This was one of our more complex cases. Suit was filed in mid-May, 2009. There were ten trial orders setting the case for trial. Ultimately, trial started in February of 2015 and was spread out over three days, months apart. Finally, in June of 2015, trial was concluded – with a dismissal in favor of our client!
Here are the highlights of this great win for our war hero client:
When suit was filed, the Plaintiff didn’t attach even a copy of the note to Complaint, as is required by Florida Rule of Civil Procedure 1.130. Subsequent to filing suit, they filed a copy of a note with an allonge. We often “joke” in the industry that an allonge is a French word for fraud but it is legally defined as an indorsement to the note made on a separate piece of paper, which must be firmly affixed to the note. The Plaintiff later filed an “original” note but the “original” didn’t have that allonge. At trial, they suddenly claimed the allonge was lost. After all this time, the Plaintiff never moved to amend their complaint to plead lost note and attach the note with a copy of the lost allonge. There is an abundance of law which holds that the parties are bound to their pleadings. The pleadings frame the issues for trial and, generally, what the Plaintiff pleads in their complaint, limits what they can raise and attempt to prove at trial. Without a court order, agreement between the parties or implied consent, a party cannot suddenly switch their theory of recovery at trial for the first time. Regardless, the Plaintiff never proved up any of the elements required to enforce a lost note.
However, in an attempt to prove that the Plaintiff initially had possession of the original note at inception of the law suit, prior to it being lost, the Plaintiff called a file clerk from their law firm to testify. The clerk takes the stand and claims, over my hearsay objection, that their business records, which he did not have with him nor seek to admit into evidence, showed they had the original note. (Testifying as to the content of out of court records is pure hearsay. The records must first be admitted into evidence and then, and only then, can a witness comment on what is written in those records.) The judge tried to help this witness get around his hearsay problems in a very unique way but he still repeated his hearsay testimony, over my multiple objections, and she let him get away with it. The witness also said that there is no log note in those records which indicated that they didn’t have the note, at the time suit was filed. The absence of a record, so long as a particular legal predicate is laid, can be an exception to hearsay as well. However, in 2011, the Plaintiff filed a Motion for Summary Judgment along with an affidavit. Attached to that affidavit, was a log note dated May 14, 2009, the day after suit was filed, which stated “attorney requesting missing note.” After the witness was done testifying, I moved that affidavit into evidence, over the Plaintiff’s objections. They tried to argue surprise. Thankfully, the Judge thought it was just as preposterous as I did that they were surprised by their very own court filing! Once this impeachment evidence was in, I never asked a follow up question, just as I was taught to do many years ago, as generally no good can come from those. This witness’ credibility was cooked and the Plaintiff didn’t even try to “rehabilitate” him!
Next up was bank’s witness. She’s a pro. I’ve never seen a more slick witness, seemingly willing to make things up as she goes. She repeats 10 times on the record that the acceleration notice was mailed on March 15, 2009. Mailing the borrower an acceleration letter, with certain wording required as per the Mortgage, is an express contractual “condition precedent” to the Plaintiff being able to file suit. The Mortgage contract requires that the borrower be given at least 30 days to cure the alleged default from the date the letter is sent, first class mail, or actually received. However, the computer log the Plaintiff has is from another company and indicates that the letter was mailed on March 17, not March 15. That log was buried in hundreds of pages of mostly useless documents provided to us before trial. At the end of the witness’ testimony, I asked the court to take judicial notice that March 15, 2009 is a Sunday. The letter could not have been mailed the day she swore, under oath, ten times, that it was and as a result the borrower could not have been given 30 days notice, as defined by the Mortgage. This tough Judge could not care less about that.
Based on some very solid case law I provided to the Court, ultimately the Judge ruled that the Plaintiff could not suddenly switch its theory of recovery. It never “pleaded” the note was lost nor did it even attach a copy of it. Even if they were allowed to reopen their case and amend to conform to the evidence, as the Plaintiff begged the Judge to do, there was absolutely no evidence to prove the elements required to enforce a lost note. After three days of trial separated by many months, the Judge had enough. She admitted she would never let the defense attempt to prove something it didn’t plead and she wasn’t about to let the Plaintiff get away with it either. The Judge was so aggravated and left the bench instructing us to submit an order of dismissal to her in chambers right away. We did and I waited until I had a signed copy back in my hand before leaving.
There is so much more to this client’s story of great sacrifice to our country and to the many ups and downs of this trial but, for a few reasons, I am prohibited from giving any more details. Happily, another great win for another great American. CASE DISMISSED!
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