The Rosen Law Blog

The entire reasoning behind the Florida Supreme court taking unprecedented, historic action to amend rule 1.100(b) back in 2010 was because of the financial industry’s well documented illegal behavior. It was enacted around the time that the “robo signing” scandal had broken wide open. We now know that “robo-signing” is used to describe the process of having a person sign a document without authority to do so and/or knowledge as to that which she/he is signing, despite swearing otherwise. The “robo-signing” scandal set off a nation-wide foreclosure moratorium and ultimately led to settlements with 49 states, Office of the Comptroller of the Currency consent orders, and numerous class action and shareholder lawsuits. Mortgage foreclosure related settlements with Ocwen, LPS, Chase and others continue to roll in. Yet, no matter the amount and severity of lawsuits, settlements, and bad publicity, it appears, at least in this case, that the act of signing without proper authority or knowledge as to that which one is signing, continues. Ms. Hunt freely admitted, twice, to not reading the foreclosure complaint before signing it. Further, with her limited knowledge, it was impossible for her to truthfully and accurately verify all the facts alleged in the complaint.

Fla. R. Civ. P. 1.110(b) states in relevant part:

When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document shall include an oath, affirmation, or the following statement: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

An excerpt from one of our latest trial wins:

MR. ROSEN:  Judge, at this time, we would like to make a motion pursuant to 1.420, Rules of Civil Procedure.  A motion for involuntary dismissal is the appropriate mechanism at the close of a plaintiff’s case in a nonjury trial. A motion for involuntary dismissal tests not the weight of the evidence, but rather whether the plaintiff has met its prima facie burden.  The prima facie burden in a foreclosure case is four-pronged under the Ernest v Carter case. One, that there be a contractual relationship between the parties. Two, that there be a breach of that contractual relationship.  Three, acceleration of a debt, proper acceleration. And lastly, damages to satisfy the mind of a prudent, impartial person.  As to standing, Judge, and the contractual relationship. This action began with an allegation that the plaintiff was the servicer for the owner acting on behalf of the owner with the authority to do so, and is the present and designated holder of the note. They are holding the note for someone else. The designated holder for someone else and with authority, quote, unquote, to pursue the present action. There has been no evidence, whatsoever, before the Court to validate that allegation in their complaint. Rather, what’s before the Court is that there was a complaint filed with a note made payable to another party with no endorsement, that there is now a note, for the first time, never been filed before with the Court, a note endorsed in blank, from this third party. Standing is not today, although today it needs to be as well.  It’s throughout the case.  And the Sentinel case in foreclosure — really, the Sentinel case is not in foreclosure case, it’s a PIP case, if I’m not mistaken, the Progressive v McGrath case, which says standing at inception is what’s required, and it’s incurable. Numerous other cases have come down from the 4th, as well, to indicate that this law is unshakable. At this time, that is what you have to show standing at inception, as well as standing throughout the litigation.  There has been no documentary evidence, whatsoever, to show who held the note at the time the suit was filed. In fact, just the opposite.  They say the note was lost in their complaint.  And as the Court knows, there are these surprising requests for admissions filed by the current plaintiff’s firm admitting that they didn’t have possession of the note at the time the suit was filed. It’s number five, admitting that the copy attached to the complaint is a true and correct copy.  So those are, as we’ve discussed, uncontrovertible, under Erhardt. Those are judicial admissions, different than evidentiary ones.  And even if they were evidentiary, there has been no evidence to controvert them. And the only evidence that we have are two assignments of mortgage that don’t reference the note, and both are dated two years after suit is filed. Two years, referencing a transfer from the original lender of the mortgage to the original plaintiff in this case, two years post-suit being filed. What is also of interest into considering the contractual relationship, the complaint in this case references that they are suing on a note dated May 11th, 2008, and a mortgage recorded in 2008. The note that’s before you is not from 2008, nor is the mortgage.  They are from 2006.  I encourage the Court to take a look at both the complaint and the note. In a light most favorable to the plaintiff, which is the standard in a motion for involuntary dismissal, that may very well be a mistake, but that’s their allegations in conjunction with the request for admissions and the testimony before the Court.  I think it’s as clear as it can possibly be that there’s no standing and inception…

THE COURT:  Response?

