Deutsche Bank National Trust Company, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1097

Deutsche Bank National Trust Company,
Respondent,

vs.

Stephen C. Roberts,
Appellant,

Genevieve B. Roberts,
Appellant,

Capital Alliance Financial, LLC, et al.,
Respondents,

Burns & Hansen, PA,
Respondents,

vs.

Ocwen Loan Servicing,
third party defendant,
Respondent

Filed January 29, 2018
Affirmed
Worke, Judge
Concurring in part, dissenting in part, Rodenberg, Judge

Hennepin County District Court
File Nos. 27-CV-16-9185, 27-CV-10-5505

Daniel J. Sathre, Houser & Allison, APC, Excelsior, Minnesota (for respondents Deutsche
Bank National Trust Company and Ocwen Loan Servicing)

Stephen C. Roberts, Genevieve B. Roberts, Minnetonka, Minnesota (pro se appellants)

2

Erik Frederick Hansen, Burns & Hansen, P.A., Minneapolis, Minnesota (for respondent
Burns & Hansen, P.A.)

Joseph Mohammed Jammal, Stenger & Stenger, PC, Grand Rapids, Michigan (for
respondents Capital Alliance Financial, LLC and Capital One Bank USA NA)

Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
In this judicial-foreclosure action, appellants argue that the district court erred in
interpreting the parties’ settlement agreement, determining that the asserted interest rate on
the loan was correct, and denying appellants’ motion to remove the judge. We affirm.
FACTS
In June 1996, appellants Stephen C. Roberts and Genevieve B. R oberts ( the
Robertses) executed a note in the amount of $140,000 and secu red repayment with a
mortgage encumbering their property. The interest rate was 14.8%. The Robertses were
eligible for an Interest Rate Reduction Program (IRRP) that would reduce the interest rate
by 1% per annum if they made timely payments for six consecutive months . Under the
IRRP, the interest rate would not reduce below 9.9%.
The Robertses fell behind on mortgage payments . I n May 2 011, Litton Loan
Servicing LP (Litton), then-servicer1 of the Robertses’ loan, agreed to a temporary
repayment plan. At the time, the loan was due for the September 1, 2010 installment and

1 Avelo Mortgage LLC (Avelo) serviced the loan before Litton.

3
the Robertses also owed nearly $24,000 in additional fees. The Robertses began making
monthly payments under the repayment plan in June 2011.
In September 2011, Litton was acquired by respondent Ocwen Loan Se rvicing
(Ocwen). Ocwen is the servicer for respondent Deutsche Bank National Trust Company
(Deutsche Bank). In November 2011, Ocwen returned funds to the Robertses, stating that
they were insufficient to satisfy the defaulted amount on the loan and that there was no
alternative-repayment agreement.
In August 2012, the Robertses initiated a lawsuit against Ocwen, alleging a breach-
of-contract claim for Ocwen’s ref usal to abide by the terms of the repaym ent plan with
Litton. Ocwen removed the action to federal court (federal matter). By February 26, 2014,
the parties had reached an agreement and put it on the record before a United States District
Court Magistrate Judge. The agreement terms included:
[F]irst . . . is that the [Robertses] shall pay $155,000 on
or before July 17, 2014, which would be in full satisfaction of
the mortgage loan.
. . . .
If payment is not made by July 17, 2014, [Ocwen] will
be entitled to proceed with the foreclosure on the mortgage
loan; . . . [the Rob ertses] consent to the foreclosure and agree
not to contest the issues.
The next term would be at the end of the redemption
period, [the Robertses] would agree to vacate the property.
And as part of this agreement, they would consent to an Order
of Eviction in the event they do not voluntarily vacate by the
expiration of the redemption period.
[T]he parties have also agreed that Ocwen will take
steps to correct or amend the credit line reporting for the
account specifically for the period of time involving the . . .
work-out plan and after or to the present date.

