Académique Documents
Professionnel Documents
Culture Documents
Mr. Azarsepandans responses were the same as they related to servicing by Citi
jTr. 1516].
Mr. Azarsepandans responses were the same as they related to servicing by Citi
7
[Fr. 1 61 7]. The court overruled counsel s objections [Fr. 1 61 7j. The witness was
then asked whether it was the regular practice of the bank to make and keep such
records [Tr. 1 7]. Seffars counsel objected on the basis of foundation and again his
objection was overruled [Fr. 1 7]. Ihe witness was asked i F the business records were
made in the ordinary course of the servicers business an important question for
purposes of establishing a predicate for admitting records under the business records
exception [Tr. 1 7]. Seffars counsel objected as to foundation of that question and
while the objection was overruled, the question went unanswered [Ti. 1 7]. During
direct examination, the witness was asked to describe the procedure b which
Bavview received the business records from the prior servicer. RCS [Ti. 1 8]. The
\ itness responded that the prior servicer, including RCS, would send archives of
their books and records to Bayview and that the information contained within the
archives would then be uploaded into Bayviews systems [Tr. 1 8].
Thereafter, the witness was presented with a copy of the note and the allonge
[Tr. 19]. At that point, Seffars counsel objected to the introduction of the
instrument on the grounds that it would need to be admitted into evidence before the
witness would he able to testify from it [Fr. 19]. Counsel indicated that because
objections had previously been made with regards to admitting the allonge into
evidence, he wanted to you dire the witness to determine whether a predicate could
[Tr. 1516].
8
be established to admit the allonge [Tr. 19]. Nevertheless, over Seffars counsels
objection, the court permitted the witness to answer questions pertaining to the
allonge [Tr. 2224]. Specifically. he was asked whether he knew when the allonge
was dated, whether the signature was a stamp signature, whether the allonge was
ever affixed on the note itself prior to the time it was filed with the Court, whether it
was attached to the Complaint as an exhibit in this case, whether it was attached as
part of the original note [Tr. 2 123]. The witness answered all of these questions in
the negative [Tr. 2122]. He testified that he first saw the original note immediately
prior to trial [Tr. 22]. He did not know when the allonge was executed [Tr. 22]. He
did not know if the signature on the allonge was a stamp or a wet ink signature [Tr.
23]. He did not know if the allonge was ever affixed to the note itself prior to it
being filed with the court [Tr. 23]. He indicated that the allonge was not attached to
the note as part of the complaint and that he did not know why [Tr. 23].
The witness was then asked about whether there was a purchase agreement
between Bayview and RCS [Tr. 25]. He responded that while he believed that such
an agreement was present, he had never actually seen it [Tr. 26]. Seffars counsel
objected to the admission of the note and allonge on the basis of foundation,
authenticity, and hearsay, but the court admitted the exhibit, overruling such
objections [Tr. 29].
9
Thereafter, the witness was asked questions by Seffar s counsel [Tr. 31]. The
first document that was presented to the witness was the servicing transfer notice
from Citi Mortgage to RCS (the Goodbye Letter) and he was asked to read the
highlighted portion of the notice [Tr. 31]. Seffars counsel objected on the basis that
the document was not in evidence, to which the court directed the witness to answer
anyway [Tr. 31]. Bayviews counsel then requested that the letter be entered into
evidence under the business record exception [Tr. 32]. Seffars counsel objected on
the basis of hearsay, authenticity, and foundation, but the document was nonetheless
accepted [Tr. 32]. Seffars counsel indicated to the judge that, but for one letter from
Bayview. he would have the same objections to all of RCS records [Tr. 32].
Bayview then sought to introduce a letter from RCS, which essentially informed
Seffar that effective November 17, 2009, RCS would be providing the loan
servicing on the subject account [Tr. 32]. Another servicing letter was introduced.
which informed the addressee that the loan had been assigned, sold and transferred
from RCS to Bayview effective July 9, 2013, and which also included the right to
collect payments [Tr. 32]. The next document that was introduced was a letter from
Bayview which stated commencing July 9, 2013, Bayview would become the new
loan servicer (the hello letter) [Tr.
321.6
6
The goodbye letter and the hello letter shall be collectively referred to as the
hello/goodbye letters.
