recommend finding borrowers in NY as part of a separate mass-action there too.

              Regarding going public with your info… Keep in mind – they will attempt to claim “trade-secrets” and other non-sense to keep their illegal-acts secret. So, IMHO – I’d be looking to create multiple websites and distribute the information between them. In-other-words, you want to make this painfully EXPENSIVE for them to track-down and remove. Eventually, they may figure-out that it might be best to pay-you enough to go-away.

              Your case is odd and I’ve heard through some good-folks that David Boies might be interested in taking something like this-on. Look up his name and you’ll know why… and don’t worry about the political-stuff. He’s a great lawyer and litigator who is passionate for the underdog and good cause.

              Just a thought

              1. michael Winston

                I recalled David Boies’ name from the PBS Frontline show entitled “The Untouchables. ” I also appeared on that show and helped the producers with much evidence that gave substance to segments of that show.

                I researched Mr. Boies and then emailed him with a background on my case and an invitation to contact me.
                I will let you know if he is interested. I am ready to continue the fight for justice if I can find someone ethical who wants to, and can, help me and people everywhere who are unwilling to sacrifice principles for profits. I turned down several settlement offers because they refused to admit wrongdoing or make changes to their business practices.

                I am still seeking justice, but doubt the justice system will allow this.

                Thank you,
                Michael G. Winston

    3. Yves Smith Post author

      I understood what he meant. A motion for summary judgement is always filed by the opposition, it’s a bog standard move. And I wouldn’t be so dismissive of them. I’ve been involved in cases where surviving the motion for summary judgement was not a given.

      1. Goyo Marquez

        Well… the party that files a motion for summary judgment doesn’t think of itself as the opposition.

        In California summary judgment is a motion asserting there are no factual issues in dispute and therefor all that remains is for the court to apply the law to the agreed-upon facts. You can see how that might be a very difficult standard to meet.

        The motion for summary judgment is usually used just to search out the opposition’s case since the response requires declarations of evidence and facts.

        1. Yves Smith Post author

          No, a motion for summary judgement is more often filed by the opponent saying there is no case here. It’s a call for dismissal.

          1. Goyo Marquez

            Hmmmm… Here’s CCP 437c (b)(3)
            “(3) The opposition papers shall include a separate statement that
            responds to each of the material facts contended by the moving party
            to be undisputed, indicating whether the opposing party agrees or
            disagrees that those facts are undisputed. The statement also shall
            set forth plainly and concisely any other material facts that the
            opposing party contends are disputed. Each material fact contended by
            the opposing party to be disputed shall be followed by a reference
            to the supporting evidence. Failure to comply with this requirement
            of a separate statement may constitute a sufficient ground, in the
            court’s discretion, for granting the motion.”

  7. John Mc

    If this were me, I might try to contact Dr. Bill Black (criminologist, former regulator) who has a deep understanding of fraud, large financial institution/legal system retaliation, and has a voice/forum to challenge this. I suspect he would be a tremendous advocate.

    Amy Goodman might be another resource to consider as Democracy Now is another platform to make this story known (which may be bring in additional expertise, resources etc.) Of course Yves, is well versed in the culture financial media resistance as well (Bill Moyers & RT). And then, there are graduate programs in film school who might be interested in making a tangible documentary of this — to make the record much more understandable.

    As I enjoy reading, this article works for me, but we live in a culture where images tend to dominate our lives (Chris Hedges discusses this – spectacles and iconography used to persuade us). A powerful tool to use against the system is the documentary in reshaping the narrative that is “wide scale systemic fascism”

    This story needs much more attention. Many thanks to Yves for sharing this.

    1. Michael Winston

      Sent email to Bill Black, whom I have contacted requesting help a couple of times before and reached out to Amy on her web-site. Fingers crossed. As I am one of the very few who rejected all settlement offers and thus am not gagged, I would love to assist on the making of a candid look at the systems and institutions that failus and betray us.

      Thank you.

  8. Deloss

    I’m not a lawyer, nor do I know any. I assume it’s possible to re-petition the California Supreme Court. Would Palefsky take the case? Would Robbins?