4
In March, the United States District Court filed an order noting that an agreement had been
reached and dismissing the federal matter without prejudice.
Ocwen drafted an agreement and presented it to the Robertses to sign. Instead of
signing the agreement, the Robertses sought to add a term regarding the amount due. The
parties did not sign an agreement and the Robertses did not pay Ocwen $155,000 by July
17, 2014.
In October 2014, Ocwen moved t o enforce the agreement . By this time, the
Robertses’ deadline to perform under the terms of the agreement had passed. At a hearing
before the magistrate judge, the Robertses argued that Ocwen’s agreement to take steps to
correct the credit-line reporting was “a condition precedent” to the Robertses’ performance.
The magistrate judge asked the Robertses why the credit reporting was not presented as a
condition precedent at the prior hearing. The Robertses’ attorney conceded that there was
no mention of it being a condition precedent, stating that it was only recently learned that
the credit-line reporting was affecting the Robertses’ ability to refinance . The magistrate
judge issued a report and recommendation recommending a determination that the parties’
agreement was “valid and enforceable ” and that, because the Robertses failed to submit
payment by the deadline, Ocwen was entitled to proceed with foreclosure, whi ch th e
Robertses “may not contest.” In December 2014, an order was filed granting Ocwen’s
motion to enforce the agreement and dismissing the Robertses’ claim with prejudice.
The Robertses appealed the fede ral matter. T he Eighth Circuit Court of Appeal s
vacated the December 2014 order and judgment and remanded with instructions to dismiss
Ocwen’s motion to enforce the agreement and enter a separate judgment based on the

5
March 2014 order. In July 2015, the federal district court entered judgment, stating: “This
action came to trial or hearing before the Court. The issues have been tried or heard and a
decision has been rendered.” It further stated: “Pursuant to the [o]rder . . . issued on March
28, 2014, judgment is hereby entered, and this action is dismissed without prejudice.”
On June 16, 2016, Deutsche Bank filed a com plaint, alleging that the Robertses
defaulted under the terms of the mortgage and additionally owed over $125,000 in interest,
costs, and disbursements. On August 3, 2016, the Robertses file d their answer,
counterclaim, and third -party complaint. The Robertses alle ged several affirmative
defenses, including failure to satisfy a condition precedent. The Robertses’ counterclaim
alleged breach of contract, breach of the implied covenant of good faith and fair dealing,
and specific performance. The same day, the Robertses filed a first amended answer ,
counterclaim, and third -party complaint, alleging additional defenses and counterclaims .
Deutsche Bank moved to dismi ss for failure to state a claim upon which relief can be
granted.
In December 2016, the district court filed an order granting Deutsche Bank’s motion
to dismiss. The district court concluded that the Robertses’ claims arising out of the same
operative facts as those in the federal matter were barred. The district court, however,
concluded that it could not issue an order for monetary judgment “at this time” because the
amount of the judgment could not be determined from Deutsche Bank’s complaint.
In February 2017, Deutsche Bank moved for summary judgment regarding the
amount of the judgment. The Robertses also moved for summary judgment, alleging that

6
the interest rate could not be determined. The Robertses also moved to remove the district
court judge, alleging that the judge was biased and prejudged the case.
In June 2017, the district court filed an order granting Deutsche Bank’s motion for
summary judgment and denying the Robertses’ motion for summary judgment. The district
court found tha t the initial interest rate was 14.8% and that in 2008, when the note was
transferred to Litton, the interest rate had been red uced to 13.8% due to the IRRP. The
district court found that Deutsche Bank’s records showed that the total amount due was
$277,190.41 as of March 6, 2017. The district court also denied the Robertses’ removal
motion. The Robertses sought review of the motion to remove by the chief judge of the
district court. The chief judge also denied the motion. This appeal followed.
D E C I S I O N
Waiver
The Robertses argue that the district court erred in determining that they waived
their right to challenge the foreclosure action. “[W]aiver is the intentional relinquishment
of a known right.” Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d 359, 367 (Minn.
2009) (quotations omitted). This court reviews a district court’s determination that a party
has waived a right for clear error. In re Civil Commitment of Giem, 742 N.W.2d 422, 432
(Minn. 2007).
The district court conclu ded that, as part of the agreement reached in the federal
matter, the Robertses waived their right to defend against the foreclosure. “Settlement of
claims is encouraged as a matter of public policy.” Voicestream Minneapolis, Inc. v. RPC
Props., Inc., 743 N.W.2d 267, 271 (Minn. 2008). “A settlement agreement is a contract.”

