Escolar Documentos
Profissional Documentos
Cultura Documentos
Respectfully Submitted,
Michael P. Fuino, Esq. Counsel for Appellants Matthew D. Weidner, P.A. 7229 Central Ave. St. Petersburg, FL 337 05 Telephone: (727) 894-3 159 Facsimile : (7 27 ) 89 4-29 53 mfu ino@mattweidnerlaw. com FBN:84191
Matthew D. Weidner, Esq. Counsel for Appellants Matthew D. Weidner, P.A. 7229 Central Ave. St. Petersburg, FL 33705 Telephone: (727) 894-3 159 Facsimile: (7 27) 894-29 53 wel attweidnerlaw.com
FBN: 185957
TI{E TRIAL COURT COMMITTED REVERSAL ERROR WHEN IT GRANTED RCS A FINAL JIIDGMENT OF FORECLOST]RE WHERE
RCS FAILED TO PROVE ITS STANDING TO SLIE............................8
a. As an agent acting for an undisclosed principal, RCS was required to present some evidence that the principal acquiesced to its
actions.........
................8
b.
Because the promissory note is not negotiable, RCS's mere possession alone did not confer onto it standing to sue...............................13
The promissory note contains instructions and undertakings otherthanthe payment of money...... ...........14
Integrating the terms of the mortgage into enforcement of the promissory note destroys any negotiability the note might
11,
have...........
c.
......................19
Assuming, arguendo, that the promissory note is negotiable, RCS was not the holder because the note was constructively delivered to its
undisclosedprincipal.......
II
...............21
... . ...24
that AHMSI "possessed" the note at the inception of the action. .,....... ............25
b. The probative value of the assignment outweighed any argument againstintroduction.., ...........,........26
harmless
III.
T}IE TzuAL COURT COMMITTED REVERSAL ERROR WHEN IT OVERRULED HOMEOWNERS' OBJECTION TO T}M AHMSI WITNESS'S TESTIMONY REGARDING POSSESSION OF THE NOTE......... ................28
a.
The witness admitted she had no personal knowledge that AHMSI had possession of the note prior to the inception of the lawsuit. . . . . .. .....29
statements.....
c. Permitting
required
..........29
the testimony was not a harmless error because RCS was to prove under Feltus that the blank endorsement was effectuated prior to the lawsuit being ..........31
filed....
Certificate of Service...............
??
11
TABLEOFAT]'THORITMS
CASES American Bank ofthe South v. Rothenberg, 598 So. 2d289 (Fla.5th DCA 1992)...............
.. 15-16, 18
1999).....
.............30
Country Place Cmty. Ass'nv. J.P. Morgan Mortg. Acquisition Corp., 51 So. 3d 1176 (Fla. 2d DCA 2010) .............. .......;......,...........................25
Cullimore v. Barnett Bank of Jacksonville,, 386 So. 2d 894 @la. lst DCA 1980)................ Damico v. Lundberg, 379 So, 2d964 (Fla.2d DCA 1979)
.............30
...............
...............28
Elston/Leetsdale, LLC v. Cl(Capital Asset Management, LLC, 37 Fla.L. Weekly D785b (Fla. 4th DCA April 4, 2012)..........................................,9-10
FCD Dev., LLC v. S. Fla. Sports Comm., Inc., 37 So. 3d 905 (Fla. 4th DCA 2010)..............
Feltus v. U.S. Bank National Association, 80 So. 3d 375 (Fla. 2d DCA 2012)...............
...................6
............3r-32
Fla. Inst. for Neurological Rehab., Inc. v. Marshall, 943 So. 2d976 (Fla.2d DCA 2006)..............
GMAC v. Honest Air Conditioning & Heating, Inc., 933 So. 2d,34 (Fla.2dDCA 2006)...............
...............28
......15-16, 18
Holly Hills Acres, Ltd. v. Charter Bank of Gainesville, 314 So. 2d209 (Fla.2d DCA 1975)...............
...............2r
111
In re Commitment of DeBolt, 19 So. 3d 335 (Fla. 2d,DCA 2009)............... JeffRay Corp. v. Jacobson, 566 So. 2d 885 (Fla. 4th DCA
.................28
1990)...............