I0
The witness was then asked some questions by Bayviews counsel pertaining
to a Notice of Intent to Take Legal Action letter (breach or default letter) that
was sent by RCS to Sear. The witness indicated that he had not seen the original
copy of the breach letter, and that he did not have the return receipt for the certified
letter [Tr. 36]. The witness acknowledged that the loan number in the letter did not
match the loan number on the mortgage [Tr. 3637]. The witness testified that he
was not familiar with how RCS sent out its default letters nor did he have personal
knowledge of whether the breach letter had actually been sent out [Tr. 37]. There
was nothing in his records that would confirm that Seffar received the default letter
[Tr. 373 8]. Based on the witnesses responses, Seffars counsel objected to the
breach letter on grounds of authenticity, foundation and hearsay [Tr. 38]. Bayviews
counsel requested that the letter be admitted into evidence pursuant to the business
record exception [Tr. 38]. The Court admitted the exhibit [Tr. 38].
The Notice of Intent to Take Legal Action letter [R.
J
states, in part, If
your loan is accelerated, you may have additional rights to cure the default under
your loan and may have the legal right to assert the non-existence of a default or any
other defense you may have to the acceleration and foreclosure.... [R.
J.
The
language of this letter differs from the acceleration requirements contained in
paragraph 22 of the mortgage, which states that the borrower had the right to
reinstate after acceleration and the right to assert in the foreclosure proceeding the
II
non-existence of a default or any other defense of Borrower to acceleration and
foreclosure. [R. J. Additionally, the loan number referenced in the letter,
1000134984, is not the loan number for the loan which loan number listed on the
note and mortgage is 653880635 [Tr.
1
On cross-examination, the witness was asked about information from the
computer system that RCS used to generate account statuses [Tr. 40]. With regards
to a particular part of the account status titled corporate advances, the witness
indicated that he had no specific information as to what the corporate advances were
for [Tr. 4142]. Also, as it related to items called expense advances, he could not
explain what these were for [Tr. 42]. Seffars counsel thereafter objected to all of the
documents on the basis of foundation, hearsay and authenticity [Tr. 45].
The witness was then asked about where certain advance figures comprising
the amount on the draft final judgment came from, that is, what documentation were
those figures derived from [Tr. 47]. The witness did not know what they were [Tr.
48].
With regards to the assignment of the mortgage, the witness testified that the
mortgage was assigned on March 22, 2010 [Tr. 51]. He indicated that he had no
reason to believe that RCS was transferred the note prior to that date [Tr. 51] and
that because the default letter predated the assignment, RCS would not have been
the owner or holder of the note and mortgage by virtue of that assignment [Tr. 52].
12
Understandably so, he did not know who was the holder of the note at the time the
notice of default was sent out [Tr. 53] and stated that RCS brought the action as
servicer and not as owner and holder of the note and mortgage [Tr. 56]. He also
could not explain why RCS response to Seffars Request foi Validation letter did
not contain a copy of the allonge {Tr. 5758], and further stated that no allonge had
been produced in response to Seffars letter {Tr. 7476].
Later on in the deposition, the witness testified that the FDIC had assigned the
mortgage to RCS after they took over Franklin Bank [Tr. 5960], but that he did not
know how Franklin I3ank actually came into possession of the note and mortgage
[Tr. 60].
b. Trial Testimony of Party Witness, Taoufiq Seffar
Appellant Taoufiq Seffar took the stand during Appellants casein-chief [Fi.
73]. Seffar testified that he had conducted some research into the Vice President of
ABN AMRO Mortgage Group, Inc. (ABN), Helene Dirnitroff, and discovered that
she left ABN in 2007 [Yr. 7677]. During his research, he began to question the
authenticity of the allonge because he believed that the signature on it was
fraudulent [Tr. 79]. He said that the signature on the allonge was a stamp [Tr. 79].