7
Dykes v. Sukup Mfg. Co., 781 N.W.2d 578, 581-82 (Minn. 2010). When the language of a
contract is clear and unambiguous, this court enforces the agreement of the parties as
expressed in the contract. Id. at 582. A contract is ambiguous if it is susceptible to more
than one reasonable interpretation. Id. This court reviews de novo whether a contract is
ambiguous. Id.
The Robertses do not challenge the validity of the agreement. The Robertses agreed
that if they did not pay Ocwen $155,000 by July 17, 2014, Ocwen would “be entitled to
proceed with the foreclosure” and they would “consent to the foreclosure and agree not to
contest the issues.” The Robertses argue that their agreement not to “contest the issues”
was not a waiver of their right to challenge the foreclosure because the term “the issues” is
ambiguous. However, when read in context, this term is not susceptible to more than one
reasonable interpretation. See Bd. of R egents v. Royal Ins. Co. of Am. , 517 N.W.2d 888,
892 (Minn. 1994) (“The sense of a word depends on how it is being used; only if more than
one meaning applies within that context does ambiguity arise.”).
The agreement addressed the mortgage and fore closure. More importantly, the
agreement related to what the Robertses agreed to do if they failed to make their payment
to Ocwen. They agreed that Ocwen was entitled to proceed with foreclosure and that they
would not contest it. Further, they agreed t hat if Ocwen proceeded with foreclosure, they
“would consent to an Order of Eviction in the event they do not voluntarily vacate by the
expiration of the redemption period.” Everything that the Robertses agreed to do under the
terms of the agreement if th ey failed to make a timely payment to Ocwen related to the
foreclosure; thus, the only reasonable interpretation of “the issues” is the issues related to

8
the foreclosure. The district court did not clearly err in concluding that the Robertses
waived their right to contest foreclosure issues.2
Time for performance
The Robertses also argue that the district court erred in concluding that Ocwen’s
delay in taking steps to address the Robertses’ credit reporting was reasonable.
Contract formation requires a “meeting of the minds on the essential terms of the
agreement.” TNT Props., Ltd. v. Tri-Star Developers LLC, 677 N.W.2d 94, 100-01 (Minn.
App. 2004). But “[a] binding contract can exist despite the parties’ failure to agree on a
term if the term is not essential or can be supplied.” Id. at 101. As stated in Liljengren
Furniture & Lumber Co. v. Mead, when “a contract is silent as to the time of performance,”
the law implies that performance shall be “within a reasonable time.” 42 Minn. 420, 424,
44 N.W. 306, 308 (1890).
The parties did not include a date in the agreement regarding when Ocwen was to
take steps to attempt to amend the credit -line reporting. The parties did agree that the
Robertses would pay Ocwen by July 17, 2014. The record shows that Ocwen began
contacting the Robertses in March 2014 in order to get the Robertses to sign an agreement.
If the timing of Ocwen’s performance was essential, the Robertses could have raised it
when Ocwen attempted contact, but the Robertses sought instead to add a statement to the

2 The district court also ruled that the doctrine of res judicata precluded the Robertses’
claims. Because we have determined that waiver applies, we do not need to analyze the
application of res judicata.

9
agreement regarding the amount due on July 1, 2014, shortly before the Robertses were
required to pay Ocwen $155,000.
Ocwen moved quickly after the agreement was reached by drafting a written
agreement and attempting to communicat e with the Robertses. In contrast, the Robertses
failed to respond to Ocwen’ s initial communication attempts, failed to pay Ocwen based
on the terms of the agreement, and failed to address Ocwen’ s time for performance, if
Ocwen’s time for performance was an essential issue. Thus, Ocwen’s delay in taking steps
to attempt to amend the credit-line reporting was reasonable under the circumstances.
Summary judgment
The Robertses also argue that the district court erred in granting Deutsche Bank’s
motion for summary judgment because the interest rate cannot be determined. On appeal
from summary judgment, this court reviews de novo whether there are any genuine issues
of material fact and whether the district court erred in applying the law. Ruiz v. 1st Fi d.
Loan Servicing, LLC , 829 N.W.2d 53, 56 (Minn. 2013). We must view the evidence in
“the light most favorable to the party against whom summary judgment was granted.”
STAR Ctrs., Inc. v. Faegre & Benson, L.L.P. , 644 N.W.2d 72, 76 -77 (Minn. 2002). A
genuine issue of material fact exists when there is sufficient evidence that could lead a
rational trier of fact to find for the nonmoving party. DLH, Inc. v. Russ, 566 N.W.2d 60,
69 (Minn. 1997).
The original interest rate charged was 14.8 %. The Robertses were eligible fo r the
IRRP that would reduce the interest rate on the unpaid principal by 1% per annum if they
made timely payments for six consecutive months.

