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APPELLEE.
I
TABLE OF CONTENTS
Page
TABLE OF CONTENTS
ii-iv
INTRODUCTION ...........................................................
2-5
5-7
ARGUMENT:
The Trial Court abused its discretion by admitting into
I:
evidence the Loan Payment History, Plaintiff's Exhibit 1,
under the Business Record Exception because it included
III:
7-13
13-16
16-19
..
CONCLUSION ...............................................................
19
20
20
CITATION OF AUTHORITIES
Page
Beerman y. Rollar, 710 So. 2d 93 (Fia. 4th DCA
1998).
8, 14
17
.....
18
17
17
11
17
18
19
Janke y. Corinthian Gardens, Inc., 405 So. 2cl 740 (FIa. 4th DCA
8, 14
8, 14
Johnson y. Dep't ofllealth & Rehab. Servs., 546 So. 2cl 741 , 743
il
11
I7
CITATION OF AUTHOPJRIES
(continued)
Page
.................................
18
........
18
.......
8, 14
ist
...............................
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Scott y. Taylor, 58 So. 30 (Fia. 1912) ........................
13, 16
17
18
..........
18
. ...
17
.........
Thomas y. Hartman, 553 So. 2d 1256 (Fia. 5 DCA 1989) ........
Tayton y. American Nat'i Bank, 57 So. 678 (Fia. 1912)
17
18
...............................
Yisraei y. State, 993 So.2d 952, (FIa. 2008) ..................
5,11,12
18
1933) ...................
111
11
CITATION OF AUTHORITIES
(continued)
Page
FLORIDA STATUTES
FloridaStatutes,90.802 .................................
8,10
6, 9, 10, 15
IO
11, 12, 14
11
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iv
INTRODUCTION
Appellant, GLADYS ANTOINE, will be referred to herein, interchangeably,
as Appellant or Antoine. Appellee, ONE WEST BANK, FSB will be referred to
Federal Bank. On July 22, 20 1 0 the plaintiff substituted OneWest Bank, FSB in
place of IridyMac.
The foreclosure trial was held on March 1 1, 2014. The Appellant raised
Sole Witness
At the tria!, Sally Torres, Senior Litigation Analyst (the "Witness") was the
sole witness on behalf the Lender. The Witness was employed by Ocwen Loan
Servicing ("Ocwen") which was the servicer of the loan on behalf of the Lender.
(T. 5), beginning August 19, 2013. (T.18)
reviewed contained Ocwen's name only on the first page of the loan history.
(T. 10) Ms. Torres testified that the remaining pages of the loan history were those
of IndyMac and OneWest Bank ("OneWest") and admitted that she was never an
employee of either. (T. 10) The Witness admitted she had no personal knowledge
a business record ofthe Plaintiff. Plaintiff's Exhibit i is the loan payment history.
The Witness admitted that Plaintiff's Exhibit 1 only had one page from
Ocwen and the remainder of the pages are the payment history records of IndyMac
and OneWest Bank. (T. i 0) The Witness admitted that the records of IndyMac and
OneWest are not based upon business records prepared by Ocwen Loan Servicing
and that she had no personal knowledge as to the manner in which IndyMac or
OneWest created those records, compiled those records and checked them for
accuracy. (T. i I).
Appellant objected on the basis on hearsay. (T.9, T. 1 1 , T. i 4 and T. i 9). The
Witness went on to testify that these records came to Ocwen from InclyMac and
OneWest when Ocwen acquired OneWest Bank in August of 20 1 3
3
(T. 1
The
Witness stated that these records were checked and went through Ocwen's quality
control prior to boarding them into Ocwen's system, however the Witness stated
she had no personal knowledge as to the manner in which IndyMac or OneWest
created, compiled and checked them for accuracy prior to Ocwen obtaining them.
(T.11 and T.19)
The court overruled the hearsay objection and allowed the exhibit into
evidence. (1.20)
At no point did the Witness ever attempt to establish any of the criteria for
the exhibit as hearsay exception under the business records rule with respect to the
prior servicer information.
Plaintiff's Exhibit 3
Original Note
Appellee/Lender then offered as Exhibit 3, the original adjustable rate note
dated October 31, 2005. (T.22, T.23) The Witness testified that the endorsement
on the back by IndyMac was endorsed en blanc and the other endorsement was
from Market Street Mortgage Corporation to IndyMac. (T.23) Market Street
Mortgage was the originator ofthe loan. Counsel for the Appellant objected on the
grounds of hearsay, relevance and lack of predicate. (T.24) The Court overruled
the objection and allowed the Note into evidence. (T.24)
Plaintiffs Exhibit 5
Demand Letter
Witness testified that she was never employed by IndyMac, had no personal
She admitted that she did not have a copy of those notes. (T.27, T.28) Counsel for
the Appellant made the same objection on the grounds of hearsay and lack of
predicate, citing Yisrael, 993 So.2d 952. (T.28) The Court overruled the objection
and allowed Exhibit 5 into evidence. (T.28)
SUMMARY OF ARGUMENT
Point I
Plaintiff's Exhibit
information from a prior loan servicer and was being offered to prove the truth of
such financial information. Appellee/Lender relied upon the Business Exception
Record for admissibility ofthe exhibit.
history was not based upon business records prepared by her office, Ocwen, and at
no point in the trial did the sole Witness attempt to establish any of the criteria for
Plaintiff's Exhibit I or any trial exhibits as hearsay exceptions under the Business
Records Rule with respect to the financial information from the prior servicer.