Seffar also questioned the amounts claimed because he determined that he was
After Seffar received the hello/goodbye letters from Bayview and RCS. he sent a
Request for \7alidation letter attempting to verify the servicing of the subject loan
[R.].
being double billed for insurance [Ti. 80]. I-Ic was never able to determine what the
advances charged were for [Tr. 80].
c. Deposition Testimony of Melissa Alexis Seguet
As part of its defense, Seffars counsel read portions of the deposition
transcript of RCS corporate representative, Ms. Sequet [Tr. 82]. As the corporate
representative, she did not know how Franklin Bank came into possession of the
note and mortgage nor had she seen any document that would reflect such a transfer
[Tr. 86]. She testified that she did not know if the allonge was stapled to the original
note, but agreed, it should have been [Ti. 88]. She also did not know if the
signature on the allonge was an original signature [Tr. 88] and could not explain
what the corporate advances were for [Tr. 90]. She testified that she did not know
whether she had received the return receipt on the default letter, but indicated that it
was RCS practice to retain them if they had [Tr. 93]. With regards to the note itself,
given that the last page of the note had plenty of room on it for an endorsement, Ms.
Sequet did not know why an allonge was used at all [Ti.
941.
SUMMARY OF ARGUMENT
The trial court abused its discretion and erred in granting Bayviews Motion
for Substitution two (2) days before trial without continuing the trial. The trial court
further erred by admitting Bayviews evidence over Seffars objections after
Appellants voir dire of Bayviews sole witness demonstrated that he lacked the
4
requisite foundational knowledge, capacity or familiarity to properly authenticate or
admit Bayviews documentary evidence, nor was he properly a records custodian
such that he could overcome Seffars hearsay objections through the business
records exception. Such evidentiary rulings constituted harmful error because were
the trial court to have granted Seffars objections, Bayview would have had no
evidence in support of its allegations.
The trial court further erred by admitting, over Seffars objections, the
documentary evidence establishing the contested facts as to the mortgage and note,
notice of default and amount claimed to be due and owing. Such documentary
evidence was classic inadmissible hearsay not properly admitted pursuant to the
business records exception.
Finally, the trial court erred in denying Seffars Motion for Involuntary
Dismissal of the Complaint for Mortgage Foreclosure because even if the Court
were to credit all of the evidence adduced by Appellee, Appellee still never piovecl
essential allegations necessary to sustain its burden of obtaining a foreclosure
judgment on its Complaint - that it owns and holds the mortgage and that it
complied with all conditions precedent to the relief it was seeking.
STANDARD OF REViEW ON APPEAL
This appeal involves review of the Trial Courts decision to grantial
judgment in favor of Appellee. To the extent that certain rulings were made
5
pertaining to determinations of law, the standard of review is de novo. FCD Dcv.,
LLC v. S. F/a. Sports Comm., Inc., 37 So.3d 905, 909 (Fla. 4th DCA 2010). Review
of a trial
court*s
ruling on the admissibility of evidence is based upon the abuse of
discretion standard. I? evno/ds v. State. 934 So.2d 1128 (Ha. 2006). That discretion.
however, is limited by the rules of evidence. Yang v. Sebastian Lakes Condominium
Association, inc., Nos. 4D1 2-3363 and 4D 12-3364 (Fla, 4th DCA 2013); P!?i/ippon
v. S/ire/f/er, No. 4D07-4 104 (Ha.
4th
DCA 2010); Nationwide Miii. Fire ins. Co. v.
Bruscarino, 982 So.2c1 753 (Fla.
4111
DCA 2008); Hayes v. Wa/-Mart Stores, inc., 933
So. 2d 124 (FIa. 4th DCA 2006). The standard of review on appeal of the trial
courts ruling on a motion for directed verdict is de novo: it is the same lest used by
the trial court in ruling on the motion. Wi/son v. Tanner, 346 So.2d 1077 (Fla. 1 st
DCA 1977).
ARC t M E NT
I. REVERSAL IS REQUIRED WHERE TRIAL
COURT ABUSES ITS DISCRETION BY
PERMITTING SUBSTITUTION OF THE
PLAINTIFF OVER DEFENSE OBJECTION TWO
(2) DAYS PRiOR TO TRIAL.
