Three defendants convicted of wire fraud in the purchase of 16 properties in Gary were clearly guilty of the crimes, but the 7th Circuit Court of Appeals Friday threw out a restitution order against them and urged the district court in Hammond to consider fining Bank of America for “facilitating a massive fraud.”
“The bank was reckless,” Judge Richard Posner wrote in United States of America v. Minas Litos and Adrian and Daniela Tartareanu, 16-1384, -1385, 2248, 2249, 2330. The defendants were convicted of wire fraud, and the 7th Circuit affirmed those convictions, but reversed an order that they pay the bank restitution of $893,015, the amount it claimed was lost in the scheme.
The defendants were convicted on wire fraud charges filed in 2012 for a scheme in which home buyers were provided down payment kickbacks from the defendants after mortgages were secured on loan applications that provided false information. The defendants then walked away with the purchase price of the properties. But the 7th Circuit wrote Bank of America didn’t have clean hands, and there was little evidence that the bank would not have made the loans had it know the true source of the down payments — the defendants, not the buyers.
The White House is considering a top official at Fannie Mae to head the Consumer Financial Protection Bureau, according to two people familiar with the discussion.
Brian Brooks is currently the mortgage financing giant’s general counsel and has close ties to Treasury secretary nominee Steven Mnuchin. Brooks represented several of the investors in Mnuchin’s purchase of failed subprime mortgage lender IndyMac for $1.6 billion in 2009. The bank was renamed OneWest, and Brooks joined the company as vice chairman.
He left the bank for Fannie Mae in 2014, shortly before OneWest was acquired by CIT Group.
During turbulent times decades earlier in communist Cuba, she’d been forced to surrender property before fleeing to America.
The 86-year-old woman thought those days were far behind her after living quietly for nearly 20 years in a modest house in Opa-locka, a working-class neighborhood in northern Miami-Dade.
But that peace of mind ended when a process server appeared on her doorstep with court papers informing her of a foreclosure lawsuit by Liberty Home Equity Solutions Inc., formerly Genworth Financial Home Equity Access Inc. The complaint’s sole basis was the lender’s claim that El Hassan violated a key covenant of reverse mortgages by moving out, thereby defaulting on the loan.
Fannie Mae, the gigantic government-sponsored mortgage service entity, has guaranteed $1 billion of debt backed by Invitation Homes, the single-family rental business owned by the giant private equity firm Blackstone. In making the guarantee, Fannie is taking a big leap into the growing home rental market, in which Blackstone is the biggest player. But it’s also a sign that the true comeback kids are not the Super Bowl champion New England Patriots but Fannie Mae and its cousin, Freddie Mac, both of which were supposed to be left for dead a decade ago.
Fannie and Freddie, as you may remember, were buffeted by the financial crisis. In September 2008, the government put the two entities into conservatorship and provided a $187.5 billion bailout. The choice was based on a careful legal and economic calculus. The government could not afford to liquidate the entities, which had trillions of dollars in mortgage assets, without further damage to the economy. However, the government also decided not to fully nationalize them. The reasons were political: The government did not want to look as if it owned these two entities, and nationalizing Fannie and Freddie would also have added trillions of dollars in debt to the government’s balance sheet, blowing up the national debt ceiling.
Fannie and Freddie were, thus, cast into purgatory. They were put under the supervision of the government, but the public still owned 20.1 percent of them.
BONAFIDE PROPERTIES, LLC AS TRUSTEE ONLY, UNDER THE 8703 ATHENA CT. LAND TRUST, Appellant,
v.
E-TRADE BANK, GENE R. BELDEN, MARIE G. HARRINGTON, SUNTRUST BANK AND BELLECHASSE MASTER HOMEOWNERS ASSOCIATION, INC., Appellees.
District Court of Appeal of Florida, Fifth District.
Opinion filed February 3, 2017.
Appeal from the Circuit Court for Marion County, Victor J. Musleh, Senior Judge.
Heather A. DeGrave, of Walters Levine, P.A.,[1] Tampa, for Appellant.
