Fla 4th DCA Slams Door on “another Ditech loan” in foreclosure claims

The trial court erred (i.e., it was wrong) when it accepted unfounded hearsay testimony over Defendant’s timely objections.

Kudos to Mark Stopa, Esq.

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Spencer v Ditech involving Everhome

We are seeing a paradigm shift reflecting changes in consensus of appellate courts. Contrary to thousands of decisions over the years, the courts are now applying the laws and rules of evidence in court proceedings and motions for summary judgment. I spy a suspicious attitude towards the banks and servicers that is long overdue.

Just because the bank or servicer says a fact is true doesn’t make it so. Applied to homeowners that would mean if they said they made a payment it would be automatically true. The informal rule allowing representations to be made in court and then treating it as evidence seems to be finally coming to an end.

Here we have the usual musical chairs of companies claiming to be servicers and in this case claiming that they sent a notice of default. The denial by the homeowner that they received the notice of default has nearly always been taken with a grain of salt, thus giving an insurmountable edge to the servicer or bank who filed the action.

The fact that the servicer had no way to prove the notice of default had been sent combined with the denial, in the pleadings, that the notice of default ahd ever been received should, under existing law, be sufficient to involuntarily dismissing the foreclosure lawsuit.

The  foreclosure complaint said they had complied with all conditions precedent. BUT then they had to prove it. They could not prove it. The trial judge allowed testimony and exhibits that were patently without foundation, testimony that was obviously without foundation and which fell apart in cross examination.

And THIS TIME the 4th DCA said it had enough of the ‘refiling” of cases after banks and servicers lost the first round of litigation to the homeowner. The 4th DCA specifically instructed that the case could NOT be refiled. In short, the case was over. However it is possible, although highly unlikely, that the banks will come up with a whole new string of fabricated documents providing the basis by a new lawsuit by a new foreclosing party.

As you will see, hearsay and personal knowledge was the basis of this opinion from the appellate court. Pressed for how the witness came into knowledge she acknowledged that it came from other co-workers. Textbook hearsay.

Interesting quotes from case:

EverHome, Ditech’s predecessor in interest, failed to establish as a condition precedent to filing suit that the Spencers were given notice of default as required by paragraph 22 of the mortgage.

EverHome filed a foreclosure complaint against the Spencers. EverHome alleged that it was the servicer of the loan and the holder of the note. EverHome also alleged generally that all conditions precedent to the acceleration of the note and mortgage and the filing of the foreclosure suit had been fulfilled.

In addition to the default letter itself, Ms. Knight’s testimony was the only evidence that EverHome provided to show that the letter had been sent to the Spencers. Throughout Ms. Knight’s testimony, Spencer repeatedly objected based on hearsay, arguing that Ms. Knight lacked personal knowledge to testify about EverHome’s routine business practices because she was not an employee of EverHome. The court overruled Spencer’s objections, and Ms. Knight testified that pursuant to EverHome’s procedure and policy, once a letter is generated it is mailed. But she explained that her knowledge of these procedures and policies was based on “training.” And when pressed, she admitted that this “training” consisted of informally discussing EverHome’s policies and procedures with coworkers who currently worked for Ditech but had previously worked for EverHome.

Ms. Knight admitted that no such discussions about this loan or any other loan had taken place prior to 2014, when the service transfer occurred—years after the default letter, dated June 17, 2010, had been generated by EverHome.

Testimony regarding a company’s routine business practices may establish a rebuttable presumption that the default letter was mailed. Id. (citing § 90.406, Fla. Stat. (2014) ). But the witness must have personal knowledge of the company’s general mailing practice—meaning that the witness must be employed by the entity drafting the letters and must have firsthand knowledge of the company’s routine practice for mailing letters. See id.; Edmonds, 215 So.3d at 630; see also CitiMortgage, Inc. v. Hoskinson, 200 So.3d 191, 192 (Fla. 5th DCA 2016) (holding that there was sufficient evidence to establish mailing based on routine business practices where witness testified that she had personally observed coworkers generate breach letters and deliver them to the mail room to be collected by the postal service). Here, Ms. Knight admitted that she was never employed by EverHome and did not have firsthand knowledge of EverHome’s mailing practices as of the date the default letter was generated. Therefore, her testimony was insufficient to establish that the default letter was mailed.

 

9 Responses

  1. @ Roger & ALL

    The opinion for Ponce et al. v. Wells Fargo Bank et al. was certified for publication and is available at the link:

    http://www.courts.ca.gov/opinions/documents/C080680.PDF

    Like

  2. Reblogged this on Deadly Clear.

    Like

  3. Wiley Coyote, send me an email.

    Like

  4. This is what you call “battling the bank”. Good for them!

    https://norcalrecord.com/stories/511370212-appellate-court-agrees-plaintiffs-in-foreclosure-case-did-not-file-frivolous-suit

    SACRAMENTO – An appeals court has reversed a trial court’s order centered on monetary sanctions in a lawsuit involving a home foreclosure.

    On March 13, the California Court of Appeal for the 3rd Appellate District reversed a judgment by the Superior Court of Yolo County that found the plaintiffs’ complaint “was presented primarily for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”

    “On appeal, (the plaintiffs) argue that the claims asserted in their complaint were not frivolous and therefore, could not have been asserted for an improper purpose. We agree,” the opinion stated.

    Like

  5. TO ALL:
    I posted the remark below to the “Void Assignments” thread yesterday, but felt it has scrolled by long enough that many might not notice it. So, I’m re-posting it here to the most current thread to reach as many as possible. I think the link provides some important info.
    ——-
    The 26 U.S. Code § 860F – Prohibited Transactions page I referenced below in another remark contains a link in the IRS tab which provides a very interesting read of and IRS Determination Letter of 2015, but which cannot be used as precedent as it’s considered an individual case, not broad. Yet, similar in every way to all the trusts I’ve known regarding the structure and flow of trust activity.

    At least, even after 10 years now, I found items I was not completely aware. It’s hard to read, will likely take two readings to get the gist.

    https://www.irs.gov/pub/irs-wd/201517007.pdf

    The tax conclusions by the IRS are specific to this case but probably all other trusts as well, however. These findings, by themselves, are not the relevant parts. It does arrive at specific conclusions as to the transfers in this case, but well describes them as to what is, or is not allowed.

    Note the document has a large number of redactions, stated as variable names like “Year-1”, “Year-2”, etc which are blank-listed on the first page as a Legend, not disclosed for internal use. Those values/names would be interesting if disclosed.

    Like

  6. Thanks Roger — this should be all over the country

    Like

  7. Wisconsin Supreme Court Upholds Attorney Fee Award as Equitable Remedy

    https://www.wisbar.org/NewsPublications/Pages/General-Article.aspx?ArticleID=26250

    Like

  8. This is not seen in Rhode Island

    Like

  9. Stopa! My man!!!

    Liked by 1 person

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