On August 30, 2013, Original Plaintiff RCS filed a Motion to Substitute Party
Plaintiff [R.
j.
to which Seffar objected. [R.j. RCS motion was based on the
contention that because Bavview had allegedly been servicing the subject loan as of
6
July 9, 2013, it should be substituted for RCS as party plaintiff. At the hearing on
RCS Motion to Substitute Party Plaintiff held on September 10, 2013, Seffar raised
various issues pertaining to the motion, including prejudice to him from the filing of
the motion at the last minute as to his defenses relating to standing pertaining to the
previous servicer. [Sept. 10,2013 Hrg. Trans. at
p.
4]. RCSs counsel contended that
under Elston Leetsdale LLC v. CW Capital Asset, 87 So. 3d 14 (Fla. 4th DCA 2012),
the servicer was permitted to bring an action on behalf of the owner of the note.
[Sept. 10, 2013 Hrg. Trans. at
p.
5].
Florida Rule of Civil Procedure 1.210(a) permits an action to be prosecuted in
the name of someone other than, but acting for, the real property in interest. A
servicer may be considered a party in interest to commence legal action as long as
the real party in interest joins or ratifies its action. Elston Leetsdale LLC, 87 So. 3d
16. To support a finding of standing by a servicer on behalf of the real party in
interest, this Court in Elston Leetsdale indicated that there would have to be
substantial evidence, affidavits or other documents supporting an allegation that a
servicer was authorized to prosecute an action on behalf of the real party in interest.
Id. at 17. Where a servicer relies on nothing more than its own allegations and
affidavit to support its argument that it has standing to sue on behalf of another, that
in and of itself is insufficient evidence. Id. at 1718. In reaching its decision, this
Court relied on considerations taken into account by the Seventh Circuit in a case
17
captioned CWCapital Asset Mgmt., LLC v. Chicago Properties, LLC, 610 F3d 497
(7th Cir. 2010).
In CWCapital Asset Mgmt., LLC, the court found that a special servicer to a
loan had standing to bring an action in its own name against a mortgagor and
landlord. In that particular case, the special servicer filed an affidavit of the trustee,
which was not contradicted, thereby ratiing the servicers commencement of the
lawsuit. Id. at 502. Additionally, the pertinent pooling and servicing agreement was
placed in evidence as additional evidence that the servicers principal granted it
authority to enforce the debt instruments that the servicer neither owned nor held. id.
atSOl.
Similarly, in .Juega v. Davidson, 8 So. 3d 488 (Fla. 3d DCA 2009), a case also
relied upon by this Court in Elston Leetsdale LLC, the Third District reversed an
order of dismissal for lack of standing where the plaintiff in that case was deemed to
have been the agent who had been granted fUll authority to act for the real party in
interest. Juega, 8 So. 3d at 489. The court concluded that there was no violation of
rule 1.2 10(a) because there was ample evidence that the agent/plaintiff had been
granted fUll authority to act on the real party in interests behalf. Id.
Like Elston Leetsdale, but unlike CWCapital Asset Mgmt., LLC and Juega,
the original plaintiff here (RCS) did provide any substantial or compelling
evidence to support the contention that it had the requisite standing to bring a claim
18
against Seffar. While in paragraph 3 of its Complaint herein RCS alleged that it had
the right to enforce the note and mortgage, there was no allegation as to the identity
of the owner and holder of the note and mortgage from whom that right to enforce
allegedly derived. RCS standing was allegedly based upon its being authorized by
an undisclosed principal to act as its agent to enforce the note and mortgage. The
only evidence that RCS attached to its Motion was a letter it allegedly sent to
Seffar on June 13, 2013, informing him that the servicing was being transferred to
Bayview. However, that is just more of the same that is, not actual evidence but
merely its own allegations. Lastly, RCS motion for substitution was unsworn and
only indicated that servicing of the note and mortgage had been transferred. again,
presumably by the unnamed and undisclosed principal that owned and held the note
and mortgage.
The requested substitution should have been denied because it was nothing
more than an attempt to cure the original plaintiffs standing deficiencies. The trial
court erred in granting RCS Motion to Substitute Party Plaintiff because it caused
prejudice to Seffar in that it was heard on the eve of trial and in that the ruling
presupposed that the original plaintiff had standing to bring the action against Seffar
in the first place.