Daniel S. Mandel, Melisa Manganelli, and Matthew Leider, of Law Offices of Mandel, Manganelli & Leider, P.A., Boca Raton, for E-Trade Bank, Appellee.
No Appearance for other Appellees.
EDWARDS, J.
This is an appeal from a final judgment of foreclosure, in which Bonafide Properties, LLC (“Appellant”), asserts, inter alia, that E-Trade Bank (“E-Trade”) lacked standing. E-Trade relied upon an assignment of the mortgage that it made to itself as attorney-in-fact for BAC Home Loans Servicing, LP (“BAC”), a prior holder of the note and mortgage. We find that E-Trade failed to prove that it had authority to assign the mortgage to itself; therefore, the trial court erred by denying Appellant’s motion for involuntary dismissal. Accordingly, we reverse.
The original note and mortgage were executed in 2006 by Gene Belden and Marie Harrington (“borrowers”) in favor of Countrywide Home Loans, Inc. (“Countrywide”). The note contained an undated indorsement in blank from Countrywide. In 2009, Mortgage Electronic Registration System, Inc. (“MERS”), as nominee for Countrywide, assigned the mortgage “together with the note and each and every other obligation described in said mortgage and the money due and to become due thereon” to BAC.
In 2010, BAC instituted a foreclosure action against the borrowers and filed the original note and mortgage with the court. BAC dismissed that action without prejudice in August 2012. In 2013, Bayview Loan Servicing, LLC (“Bayview”), the servicer of the loan since December 2011, sent a notice of default and intent to accelerate to the borrowers.
In May 2014, E-Trade filed its verified foreclosure complaint together with copies of the note, mortgage, and an assignment of the mortgage purportedly from BAC to E-Trade. The assignment was executed by E-Trade as attorney-in-fact for BAC. Appellant contested the validity of the assignment in its motion to dismiss and in its answer on the basis that there was no power of attorney attached to or alleged in the complaint.
At the beginning of the trial, the parties indicated that the only issues to be resolved were standing and the amount of damages. E-Trade presented one witness, Juan Pesantes, a litigation manager employed by Bayview. Over Appellant’s objections, E-Trade used Pesantes’ testimony to introduce into evidence the original note and mortgage, copies of the mortgage assignments, notice of default, a power of attorney between E-Trade and Bayview, the servicing agreement between E-Trade and Bayview, and the loan payment history. Appellant moved for an involuntary dismissal, asserting that the assignment of the mortgage from BAC to E-Trade was invalid because there was no evidence that E-Trade had authority to assign the mortgage to itself. The trial court denied the motion and entered a final judgment of foreclosure in favor of E-Trade.
Appellant argues that the assignment of the mortgage was insufficient to establish standing and was invalid because E-Trade did not establish by competent substantial evidence that it had the authority to transfer the mortgage to itself on behalf of BAC. “A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012) (citations omitted). “A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiff’s status as the holder of the note.” Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013) (citing McLean, 79 So. 3d at 173). “Absent evidence of the plaintiff’s standing, the final judgment must be reversed.” Lacombe v. Deutsche Bank Nat’l Trust. Co., 149 So. 3d 152, 156 (Fla. 1st DCA 2014) (emphasis added).
Here, E-Trade did not introduce any evidence at trial establishing that it was the attorney-in-fact for BAC. The evidence only established the existence of a power of attorney relationship between E-Trade and Bayview. Because Appellant raised the issue in its initial motion to dismiss, its answer, and again during trial, E-Trade was required to establish that it did, in fact, have the authority to convey the mortgage from BAC to itself. See Figueroa v. Federal Nat’l Mtg. Ass’n., 180 So. 3d 1110, 1115 (Fla. 5th DCA 2015).
E-Trade’s standing depended upon proof that the assignment from BAC to E-Trade was valid; thus, its lack of proof on that point was fatal to E-Trade’s right to foreclose. Id. Accordingly, the trial court reversibly erred by failing to grant Appellant’s motion for involuntary dismissal. We have carefully considered, but need not discuss, the remaining issues raised by the parties as the resolution of the standing issue requires remand for entry of an involuntary dismissal.
