... Herein of the Recent Encounters of the Florida Courts With the Foreclosure Fraud and False Swearing Madness: Rulings "Follow the Law, Not Just The Money".
This post continues Part 1 of "Immunizing Foreclosure Frauds Is Not An Option". In particular, this post will illustrate the issues of Fraud and False Swearing presented in Affidavits, and Proof, in recent Florida Foreclosure cases. It is worth noting that none of the recent Florida decisions cites to any of the others. The Florida Courts are nonetheless reaching similar results on similar facts in Foreclosure cases filed across the State.
In Florida, as in most other "judicial" Foreclosure jurisdictions where Foreclosures must take place in actions in open Court:
The party seeking foreclosure must present evidence that it owns and holds the note and mortgage to establish standing to proceed with a foreclosure action. [Citations omitted.] Because a promissory note is a negotiable instrument and because a mortgage provides the security for the repayment of the note, the person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession of the note who has the rights of a holder. [Citations omitted.] An allegation of default in a complaint must be proven by competent evidence.
Mazine v. M & I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011)(page numbers not available via Westlaw at the time of this post). In the Mazine case, there was only one witness at the Foreclosure Trial, one Taxdal, a "regional security officer" for M & I Marshal and Ilsley Bank (which, Mr. Taxdal testified, is a different entity from the Foreclosure Plaintiff, M & I Bank). The Foreclosure Plaintiff attempted to admit an Affidavit as a "business record" from another Witness who did not appear at the Trial. The Affidavit in question, executed by one (absent) Koontz, was offered "as to amounts due and owing." Taxdal "did not testify, and, indeed, could not testify," that the Koontz Affidavit was "actually kept in the regular course of business." There was no legally sufficient foundation for admission of the Koontz Affidavit as a business record, and so the First District held that the Trial Court erroneously admitted it, and its admission was prejudicial error requiring reversal of a Foreclosure Judgment entered by the Trial Court after a bench trial.
In addition, in Florida as in other "judicial" Foreclosure jurisdictions, "[t]o have standing to foreclose, it must be demonstrated that the plaintiff holds the note and mortgage in question." This was not demonstrated by M & I Bank, i.e., M & I Bank "had not demonstrated it possessed the standing to proceed in the foreclosure action, [and so] we must reverse on this issue as well."
All of the following even more recent Florida decisions discussed below, are revealed as not being final according to Keycite on Thursday morning, October 6, 2011, which is the date of this post.
In Parker v. LaSalle Bank Nat'l Ass'n, 2011 WL 3476668 (Fla. 4th DCA August 10, 2011), the Foreclosure Plaintiff filed an Affidavit from a process server. The Affidavit was intended to establish what is ordinarily a formality in Florida litigation when constructive service of process is the only kind of service of process that the Plaintiff claims to have been able to make on the Defendants. In this case, however, the Fourth District Court of Appeal observed that the process server's Affidavit proved that there had not been the required reasonable diligence for constructive instead of personal service of process. "However, the affidavit shows the search for [Catherine Paige] Parker was less than diligent." Id. at *2. The Fourth District reversed a Default Judgment of Foreclosure, and remanded for further proceedings in this case.
In U.S. Bank Nat'l Ass'n v. Paiz, 2011 WL 3586132 (Fla. 3d DCA August 17, 2011), a Foreclosure Lawsuit proceeded all the way through the Plaintiff's Motion for Summary Judgment, the entry of a Foreclosure Judgment, followed by a forced sale, and the issuance of a writ of possession taking the property away from the Defendants-Mortgagors. The Defendants at this point filed an "unsworn" motion to vacate the Foreclosure Judgment, or a Motion for Relief From Judgment under Fla. R. Civ. P. 1.540 (located on pages 71-72 of attached link). They obtained a stay of the writ of possession. The only ground assigned in the motion for setting aside the Foreclosure Judgment was that the Plaintiff Trust did not actually exist. Id. at *1. "The motion did not allege with specificity any facts showing fraud occurred in this case." Id. at *2. At Hearing on that Motion, the Defendants questioned for the first time the Affidavits filed by the Plaintiff and talked generally but apparently not specifically about "fraud".
Since Fla. R. Civ. P. 1.540 requires "fraud or misrepresentation, not an arguable miscalculation" in a Foreclosure case as here, and since it also requires "that fraud be specified with particularity and, if it exists, how it would entitle the defendants to have the judgment set aside," the Third District reversed the Trial Court's stay of the writ of possession in this case.
In Gick v. Wells Fargo Bank, N.A., 2011 WL 3861525 (Fla. 5th DCA September 2, 2011), Florida's Summary Judgment Motion Rule, Fla. R. Civ. P. 1.510 (located on pages 69-70 of attached link), was the basis for the Florida Court's decision. Like most if not all other jurisdictions, Florida requires that Affidavits be in evidentiary form in order for the Affidavits to support a Motion for Summary Judgment. In the Gick case, an Affidavit of one Perez provided the Foreclosure Plaintiff's only attempt to place evidence in the record to support its Motion for Summary Judgment of Foreclosure, and because of the "deficiencies" in Mr. Perez' Affidavit, the Fifth District held that "the record was insufficient to negate an answer alleging that the Gicks had made their payments." Id. at *1.
The Perez Affidavit "did not reference the alleged non-payment" of the Mortgage Note by the Defendants. "[I]ndeed," said the Florida Appellate Court in this case, the subject Affidavit "did not include any averment that the Gicks had defaulted on the mortgage." Id.
To say again: "An allegation of default in a complaint must be proven by competent evidence." Mazine v. M & I Bank (Fla. 1st DCA 2011),, quoted above.
That brings us in this post to the Glarum decision referenced in the earlier post on this issue. Download Glarum v. Lasalle Bank Nat'l Ass'n (Fla. 4th DCA Case No. 4D10-1372, Opinion Filed September 7, 2011). In that case, Florida's Fourth District also based its decision on Florida's Summary Judgment Rule, Fla. R. Civ. P. 1.510(c), although on a different subsection of the same Rule. As in the Fifth District's decision in Gick, the Fourth District never addressed the Florida Rule of Civil Procedure governing the form of Affidavits. Instead, as in Gick, the Florida Appellate Court reversed a Foreclosure Summary Judgment because the Affidavit filed by the Plaintiff in support of its Motion for Summary Judgment was based on what the Court saw clearly as "inadmissible hearsay and, as such, could not support LaSalle's motion for summary judgment." Slipsheet Opinion at 2. As a result of its evidentiary deficiencies, "the affidavit of indebtedness constituted inadmissible hearsay." Id. at 2-3.
End of Part 1. To be continued in Part 2 including the massive harm inflicted on Mortgage Insurance Companies and on Title Insurance Companies by the Foreclosure Fraud and False Swearing.
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