..............25
......11-12
.............
zJ
1926)................
............. 16
2004)...............
2005)....
........13,18
..................25-26
2004)...............
..............30
2010)...............
.....13, 18, 19
Taylor v. Deutsche Bank National Trust Company, 44 So. 3d 618 (Fla. 5th DCA 2010)............... Thompsonv. State, 705 So.2d1046 (Fla.4*rDCA
....13,18,22
1998)...............
......30-31
1V
2007)...............
................6
WM Specialty Mortg., LLC v. Salomon, 874 So. 2d 680 @la. 4th DCA
2004)...............
..............20
Fla. Stat.
$90.403
...'...26-27
Fla. Stat.
$671.103 $673.1041(1)
..........23
Fla. Stat.
...14?15,16,19,21
Fla. Stat.
$673.3011
.........22
OTIIERAUTHORTTES
D. Whitman, How Negotiability Has Fouled Up the Secondary Mortgage Market,and What to Do About it,37 Pepp.L.Piv,737,754 (2010)...........................
13
vl
PRELIMINARY STATEMENT
All
references
transcript are designated by the symbol "T" followed by the page range
v11
of an undisclosed
principal must
of
evidence that
it
to act when
specifically challenged by a pany against whom that agent seeks to act is a central
theme articulated
entered in
favor of Residential Credit Solutions, Inc. ("RCS") and against Ernest C. Hassell
and Teri Ditrrich-Hassell (collective "Homeowners"). This court has jurisdiction
to hear this question, and the other questions posed, pursuant to Fla. R. App.
e.03o(bx1xA).
P.
While this Court has recently been faced with numerous foreclosure appeals regarding ,,standing to sue" in the recent past, this appeal places the following narrow issues regarding standing before the Court: (1) whether a "servicern' of a
mortgage loan is required to present some evidence of its undisclosed principal's
ratification of its act of suing at a trial on the matter; (2) whether the promissory
note at issue is a negotiable instrument and therefore standing may be acquired
through mere possession ofthe note aione; and (3) assuming the note is negotiable,
Additionally, this appeal asks this Court to review two evidentiary rulings
made by the court below at
trial,
objection to a witness's testimony regarding when RCS's standing to sue could have accrued. Because the witness's testimony was made from her review of "business records" rather than her personal knowledge, RCS was required to
introduce the records prior to the witness's testimony. Since RCS failed to do this,
the witness's statements were inadmissible and unauthenticated hearsay.
1]. Notably
for purposes ofthis appeal, no copy ofthe note was attached to the complaint and
no mention was made that AHMSI was prosecuting this action on behalf of anyone
but itself.
an
assignment which professed to transfer the mortgage from the original lender to it.
[R. 579-580]. However, the assignment "post-dated" the lawsuit in that the date of
the assignment clearly oocurred after AHMSI filed its initial complaint.
39-
"blank
original complaint in that it was the first pleading where the "blankly endorsed"
note appeared. The pleading, however, failed to identif, who AHMSI had brought
on that undisclosed
to sue, [R.
At the trial, RCS presented the testimony of its corporate representative and
the corporate representative of
had
of
Q. (By Mr. Gache) So Ms. Ibarra, the loan which is the subject of this lawsuit which is a loan made to Emest C. Hassell and Teri DittrichHassell, do you know whether AHMSI at one point in time was the loan sewicer for this particular loan?
A. Yes.
lT.32l. (Bold
emphasis added).r
The witness also testified that the o'servicing" of the debt was transferred
from AHMSI to another "servicer" (presumably RCS) sometime after the inception
of the action. [T. 33]. At no time during the trial did RCS present any testimony
or evidence that the undisclosed party which AHMSI and RCS were "servicing"
the mortgage and note for had authorized either party to bring the action in the undisclosed principal's
witness testified that
it
I RCS's corporate representative also testified at the kial that RCS was also only the "servicer" of the promissory note and mortgage. ['1. 771.