REVERSED and REMANDED, with INSTRUCTIONS.
PALMER and ORFINGER, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
[1] By an order dated November 17, 2016, counsel for Appellant was permitted to withdraw as counsel after the briefing was completed.
A Virginia homeowner almost lost her home a few years after getting a reverse mortgage because she defaulted on the homeowner’s insurance.
Becky Williams and her two young sons live with the Manassas homeowner, where Williams serves as the homeowner’s caregiver and power of attorney.
A few years ago, the homeowner did a reverse mortgage. Williams, who takes care of the bills, thought everything was going OK until she received a foreclosure notice in the mail.
Seattle’s City Council has voted to not renew its contract with Wells Fargo, in a move that cites the bank’s role as a lender to the Dakota Access Pipeline project as well as its creation of millions of bogus accounts. As a result, the city won’t renew its contract with the bank that expires next year.
The unanimous vote will pull more than $3 billion in city funds from the banking giant, the council says. Seattle says the bidding process for its next banking partner will “incentivize ‘Social Responsibility.'”
Not long after Seattle’s vote, the City Council in Davis, Calif., took a similar action over the pipeline. It voted unanimously to find a new bank to handle its roughly $124 million in accounts by the end of 2017.
President Trump fired the first round in his war against financial regulations by signing two executive orders on Friday.
The first calls for the Treasury secretary to conduct a review over the next 120 days of regulations stemming from the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act. The second calls for a review of the Department of Labor’s “fiduciary rule,” which requires investment professionals to act in the best interest of their clients, rather than seek the highest profits for themselves, when providing retirement advice. It is currently set to start in April.
Though they don’t do too much by themselves to roll back these reforms, the directives do offer important details on how Mr. Trump will approach the financial industry in the next four years — and provide three reasons that people on Main Street should be scared about how Mr. Trump will help Wall Street.
Donald Trump’s administration is taking on a distinctively Goldman hue.
Trump is adding even more Goldman Sachs executives to his nascent administration. Trump’s top donor and close advisor, hedge fund manager and Goldman Sachs alumna Anthony Scaramucci, will serve as a senior White House advisor, according to The Washington Post, and Trump’s transition team officially announced that Dina Habib Powell will be a “senior counselor for economic initiatives.”
Scaramucci, who runs SkyBridge Capital, is a vocal defender of big banks — at one point he accused President Obama to his face of “whacking Wall Street like a piñata.”
JPMorgan Chase & Co (JPM.N) will pay $797.5 million in cash to end all litigation brought on behalf the former Lehman Brothers Holdings Inc, whose September 2008 collapse triggered a global financial crisis.
The settlement made public on Wednesday requires approval by U.S. Bankruptcy Judge Shelley Chapman in Manhattan.
It follows JPMorgan’s agreement last January to pay $1.42 billion in cash to resolve most other claims, in what had been an $8.6 billion lawsuit against the largest U.S. bank to recoup money for Lehman creditors.
COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII
LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)
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REBROADCAST
(VERY IMPORTANT UPDATE)
Sunday – December 27, 2015
What Every Homeowner Needs To Know About Foreclosure Defense Attorneys: Why They Remain An Endangered Species And What If Anything Can Be Done About It
A year ago The Foreclosure Hour explained why homeowners nationwide were having such great difficulty finding a knowledgeable foreclosure defense attorney and suggested ways of remedying the problem.
Yet, if anything, as those presently facing foreclosure well know, rather than becoming easier, it is actually even more difficult anywhere to find knowledgeable foreclosure defense counsel.
Apart from the factors we identified causing the problem discussed on last December 27, 2015’s Show, making the situation still even worse, there has been an increase in Bar regulatory “targeting” of foreclosure defense attorneys.
