THIS is what I have been talking about for 7 years. The general consensus has thrown in the towel — just as appellate courts are turning up the heat. The appeals courts don’t like what they see on the trial level. They don’t like what they see in terms of behavior of banks who file cases and keep them lingering for many years. And they don’t like the use of presumptions when the facts are different. In this case the Appellate Court didn’t just say Deutsch loses. They decline to allow the case to be retried for exactly the reason I have said repeatedly — once they have had their chance, the banks should not be allowed a second bite of the apple.
More importantly this illustrates how the Plaintiffs have no right to bring foreclosure actions. The only way they get away with it is by applying “presumptions” that are contrary to the actual facts that rebut those presumptions. In this case the trial court applied exactly those presumptions causing the burden of proof to be shifted to the borrower. The appellate court correctly stated that the prima facie case of the Plaintiff did not exist. No proof was required from the Defendants. The appellate court ordered the case to be involuntarily dismissed with prejudice.
Not all cases present the same fact patterns. This does not close things out for all foreclosures, but it provides a guide to how lawyers should argue the cases starting at the beginning of their engagement in the case.
Opinion filed October 14, 2014.
An appeal from the Circuit Court for Duval County.
A. C. Soud, Jr., Judge.
Austin T. Brown of Parker & DuFresne, P.A., Jacksonville, for Appellant.
Jeffrey S. York and N. Mark New, II of McGlinchey Stafford, Jacksonville and Latoya O. Fairclough, Choice Legal Group, P.A., Fort Lauderdale, for Appellee
Finally, Deutsche Bank’s Exhibit 5 was submitted as a “payment history” for the debt at issue. The computer-generated pages indicate preparation by SPS for some pages and Washington Mutual Bank for other. Counsel for Appellants objected to the lack of foundation to admit this hearsay document into evidence and noted that Mr. Benefield was not a records custodian for SPS or any of the previous loan servicers. See §§ 90.801, 90.803(6), Fla. Stat. The court overruled the objection without discussion and the document was admitted into evidence.
It is well-settled that:
A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiff’s status as the holder of the note. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012).
But standing must be established as of the time of filing the foreclosure complaint. Focht v. Wells Fargo Bank, N.A.
124 So. 3d 308, 310 (Fla. 2d DCA 2013) (footnote omitted). Even if exhibits 1, 3, 4 and 5—admitted by the trial court—had
been relevant, properly authenticated, and qualified for the business records exception to the hearsay rule, see Hunter v. Aurora Loan Services, LLC, 137 So. 3d 570 (Fla. 1st DCA 2014), none of Deutsche Bank’s exhibits qualifies as an indorsement from Long Beach Mortgage to Deutsche Bank, an assignment from Long Beach Mortgage to Deutsche Bank, or an affidavit otherwise proving the plaintiff’s standing to bring the foreclosure action on the note and mortgage at issue as a matter of law. Likewise, the record contains no assertion or proof by Deutsche Bank of its standing under any means identified in section 673.3011, Florida Statutes. See Mazine v. M & I Bank, 67 So. 3d 1129, 1130 (Fla. 1st DCA 2011). Absent evidence of the plaintiff’s standing, the final judgment must be reversed.
We decline to remand the case for the presentation of additional evidence because “appellate courts do not generally provide parties with an opportunity to retry their case upon a failure of proof.” Morton’s of Chicago, Inc. v. Lira, 48 So. 3d 76, 80 (Fla. 1st DCA 2010). Deutsche Bank filed its complaint in 2008 and hadmore than five years until the eventual trial to produce competent evidence to prove its right to enforce the note at the time the suit was filed and prove the amount of the indebtedness. When Deutsche Bank finally tried its case in mid-2013, it relied upon a note secured by a mortgage payable to the order of the original lender, a specific indorsement transferring the debt to an entity other than Deutsche Bank, a single witness employed by the latest in a succession of “loan servicers,” and upon unauthenticated, largely unexplained papers it advanced as proof of its standing. This failure of proof after ample opportunity is no reason to provide Deutsche Bank with a second opportunity to prove its case on remand. See Wolkoff v. American Home Mortg. Servicing, Inc., ___ So. 3d ___, 39 Fla. L. Weekly D1159, 2014 WL 2378662 (Fla. 2d DCA May 30, 2014); Correa v. U. S. Bank, N.A., 118 So. 3d 952, 956 (Fla. 2d DCA 2013).
The final judgment of foreclosure is reversed due to the insufficiency of the evidence to support the judgment. This case is remanded for the entry of an order of involuntary dismissal of the action.
BENTON and CLARK, JJ., CONCUR; OSTERHAUS, J., CONCURS IN RESULT.
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