The Florida Evidence Code clearly prohibits "hearsay within hearsay" unless
each part of the combined statements conform with an exception to the Hearsay
Rule.
supplying a proper predicate to admit its evidence under an exception to the rule
against hearsay. Further, if evidence is admitted under one of the exceptions, it
Appellant was prejudiced because the business records were the only
evidence as to damages.
documents, over Appellant's objection, Appellee/Lender would not have proven its
case.
Point II
Business Record Exception. Further, the Witness admitted that she had no personal
knowledge as to the manner in which the letter was delivered or prepared and
based her testimony on the purported review of a OneWest business record/note
that she did not produce in Court. The Witness also did not establish the criteria
for a Business Record Exception, and even if it was an Ocwen record, in that she
could not testify that the letter was kept in the course of a regularly business
activity and that it was the regular practice of such business to make such a letter.
Appellant was prejudiced because the letter was the only evidence of a Notice of
Intent to accelerate, which was required under the mortgage. But for the erroneous
admission of such hearsay document, over Appellant's objection, Appellee/Lender
would not have proven material condition precedent to its cause of action.
Point III
Appellee/Lender failed to provide any evidence that it owned the Note prior
to initiating the underlying foreclosure action.
ARGUMENT
Point i
Appellant's Point
Standard of Review.
The admissibility of evidence lies in the sound discretion of the trial court
and tria! court decisions on the matter will be affirmed absent a showing of abuse
ofdiscretion. See. e.g., Mendoza y. State, 700 So. 2d 670 (Fia. 1997), cert. denied,
67 U.S.L.W. 3231, 1 19 S.Ct. 101, 142 L.Ed.2d 81 (1998);Jentv. State, 408 So. 2d
1024 (F!a. 1982); Beerman y. Rollar, 710 So. 2d 93 (Fla. 4th DCA 1998); Janke y.
Corinthian Gardens, Inc., 405 So. 2d 740 (FIa. 4th DCA 1981), cert. denied, 413
So. 2d 876 (Fia. 1982).
B.
Factual arguments.
90.801(1)(c), F.S. defines hearsay as:
The sole witness of the Plaintiff admitted that she had no personal
knowledge of any of the dealings on this !oan prior to it coming to Ocwen and that
she had no knowledge as to how the prior servicers, IndyMac and OneWest,
[,]
performed their servicing. The Loan Payment History was clearly hearsay because
the statement was prepared by one other than the Witness and was being offered to
prove the truth of the amount due. The Plaintiff's sole method of meeting its
burden of proof at trial was to rely on the business record exception to the hearsay
rule under 90.803 F.S.
(Emphasis Supplied).
The Witness also admitted that the prior servicers' history was
At no point in the trial did the Witness attempt to establish any of the criteria
for any of the trial exhibits as hearsay exceptions under the business records rule
with respect to the prior servicer.
The Appellant objected on the basis on hearsay and the Trial Court
eventually overruled the objection and allowed Plaintiff's Exhibit i into evidence.
There was never any effort to establish that the prior servicers' records satisfied the
criteria for the Business Record Exception (or any other exception) for the prior
servicer.
the statement in the record itself (i.e. the second layer of the hearsay) would have
to be admissible under some exception to the hearsay rule. The Court stated:
10
have required satisfying the business record exception criteria for the prior
servicers. As evident in the trial transcript, there was no such effort whatsoever. It
was, therefore, an error for the Trial Court to admit Plaintiff's Exhibit 1.
il
4th
of computerized business records acquired from prior loan servicer, however, the
Affidavit had relied upon data supplied by a different loan servicer whose
procedures he was even less familiar with and could not state that the data supplied
in the Affidavit was accurate. The court found for a number of reasons, including
that because the data relied upon was from a prior servicer, with whose procedures,
the Affiant was not familiar, that the Affidavit was inadmissible hearsay and that
there was no competent evidence to prove the amount of damages.
compilation was made pursuant to the specified criteria. Pursuant to the Hearsay
within Hearsay statute, 90.805, this would require proof that all of the layers of
information in the business record meet such criteria -- including information from
any prior business. Otherwise, this would simply allow hearsay on hearsay on
12
transferring the records to a new servicer and have that new servicer simply
establish the criteria for itself.
C.
Prejudice.