The ignorant but widespread popular judicial belief that a homeowner who is behind in mortgage payments is not entitled to any defenses, itself discouraging attorneys from entering or staying in the field, an even more disturbing, parallel attitude has emerged among Bar regulators nationwide seemingly convinced that if an attorney attempts to defend a homeowner behind in mortgage payments that attorney must be a crook trying to take money from vulnerable consumers having no defenses whatsoever.
State Bar Regulators have, for instance, been circulating memos among themselves urging disciplining of foreclosure defense attorneys.
That trend, for instance, was clearly in evidence in Hawaii last year.
Whereas there has been only a handful of attorneys in Hawaii defending residential foreclosure cases, in 2016 almost all of them (5 and maybe 6) were disciplined, resulting in disbarment, suspension, or voluntary loss of their license.
Not being familiar with the facts of those cases, I am unable to evaluate whether or not those disciplinary actions, paralleling what is taking place nationally, were justified or not.
But I can confirm that by “targeting” I mean that a grievance filed against a foreclosure defense attorney gets much more serious and immediate superficial attention from Bar regulators than the same type of complaint made against a non-foreclosure defense attorney would, akin to the hysteria fueling the search for witches in Salem, Massachusetts centuries ago.
Of course, foreclosure attorneys who submit false and forged loan documents in Court on behalf of pretender lenders are rarely if ever disciplined by Bar regulators, the mind of man runneth not to the contrary.
Meanwhile, homeowners in protracted foreclosure proceedings are understandably usually emotional wrecks, sometimes prone to strike out against their own counsel if they have one, justifiably confused or outraged by the unfairness of the system, of which their attorneys are often ultimately seen to be an integral part.
Under such circumstances, one can understand the reluctance of potential consumer defense attorneys to touch foreclosure cases, let alone their attempting to learn how to protect residential mortgage borrowers unless having the rare courage of those applying for acceptance into military Seal Teams.
That discriminatory view possessed by Bar regulators is completely unjustified. Attorneys are vitally needed to protect the legal rights of homeowners.
And those rights can be protected in our experience as reflected in our “thank you” and “our appeals” lists posted on our foreclosure website.
In one of our cases just last week, for instance, we even had the foreclosure complaint dismissed with prejudice for good cause, our client earning and deserving so far the proverbial “free house”.
Meanwhile, foreclosure defense attorneys will continue to be an endangered species, especially unless the Bar pushes back against incompetent and misguided Bar regulators.
McGlinchy Stafford Robo-Lawyers Kathleen Angione & Daniel Pasky Go Over The Top To Intentionally Deceive A Good, Honorable & Inquisitive Judge In A Volusia County, Florida Court With the Known Introduction of Fabricated Evidence & the Subornation of Perjury by known RoboWitness, Lawrence Nardi of Select Portfolio Servicing f/k/a Fairbanks Capital in Volusia County, Florida Case No. 2010-30059 – CICI Consolidated With Case No. 2013-31253 – CICI.
Mortgage fraud continues to threaten the health of our nation’s financial markets and economy. Anti-fraud professionals are needed to combat this global problem. The Association of Certified Fraud Examiners (“ACFE”) is the world’s largest anti-fraud organization with nearly 80,000 members who are committed to reducing business fraud worldwide. The ACFE provides anti-fraud training and education to its members and businesses across the world. As part of their anti-fraud efforts in the mortgage markets, the ACFE provides training and exams in the area of mortgage fraud. One such training course was developed that is titled “Understanding the Basics of Mortgage Fraud.” In this course, ACFE members explore the history of the mortgage industry and its role in the global financial crisis and examine the life cycle of a mortgage loan to identify potential areas for fraud and learn techniques to recognize red flags of common mortgage fraud schemes and methods for prevention. One such scheme is the focus of this report that I have been writing and warning about for two decades. It’s called the “Double-Pledge” or “Double-Sale” loan and note scheme where a borrower’s promissory note and loan are sold, transferred, or pledged to more than one lender. In Understanding the Basics of Mortgage Fraud, the ACFE writes the following:
Fraud Trends Involving Lenders
A scheme used by lenders to raise capital is to the sell the same mortgage loan to more than one secondary-market investor; this scheme known as the double-sold loan. The original loan documentation is duplicated and sold more than once in the secondary market. To conceal the scheme, the lender remits the scheduled principal and interest payments to the servicer. Since all loans remain current, the borrower is not aware that his mortgage has been double-pledged unless one of the loans goes into foreclosure.