4
2008. [T. 34]. Homeowners' counsel objected that the witress lacked the requisite
foundation to testifu. [T. 34]. After inquiry by the trial court, the witness testified
that her testimony regarding when AHMSI was allegedly in possession of the
original note was entirely based upon a review ofher "business records" which had not yet been entered into evidence. [T. 34]. Homeowners thereafter objected to
the testimony on the grounds that the "business record" referred to by the witness
had not been entered into evidence. [T. 34-35]. The trial court overruled this objection and allowed the witness to testiff that AHMSI was in possession of the original promissory note endorsed in blank on July, 2008. [T. 35].
Later, Homeowners attempted to introduce into evidence a certified copy
of
the
assignment tended to show that RCS's predecessor AHMSI did not have standing
at the inception of the action. [T. 135]. RCS objected on relevancy grounds,
arguing that the assignment was irrelevant to when AHMSI gained possession the note. [T.
of
135].
The trial court sustained RCS's objection and ruled that the
At the close of evidence, and without any testimony or evidence that RCS's
undisclosed principal that it had authorized AHMSI or RSC to sue in its name, the
trial court entered a final judgment in favor of RCS. lT. 175; R. 574-5781. This
appeal follows.
STANDARD OF'REVIEW
"Whether a party is the proper party with standing to bring an action is a
question of law to be reviewed de novo." FCD Dev., LLC v. S. Fla. Sports Comm.,
Inc.,37 So. 3d 905, 909 (Fla. 4th DCA 2010) (quotingWestport Recovery Corp.
v.
SI]MMARY OF ARGUMENT
Reversal error was committed by the trial court when
it
entered
a final
judgment in favor of RCS without RCS proving it had standing to sue as "servicer"
of the note and mortgage. RCS failed to present any evidence that its undisclosed principal either joined in or ratified its conduct as required by established Florida
case
in blank" did not confer standing to sue onto it because the note is non-negotiable
since: (1) the note contains instructions and undertakings other than the payment
of
money; and (2) incorporating the terms of the mortgage into the note under the doctrine of "the mortgage follows the note" destroys any negotiability the note
might have. Additionally, even assuming the promissory note was negotiable, RCS was not the "holder" of the note because the note was constructively
delivered to RCS's undisclosed principal.
Moreover, the trial court committed reversal error when it sustained RCS's objection to the introduction of the assignment. The assignment was relevant
because it tended to disprove a material fact to this action: that RCS's predecessor,
AHMSI, had possession of the note prior to the filing of the lawsuit. Additionally,
of
issues, misleading
of
"harmless" because
would have
it
ovemrled
entirely upon certain "business records" which were not entered into evidence.
Because the records were
witness's
testimony, her statements regarding the contents of the records were inadmissible.
This error was also not harmless because, assuming that the note is negotiable,
RCS was required to prove that the blank endorsement was effectuated prior to
inception of the action. As this testimony was the only evidence offered by RCS to
prove up this material fact, Homeowners would have certainly obtained a more
favorable outcome absent the error.
ARGI]MENT
rv.
THE TRIAL COI]RT COMMITTED REVERSAL ERROR WIIEN IT GRANTED RCS A FINAL JUDGMENT OF F'ORECLOSURE WIIERE RCS FAILED TO PROVE ITS STANDING TO SUE
Because RCS (and
representative capacity as 'oservicer" of the note and mortgage, it was required to prove at trial that an agency relationship existed between itself and the party whom
it was suing on behalf of, In other words, in order for RCS to have a sufficient
stake in the outcome of the litigation,
on behalf of its undisclosed principal
it
the status of the real party in interest. Finally, even if the promissory note was
negotiable, RCS was still required to prove up its agency relationship because the
note was delivered to RCS's undisclosed principal.