    I’d send this out to the press, especially to anybody who originally covered it. I’d see if Bill Moyers will do a follow-up.

    I’d get in touch with the persons named by John Mc above.

    I’d get in touch with my elected representatives, and the California AG.

    I’d start a petition on change.org and try to get funding.

    Good luck.

    1. Michael G. Winston

      Great suggestions. I will try all.

      Eight years ago I started my quest for justice. Got it with jury verdict, trial judge ruling and jnov. Then justice was denied by appellate court in a sequence told to me as one-in-a-million and unlawful (for reasons we can only speculate upon.) However, I saw this process up close the entire time. I am determined to seek reforms and to prevail. What happened here feels more as though I am in a third-world country than one which touts American Exceptionalism.

      Thank you,
      PS As I saw the fraud in 2005, years before the financial meltdown and reached repeatedly out to management, justice department, district attorney, LA County Sheriff’s Department, SEC and none were responsive, perhaps all had a vested interest in tanking the economy and/or covering up their gains for doing so.

      1. Nathanael

        There is a federal case here too, thanks to the appellate court doing something completely abnormal. You *should* be able to interest the California Supreme Court, but if you can’t, there is a federal case.

        Constructing that case is going to require an expert, though; most federal cases to deal with corrupt state judges require very careful construction.

    2. Michael Winston

      Thank you for your many fine suggestions.

      Will go to work on them.

      Even at the inception of my legal matter I always believed that if the deck was not stacked and if the facts of the case emerged, I would prevail. We had so much evidence and the jury was very attentive. When they announced we won our case in chief, I was thrilled, but not surprised. After nearly a month of trial, several in the jury hugged me at the very end and said very flattering things. That said, I had seen such wrongdoing during my stint at Countrywide, I was always leery that influence, power or money could be exchanged that might influence the outcome.

      Thank you.

  9. down2long

    Mr. Winston, Thank you for trying. I am sorry it has come to this in this country. I had a similar situation in Fed. Bankruptcy Court – two banks were refusing my court ordered payments. The judge would not sanction them. (Really, if a Fed judge will not honor the BK laws, who will?) As a result, when Chase chose to foreclose one a paid up, but expired loan, my credit was shot and I couldn’t refi out. The judge would not grant me a stay.

    As a final hail mary, I paid off all my original creditors a year early, and asked the judge the discharge my case so I could file a new Chapter 11 to get an automatic stay. She refused.

    I refused to ever go back to her court. (I had sued in the interim one bank, and settled with them, the other is pending.) Once Chase got the building, she discharged my case two months later. Nothing had changed.

    I applaud you for going forward. I am also very happy I dragged Chase through court twice (once prevailing) over their evil ways. I did other things to slow down and screw Chase’s elective foreclosure, so much that they lost 2/3 off the loan balance through lost rents, legal fees, and fines. Someone has to step up. The courts are riven with bought judges. (In my “judges” case she’s looking for a payoff with a creditor bk firm. However, she so consistently rules against debtors that she is reviled by debtor lawyers, and thus, it is unlikely a firm will hire her because no one would work with her on settlements, etc. This happened once before with a Fed BK judge here in L.A. who so hated debtors the BK Bar petitioned the 9th Circuit not to renew her term, which it did not, That hated woman now works at an “800 Law” type firm. Small comfort, but some comfort just the same.)

    Mr.WInston, please let us know how I can help (donation, etc. for further appeals.) Granted appeals here in Cali are almost non-existent – I’m sorry for you that this appeal was granted. But I am not surprised, sadly. Courage.

    1. michael Winston

      Dear Down2long,

      I am still trying but frankly discouraged. See my other replies and note I have reached out to all contacts or experts suggested. Though its still early, thus far I have heard from none of them. If you can interest a great lawyer in this case, that would be superb help.