Red flags for this scheme include:
• Someone other than the borrower is making payments on the loan.
• The borrower receives late notices or tax invoices on more than one loan.
• The borrower notices more than one loan on his credit report.
• The lender fails to provide the note to the document custodian.
The Florida Supreme Court ruled in Bartram v. U.S. Bank, N.A., SC14-1265 that lenders are not barred from filing subsequent foreclosure actions based on payment defaults after a first foreclosure action is involuntarily dismissed. In essence, one legal definition for SOL (Statute of Limitations) was replaced by a different definition (Shit Otta Luck) for borrowers! Many Florida foreclosure defense attorneys view this half filled glass of water as an empty glass rather than the full glass I see. In this report, I will show how Bartram can provide for good decisions and judgments!
Wall Street stalwart JPMorgan Chase CEO Jamie Dimon is heading to Washington on Friday to meet with President Trump.
It will be Dimon’s first meeting with Trump as part of the president’s CEOadvisory group. The summit is likely to feature lots of talk about slashing burdensome regulation, including on banks.
Trump just this week pledged to “do a big number” on the Wall Street reform law known as Dodd-Frank. But will Trump also bring up his pre-election pledge to bring back Glass-Steagall?
Colorado’s largest foreclosure law firm, run by Larry Castle and his wife, Caren, was so good at its job that it had little trouble ginning up creative ways to pad its billings and reap millions in illegitimate profits on the backs of the banks it represented, the affected homeowners, and real estate investors who later bought the houses, the attorney general’s office said.
Painting a picture of a money-hungry legal outfit that preyed on a foreclosure system gone wild, nickel and diming tens of thousands of cases it handled in Colorado, state attorneys suing Castle said the law firm bulldozed through the mortgage-failure crisis and came out $12 million richer.
It did so by inflating the costs of posting legal notices on homes facing foreclosure and, the state alleges, conspiring with companies that did the work and its own competitors to fix the price at far more than what it actually cost.
“Foreclosures are a legitimate and necessary part of our system. If the borrower can’t pay, the lender has the right to foreclose,” assistant Attorney General Erik Neusch argued to Denver District Judge Morris Hoffman at the close of three-week trial Friday. “But a law firm should not be able to cheat the system, claim false and misleading costs, and profit against investors, homeowners, and their banking clients.”
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
GINA D. HELLER a/k/a GINA HELLER,
Appellant,
v.
BANK OF AMERICA, NA, successor by
merger to BAC HOME LOANS
SERVICING, LP f/k/a COUNTRYWIDE
HOME LOANS SERVICING LP,
Appellee.
___________________________________
Opinion filed January 27, 2017.
SILBERMAN, Judge.
After a bench trial, Gina D. Heller appeals a final judgment of foreclosure
in favor of Bank of America, N.A., as successor by merger to BAC Home Loans
Servicing, LP f/k/a Countrywide Home Loans Servicing LP (the Bank). Two issues
require discussion. First, because the trial court erred in admitting a copy, rather than
the original, of the promissory note into evidence over an objection based on the best
evidence rule, we reverse the final judgment and remand for a new trial. Second, we
address the trial court’s error in allowing inadmissible hearsay when the Bank’s
representative testified based on business records that were not admitted into evidence.
In its complaint for foreclosure, the Bank alleged that Federal National
Mortgage Association (Fannie Mae) owned the note. The Bank alleged that it was the
servicer of the loan, the holder of the note, and authorized by Fannie Mae to bring the
action. Attached to the complaint is a copy of the note with the lender listed as Bank of
America, N.A. The copy of the note contains an undated, blank endorsement by Bank
of America, N.A. Heller filed affirmative defenses, and in one of her defenses she
asserted that the Bank could not produce the original note that allegedly obligated her
and “dispute[d] that any document now or hereafter filed with this Court is the original
Note and demands strict proof thereof.”