Therefore, it was a reversal error to grarLt a final judgment of foreclosure in favor of RCS where no evidence of an agency relationship was established at trial.
a. As an agent acting
undisclosed principal' RCS was required to present some evidence that the principal acquiesced to its actions
8
for an
As the purported "servicer" of the note and mortgage, RCS was not the party
to whom the debt was owed. See e.g.24 C.F.R. $3500.2(b) (defining the act of
"servicing" under the Real Estate Settlement Procedures Act as "receiving any
scheduled periodic payments
any
or other
loan
documents or servicing contract.") (Bold emphasis added). Rather, RCS was the
agent for the party it was "servicing" the loan on behalf of and could only foreclose
the mortgage
if its principal
granted
then tums to
what burden of proof RCS was required to present at triai in order to establish this. This issue was recently addressed by the Fourth District Court of Appeal in a
In
Elston/Leetsdale,
Management, LLC,37 Fla. L. Weekly D785b (Fla. 4th DCA April 4,2012),CW, a
servicer of a note and mortgage executed by Elston, sued Elston for foreclosure
even though the mortgage and note were owned by a "securitized
trust." Id. CW
then moved for, and was granted, an order to show cause why fuIl payments should
not be made during the pendency of the action. 1d. Elston thereafter appealed,
arguing that the "trial court erred by ordering it to make payments to CW because
On appeal, the Fourth District agreed with Elston and reversed the trial
court's order. The Court began with the premise that "[i]n securitization cases, a
servicer may be considered a party in interest to legal action as long as the trustee
joins or ratifies its action." 1d. Noting that CW relied on nothing more than its
own allegations and sworn statements in support of its contention that it could sue on behalf of the trust, the Fourth District concluded that same was "insufficient
evidence to prove that it is authorized to sue on the trust's behalf." 1d.
to the identification of the entity which it was servicing the debt on behalf of.
Nevertheless, the testimony at
action as "servicer"
lT.
321;
servicing rights [T. 32f; arfl therefore (3) RCS only "serviced" the note and
mortgage [T.771. As a result, to the extent that the note and mortgage have been securitized, RCS failed to present any evidence whatsoever that it was authorized to sue on behalf of the trust.
Even
if
the note and mortgage was not securitized, case law is clear that
RCS was required to present evidence that it was authorized to bring the action
if it
itself. In Juega v.
Davidson,8 So. 3d 488 (Fla. 3d DCA 2009), the Third District reversed an order of
10
dismissal for lack of standing because it found that the plaintiff was an agent who
had been granted full authority to act for the real party in interest. Id. at 488. However, in Juegra, the real party in interest filed an affidavit averring that the
plaintiff was pwsuing the litigation on its behalf and ratified all actions taken by
the plaintiff since the inception of the action.
affidavit, the Third District held that "the facts...establish that the agent, Juegra,
has standing."
Id. at 1180. Nopal argued that under an applicable Florida statute, "the risk of
loss or damage to the goods passed to Nava, the buyer, and that, therefore, since
Kumar could not have suffered the loss, it had no standing to sue." Id. rt1181. While Kumar conceded that Nopal's argument regarding damages was technically
correct,
it
contended that it brought suit on Nava's behalf and filed two affidavits
trial court rejected Kumar's arguments and granted summary judgment in favor of
Nopal contending that since the risk of loss had passed to Nava, Kumar had no
standing to bring the cIaim. Id. aL 1182.
11
Id.
Kumar court explained that standing is either having, or representing one who has,
controversy
to
obtain judicial
Id. Additionally,
Fla. R. Civ. P. 1.210(a) permits an action to be prosecuted in the name of someone other than, but acting for, the real party in interest, "where a plaintiff is either the
real party in interest or maintaining the action on behalfofthe real party in interest,
its action cannot be terminated on that ground that it lacks standing." Id. at 1183. Thus, the Court concluded, "Nava's aflidavits unequivocally show that Nava
Id,
evidence that its undisclosed principal ratified and endorsed RCS's (and AHMSI's)
action in bringing suit on its behalf. In fact, when questioned regarding how
AHMSI "serviced" the note and mortgage, the AHMSI witness merely replied that the company serviced through a servicing conkact which the witness had not
even
represented to
the hial court that it was unable to either elicit testimony from RCS's principal or introduce the servicing agreement which might permit RCS to bring the action on
its principal's behalf. [T. 66].
