It’s been a few days now since the oral argument was completed in an appeal of one of our foreclosure cases. Legal issues are rarely cut and dry and while this case seemed to be, it invariably was not. Months and months of preparation boiled down into 16 minutes of argument and as the buzz from the excitement wears off, I can begin to get a clearer picture of how I feel about this one.
Of course, initially, my mind repeated an internal loop of things I could have said or done differently. Mentioning the Boultbee case which stands for the proposition that a denial along with raising the specific statute, similar to the specific paragraph in the mortgage, in an affirmative defense, without more, is enough to adequately deny the general allegation that conditions precedent have been met to shift the burden back to the Plaintiff to prove that element of their case, is one example. We did cite that case in our brief but this point is in a footnote. I sure hope the Judges see that. There were others but that was the one that bothered me most. This may or may not have made a difference and second guessing your performance as a lawyer is part of the job. However, overall, I knew the law and was proud of the way things went. I received a number of calls and emails from trial and appellate lawyers whom I respect and admire and the feedback was positive. Especially since appellate law sets precedent, this was reassuring. As much as my focus is on serving my clients, I know that many others can be affected by this ruling.
Taking a further step back, I can’t help but wonder whether or not this case would have even needed to be appealed if it were not a foreclosure case. A few years ago, just before the foreclosure crisis, I was in the middle of a 5-day jury trial. In the case, like in almost all others, the Judge was called upon to rule as to whether or not a document could be admitted into evidence for the jury to consider in its deliberations. It was a small, one of many, physical therapy bill. Rather than seek someone from the physical therapist’s office to admit the bill in a case that involved major surgeries, we sought to admit it through the testimony of a doctor. The doctor knew the bill was fair and accurate, and even knew that the services were ordered, reasonable, and necessary. However, as required by Florida Statutes 90.803(6), he could not testify as to when the bill was made, how it was made, how it was kept, and whether or not it was made by a person with knowledge. We had admitted similar evidence in other cases usually by agreement but this opposing lawyer would not stipulate. Because the doctor couldn’t truthfully testify to the issues or “prongs” required by 90.803(6), the judge properly excluded the bill from coming into evidence. We had our client later testify based on her personal knowledge as to the amount of that bill so no harm was done.
However, while preparing for the Murillo appeal, that fairly routine trial experience, one of many as a litigator for over 15 years, kept coming to mind. In this pending appeal, while the witness for the Plaintiff did actually work for the bank, her knowledge of relevant portions of the bank’s vast operations were just as foreign to her as the physical therapist’s business records were to the doctor. This bank witness worked only in cases in litigation. She never testified that she had any training in record preparation or maintenance, or whether or not the record was prepared by a person with knowledge. She admitted to never playing any role in how records were made or kept by the bank. Yet for some reason, up until now, that was good enough in this case.
The evidence code is a body of law which guides what our courts, judges, and juries can and cannot consider in its deliberations. It applies equally to all cases. Criminal and civil, murder and personal injury, and yes, foreclosures. It matters not. Lady justice is blindfolded so that all who come before her and the causes they seek to remedy are treated equally.
A foundational bedrock to the ideal of equal application of the law, the evidence code was designed to protect us from incorrect or inaccurate information. Whether it be information which has been manipulated solely for trial, deliberately or by accident, or just information which circumstances show a “lack of trustworthiness.” The code is the equivalent of a computer’s anti-virus software, acting as a barrier so that information of questionable reliability does not unduly influence the rule of law in any particular case. Sure, there are times when cases are won or lost on evidentiary technicalities, when justice might require a different outcome. However, eventually the rule of law, when applied correctly, almost always gets it right.
Besides, we are all bound by the law. This is one of the chief principles of a civilized society. A Judge regarded as among the most brilliant in the history of South Florida jurisprudence, who served as Chief Justice of his district for 21 years and yet still serves on the bench, once summed it up in a specially concurring legal opinion, “[a]s someone – probably either St. Thomas More or George Costanza – must have said, the law is the law. Notwithstanding the distasteful consequences of applying it in this case, it must be served.”
Also, not far from my thoughts are the injustice of this entire crisis that we are still very much working through. After Wall Street’s greed filled treasure bath and endless admissions to crimes resulting in the near decimation of our middle class, rather than hold them accountable, we coddled them back to life with trillions of dollars in near zero percent federal reserve loans. And we did this so they can now repossess houses by the thousands, per week? These houses are then sold in bulk at steep discounts to hedge funds and other insiders and “investors.” I struggle to see the fairness or logic in this. Yet, even principal reductions, which may yield more to the banks then the status quo, do not work for so many who cannot afford their homes even if the loan balance was slashed to fair market value. All I ask for is to just apply the rule of law.
Which leads me to my last point, paradigm shift. Not only are we suddenly facing a new reality of dispossessing so many of their homes with no end in sight, of letting the financial industry escape accountability while moon walking away with golden parachutes and yacht-loads of loot, but there also seems to have been a shift in how we tolerate lies and false statements. In the Murillo case, opposing counsel in his oral argument and brief made statement after statement which the record and transcript clearly show in black and white to be false. Their recitations of my objections, my answer to the Complaint, and the witness’ testimony, in multiple respects, were just not accurate. An extremely accomplished judge with nearly 400 jury trials under her, Tae Kwon Do black belt, should be able to rely on appellee’s brief when reading back passages in Court without me pointing out that what she just read and what was stated more than once in that brief was not true. The witness never testified that she had daily involvement in a supervisory capacity, that it was customary to prepare and maintain the Notice of Acceleration, that there was a procedure for creating these notices nor that she was familiar with that practice and procedure. Yet all of these false statements were in appellee’s brief, in some instances, multiple times and others with cites to the record that do not support the the appellee’s statements! In addition, the appellee in their brief misstates the holding of what the 2004 version of Jackson v. State case held!
I am regularly served with documents certified by lawyers as being given to me on a certain day yet I receive it on a different day, irrefutably email time stamped. I’ve recently seen responses somehow dated before the documents which prompted the response and conveniently also not filed with the court when they were dated. I’ve stood with gaping jaw, watching countless lawyers appear in court, never having opened the file, totally unprepared, making it up as they go. Apparently, some think the recipe for turning falsehoods into truths through repetition works in more than just politics. In a court of law and in communicating with judges and other lawyers, misquoting the record numerous times in an attempt to “win” the case, filing documents with false certifications, back dating, and appearing in court completely unprepared used to be sanctionable conduct. In my universe, this is the greatest paradigm shift. I find myself having to fight back from becoming tolerant of these intolerable offenses. If I got as frustrated as I used to get every time I saw or heard a statement from a lawyer who either knows or seemingly should know that statement was false, I probably would have had to check into Bellevue by now. So I’ve had to, for my own sanity, learn to emotionally let it go while taking as much action as I can. I can’t solve the world’s problems but I can keep fighting for truth and the rule of law.
I know that it won’t come easy. Great achievement only comes with great sacrifice, which I’ll continue to do while serving others in the meaningful way that law has provided. I also know I’m not alone. There are still plenty of others, in judge’s benches and jury boxes, and in and out of courtrooms doing the same, serving others and standing up for the rule of law. We all want the same thing, a system that works for all, as best as possible, that we can count on regardless of the money, property, or liberty at stake, and one in which false statements and lack of professional diligence are not tolerated.
As soon as the results are in from Murillo v BAC, I’ll be sure to post!
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