      Ironic that so many lawyers approached me unsolicited when I won my case (jury verdict and judicial ruling and court order). Dozens wanted me to head up class action suits or even civil or criminal RICO charges. Yet, none are now coming forward. However, I believe the complicit judges afraid to take on the corrupt financial services companies make this a more important case than that before my legal victory got wrongly overturned. I am reaching out to several lawyers. We will see if any are interested.

      As of now, I believe they are all in it together; judges, lawyers (both sides), etc. I would love to be proven wrong.

      Many thanks,

  10. leapfrog

    It is almost like they had planned to reverse judgment and verdict from the outset.

    Not “almost.” They WILLFULLY and INTENTIONALLY planned to reverse judgment and verdict from the outset. In fact, the fraudsters and their crony bought-and-paid-for judges were probably quite angry that you even got as far as getting a judgment and verdict that wasn’t in their favor in the first place. They’d be damned if you were going to win!

    1. Nathanael

      It’s worth seeing if you can figure out the actual nature of the corruption. I’m not sure quite what to do with the information when you find it, but if you can spot bribes or blackmail going from the banks to the appellate judges, I’m sure it’ll help.

  11. Abner Doon

    The system is rigged.

    Many Wachovia shareholders lost as a few insiders profited from material undisclosed information, and it didn’t matter.

    When Wachovia Bank’s stock price last traded at $27.07, the firm borrowed $3.5 billion from the Federal Reserve’s Term Auction Facility (TAF) which was not disclosed to the firm’s shareholders or reported in the company’s legally required SEC securities filings.

    If Wachovia had disclosed it had borrowed billions with billions more on their credit line, confidence in the company would not have suffered to the extent that occurred, meaning if they had told the truth as was required by law, a whole lot of local shareholders wouldn’t have lost so much money.

    About six months before the merger with Wells Fargo, Wachovia’s new CEO Robert Steel, formerly the principal adviser at the U.S. Treasury Department on matters of domestic finance under Hank Paulson, purchased 1,000,000 shares of Wachovia’s stock as the company’s TAF borrowing reached an undisclosed $12.5 billion.

    $42,672,115,305 of Wachovia’s market capitalization disappeared between the first undisclosed TAF loan and the Wells merger.

    After not reporting Federal Reserve loans and purchasing shares while in possession of undisclosed material inside information, the Wachovia’s CEO wrote “I, Robert K. Steel, certify that: I have reviewed this Quarterly Report …of Wachovia …this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading…”

    The Sarbanes-Oxley Act requires executive officers and directors to personally attest that SEC securities filings have been personally reviewed and financial statements fairly present, in all material respects, a company’s financial condition.

    Not reporting the Federal Reserve material borrowings, credit lines, terms and interest rates was a violation of Sarbanes-Oxley.

    Wells Fargo also borrowed from the Fed’s TAF program and didn’t report it, which was finally disclosed to the public subsequent to congressionally mandated legislation and civil legal action.

    On Nov 28, 2011, Bloomberg published “Secret Fed Loans Gave Banks Undisclosed $13B,” which stated “The Federal Reserve and the big banks fought for more than two years to keep details of the largest bailout in U.S. history a secret. …Bankers didn’t mention that they took tens of billions of dollars in emergency loans at the same time they were assuring investors their firms were healthy.”

    Bloomberg estimated the profits from the undisclosed Federal Reserve Loans was $878.2 million for Wells Fargo, and $149.4 million for Wachovia.

    After most of Wachovia’s shareholders were locked into losses on completion of the merger, Mr. Steel ended up far better off knowing what most didn’t. In 2010, Steel was appointed Deputy Mayor for Economic Development by New York City Mayor Michael Bloomberg, whose news division initially reported the secret loans. According to Morningstar data, Mr. Steel owned 601,903 shares of Wells Fargo in 2010, which was worth more than $20 million in 2012.

    A few months later U.S. Attorney General Eric Holder stated under oath “I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy.”

    In my view, Holder threw Wachovia’s shareholders who lost money under a bus by choosing to not enforce the law.

    No accountability. No prison sentences. No apologies. Very little if any news industry coverage. Even Bloomberg didn’t bother to follow up on their own story.

