Foreclosure Trial Secrets…OBJECTION! (To everything the banks want to use to win their foreclosure trial!)

OBJECTION TO PROMISSORY NOTE (Exhibit 1)

1. Lack of Authentication

Fla. Stat. §90.901 requires authentication or identification of evidence as a condition precedent to its admissibility

• “Evidence is authenticated when prima facie evidence is introduced to prove that the proffered evidence is authentic.”  ITT Real Estate Equities, Inc. v. Chandler Ins. Agency, Inc., 671 So. 2d 750 (Fla. 4th DCA 1993).
• Here, there has been no prima facie evidence that the evidence is what it purports to be; namely a copy of the original note signed by Ernie.  The witness has no personal knowledge that Ernie signed the note or any circumstances involving the origination of the note.
• Moreover, §90.902(8) is inapplicable because the signatures and the contract are self-authenticating only as to negotiable instruments.  Since the note is non-negotiable, §90.902(8) does not apply.
• Therefore, the note and the signatures thereon unauthenticated and consequently inadmissible.

Failure to Rebut Endorsement Challenge

 Fla. Stat. §673.3081(1) presumes all signatures on negotiable instruments to be valid unless specifically denied in the pleadings.

• This includes a challenge of an endorsement on a negotiable instrument purported to give a plaintiff standing made by a borrower.  Ederer v. Fischer, 183 So. 2d 39 (Fla. 2d DCA 1965).
• The comments to the corresponding U.C.C. rule require more than a denial in the pleadings but some evidence by the Defendant to show that the signature is not authentic or authorized.
• If defendant makes such a showing, however, the burden shifts to the plaintiff to show the signature is authentic and authorized.
• Sterling’s affidavit here shifted the burden onto Plaintiff to show that the endorsement was authorized, which it has not done.
• The presumption thus arises that the endorsement was not authorized and not authentic.  Therefore, the original note should not be entered into evidence.

 OBJECTION TO MORTGAGE (Exhibit 2)

1. Lack of Authentication

 Fla. Stat. §90.901 requires authentication or identification of evidence as a condition precedent to its admissibility

• “Evidence is authenticated when prima facie evidence is introduced to prove that the proffered evidence is authentic.”  ITT Real Estate Equities, Inc. v. Chandler Ins. Agency, Inc., 671 So. 2d 750 (Fla. 4th DCA 1993).
• Here, there has been no prima facie evidence that the evidence is what it purports to be; namely a copy of the mortgage signed by Ernie.  The witness has no personal knowledge that Ernie signed the mortgage or any circumstances involving the origination of the note.
• Moreover, §90.902(4) is inapplicable because the copy of the mortgage does not contain a certification from the custodian or other person authorized to make the certificate that the copy of the mortgage was recorded in the official records of Pinellas County.
• Therefore, the mortgage and the signatures thereon are unauthenticated and consequently inadmissible.