Foreclosure Defense Florida

The American Home Mortgage Services Appeal, Florida's Second District Court of Appeals Will Rule on Fundamental Agency


                    RCS asserts in its brief that Homeowners somehow failed to object to Ibarra’s testimony regarding possession of the original note.   [AB at 21].   This is clearly contradicted by the trial transcript.   [T. 34 at 25 ““ T. 35 at 1-3].   Indeed, Homeowners’ objection specifically stated that since RCS’s witness Yvonne Ibarra (” Ibarra”) testified that she was ” looking at [her] business records that [she] pulled in order to prepare for the deposition yesterday and the trial today” [T. 34 at 19-22] those records ” should be entered in as evidence.”   [T. 35 at 3].   Homeowners therefore made a timely and contemporaneous objection to the testimony that stated a specific legal ground. Additionally, Homeowners did not have to repeatedly make this objection once it was ruled upon by the trial court.
Moreover, the affidavit and so-called ” screenshot” which exists in the record cannot render this error harmless.   As a threshold matter, the record is clear that the trial court relied on Ibarra’s hearsay testimony to establish that the endorsement was effectuated prior to the filing of the underlying action.   Additionally, the ” screen-shot” does not prove that the endorsement existed on the note prior to the inception of the foreclosure action.   Thus, Ibarra’s testimony was crucial to RCS’s case in chief.

  1. A.     The ” screenshot” does not prove that the endorsement existed prior to the filing of the lawsuit; consequently, the error is fatal.

                    RCS also incorrectly asserts that the failure to introduce the business records was ” harmless” because its ” affidavit” contained a ” screen-shot” which clearly showed that it was in ” possession” of the note.   [AB at 22].   As a threshold matter, RCS provides no support for its argument that ” [i]n view of the fact that the record contains evidence establishing [RCS]’s standing at the inception”¦any potential error on this point must be considered harmless.”   [AB at 22-23].   Rather, it cites a case which holds that
where a trial judge sitting as a fact finder ” erroneously admits evidence, he is presumed to have disregarded the [improperly admitted] evidence, and the error of its admission is deemed harmless.” This presumption is overcome only if the record discloses that the trial judge relied upon the erroneous evidence.
Petion v. State, 48 So. 3d 726, 736 (Fla. 2010).   Emphasis added.
Here, the record is clear that the trial judge clearly relied upon Ibarra’s hearsay testimony to establish that the endorsement on the note occurred prior to the inception of the action.   [T. 170 at 16-22].   In fact, the trial judge explicitly stated that ” [t]he Court will rely upon that testimony.   Of course that will be one of your issues for appeal.”   [T. 170 at 22-24].   Emphasis added.   Since the trial court relied upon Ibarra’s testimony to establish that the endorsement was effectuated prior to the filing of the lawsuit, and since Ibarra’s testimony was hearsay, the error cannot be considered harmless.
In addition, the ” screen-shot” does not establish that the endorsement occurred prior to the filing of the action.   Rather, the ” screen-shot” reveals some date when something may or may not have happened.   [R. at 183-219].   In other words, the ” screen-shot” is not a photograph, audiotape, or some other piece of tangible evidence which proves that the endorsement appeared on the note prior to the lawsuit being filed.
In McLean v. J.P. Morgan Chase Bank National Association, 79 So. 3d 170, 173 (Fla. 4th DCA 2012), the Fourth District held that, in the context of a summary judgment proceeding
if the plaintiff relies upon an affidavit of ownership to prove its status as a holder of the note on the date the lawsuit was filed, it is sufficient if the body of the affidavit indicates that the plaintiff was the owner of the note and mortgage before suit was filed. Alternatively, if the affidavit itself is executed before the lawsuit is filed, the allegation that the plaintiff is the ” owner and holder of the note” is sufficient to establish the plaintiff’s standing at the inception of the lawsuit.
Bold emphasis added.   See also Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012) (reversing summary judgment of foreclosure where foreclosing plaintiff failed to establish that it owned and held the note and mortgage at the inception of the action); Hall v. Reo Asset Acquisitions, LLC, 84 So. 3d 388 (Fla. 4th DCA 2012).
Extending McLean’s holding to a foreclosure trial, it logically follows that a foreclosing plaintiff must offer testimony that it owned and held the note and mortgage prior to the commencement of the action.   This is what RCS attempted to establish through Ibarra’s testimony.   However, since her testimony was entirely based upon business records which were never introduced into evidence, and since the trial court relied on this testimony, the trial court’s error in permitting Ibarra to so testify cannot be considered harmless.
Initial Brief
Reply Brief
Trial transcript

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