    Welcome to the new America. Two sets of rules, and most of the folks who are supposed to tell you about it don’t.

  12. yan

    Complete devolution to Banana Republic oligarchism. This sounds like the court was outright bought, or that somebody higher up in the judiciary was outright bought and then bought the court.

  13. tawal

    I recall the couple who won a wrongful foreclosure against BAC, in Florida I believe, and after not receiving their court award, they marched into their local branch with the sheriff and the judgment and started having property removed. I think they got their check before they left. Once this matter get’s overturned in your favor Michael, you may have to follow that same process to get paid by these criminal welchers.

    Cheers, tawal

    1. Michael Winston

      Many thanks. You put a smile on my face.

      I have never imagined such collusion and corruption could exist. I spent so many years working for companies of principle and character. Then this…


  14. yingyangfarms

    Man, these are the ones that hurt. So sorry!

    Can’t offer much of anything, other than that I’ve been there (in smaller situation,) and that I guess it’s a victory that you’re still around…

    It’s a heck of a fight we find ourselves in, and the deck is seriously stacked – look at Kiriakou, Drake, et.al – lose your job/career, maybe go to prison, and that’s if you are lucky!

    Looks like Greenwald will avoid that fate, being brought into the fold and all…And I can’t really blame him – who needs it – the odds are so against the private citizen that it’s really better not to play right now – I know that’s not a real popular stance to take, and I get that, but man, you have to pick your battles, and now is NOT A GOOD TIME!

    Thank you for what you have done, and best – wish we could offer more!

    1. Michael Winston

      Alas, you may be right. Shame on our nation if true.

      In the face of fraud, corruption and abuse, we are lost if we do not have people who stand up and object, resist and prevail. That said, I spent some quality time with Tom Drake a month ago and was deeply saddened by the suffering he was forced to endure.

      Many thanks for your thoughts.

  15. bill frank

    Justice is just another great American myth. Similar to American Democracy. No such thing.

  16. H. Alexander Ivey

    Why not post the circuit judges names, office address, telephone number and email? Then concerned citizens can ask the judges directly for their reasoning on this matter.

  17. H. Alexander Ivey

    That is, if the whistleblower has full exposure of name and addresses, why not the judges and the others involved in this matter?

  18. Mary Malone

    You are a brave soul, Michael. And the battle has just begun.

    You are not alone. Homeowners and bank employees are organizing around the country to get justice – outside of the court room.

    There are two fields of battle – the court room and the court of public opinion.

    In courtrooms, we have to play by their rules – and they don’t. The banks have bought off both the state and federal courts. There are rare exceptions – but as evidenced in your case the fix is in.

    In the court of public opinion – we can take all kinds of actions that publicize banks bad acts. Here, we are in control. We set the rules. They don’t.

    This is where we win.

    If you haven’t already, contact Home Defenders League, an activist org in Atlanta that is helping homeowners around the country. It’s a very simple and powerful model – that works.

    Homeowners write a short petition – they tell their story about specific injustice by a specific bank/servicer. In your case, I suggest you start with removal of the $96k lien on your home.

    You tell your story in the petition – which you circulate to all your contacts and HDL features on their website. You ask people to support you in the fight against BOA, sign the petition.

    Once you obtain the desired number of signatures, you print out the petition and deliver it as an action at BOA – featured on social media, news media.

    BOA will call you – and ask you what you want. You, along with your trained negotiator, will well, negotiate the terms of your deal. You agree to stop the action – could include call-ins to BOA CEO, protests at BOA branches, when you receive written agreement from BOA to terms of your deal. Win win for everybody.

    I suggest you focus on the $96k lien BOA levied on your home – because it is a simple element of your story – completely unjust. It should resonate with majority of Americans who are in the fight against the banks.

    Also – when this phase is resolved and you have to go back into court on the larger issues of your case – be sure to bring a cadre of homeowners, media and attorneys to sit on your side of the courtroom. This is a very powerful weapon that terrifies the banks and the judges. Could get you a settlement.