Being a trial lawyer, like everything else in life, has a spiritual side. The way in which my path crossed with certain staff members’, learning a key lesson from one noncritical situation, that we can then effortlessly apply to a nearly instantaneously, subsequent critical situation, are just two examples of what I consider the spiritual side of practicing law.  Other examples occur regularly during trials, when a lawyer is required to make split second decisions, many of which can win or lose the case.  You don’t always have the time to fully analyze the particulars and once the decision is made and action taken, there are almost always no do overs.  For example, when to lodge a proper objection is only partly based on knowledge of the law.  There are times the question is legally objectionable but you hold back because you know the answer will help your case.  Other times, the opposing lawyer might be on a roll and while an objection might be proper, the time to raise it has not yet come to pass. In those instances, a slightly premature objection might be in order.  These situations require you to know the law to make the best possible decision but there is also often a gut feel that you at least have to pay attention to before acting. This is all happening within a matter of a second or two, at most, as the window of time to properly object to any given question is narrow.

During trial, the best lawyers are often balancing between being too aggressive, which can result in turning off the judge or jury, and with not being aggressive enough, which can result in not preserving an issue for appeal or not delivering that one powerful point that turns the judge or jury their way.  This process demands razor focus, keen observation and intuition of everything going on in the courtroom, including macro and micro-facial expression, as well as body language recognition.  You can’t just rely on your mind.  There’s just not enough time to whip out a cerebral chalkboard and weigh the pros and cons of your options.  This is no different than any other profession which requires quick action with little opportunity to go back and fix a mistake. Knowing whether or not you have the legal grounds to object or take a certain course of action in trial comes with years of hard work and experience but the law is not the only factor in making certain key decisions.  Put another way, while knowing the law and being extremely experienced is a prerequisite to effective trial advocacy, much more is required to be as effective as possible.

In addition to being extremely experienced and knowledgeable, being open to guidance from your gut and spiritual “coincidences,” there is something else, the “X” factor.  The best trial lawyers are thoughtful, organized, generally happy, and well-rounded people.  They are almost singularly focused on using their natural/G-d given talents to serve others in a meaningful way.  This has been my focus for as long as I can remember.  My father never vocalized a service first philosophy but he lived it and I believe I learned this by watching him.  As a personal injury and workers’ compensation lawyer, sure he got excited when he got a great result in a case which resulted in a big pay day but while signing up a case, preparing for trial and while actually handling it, there was only one thing he concerned himself with, how to best serve his clients, period.  Money was of little, if any consequence and the several times he nearly bankrupted his firm to best serve a client was evidence of how steadfast he was in this belief.

I know it; I teach it; but it’s still always so awesome to see the power of simply telling the truth.  Sometimes when I speak or think a profoundly true thought, I get a shiver up my spine. Recently, I had this experience in a trial.

There were a few legal issues on which we won this recent trial but the main ones were pertaining to an Elston/Leetsdale, LLC v. CWCapital Asset Management, LLC. 87 So.3d 14 (Fla. 4th DCA 2012) issue and paragraph 22 of the mortgage.  In Elston, the plaintiff alleged to only be the servicer, foreclosing on behalf of another entity, a trust.  Id.  The plaintiff was neither the holder nor the owner of the note or mortgage. Id.  The sole witness was an employee of the servicer.  Id.  Without the trust joining or formally ratifying the actions of the servicer, the servicer plaintiff could not prevail.  Id.  This is an extremely rare fact pattern.  Usually, when servicers are plaintiffs in foreclosure cases they allege to also be the holder.  In the case on which this blog post is based, the Plaintiff alleged their capacity to sue solely as servicing agent for a trust, just like the plaintiff in Elston.  Also, just like in Elston, the Plaintiff in our case offered no evidence to show that the trust joined or ratified the servicer’s actions.  This was still a winnable issue for the Plaintiff but, fortunately for our client, their evidence was lacking. In addition to this issue, we also won based on a paragraph 22 violation.   Those are the skimming-the-surface legal reasons why we won at trial.   However, it took hours and hours of preparation, keeping my cool, and making tons of legally valid objections combined with one opportune moment, in which I admitted a weakness in our case, to seal the deal.

