3rd DCA Florida Reverses Judgment for Homeowner

“This is an example of self-validating bias. While the court’s reasoning was correct, the application of that reasoning to the facts was incorrect. The Judgment should have been affirmed.”
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See https://www.law.com/dailybusinessreview/sites/dailybusinessreview/2017/11/08/miami-dade-judge-erred-in-denying-foreclosure-appellate-court-rules/

And while you are at it, look at this post on Deadly Clear — https://deadlyclear.wordpress.com/2017/11/06/the-court-has-absolutely-no-confidence-in-any-of-green-trees-financial-documents/#more-8430

 

Deutsch v Briito HEARSAY Exceptions

  1. The Appellate Court clearly went to extremes in order to find that a proper prima facie case for foreclosure was made by Deutsch Bank National Trust Company — an entity that most probably had no interest or rights with respect to the subject mortgage.
  2. The 3d District starts off with a misapprehension or misapplication of the facts. The last payment in 2008 was rejected by whoever received it. Yet the court assumes that the failure to make that payment was a default by the elderly homeowners.
  3. The court then glosses over the nonexistent boarding process based upon the testimony of a robo-witness from a servicer.  It is important to drill down on the robo-witness in cross examination. At the base of his/her testimony there is nothing at all. The whole purpose of using a robo-witness is to make absolutely certain that he/she doesn’t slip up and tell the truth. They don’t know the truth.
  4. The Trial Court correctly concluded that the testimony from the robo-witness was inadmissible hearsay, based upon her assessment of all the facts. But the appellate court said this was in conflict with the Court’s admission into evidence of the proffered testimony and documents into evidence. The Appellate Court sailed overhead on the their own assessment of the testimony as credible and twisted the case into a judgment for Deutsch.
  5. The trial judge’s decision was based upon its rejection of the case presented by the named Plaintiff.
  6. But the Appellate Court’s reasoning that the witness need not be a person who actually performed the “boarding process” is correct. But to assume that the boarding process actually occurred in connection with the subject loan was a giant leap that the 3d DCA was more than willing to make.
  7. In virtually every case the witness for the foreclosing party is NOT a person with personal knowledge of anything. Such a witness is essentially reading the content of documents that were produced for the exclusive purpose of presentation at trial. That is hearsay on hearsay.
  8. This quote says it all: “the trial court decided that Mr. Blanchard was not familiar enough with the practices and procedures of Moss Codilis, one of the prior third party vendors, and excluded the demand letter for that reason.” On the surface this looks like a potential error by the trial court. But it wasn’t. For the trial judge, there was no proper foundation for admitting the hearsay documents and hearsay testimony into evidence probably because she didn’t believe it. The Appellate court, instead of determining whether the Judge’s belief was based upon any evidence that would support her, decided that she could not make the choice. If that were true we would need computers not trials.
  9. The Appellate court once again ignored the obvious bad faith and iniquity of the servicer and absolved Deutsch of any possible wrongdoing, preemptively including the fact that this Deutsch entity was neither the trustee for a trust that owned the subject loan nor a party with an interest or right over the subject mortgage.
  10. The fact remains that neither Deutsch in this case, nor any other purported “lender” could or would prevail in a judicial proceeding that was conducted without the application of presumptions which is a ruling that the party preferring documents and testimony is credible. They are not credible and the public domain has dozens of examples of a long-standing pattern of conduct including fabrication of documents, false representations or misleading information about the ownership of the loan and outright fraud, in addition to unclean hands in the handling of the loan account even if we assume that they had any right to administer the loans account.
  11. The essential question remains: Under what legal theory can a party reap the rewards of a contract in which it was (a) not a party and (b) not a third party beneficiary?

3 Responses

  1. Bruce your narrative is correct and unfortunately all too common. I too have been in a similar battle here in SC, and with the grace of God and help from blogs like this one, I have managed to stave them off for over 6 years now, with on dismissal for lack of standing, and now in the same battle with newly created papers (from the pretender lender’s servicer OCWEN). They have blatantly violated RESPA, FDCPA and many others, with a clear paper trail of their misdeeds. Heck, OCWEN even sent me a ‘fake’ foreclosure sale date letter… that is being investigated (huh, cough, choke) by CFPB, for what that’s worth. At the end of this saga I assume that Wilbur Ross’ cronies will defeat my wife and I, but like you said we must laugh our way through this passage of life. What else can we do? My human and manly existence has been reduced to merely a ‘pro se litigant’ with no resources to hire big guns to fight their fellow big guns in the arena of court jesters. Hence I continue to press on in this David and Goliath construct. Thank you Mr. Garfield, for your blogging is the reason we are still in our home.

