And “their” Records are NOT “Business Records”!

A foreclosure trial is, in many ways, an Alice in Wonderland experience.  In the real world of The Law we come to rely upon a clear set of Rules of Evidence, Statutes and Procedures. But in Foreclosure World, all of these things are just tossed aside as we all go spinning down rabbit holes of bizarre fiction.  And those fictions never, ever apply to assist a homeowner.

Instead, the fictions are propped up and the wavy mirrors are bent so that the twisted world of Banks Gone Wild can be shoved into the square holes of a legal world that should be based on some kind of logic…consistent standards…fair play.

In many foreclosure trials, the courtroom gets all psychedelic as the judge and the Plaintiff work together to convince an otherwise knowledgeable attorney that something that “is”, “isn’t” and something that “was”, “wasn’t”.

One of the most frustrating things about foreclosure trials is the fact that the battle is not against the opposing counsel or their witness…the battle is nearly often against the judge.

I can go through exchange after exchange in this one trial alone where the Plaintiff is not making legal argument…it’s the judge making legal argument for the Plaintiff!

The concept of the court sitting as a neutral arbiter of legal argument in fact is turned on its head in foreclosure trials.  I relish the day of walking into a courtroom and waiting to respond to argument of counsel…not spending all my datys and nights fighting against a system that is working against the larger interests of justice:

7 Q What type of documents did you review in
8 preparation for this trial?
9 A The note, mortgage, assignment, power of
10 attorneys, payment history, breach letter, assignment of
11 mortgage.

MR.: And, Your Honor, for purpose of
13 expediency, if there’s no objection, I’d like to
14 essentially introduce or identify all of the
15 exhibits that I’m going to introduce at once and lay
16 the foundation and the predicate for them at once,
17 if there’s no objection to that, to speed things up.

18 MR. WEIDNER: May it please the Court, Judge,
19 there’s going to be objection to every single
20 document, and so I would object to them being moved
21 in. Of course, they can identify. But I would
22 agree with counsel, we can kind of move things along
23 if I could do a brief voir dire, then maybe we can
24 move more quickly?
25 THE COURT: Okay.

1 MR.  Well —
2 VOIR DIRE EXAMINATION
3 BY MR. WEIDNER:
4 Q Ms., I had an opportunity to review your
5 resumé. I found it online. I want to make sure that
6 it’s correct. I noted that there’s some employment there
7 that you didn’t — or that are not reflected on your
8 written resumé.
9 But just so the record is clear, you never
10 worked for C, correct?
11 A No.
12 MR. : Your Honor, could I object? If
13 we’re going to go off of the witness’s resumé, I
14 think it should have been disclosed timely in a —

15 THE COURT: Well, I wonder what the relevance
16 is because she’s just the custodian of the records.
17 She’s just going to serve to testify regarding the
18 introduction of the records. Correct?
19 MR.: That’s correct. She’s either a
20 records custodian or other qualified person as the
21 rules require.
22 THE COURT: Right.

23 MR. WEIDNER: Brief proffer, Your Honor?
24 The question I was going to ask is that the
25 witness has never worked for B. They originated
1 the loan. The witness has never worked for E
2 They serviced the loan. The witness has never
3 worked for e. They are another servicer of the
4 loan.
5 And if the witness will just confirm that, that
6 will get to that business records issue.

7 BY MR. WEIDNER:
8 Q So, you never worked for those companies,
9 correct?
10 A Correct.
11 Q You didn’t work for B, didn’t work for ,
12 didn’t work for .
13 Your title is “Florida case manager.” You
14 manage default loans, correct?
15 A Correct.
16 Q And you’re not a business records custodian for
17 B, correct?
18 A Correct.
19 Q You’re not a business records for  or ,
20 correct?
21 A Correct.
22 Q And you’re not a business records custodian for
23 the current servicer, correct?