As to the paragraph 22 issue, there was a business record admitted into evidence that showed the acceleration letter was mailed, by regular mail, the day after the date on the actual letter itself. Among other things, paragraph 22 in the mortgage specifies that the default letter must provide “…a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured….” Paragraph 15 defines given as “…when mailed by first class mail or when actually delivered to Borrower’s notice address if sent by other means.”  The letter in this case only stated that the borrower had to cure within “30 days of the date of this letter.”  Yet, through the plaintiff’s own evidence, the letter was mailed 29 days earlier, not 30, and by regular mail, not first class.  As a result, the letter was not “given” as required by the plain terms of paragraph 22 of the mortgage.  Since compliance with paragraph 22 is a “condition precedent” to acceleration of the mortgage and to foreclosure, and since we properly raised this issue in our pleadings, the Plaintiff could not prevail. This is a highly technical argument, which needs ample citing to Florida Supreme court caselaw regarding contract interpretation.   Without a deluge of strong case law, mixed with just the right amount of persuasion, this argument will go nowhere.  There were a few other things wrong with the letter as well, which helped.

Just minutes before the start of a trial the other day:

Me: Hi, Ian (Opposing Counsel). How’s things?

OC: Hi, Evan. I’m good thanks. You? Anything we can do to resolve this?

We did it again. The Law Offices of Evan M. Rosen crushed the competition in this 2 day foreclosure trial which had three different cases spanning over a period of 6 years. It started in 2008 when American Home Mortgage Servicing, Inc. (AHMSI) filed the first foreclosure. In paragraph 3 of its complaint, AHMSI claims that it “owns and holds the Note.” In December 2009, AHMSI voluntarily dismissed its 2008 case. Yet, prior to that dismissal, in October 2009, Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2006-1, Mortgage-Backed Pass-Through Certificates Series 2006-1 brought suit to foreclose on the same subject property. For a period of time, there were two pending cases in Palm Beach County in which two different entities were claiming entitlement to enforce a note and foreclose a mortgage on the same property. Deutsche Bank National Trust Company eventually took an involuntary dismissal in the 2009 case in May of 2011 so they could clean up their case and refile. They filed a third foreclosure about a month later. Commentary and excerpts from our pleadings and transcripts of the trial will tell the story below.

The first part of the trial was held in January 2014. The Court continued trial, for a date to be determined, midway through our cross examination of Plaintiff’s one witness.  The plaintiff realized they had a major problem. The note was not in their possession because it was filed in the 2008 case which was brought by another party, AHMSI. They were in the process of having the 2008 file sent to the courtroom but, just in case, they had a lost note affidavit as well. How convenient.

From the transcript:

We won another foreclosure trial recently based on an unqualified witness.  This was not the first win from this type of issue and hopefully not the last. In a recent case, the business records which the Plaintiff sought to admit through their witness, were primarily business records of other separate entities who were neither parties to the action nor called as witnesses at trial; to wit: EMS, Chase & Aegis. The witness did not even qualify to admit the records of her own employer, SPS.

“A witness may not testify to a matter unless evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter.” FLA. STAT. §90.604 (emphasis added).  “Testimony must be based on matters perceived by the senses of the witness.”  C. Ehrhardt, Florida Evidence §604.1 (2014  Edition). Additionally, when introducing the business records of a company, which are hearsay, Plaintiff must meet the requirements of the business records exception in Florida Statute §90.803(6). Business records may be admitted, by a records custodian or other qualified witness, if the proponent of the evidence demonstrates the following: (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record. Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008). A business record may not be admitted into evidence by someone who is not a records custodian or other qualified witness. See Specialty Linings, Inc. v. B.F. Goodrich Co., 532 So. 2d 1121, 1122 (Fla. 2d DCA 1988); Pickrell v. State, 301 So. 2d 473, 474 (Fla. 2d DCA 1974).