At trial, the Bank offered a copy of the note into evidence. Defense
counsel objected pursuant to section 90.953, Florida Statutes (2014), commonly known
as the best evidence rule, because the note was a copy rather than the original. The
Bank’s counsel made an unsworn representation that the original had been submitted to
the clerk’s office several days earlier for filing. Defense counsel asserted that it was
necessary to submit the original for review by the trial court as the trier of fact. The trial
court stated that because the original had been filed with the clerk, the copy would be
received into evidence. Defense counsel asserted prejudice by the original not being
present in the courtroom because he had observed in other cases instances where the
notice of filing the original actually attached a copy.
The trial court advised defense counsel that the clerk was in the building
and that counsel had the opportunity to go look at the documents himself. The court
added that it assumed that counsel had waived his right to do so. Defense counsel
persisted that he had not waived his right for the trier of fact to review the original note.
One representative of the Bank testified at trial. He testified that the copy
of the note he reviewed did not indicate when the endorsement was made or when the
Bank had taken possession of the note. Bank of America, N.A., originated the note but
sold it at some point to Fannie Mae as an investor. He said the sale “absolutely” would
have been sometime before the lawsuit was filed. The representative admitted that he
did not have any evidence as to the location of the note when Fannie Mae took
ownership or while the Bank’s predecessor, BAC Home Loans Servicing, LP, serviced
the loan.
During his testimony the representative was asked who owned the note
and who serviced the note. The representative stated that based on his employer’s
business records, including “custodial” records, the Bank was the servicer of the loan
and Fannie Mae had a beneficial interest in the note as the investor. Based on these
records, the representative stated that “the original note was lent by Bank of America”
and that he believed the original note was placed in a Bank of America vault “two days
after origination.” Defense counsel objected to the admission of this hearsay testimony,
asserting that the Bank failed to lay any foundation for this testimony and that the
alleged business records were not in evidence or otherwise before the court. The trial
court overruled defense counsel’s multiple hearsay objections and allowed the
testimony.
At the close of the Bank’s evidence, defense counsel moved to dismiss
the case based on the insufficiency of the evidence pursuant to Florida Rule of Civil
Procedure 1.420(b). Among other things, counsel argued that the Bank failed to
introduce sufficient evidence that it possessed the original note, in violation of section
90.953, and that the Bank failed to introduce sufficient evidence of when the
endorsement was placed on the note. The trial court denied the motion on these
grounds and entered judgment in favor of the Bank.
Although a trial court’s decision on the admissibility of evidence is
reviewed for an abuse of discretion, that discretion is limited by the rules of evidence.
See Sottilaro v. Figueroa, 86 So. 3d 505, 507 (Fla. 2d DCA 2012). We apply a de novo
standard of review to the extent that the trial court’s ruling is an interpretation of the
evidence code and case law construing the code. See id.
The Florida Evidence Code provides that an original of a writing is
required to prove the contents of the writing, unless otherwise provided by statute. §
90.952. Section 90.953 allows for the admission of a duplicate “to the same extent as
an original” unless certain exceptions apply. The exception relevant here is when the
document is a negotiable instrument. See § 90.953(1). A promissory note is a
negotiable instrument, see Stone v. BankUnited, 115 So. 3d 411, 413 (Fla. 2d DCA
2013), and thus the evidence code requires that the original be produced at trial, see §
90.953(1); see also Fair v. Kaufman, 647 So. 2d 167, 168 (Fla. 2d DCA 1994)
(recognizing that in a foreclosure action the original promissory note must be introduced
into evidence at trial “or a satisfactory reason must be given for failure to do so”).
Further, section 702.015(4), Florida Statutes (2014), requires that the original note be
filed with the court before entry of a foreclosure judgment or a judgment on the note.