  2. Its a fact the courts don’t want banks to fail…or lose.

  3. And this is my argument, a Fed Ct Judge reversed a Circuit Ct Judge who applied the letter of the law, TILA whereby Mr. Wilbur Ross, Jr,( now the Secretary of Commerce of the USA appt by Don Trump to his cabinet) AHMSI lost his rights (which he never had nor could or would ever be able to prove he had STANDING) and that Federal District Ct 12th Dist, Portland, OR GAVE my $340k AAG appraised value home to Mr Ross solely owned American Home Mortgage Servicing Inc along with splitting it up with 2 allegedly other alleged criminal companies, HSBC United Kingdom Bank and Ocwen Financial or West Palm beach…why, because that judge is either corrupt or she is just absolutely unfairly incompetent and favors the rich and wealthy Mr. Ross over a then 74 yr old disabled Veteran. Ross should sue me for Libel, Slander and Defamation unless he is as gutless a human being can be…I would be pleased to see Ross sitting in a witness chair, defending his right to own my home with zero, nada, nothing to prove he even ever had any legal TILA supported interest or standing…what relly surprises me is that such an incredibly wealthy robber baron as he is has no guts to face me in the public arena. He could just write me a check for $340,000. and swat me off like a gnat in his face. but this creepy person, now getting some serious HEAT from Mr Meullers investigation of Mr. Ross’ rather interesting activities as a senior officer with the Bank of Cyprus, you know , Vladimer Putin and his oligarchists bank of choice for criminal banking activities., Heck, ole Ross has bigger fish to try to fry than me…so why doesn’t some one tell Ross to cut me my check…he is just short of being near” Trillionaire” having sucked the marrow out of my bones and the tens of if not hundreds of thousands of us lowly serfs at his jackboot foot steps..thats’ exactly what he and his fellow servicing company crooks like Bill Erby, former dethroned CEO of Ocwen Financial (who is on the lam from FBI/SEC prosecution over in Malta), and The Countrywide creep, they all usurped our Federal Laws to protect us consumers from the like of these thieves..come on sukkas, come and get this 78 yr old disabled vet who will STAND up and fight you, PRO SE. Alone, one small potato who calls Ross a theif and dares him to sue me. Trail should be very quick. I just want to ask him one question while he is in the witness chair..”Mr. Ross, sir, do you have the original NOTE and Mortgage that your attorney, Ms. Teresa Shill testified in 12th District Circuit Court, Polk County, Oregon, when Presiding 30 + year Judge Horner asked her a direct question, ‘Ms Shill, do you (for Mr. Ross’ AHMSI) have the NOTE? and for which she, testifying on your behalf, Mr. Ross crystal clearly said, “no your honor I (we) do not!” I would thank the Secretary of Commerce for his answer, regardless of what that answer might be, under oath, before a jury (not of his peers because most jurors are not near trillionaires)” I would rest my case, what, in record time i pass judgement to the jury. Win, Draw or Loose. all they need do is write down their verdict, pass it to the bailiff, read it before the court, pass it to the judge who will ask the jury “”is this your verdict”…and then I either loose to Ross OR I win. If I win then perhaps Ross may do the most honest thing he has ever done, that is to hand me a check for my equity and I will waive all other penalties and claims I may have against him. Then I would ride off into the sunset, in my mind a wee boy chasing after a man on a horse, shouting “Shane, Shane, Come Back Shane”, hey, a little levity, please folks, so far thats’ all I have left,

    God Bless America and the wisdom of those in charge of investigating Mr. Wilbur Ross’ role with the Bank of Cyprus, you know, the one all the rich Putin oligarchists (sp?) bank with when they launder and dry clean their loot. Wonder how much $$ Mr. trump has or had in that bank…hummmm?

    Finally, I underrstand that SCOTUS may be investigating its federal Ct Judges across the USA as to who and how many of its Judges on the District Benches disregarded the letter of the law under TILA and favored the Wilbur Ross’ ilk of this “Lets make America great Again” country slogan of the Trump White House Cabinet. You know I ain’t naive. I know I have but a snowball chance in hell of seeing justice, but all it takes is a “Penny for the Scales” for me to win. I have near absolutely nothing to loose. Anyone out there got a penny to spare an old man?

    All we have for our pain and suffering in life is a little bit of levity, a laugh here and there to ease our way in our individual passages through our lives.

    Bruce Nelson, geezerkatz pro Se

    banner Elk, NC 28604

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