12
that RCS's principal joined in or ratiflred its act of suing in the principal's name,
RCS failed to prove it had standing to sue.
it standing to sue
RCS
will
of the promissory
note
it
standing
progeny. While Rlggs and other appellate decisions seem to suggest that all
mortgage promissory notes are negotiable instruments, see e.g. Taylor v' Deutsche
Bank National Trust Company, 44 So.3d 618, 622 (FIa.5th DCA 2010) (providing
that "a promissory note is a negotiable instrument"); Perry v. Fairbanlcs, 888 So'
2d 727, 727 (Fla. 5th DCA 2004) (stating that "[a] promissory note is clearly a
negotiable instrument within the definition of section 673.1041(1)'), negotiability
appeaxs
appeal
by
defending
in
the entire United States in which a decision was "reached on the merits" regarding
the negotiability of a mortgage note. Dale A. Whitman, How Negotiability Has Fouled [Jp the Secondary Mortgage Market, and What to Do About it,37 Pepp.L.
13
Rv. 737,754 (2010). Even more shocking, in only two of those forty-two cases
did "the court provide a thorough analysis ofthe negotiability ofthe
totelt' Id.
note's
rights of the parties must be determined by the character of the promissory note." American Bank of the South v. Rothenberg,598 So. 2d 289, 291 (Fla. 5th DCA
it
of
money; and (2) incorporating the terms of the mortgage into the note because "the
mortgage follows the note" destroys any negotiability the promissory note might
have. Because the note is non-negotiable, RCS's mere possession of it could not
confer standing to foreclose the mortgage. I
The
promissory
and
Fla. Stat. $673, et seq.,the analysis begins with the plain language of the statute.
Section 673.1041(1), Florida Statutes, provides the defrnition
ofa negotiable
if it is "an
t4
the
at the time
it
rs
holder."
673. 1 0a 1( 1 )(a);
b.
$673.10a1(1)(b); and
So. 2d 34 (Fla.
2d DCA 2006) this Court heid that "the trial court erred in finding that the [retail
undertakings on both the person order and promising payment to do some act other
than the payment of money, including: (1) an instruction onto the debtor to not
remove the vehicle from the United States; (2) afi instruction onto the debtor to reimburse advances made by the creditor in payment of repair or storage bills; and
(3) an instruction onto the creditor to dispose of the collateral in certain ways
following repossession. Id. at
37
15
found tlrat the RISC in Honest Air required the debtor to pay fees for late payment or dishonored checks.
1d.
Ultimately, rhe Honest Air Court concluded that these obligations "bring the
RISC within the exclusionary language of section 673.10a1(1)(c), which provides that a negotiable instrument 'does not state any other undertakings' in addition to
the payment of money."
Id.
Id. (citing Mason v. Flowers, gl F\a. 224, 1 07 So. 334, 335 (Fla. 1926)).
The promissory note at issue below, like the RISC
negotiable because
it
7(A) of the promissory notel. A late payment fee was a condition in the RISC in
Honest Air that this Court held rendered the RISC non-negotiable. Honest
Air,933
So.2dat37.
16
be applied first
b. The instruction that the adjustable rate of interest be tied to the average of
interbank offered rates for one month U.S. dollar-denominated deposits in
the London market, as published in the Wall Street Joumal. [R. 76 in clause
The instruction that during the "initial period" the "minimum required
monthly payment" will be less than the amount of interest that accrues on
the principal and that for each month the borrower pays this "monthly
minimum" the lender will subtract the amount of monthly payment from the amount of interest that accrues. [R. 76 in clause 4(E) of the promissory
notel;
d.
The instruction that the lender must deliver or mail to Homeowners a written
notice of any changes in the interest rate or the amount of the Homeora'ners'
monthly payment before the effective date of any change. [R. 76 in clause
e. The instruction that Homeowners notice the lender in writing if they intend
clause
5 of
the
17
if
other loan charges collected by the lender exceeds the maximum permitted,
then any such charge shall be reduced by the amount necessary and any sum
g.
The instruction that the lender might give Homeowners notice that the lender
if
h.
The instruction that any notice which must be given to Homeowners by the lender, or to the lender by the Homeowners, must be in
clause 8 of the promissory note].
writing. [R. 76 in
At trial, RCS's
Indeed, quoting Riggs, the trial court found that the note was a negotiable
instrument. [T. 120]. However, both the trial court's analysis below, and the
appellate decisions
in
Air.