Because a promissory note is a negotiable instrument, it is necessary to
surrender the original note to remove it from the stream of commerce and prevent the
negotiation of the note to another person. See Deutsche Bank Nat’l Trust Co. v. Clarke,
87 So. 3d 58, 61 (Fla. 4th DCA 2012); Perry v. Fairbanks Capital Corp., 888 So. 2d 725,
727 (Fla. 5th DCA 2004). In addition, “possession of the original note is a significant
fact in deciding whether the possessor is entitled to enforce its terms.” Clarke, 87 So.
3d at 61.
The Bank argues that Clarke supports an affirmance, but Clarke is
distinguishable. In that case, the bank provided a copy of the note at trial because “[t]he
original note had been filed with the clerk of court and was in the court file in preparation
for an earlier scheduled summary judgment hearing.” Id. at 59. Although the defense
did not make a contemporaneous best evidence objection, it did argue at the close of
evidence that the bank had failed to prove a prima facie case because it did not present
the original note as evidence. Id. at 60. The Fourth District held that the bank “satisfied
the requirements of the best evidence rule and Florida case law by having surrendered
the original note to the court file prior to the time it offered the copy in evidence at trial.”
Id. at 59. In doing so, the court concluded that because there was no dispute that the
copy and the original note were precisely the same and that the original had been
surrendered to the court file, the trial judge’s admitting the copy into evidence “was
tantamount to taking judicial notice that the note had been surrendered to the court file
and that the rationale underlying the best evidence rule was satisfied.” Id. at 62.
In contrast, Heller disputed in her affirmative defenses that the Bank could
produce the original to file with the court. There was nothing more than the
representation of counsel to establish that the original had indeed been surrendered to
the clerk of court and no indication that the trial court had made a comparison of the
copy to the original. Moreover, the trial court’s suggestion that defense counsel visit the
clerk’s office to verify that the original had been filed cannot be said to be “tantamount to
taking judicial notice that the note had been surrendered to the court file.” Id.
The parties did not stipulate that the document in the court file was, in fact,
the original note. Without a stipulation by the parties, the trial court cannot rely on an
unsworn statement of counsel to make a factual determination. Blimpie Capital
Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So. 2d 838, 840 (Fla. 2d DCA 1994).
And neither a trial court nor an appellate court can consider as fact an unproven
statement that is documented only by counsel. Id.; see also Deutsche Bank Nat’l Trust
Co. v. Huber, 137 So. 3d 562, 564 (Fla. 4th DCA 2014) (stating that the court could not
make a leap of faith that a note surrendered to the clerk was the original when such a
determination was not supported by the record before it in which only a copy of the note
was admitted in evidence).
The Bank, as the proponent of the evidence, failed to carry its burden of
proof. See Mazine v. M & I Bank, 67 So. 3d 1129, 1131-32 (Fla. 1st DCA 2011). The
trial court had before it only the copy of the note and counsel’s unsworn statement as to
the filing of the purported original note. Because the trial court improperly admitted the
copy of the note over objection in violation of section 90.953(1), we reverse and remand
for a new trial. See Sas v. Fed. Nat’l Mortg. Ass’n, 112 So. 3d 778, 780 (Fla. 2d DCA
2013) (reversing when evidence was improperly admitted over objection to prove the
amount of the debt and remanding for further proceedings to properly establish amounts
due and owing).
In addition, we address the trial court’s admission of hearsay testimony by
the Bank’s representative. Without personal knowledge, the representative testified
regarding when the Bank possessed the note based on business records that were not
introduced into evidence. The trial court improperly allowed the Bank’s representative
to testify over a hearsay objection to the contents of business records that had not been
admitted into evidence. See Sas, 112 So. 3d at 779.
Accordingly, we reverse the final judgment of foreclosure and remand for
a new trial.
Seattle is on track to end ties with Wells Fargo over the Dakota Access Oil Pipeline.
The Seattle City Council Finance Committee voted 8-0 on Wednesday to divest $3 billion in City of Seattle money out of Wells Fargo over the bank’s role as lender for the Dakota Access Pipeline and seek a more socially responsible bank to manage the city’s money.
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