When a party, such as a lender, fails to establish a proper foundation for the
admission of business record, such constitutes error. If the business records are the
But
for
the
Court
iSt
vfoshe Mazine y.
erroneously
admitting
the
exhibit,
the
Appellee/Lender would not have proven its case because there would have been no
competent substantial evidence ofthe amount ofdamages, i.e., the amount due.
Point It
Appellant's Point
A.
Standard of Review.
The admissibility of evidence lies in the sound discretion of the trial court
13
and trial court decisions on the matter will be affirmed absent a showing of abuse
of discretion. See Mendoza, 700 So. 2d 670; Jent, 408 So.2d 1024; Beerman, 710
So. 2d 93; and Janke, 405 So. 2d 740.
B.
Factual arguments.
Appellant incorporates by reference, the Statutes and case law referenced in
Point I.
The prior servicer on this loan, IndyMac, presumably sent a demand letter
o'-' September 1 5, 2008, Plaintiff's Exhibit 5, to the Borrower, at an address which
was not the property address in question. The purpose of the letter was to notify the
Borrower that she was in default and that the lender intended to proceed with the
foreclosure.
it
can be
accelerated. The Witness also admitted that the property address was 1 Rainrock
Place, Palm Coast, Florida but did not testify as to what address the letter was sent
to specifically.
The Witness also admitted that when IndyMac allegedly sent the Demand
14
Letter there was no proof that it was actually delivered to the Borrower, but simply
relied on records transferred to Ocwen, and did not have a copy of those notes to
testify to.
Plaintiff's Exhibit 5 was clearly a letter prepared by a prior servicer and was
being offered to satisfy an admitted condition precedent under the mortgage, (i.e. a
was a statement made by one other than the declarant that was being offered to
prove the acceleration letter, in fact, had been sent, as required pursuant to terms of
the mortgage.
(6)(a), Florida Statutes, in that it was simply a letter presumably sent to what,
based upon the evidence, is an erroneous address.
Plaintiff's Exhibit 5, therefore, neither meets the criteria for even being
business record, nor has there been any satisfaction of the criteria as a business
record exception in that the Witness never established that it was kept in course of
a regularly conducted business activity or that it was the regular practice of such
business to make such letter (how could she even have testified that it was the
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Prejudice.
When a party, such as a lender, fails to establish a proper foundation for the
admission of business record, such constitutes error. If the business records are the
But for
the
Trial
Court
erroneously
Moshe @ i i 32.
admitting the
exhibit,
the
Appellee/Lender would not have proven its case because there would have been no
Point III
Appellant's Point
in that person's own name without joining the party for whose benefit the
16
action is brought. All persons having an interest in the subject of the action
and in obtaining the relief demanded may join as Plaintiffs and any person
Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwaid y.
Triple D Properties, Inc., 424 So. 2d i 85, 1 87 (Fia. 4th DCA 1983); Costa Bella
Development Corp. y. Costa Development Coip. , 44 1 So. 2d 1 1 1 4 (Fla. 3rd DCA
1983).
debt. Sobe/y. MutualDev. Inc., 313 So. 2d 77 (Fia. i DCA, 1975); Pepe
y.
Shepherd, 422 So. 2d 910 (Fla. 3 DCA 1982); Margiewicz y. Terco Prop., 441 So.
2d 1 124 (FIa. 3 DCA 1983). The promissory note is evidence ofthe primary
mortgage obligation. The mortgage is only a mere incident to the note. Brown y.
Snell, 6 Fla. 741 (1 856); Tayton 'y. American Nat'lBank, 57 So. 678 (Fia. 1912);
17
Scott y. Taylor, 58 So. 30 (Fia. 1912); Young y. Victory, 150 So. 624 (Fia. 1933);
Thomas y. Hartman, 553 So. 2d 1256 (Fia. 5 DCA 1989). The mortgage
instrument is only the security for the indebtedness. Grier y. MN. C. Realty Co,
274 So. 2d 21 (Fia. 4 DCA 1973); Mellor y. Goldberg, 658 So. 2d 1162 (Fia. 2
DCA 1995); Century Group Inc. y. Premier Fin. Services East L. P., 724 So. 2cl
661 (FIa. 2 DCA 1999).
B. Prejudice.
When a party, such as a lender, fails to establish standing with inconsistent
for
the
Trial
Court
erroneously
admitting
the
exhibit,
the
Appeilee/Lender would not have proven its case because there would have been no
competent substantial evidence of that the Appeliee/Lender had standing.
"A crucial element in any mortgage foreclosure
proceeding is that the party seeking foreclosure must
Dated this
-5'
Resectfu1ly su
JAflES R. EVANS, ESQ.
FlMida Bar Number 0044441
322 Silver Beach Avenue
Daytona Beach, FL 32 1 18
(386) 226-8036
FAX (386) 252-5052
Jamesevans1awgmail .com
Attorney for Appellant
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by E-service to BAKER, DONELSON, BEARMAN, CALDWELL &
BERKOWITZ, PC to FLLService@bakerdonelson.com on July
S,
2014.
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