IL REVERSAL IS REQUIRED WHERE TRIAL
COURT ERRED IN OVERRULING APPELLANTS
19
LACK OF FOUNDATION, AUTHENTICATION
AND HEARSAY OBJECTIONS TO APPELLEES
DOCUMENTARY EVIDENCE AND TESTIMONY
The Mortgage and Note
As the Court instructed in Amos v. Gartner, Inc., 17 So.3d 829, 833 (Fla. 1
DCA, 2009):
Authentication of evidence is required as a condition precedent to its
admissibility. See
90.901, Fla. Stat. (2008). Evidence sufficient to
support a finding that the matter in question is what its proponent
claims satisfies the authenticity requirement. See id. Extrinsic
evidence of authenticity is required except for those documents which
are self-authenticating. See
90.902(1
)-(
11), Fla. Stat. (2008). Except
as provided by statute, hearsay evidence is inadmissible. See
90.802,
Fla. Stat. (2008). Where no proper foundation is laid, a record cannot
be admitted under an exception to the hearsay rule. See Lowes of
Tallahassee v. Giaimo, 552 So.2d 304, 305 (Fla. 1st DCA 1989)
(reversing JCCs admission of records into evidence where foundation
satising rules of admissibility not established).
Mr. Azarsepandan, who testified about the purported business records in the
present case, lacked the necessary foundation to
identi&
the records and also lacked
the requisite knowledge for being considered a records custodian. Before a
document may be admitted as a business record, a foundation for such admission
must be laid. Mazine v. M&I Bank, 67 So. 3d 1129, 1129 (Fla. 1st DCA 2011). To
lay a proper foundation for the admission of a business record, it is necessary to call
a witness who can show that each of the foundational requirements set out in the
statute is present Charles W. Ehrhardt, Florida Evidence Sec. 803.6, at 585 (2d ed.
20
1991). Although it is not necessary to call the person who actually prepared the
document, the witness must have the necessary knowledge to testify as to how the
record was made. If the offering party does not lay the necessary foundation, the
evidence is not admissible under section 90.803(6). Id. See also Lowes of
Tallahassee v. Giaimo, 552 So.2d 304, 305 (Fla. 1 st DCA 1989) (affidavit failed to
make requisite showing to provide proper predicate for admission of doctors records
under section 90.803(6)). Forester v. Norman Roger Jewel! & Brooks Intern., Inc.,
610 So.2d 1369, 1373 (Fla. 1st DCA 1992) (being able to generally identify records
as the type of forms that a business or entity utilizes or completes is insufficient to
lay a proper foundation for the introduction of business records).
To illustrate, in Mazine, the bank had a regional security officer testify by
looking at files in the banks system and testifying as to the business records. The
officers duties were related to fraud and internal investigations. It was evident from
the circumstances that the officer had not been involved with the documents
personally. In that case, the witness admitted he had no knowledge as to the
preparation or maintenance of the documents offered by the bank. He further
indicated that he did not have any idea whether the information was input into the
banks system correctly nor could he vouch for the authenticity of any of the
information. He could not testify that the amounts owed were actually kept in the
regular course of business. He also did not know if the source of the information
21
contained in the affidavit was correct or whether the purported amounts \ere
accurate. Despite these unfavorable circumstances, the trial court admitted the
testimony and the records to come as business records. Defendant appealed the trial
courts decision on the grounds that the circumstances proved that the officer did not
have the requisite knowledge to have been considered the records custodian. That,
coupled with the fact that there had been no attempt to admit the affidavit by
certification and declaration pL1rs1laI1t to Section 90.8036(c) of the Florida Statutes.
resulted in the First District reversing the case and entering judgment in favor of the
defendant.
Of particular relevancy and interest is a case captioned Kelsev v. SunTmust
\iortgage. inc. No. 3D 12-2994 (Ha. 3rd DCA, Feb. 12. 201 4). In Kelsci, the trial
court had allowed the appellee banks purported corporate representative to
authenticate documents without showing that she was a records custodian or that she
had personal knowledge of the documents. The bank subsequently filed a partial
concession of error with the appellate court, admitting that the trial court erred in
allowing certain documents given that they were hearsay without the proper
authentication. Id. The Third DCA agreed on the issue and remanded the case for
rehearing. Id.
