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Foreclosure Defense Florida

A DECISION THAT WILL HAVE A STAGGERING IMPACT ON FORECLOSURES STATEWIDE!

Florida-ForeclosuresThat comes directly from the Palm Beach Post….another GREAT VICTORY from the foreclosure warriors at Ice Legal

In a decision that could have staggering implications on foreclosure proceedings statewide, an appeals court ruled Wednesday in favor of the owners of a Wellington home whose bank filed documents sworn to by employees with no personal knowledge of the case.

The ruling from the 4th District Court of Appeal reversed in part a 2010 Palm Beach County Circuit Court summary judgment that said homeowners Gary and Anita Glarum owed LaSalle Bank $422,677.

That amount was based on an affidavit of indebtedness signed by loan servicer employee Ralph Orsini, who pulled the information from a company computer ­– a move that appeals court judges said amounts to hearsay.

PALM BEACH POST

 

read the full opinion here

One Comment

  • Stupendous Man - Defender of Liberty, Foe of Tyranny says:

    If the affiant did not actually do the calculations of interest and other charges, or if the affiant did not accept and post defendant’s payments, then the affiant lacks personal knowledge!!

    Typically all the affiant has done is glance briefly at some accounting records. This does not amount to personal knowledge and thus the affidavits are almost always hearsay.

    Florida Rule of Evidence 90.803(6)(a) states:

    “A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term ” business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”

    From this we can see that records kept in the ordinary course of business are admissible WHEN, AND ONLY IF, they are introduced by the testimony of the custodian of the records, or by a properly executed business records affidavit. An affiant’s summarization, or conclusion, of what the records say or mean is not subject to the hearsay exclusion, is thus hearsay, and is therefore not admissible!!!

    The 4th DCA got this one right.

    Unfortunately for defendants the fact of default was also admitted, and the court stated that plaintiff has, or had, standing to commence the suit. These will be difficult to overcome upon remand, particularly if the judge is hostile. On the other hand plaintiff will struggle in getting ADMISSIBLE evidence into the record.

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