10
Deutsche Bank’s evidence shows that Avelo serviced the loan before transferring it
to Litton in July 2008 . Before Litton boarded the Robertses’ loan information in its
computerized servicing database, known as RADAR, it conducted a comprehensive review
to ensure the validity and accuracy of the records and loan -accounting information. This
included a review of, among other things, the note, mortgage, and prior servicer pa yment
and transaction history. Litton would not board a loan on RADAR until a complete
accounting confirmed that the loan information was complete, accurate, and in full
compliance with the terms of the note and mortgage. Before boarding the Robertses’ loan
in RADAR on July 4, 2008, Litton confirmed that the principal balance was $130,223.99
and the interest rate was 13.8%. The interest rate indicated that the Robertses qualified for
one rate reduction under the IRRP. Deutsche Bank submitted an affidavit of a senior loan
analysist from Ocwen, who previously worked for Litton, stating that if the Robertses had
been “entitled to an additional interest rate reduction, that issue is one which would have
been discovered during Litton’s independent review of the loan accounting.”
The Robertses’ objection is based on their assertion that they “have personal
knowledge” that they “made at least the first 36 monthly payments in a time ly manner.”
The Robertses made this assertion in affidavits opposing Deutsche Bank’s motion for
summary judgment. But the Robertses provided no evidence. See Mountain Peaks Fin.
Servs., Inc. v. Roth -Steffen, 778 N.W.2d 380, 388 (Minn. App. 2010) (stating that a self-
serving affidavit created by a party in an attempt to create a fact issue for trial is generally
insufficient). Further, Litton’s records show that the interest rate was 13.8% when
transferred from Avelo in 2008. The Robertses submitted payments for at least two years

11
after that transfer . If the Robertses, as they suggest, had qualified for more than one
interest-rate reduction under the IRRP, it belies logic that they would continue to make
payments on a loan with a 13.8% interest rate and not challenge that interest rate. Based
on this record, the district court did not err by granting Deutsche Bank’s motion for
summary judgment.
Removal
Finally, the Robertses argue that the district court shoul d have been removed for
cause. “A motion to remove for cause is committed to the discretion of the [district] court
and this court will reverse only for an abuse of that discretion.” Hooper v. State , 838
N.W.2d 775, 790 (Minn. 2013) (quotation omitted). Any motion for removal on the basis
of actual prejudice or bias shall first be heard by the judge so ught to be removed. Minn.
R. Gen. Pract. 106. If the judge denies the motion, it may then be reconsidered by the chief
judge of the district court or another judge designated by the chief judge . Id. Here, the
district court denied the motion and the chief judge of the district court also denied the
motion.
The Robertses first contend that the district court was biased because the district
court ruled on the condition -precedent issue, which t hey claim was raised only in the
federal matter and never argued in district court. The Robertses claim that the district court
“must have based its analysis, its decision, and its Order on the federal action.” However,
the Robertses ’ answer, countercla im, and third -party complaint alleged an affirmative
defense of failure to satisfy a condition precedent. The Robertses alleged that “[t]here were
no conditions precedent to the requirement that Ocwen co rrect Roberts’ [sic] credit

12
reports.” They alleged that Ocwen breached the agreement “because they had not corrected
and had not even attempted to correct” the credit reports. Finally, they alleged that their
“obligation to pay Ocwen $155,000 by July 17, 2014 was relieved and is excused by
Ocwen’s . . . breach.” These assertions together allege that because Ocwen did not attempt
to correct the credit-line reporting, the Robertses were relieved of their obligation to submit
payment. This implies that the Robertses were not required to act until Ocwen first
attempted to correct the credit-line reporting, i.e., a condition precedent to their submitting
payment. The district court appropriately relied on the Robertses’ pleadings.
The Robertses also assert that the distr ict court was biased because it stat ed that it
could not “at this time” grant Deutsche Bank ’s motion for monetary judgment. The
Robertses claim that “at this time” implies that the district court would “certainly do so as
soon as it was able.” Deutsche Bank sought a judgment on the pleadings. The district
court ruled that it could not issue an order for a monetary judgment because Deutsche
Bank’s complaint did not include documentation supporting a specific judgment. The “at-
this-time” language meant that the district court require d Deutsche Bank to support its
request for a monetary judgment.
As the district court ruled, the Robertses were dissatisfied with the district court’s
decision, but that does not make the district court biased against the Robertses. See State
v. Burrell, 743 N.W.2d 596, 601 -02 (Minn. 2008) ( “The mere fact that a party declares a
judge partial does not in itself generate a reas onable question as to the judge’s
impartiality.”).
Affirmed.