 

1 MR. WEIDNER: Objection, Your Honor. I can
2 present argument on the issue.
3 Permission to approach and then to move freely
4 about the courtroom?
5 Thank you, Your Honor.
6 I’m going to hand to opposing counsel a series
7 of cases here. I’ll start —
8 Counsel, I’m handing you a stack. That is the
9 Florida statute.
10 And then, Judge, I’m going to hand to you the
11 evidence code.
12 The objection I make to that proffer is, first
13 of all, there’s no notice given that they were going
14 to ask to take judicial notice, so they fail on that
15 ground.
16 Secondly, under 90.953, a duplicate of an
17 original is not admissible. And, Judge, the second
18 case that you’re looking at, right there, is Perry
19 v. Fairbanks, makes it clear that because this is a
20 negotiable instrument, arguably, an original is
21 required.
22 They don’t have an original in the courtroom.
23 I’m reading that last sentence there, “A
24 promissory note is clearly a negotiable instrument
25 within the definition of 673.1041.”

MR. WEIDNER: Okay. Your Honor, this is my
11 client’s home.
12 THE COURT: Yeah.
13 MR. WEIDNER: If you grant judgment, you’re
14 going to make him homeless. The standards that
15 apply are the rules, and we don’t make exceptions
16 just because —
17 THE COURT: I know. So, what’s your point?
18 I mean, it says here — and I — it says, “a
19 copy or a duplicate is admissible unless a genuine
20 question is raised.”
21 Just because you had an issue in another case
22 doesn’t necessarily raise one in this case.

23 MR. WEIDNER: Yes. And the objection is very
24 clear, Your Honor. They do not have the original
25 here in this courtroom.

1 THE COURT: Yeah.

2 MR. WEIDNER: And under the rules of evidence
3 and the case law that exists and the statute, they
4 are required to have the originals in this
5 courtroom. Moreover, I’ve just handed to you what
6 is County’s procedure. It’s quite —

7 THE COURT: Well, I understand about the
8 procedure. But what you’re suggesting as the law is
9 not what the law is that you have presented to me
10 because it says that, generally, an original is
11 required, but that unless there is a genuine
12 question about authenticity, that a duplicate is
13 fine.

14 MR. WEIDNER: The objection and the question as
15 to authenticity is that this witness doesn’t have
16 any ability to authenticate — actually, may I just
17 voir dire for a moment on this?

18 CONTINUED VOIR DIRE EXAMINATION
19 BY MR. WEIDNER:
20 Q Ma’am, did you examine the original note in
21 this file?
22 A No.
23 Q Did you ever go to the clerk of the court to
24 see whether or not any original might exist?
25 A No.

1 Q Did you ever look at the docket to determine
2 when an original note, allegedly, might have been filed?
3 A No.

2 Response Comments

  • J.R. Homeowner  August 14, 2014 at 3:10 pm

    More and more I am convinced that 90% or more of these judges simply DO NOT KNOW THE LAW.
    Having had the “pleasure” of watching a judge in a Pasco County Florida foreclosure court that has extensive experience in tax and probate law before taking the bench, and seeing his ability to clearly and quickly see the documentation and evidence issues in these foreclosure cases and then contrasting his ONE excellent judge against a host of other judges lacking a similar background, whose conduct in foreclosure cases is “mystifying” at best, is a stark difference.

    I have long held to the axiom of:

    “Simple incompetence is generally a far more sinister force than malicious intent.”

    All of our assumptions about nowing BASIC law and rules of evidence and procedure aside, it is abundantly clear that the assignment of ajudicating foreclosure cases in Florida Circuit Courts is NOT one best left to those on the bench that simply DO NOT have the requisite knowledge or skills to hear them properly and fairly.

    Reply
  • Mark Bowen  August 14, 2014 at 9:44 pm

    Ridiculous. 90.953(2) does not overrule 90.953(1). Also, what did the 2nd DCA decide in Fair v. Kaufman? Oh yeah, “In order to prevail in a suit on a note and mortgage, the original note and mortgage must be introduced into evidence…”, also “The introduction of such documents at a summary judgment proceeding does not obviate the necessity for proper introduction at trial.”

    Typical corporate fascist judge. Maybe he should move to Lee County; he’d fit right in to the 20th Circuit.

    Reply

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