Because the business records exception requires personal knowledge, it is widely accepted that “[n]ormally, a record custodian of one business cannot lay a foundation for business records of a second business, even in possession of the first business because the witness would not have personal knowledge of how the second business kept it[s] records and could not testify to the foundation requirements.” C. Ehrhardt, Florida Evidence §803.6 (2014 Edition).

Angelo Mozilo is in the news again.  The U.S. gov is gearing up for another civil suit against him.  With all the zombie references we’ve heard during the crisis, “zombie debt,” “zombie homes,” “zombie borrowers,” and “zombie foreclosure,” the real zombie behind the crisis and every other major problem in our country, is GREED.

Countrywide and Mozilo got caught red handed committing all kinds of crimes, immoral and unethical acts, including saddling people with inflated interest rates just because of the color of their skin or the country they are from, giving NINJA loans to people with the only underwriting requirement being that they have a pulse (and I’m sure there were exceptions to that too), the “hustle” program to rip off our government, Fannie and Freddie and so much more, including deceptive mortgage practices, insider trading and the newest settlement just announced the day of this posting.  The state of California sued them, and so did Connecticut.  Then once caught, charged and on the brink of conviction, Mozilo and Co. paid a very small fraction of their profits as a fine.  Mozilo paid $67.5M in fines but made $535M during just 9 years.  For them, crime pays.  How could this be?!?

Apparently, greed is as intoxicating as any other vice and Mozilo and the other sociopathic criminals that run Wall Street (and our country) are able to peddle this “drug of choice” to the highest levels. It’s as if they are no different that the drug dealers and pimps who I’m sure make small fortunes peddling their vices on Capitol Hill.  Only, in a battle of the vices, it’s not even debatable which is most harmful to our country.  Rather than delivering dime bags and escorts, Mozilo kept his customers well supplied through one of the most notoriously well-known, insidious relationships with our government, the “Friends of Angelo” program.  The result, like lab rats choosing cocaine over food, our government power players, by and large, choose greed, money and power over the job they were sent to Washington to do, serve and represent their constituents.  We now see the devastating consequences of this exponentially escalating addiction.  “Financial institutions” are not only too big to fail and too big to jail, they, and almost every single politician in DC, have become the greatest impediment to our right to “Life, Liberty and the pursuit of Happiness.”

Just recently finished up a trial in Broward County, Florida.  The Plaintiff’s witness was very qualified, at something, as an employee for eight years with Seterus, only I’m not sure at what….

After a lengthy direct examination on her general background and “qualifications” in which my relevance objections started to be sustained, Plaintiff goes to move the note into evidence.  I offer to stipulate to the note coming in, if Plaintiff agrees to stipulate that the original was first filed in this case on 2/26/14.  Suit was filed on 12/27/11.  Opposing counsel agrees.  The Plaintiff then asked background questions on the note.  I object relevance, cumulative, we can let the evidence speak for itself. SUSTAINED

Next, copy of mortgage, I stipulate to its admission into evidence.

In early 2013, the Florida Supreme Court in Pino, told us that fraud, in a lawsuit, is defined by a person or entity actually getting away with deceiving the court.  Flat-out lying or attempts to deceive is not “fraud.”  The Court even went out of its way to avoid stating whether or not monetary sanctions would be warranted in Pino, because that issue was not before it.

Before reaching the Supremes, the 4th DCA addressed the case.  Justice Polen, adopting the written opinion of Justice Gary M. Farmer, wrote that:

“Decision-making in our courts depends on genuine, reliable evidence. The system cannot tolerate even an attempted use of fraudulent documents and false evidence in our courts. The judicial branch long ago recognized its responsibility to deal with, and punish, the attempted use of false and fraudulent evidence. When such an attempt has been colorably raised by a party, courts must be most vigilant to address the issue and pursue it to a resolution.”