C/D-1

RODENBERG, Judge (Concurring in part and dissenting in part)
I concur in those portions of the court’s opinion affirming the district court
concerning appellants’ waiver of the right to challenge the foreclosure action, affirming its
finding that Ocwen did not unreasonably delay in addressing the credit -report issue, and
concluding that appellants’ arguments concerning disqualifying bias on the part of the
district court are meritless. I respectfully dissent from that portion of the court’s opinion
affirming the district court’s summary judgment in favor of Ocwen for money damages
under the note totaling $277,190.41.
The court’s opinion accurately identifies the summary-judgment standard and our
standard of review. Properly applying those standards t o the facts here, there remain
unresolved issues of material fact precluding summary adjudication of the case.
The original June 1996 note, between appellants as borrowers and Equity Lending
Inc. as lender, entitled appellants to interest-rate reductions if they made timely payments
on the note; the original 14.8% interest rate was subject to being reduced by 1% for each
six-month period within which appellants timely made all payments , with 9.9% interest
being the lowest rate they could achieve. Equity Lending assigned the note and mortgage
to Transamerica Mortgage Company. Transamerica, in turn, assigned to Chase Manhattan
Bank.3 Chase eventually assigned the note and mortgage to Deutsche Bank “as trustee for
GSAMP Trust 2006 -SEA1 Mortgage Pass -Through Certificates , Series 2006 -SEA1” in
2012. During the early years of the note and mortgage, Avelo serviced the loan, but

3 For some reason not disclosed by the record, this assignment to Chase in 2001 was not
recorded with the Hennepin County Recorder until May 11, 2011.

C/D-2

eventually that responsibility passed to Litton Loan Servicing LP. By 2011, appellants had
fallen behind on their payment s with Litton, which was then servicing the loan. Litton
agreed not to commence foreclosure proceedings if appellants complied with a repayment
plan agreed to in May 2011. Appellants paid $6,000 to Litton on May 17, 2011, and then
submitted nine consecutive a nd timely payments of $3,394.11 as they had agr eed with
Litton that they would. 4 Unknown to appellants , Litton was acquired by Ocwen in
September of 2011. Ocwen, after acquiring Litton, accepted appellants’ September and
October payments under the agreement with Litton. But in November 2011, Ocwen began
rejecting the payments and told appellants that, short of payment in full, it would refuse to
accept any further payments made pursuant to the agreement between appellants and Litton
(which, of course, Ocwen had acquired). The last payment submitted by appellants was in
February 2012.
Then the suing started.
Appellants sued Ocwen in federal court, and the parties settled that litigation by way
of a second stipulated settlement agreement described in the court’s opinion. 5 The
agreement called for appellan ts to pay the compromise amount of $155,000 by July 17,
2014, which the parties agreed would be payment in full. Appellants did not pay it, leading
to the foreclosure and the lawsuit by Deutsche Bank for the amounts due on the note. It is

4 Appellants submitted payments for the months of June 2011 through February 2012.

5 There was an appeal to the Eighth Circuit Court of Appeals, as noted by the majority
opinion. In context, the issues in that appeal are not relevant to the question of how much
money appellants still owe on the note.