Furthermore, as stated in The Florida Bar, Evidence in Fiomida 9.67
(7th
ed.
2008):
The attorney should be careful to select the proper witness to qualify a
document under F.& 90.803(6). The witness should know how the
business generally operates and the usual procedure for preparing the
type of document involved. Failure to select a properly qualified
witness could result in the document being rejected as a business
record. See Sunshine Chevrolet Oldsmobile v. Unemployment Appeals
Commission, 910 So.2d 948 (Fla. 2d DCA 2005) (although sole
witness for employer at unemployment compensation hearing claimed
to be custodian of records, failure to produce any testimony satisfying
three foundational requirements for admission under F.S. 90.803(6)
meant that hearing referee properly rejected records as inadmissible
hearsay); A.JD. v. State, 842 So.2d 297 (Fla. 3d DCA 2003)
(probation officer was not custodian or otherwise qualified person to
testify about preparation of school attendance records); Williams v.
State, 666 So.2d 187 (Fla. 2d DCA 1995) (accuseds current
probation officer, who had no personal knowledge of events alleged in
violations report by former officer, did not know if report was kept in
usual course of business; thus, admission of report was error);
McKenzie Tank Lines, Inc. v. Roman, 645 So.2d 547 (Fla. 1st DCA
1994) (lab report showing that employee tested positive for cocaine
properly excluded in unemployment compensation hearing, because
employer did not make report in regular course of business and no one
from outside testing lab had testified to lay proper foundation to
qualify report under business record exception); Phillips v. State, 621
So.2d 734 (Fla. 3d DCA 1993) (hospital nurse who admittedly was
not custodian of proffered hospital records was not proper witness to
lay foundation for them as business records); Snelling & Snelling, Inc.
v. Kaplan, 614 So.2d 665 (Fla. 2d DCA 1993) (property manager of
party wishing to withdraw funds from escrow account was not proper
witness to lay foundation for partys ledger books, because manager
was neither custodian of nor familiar with transactions recorded in
ledgers); King v. State, 590 So.2d 1032 (Fla. 1st DCA 1991)
(probation officer was not custodian of Department of Corrections
computer printout showing defendants release date for previous
offense and did not know how record was prepared).
23
Out-of-court statements offered to prove the truth of the matter asserted are
inadmissible unless the statements fall under a recognized exception to the rule
against hearsay. See
90.802, Fla. Stat. (2013). All of the documentary evidence
introduced by Bayview 8 was proffered to be admissible under the business records
exception to the hearsay rule [Tr.
].
The Florida Supreme Court in dealing with
the business records exception to the hearsay rule recently stated in Yisrael i. State.
993 So. 2d 952, 956-57 (Fla., 2008):
To secure admissibility under this exception, the proponent must show
that (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. See, e.g., Jackson v. State, 738 So.2d 382, 386 (Fla. 4th
DCA 1999). Additionally, the proponent is required to present this
information in one of three formats. First, the proponent may take the
traditional route, which requires that a records custodian take the
stand and
testi&
under oath to the predicate requirements. See
90.803(6)(a), Fla. Stat. (2004). Second, the parties may stipulate to the
admissibility of a document as a business record. See, ag, Kelly v.
State Farm Mut. Auto. Ins., 720 So.2d 1145, 1146 (Fla. 5th DCA
1998) (holding that the parties stipulated to the admissibility of [993
So.2d 957] medical records under the business-records exception); but
see Gordon v. State. 787 So.2d 892, 894 (Fla. 4th DCA 2001)
(holding that the State and defense counsels stipulation regarding the
defendants release date was not sufficient to relieve the State of its
burden to prove the defendants release date by a preponderance of the
evidence). Third and finally, since July 1, 2003, the proponent has
been able to establish the business-records predicate through a
certification or declaration that complies with sections 90.803(6)(c)
Exhibits 1 [R.
].
24
and 90.902(11). Florida Statutes (2004). The certihcationunder
penalty of peijury-- must state that the record:
(a) Was made at or near the time of the occurrence of the matters
set forth by, or from information transmitted by, a person having
knowledge of those matters;
(b) Was kept in the course of the regularly conducted activity;
and
(c) Was made as a regular practice in the course of the regularly
conducted activity[.]