Know the Law, the Rules of Evidence and Procedure, the Facts and Don’t Give Up!

We won another trial recently.  Both the Plaintiff and the original lender were Suntrust.  For some reason, the Plaintiff moved to substitute to Fannie at the outset of trial.  I argued prejudice and fairness – considering our motion for leave to amend our answer and affirmative defenses was just denied 5 weeks ago, Plaintiff’s motion to substitute, which is effectively the same thing as our motion to amend, should also be denied. Judge ruled. P’s Motion – GRANTED.

On voir dire, the witness from Seterus testified that he just saw the original note today for the first time and learned of the file a few weeks ago in prep for trial.  Same facts as Kelsey vs SunTrust Mortgage, Inc. I argued authenticity of the note.  Also, the note the Plaintiff had in Court was different than note attached to complaint!  I argued several cases that say the Plaintiff is bound by its pleadings.  The pleadings frame the case and are considered judicial admissions. Objections overruled – Note in evidence.

Mortgage – No evidence it was ever recorded (no stamps from the clerk’s office) and it was not even certified!  I argued that it was not self authenticating and based on Yang v. Sebasian Lakes Condominium AssocGlarum v Lasalle Bank National Association and my voir dire of the Seterus representative, who confirmed he knew nothing about a Suntrust mortgage, the mortgage is also hearsay.  Objections overruled – Mortgage in evidence.

Next, I did an extensive voir dire on the acceleration letter and loan history.  The witness from Seterus was honest.  No cutsey B.S. like some of the other robo-witnesses.  He just flat out has no idea what happens at Suntrust because he works for Seterus and has never worked for Suntrust.  Yet, both the acceleration letter and loan history are from Suntrust.  I explain to the Judge and make authentication and hearsay objections.  Overruled – Both the acceleration letter and loan history are in evidence.

On cross examination, I cover that the amount in default in the acceleration letter is wrong.  We find more and more of these mistakes during our very thorough, item by item review of the pay history.   Also, the witness can’t compute any totals. I tee up the issues up via my questions and then argue Sas v. Federal National Mortgage Association.  There are all kinds of other Paragraph 22 problems with the standard Suntrust acceleration letter which I walk the witness through.

The Judge did keep out a Fannie Mae screen shot and Power of Attorney based on my reliance on Binger v. King Pest Control – neither were listed on the exhibit list nor provided in response to our request to make copies of exhibits available.

At the close of the Plaintiff’s case, I move for involuntary dismissal. I go back over all of the above issues, adding in the witness’ lack of comfort and familiarity with the pay history.  I also rely on my “reverse Elston” as I call it.  On cross, I get the Seterus rep to admit there’s no records evidencing that Seterus is authorized to testify, foreclose, enforce, or possess on behalf of the Plaintiff, Fannie Mae.  The acceleration letter is deficient and there was no evidence it was mailed – I was able to obtain a crystal clear admission on that point via my cross examination as well.

In response, Plaintiff’s attorney mis-characterizes all the evidence, as they typically do.  I take careful notes and call her out on it.  Then, the Plaintiff’s attorney repeats some nonsense and adds something to the effect of, “Judge, everyone knows Plaintiff owns the loan, you can look it up online!”  In my response, I deflate a couple of her issues, highlight that the Plaintiff has had over 2 years to prepare for this day, their day in court, to meet their burden etc…  Then, with a look of bewilderment, I slowly repeat the Plaintiff’s argument back to the court, verbatim, about “everyone knows…look it up online!?!”  Judge cuts me off, she’s finally had enough – Involuntary Dismissal GRANTED! 

Once again, the lesson rebranded in my psyche –  stay focused, stay calm and keep pushing!  Keep making simple, concise evidentiary and procedural objections, demonstrating that you know exactly what you are doing, and keep handing the judge cases on key points.  What I cannot accurately recount above, without the transcript, is all the evidentiary and procedural objections that I raised throughout this trial. It depends on the Plaintiff and the witness and moreover, the questions asked, but in this trial I had so much to which I needed to object.  I was standing up to object so much to make objections that about half way through the trial, I just stopped sitting back down and stayed standing.  By diligently and consistently pressing, only with good faith, legally sound objections and argument, eventually, the cumulative effect paid off. This is certainly not the first time we have won a case after most of the trial has gone horribly wrong. Hopefully, it won’t be the last.

This particular judge’s courtroom has been a known slaughterhouse for the defense.  I was told by an excellent foreclosure defense attorney, who lost three recent trials with this Judge, that this may have been that Judge’s first defense ruling. Hopefully, we’ve helped this judge see the light and come around to many more defense rulings in the future!

I had the pleasure of having an attendee from one of my Foreclosure Trial Workshops observe this trial.  She gave me the second nicest compliment I’ve received from a fellow lawyer.  She said watching me in trial was “like watching ice skating.”  I was completely relaxed, completely focused and just kept pushing – mostly with a smile on my face.  (If you’re curious, the nicest compliment I’ve ever received from a lawyer came from a bank lawyer, from a large law firm.  At a case status conference he told an associate from our office that he will do whatever it takes to push their client to settle because, “I’ve seen Evan in trial and I really don’t want to face that again!”)


If you are in Florida and are looking for help with debt, foreclosure, real estate or want more information about bankruptcy law, call us at (855) 55-ROSEN or fill out our online form for a FREE CONSULTATION. Let the lawyers and staff at the Law Offices of Evan M. Rosen serve you!

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