C/D-3

with respect to the district court’s summary adjudication of the amount due on the note that
I take issue with the majority’s analysis.
In support of respondents’ motion for summary judgment , Ocwen Senior Loan
Analysts Kevin Flannigan and Howard R. Handville provided supporting affidavits
claiming that appellants owe the amount for which they were sued . Appellants each
responded to the motion by way of an affidavit alleging that appellants had made “at least
the first 36 monthly payments in a timely manner,” and that the interest rate used by Ocwen
and Deutsche Bank to compute the current interest due under the note and mortgage was
therefore incorrect. The “first 36 monthly payments” would have been paid during the
time Avelo was servicing the loan. Appellants did not provide a specific alternative interest
computation, but challenge d the accuracy of the 13.8% interest rate advanced by
respondents and ultimately adopted by the district court.
Respondents’ claim of the amount owed relies entirely on the Litton and Ocwen
payment history. One of Flannigan’s affidavits purports to demonstrate the absence of any
genuine and material factual dispute about the amount of appellants’ indebtedness by
claiming that Flannigan knows of “Litton’s routine practice” of regularly updating and
applying payments correctly. He attached as an exhibit to his affidavit a Litton -generated
payment history about which Flannig an claims he “acquired personal knowledge of the
matters stated [therein] by personally examining these business records.” Flannigan had
apparently worked for Litton before Ocwen acquired it, but there is nothing in his affidavit
nor anywhere else in the record demonstrating that Flanni gan worked for Avelo, which
serviced the loan before Litton. The Avelo payment records are nowhere to be found in

C/D-4

the record. The payment records supplied as an appendix to a Flannigan affidavit only go
back to 2006. Those records are only those of Litton and Ocwen.
Handville’s affidavit swore that the business records of the previous servicers of this
oft-transferred loan were “integrated” into Ocwen’s business records and that he knows
that the Ocwen records are reg ularly kept and accurate. Neither Flannigan nor Handville
claims personal knowledge of the accuracy of Avelo’s records, other than to express their
complete confidence that the records (wherever they are and if they even exist) must be
correct because of how careful, diligent, and honest the banks and loan servicers have
always been.
Flannigan’s supplemental affidavit, apparently intended to eliminate the factual
issue identified by appellants concerning the interest -rate issue, alleges this much: “I am
not aware of any evidence that would entitle Borrowers to an additional interest rate
reduction” below the 13.8%. What Flannigan’s supplemental affidavit does not allege is
that there actually exists any evidence establishing that appellants are not entitled to a
further interest-rate reduction.
Plainly, there remains an unresolved fact issue on this record. The Avelo records—
which would pertain to the period of time during which appellants swear they made “at
least the first 36 monthly payments in a timely manner” —have not been produced.
Respondents say that, be cause Senior Loan Analysts Flanni gan and Handville know all
about Ocwen’s records, into which Litton’s records and Avelo’s records have been
“integrated,” and they know the regularly kept Oc wen records to be accurate, we can be
sure that the 13.8% interest rate is correct and that there is no genuine dispute of material

C/D-5

fact about whether appellants owe $277,190.41 under the original note. This claim is made
despite the absence of any pre-2006 records.
The majority properly characterizes appellants’ affidavits as self -serving. The
affidavits of respondents are no less self-serving. I don’t know why we would disregard
the self -serving affidavits of debtors, but credit the self -serving affid avits of bankers.
Moreover, respondents’ affidavits provide no foundation concerning much of what they
purport to prove about the records of prior servicers of this loan. This loan was transferred
around between banks and loan -servicing companies many times, and all we have is a
truncated record of the payments on this loan since 2006. Respondents have produced no
records at all for the relevant period of time. The supplemental Flannigan affidavit actually
purports to assert that Flannigan’s lack of awareness of evidence of the disputed fact should
be considered proof of what the nonexistent evidence is.6
Based on the record here, it might well be that appellants actually owe $277,190.41
under the note. If I had to guess, I would suppose that respondents are probably right. But
in the summary-judgment context, guessing, supposing, and probabilities are not in order.
Respondents are not entitled to summary adjudication that this is the correct amount unless
there is no genuine issue of m aterial fact. Based on the state of this record, the district
court could not have decided this case in respondents’ favor without making findings
concerning disputed facts. Appellants say they made the 36 consecutive timely monthly

6 If I say I know of no evidence that a person has any money in her pocket, my statement
is not evidence of the absence of money in her pocket. All I have done with such a
statement is disqualify myself from opining about whether there is money in her pocket.

C/D-6

payments. Respondents, by contending that the proper interest rate to compute the amount
due is 13.8%, dispute that factual claim. And respondents have not —and apparently
cannot—produce the payment records from the period of time in question. Awarding
summary judgment in fa vor of respondents on this record was error, and I would reverse
the grant of a money judgment in favor of Deutsche Bank and remand for trial.