May 2, 2016
By Evan M. Rosen
We recently finished up a trial in Broward County, Florida. The Plaintiff’s witness was very qualified, at something, as an employee for 8 years with Seterus, only I’m not sure at what.
After a lengthy cross on her general background and “qualifications” in which relevance objections started to be sustained, Plaintiff goes to move the note into evidence. I offer to stipulate to the note coming in, if Plaintiff agrees to stipulate that the original was first filed in this case on 2/26/14. Suit was filed on 12/27/11. Opposing counsel agrees. The Plaintiff then asked background questions on the note. I object relevance, cumulative, we can let the evidence speak for itself. Sustained.
Next, copy of mortgage, I stipulate to its admission into evidence. [Not original? --GD]
Then, letter from Seterus showing servicing transfer to them on 9/1/11. I offer to stipulate that the letter comes in as evidence ONLY that there was a serving transfer on that date (alleged breach was 5/1/11 and again, suit was filed on 12/27/11) and that nothing in this stipulation should be construed by the court as establishing whether or not the witness is a record custodian or other qualified witness. Opposing Counsel agrees, I repeat our stipulation to the court and we proceed. Seterus “hello letter” in.
After that, opposing counsel starts to ask about how the loan was transferred and boarded. I object on relevance making the argument that this has nothing to do with the business records exception to hearsay – all that matters is how records are made and kept. SUSTAINED!
Next up, a Power of Attorney (POA) purporting to grant Seterus authority to do any foreclosure related activity for FNMA. I ask to voir dire and I start with my usual 10 background questions and then ask 11 very specific and detailed questions which then lead to my objecting based on hearsay and authentication. I then go through my lengthy six step argument handing the judge numerous cases and citing Ehrhardt along the way. Objection SUSTAINED – POA OUT
I quickly consider moving to strike the witness as not authorized to testify for the Plaintiff but I want to give the judge and the record something a little stronger so I keep that in my back pocket…
Opposing counsel is now totally frazzled.
She moves on to acceleration letter on Virtual Bank stationary. Any questions about it being mailed or testimony being mailed, I object – hearsay. P’s knowledge is based on a review of records, the record must first come in before there can be any testimony about the contents of it. SUSTAINED
Opposing counsel never moves in the letter!
She moves on to a MERS Milestones report. I argue Binger, not provided as I hold up my heavily tabbed and marked up bound sets of prior exhibit production as per our pre-trial requests and tell the judge there are most likely hearsay and authentication issues here as well being that this is from “that MERS outfit” and the witness is an employee for Seterus, but I don’t think we need to go there. – Objection to MERS Milestone – SUSTAINED
Opposing counsel then shows me a pay history but it is really a conglomeration of 4 different types of printouts from two different companies. I tell the judge, to keep the record clear, let’s mark all four separately or as separate subparts of a composite. He agrees. Plaintiff’s attorney then begins to ask the four key business records exception to hearsay questions and she is stumbling. I’m objection on personal knowledge, compound, confusing and the judge is sustaining very nicely all of them at this point…
Opposing counsel then shifts gears. She asks witness if Plaintiff had the note at time of transfer. Objection – hearsay, she has testified numerous times that her knowledge is only based on a review of records, a record that states this must first come into evidence before there can be any testimony on it. SUSTAINED
Opposing counsel stops and says I have no more exhibits and no more questions.
Judge says to me, “your witness.” I pause and say to the Judge something to the effect of…. “Judge, I’d like to ask you something at this time and if you can answer, great, if not, I understand. I am inclined not to ask any questions on cross but before I do so, I’d like to hear from the court that if I do not ask any questions on cross, the court will not allow any redirect because there would be no grounds to do so.” Judge said if you are asking me…. (repeating what I just said), then yes I agree… I then said “I have no questions on CX.”
Judge says to bank’s lawyer, “call your next witness!” loudly.
Plaintiff has no more witnesses. I then say to opposing counsel, “do you rest?” she says “yes.”
I move for involuntary dismissal, stating the rule and legal grounds to do so. I cite the prima facie elements of a foreclosure case, adding the Defendant’s statutory right to reinstate as being an extra reason that accurate proof of damages is so important. I then run through how there is no evidence of standing at inception, no evidence of acceleration, neither the letter is evidence nor is there any evidence that it was sent pursuant to paragraphs 15 and 22 of the mortgage and there is no evidence of damages either.
Opposing counsel has no response!
Judge – Involuntary Dismissal GRANTED!
Another win for the good guys.
Back to May 2016 Archive
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