    This is never easy – but there are more of us than there are of them. This is our strength.

    Time to make some noise!

  19. Michael Winston

    As we have again experienced, whistleblowers and their allies are frightening to those who fear the truth. The clear, unvarnished revelation so needed is so feared by many. This is precisely why it must be exposed.

    When we rail against violation of the rule of law, it is our way of stepping up, standing up for what is right and refusing to take systematic intimidation lying down. We should not allow it to derail the progress we were making. I will not allow this in my case.

    Thank you, Mary for your suggestions. I will reach out and try.


    Michael G. Winston

  20. matt weidner

    I see this kind of court-sanctioned terror played out every single day on homeowners in foreclosure courts. Trial judges attacking homeowners and their attorneys, while bending over backwards to help the banks, trial judges who quite literally force themselves to avert their eyes away from the tainted files they are signing off on. I remember the first appellate opinion that came back with my name on it….the facts changed from the trial court. More and more, I would contact trial attorneys on appellate cases and find how the appellate decisions were altered to fit the facts….not the facts at trial…but the facts that supported the decision as written. The truly terrifying thing is that the entire justice system has become so fatally flawed that there is no turning back. The only thing that will change this awful course this nation is on is the coming systemic wide economic crash. And when the history of this final crash is written, the primary culprit will be fraud and systemic crimes that were not just allowed to run amok, but which were active encouraged and participated in by the government. Keep up the good fight. Keep telling your story. Consider an abbreviated, bullet point version. Consider one of those kitschy cartoons that allow you to “voice” the characters in dialog through text….make that an internet meme…

    1. MaroonBulldog


      There are some things different about this case, though. The bank didn’t sue Michael Winston; Michael Winston sued the bank. And Michael Winston had no complaints about the treatment he got from the trial judge; his complaint is that the three appellate justices must be corrupt because they had a different opinion and reversed the trial judge’s decision to deny the defendants’ motion for judgment notwithstanding the verdict.

      Whoever starts a lawsuit accepts the Code of Civil of Procedure that governs trials the court in which he filed. The California code includes section 629 (discussed in a post above), a statute that says the appellate court justices, not trial court judges, get the final say on whether or not to enter a judgment notwithstanding the verdict. The California code also includes section 1032(b), which says: “Except as otherwise provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Michael Winston has a lien on his house today because he hasn’t satisfied a judgment debt for the costs that the prevailing party–the bank he sued– is entitled to recover.

      Cry me a river. When Michael Winston filed his lawsuit, he took the risk that things might not go his way. Things like this happen to plaintiffs, when things don’t go their way.

  21. Lee Perry

    I sympathize with Michael, but from the little law I have read wrongful termination cases are the most subjective area of law in practice. The CA courts are like a visit to a Las Vegas casino. The house always gets its percentage. The biggest losers are the Wheel of Fortune and roulette. The smaller losers are keno, slots, and blackjack. Wrongful termination is a wheel of fortune bet.

    However, I have a case of clear title, slander of title, and violation of 2943 before the CA App court. When I asked them for a copy of their draft ruling before oral arguments, I was denied, but they recommended I focus on the question of whether an agent of a contested holder in due course can have an agent have their agent file a notice of default. It was revealing to me because there are no facts supporting either contractual or ratified agency by way of written documents necessary to enforce title-affecting transactions. It’s all a presumption given to the banksters ‘inappropriate for incarceration’ in a summary judgment where the presumption is, by law, given to the defender of the MSJ (the homeowner).

    Now, this should be closer to slots in risk, but here we have the courts changing the odds for a particular case. So I am among the 2/3 of Californians who believe the state judicial system acts on principles outside of the law (such as greed). And I vote against affirming any appellate or state supreme court judge at election time as a result.

  22. Stupendous Man - Defender of Liberty, Foe of Tyranny

    I’ve been fighting my own battles, and within the rules and the law, for over 5 years. The treatment I’ve received, and the behaviors I’ve witnessed, are as abhorrent as those Wintson recounts.

    I no longer have confidence that solutions from within the “system” are possible.

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