Pety
say
Air
does
notes because those instruments are fundamentally different than RlSCs, promotes
18
form over substance and emasculates $673.1041(1)(c). This the Court should not
do
When conducting a thorough analysis of the note at issue it is clear that the instrument contains instructions and undertakings other than the payment of money
payrnent.
are
inapposite, and RCS cannot claim that its mere possession of the note endorsed in blank conferred onto it standing to sue.
II
Integrating the terms of the mortgage into enforcement of the promissory note destroys any negotiability the note might have
was negotiable, arguing that the negotiation
Even
of
the note permits foreclosure of the mortgage destroys any negotiability the note might have in the first place. This is because in so arguing, the proponent would
be suggesting that the terms of the mortgage have been imbedded into the note
(since the argument would be that the negotiation of the note transfers with it enforcement powers over the terms
are
countless instructions and undertakings other than the payment of money located in
the mortgage, integrating the terms of the mortgage would bring the promissory
note within the exclusionary language of $673.10a1(1)(c).
19
The basis for this potential af,gument is the doctrine that "the mortgage follows the note" prominently explained in the seminal case of Johns v. Gillian,
184 So. 140 (Fla. 1938). There, the Florida Supreme Court held
it has frequently been held that a mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage
be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the
debt, unless there be some plain and clear agreement to the contrary, that be the intention of the parties.
if
Id. al 143.
See
(Fla. 4th DCA 2004). Thus, the argument goes, since the note has been negotiated,
the mortgage passes in equity to the "holdeC' of the note.
it
ignores the
the promissory note at issue which would permit foreclosure of the security
instrument. Rather, it is clause 22 of the mortgage which permits foreclosure only
upon default and failure to cwe after timely notice. [R. 76].2 Therefore, to argue
that negotiation of the note would transfer "in equity" the mortgage presupposes
Claus" 22 of the mortgage provides, in pertinent part, that "[i]f the default is not cured on or before the date specified in the notice, Lender at is option...may foreclose this Security Instrument." (Bold emphasis added). On the other hand, Clause 7 of the promissory note, entitled "Borrower's Failure to Pay as Required," is silent as to foreclosure of the mortgage.
'
20
that clause 22 of the mortgage is included in the terms of the note when the note is
negotiated.
However, integrating the terms of the mortgage into the note would not only
subj
$673.1061(b), and the rights and obligations with respect to the promise would
likewise be governed by the mortgage, seeFla. Stat. 5673.106I(c). See also Holly
Hills Acres, Ltd. v. Charter Bank of Gainesville, 314 So. 2d 209,211 (FIa. 2dDCA
1975) (providing that "The note having incorporated the terms of the purchase
pay. )
Because incorporating the terms of the mortgage into the negotiation of the
promissory note under the guise that "the mortgage follows the note" annihilates
any negotiability the note might have, mere possession of the original note by RCS
21
As RCS was not the party whom the note was delivered to,
considered the "holder" ofthe note.
it could not be
A "holder" of a negotiable
possession
instrument
is
identified person that is the person in possession." Fla. Stat. $671.201(21)(a).3 The key term in this definition is "possession" which is not dehned in either
Florida law or the Uniform Commercial Code from which Florida law flows from' "Possession"
necessarily imply
Stat.
for the purpose of giving to the person receiving delivery the right to enforce the instrument. Fla. Stat. $673.2031(1). Florida law clearly recognizes "constructive delivery" as a sufficient form of delivery even where there is no physical delivery
In addition to a "holder" two other "persons" are entitled to enforce a negotiable instrument: (1) a non-holder in possession of the instrument with the rights of a holder; and (2) a person not in possession of the instrument who is entitled to
enforce the instrument pursuant to Fla. Stat. $$673.3091 or 673.41,81(4). Fla. Stat. $673.3011(2) and (3). See also Taylor,44 So.3d at622. However, since RCS claimed to be the "holder" of the note at ffial, $673.301 1(2) and (3) need not be discussed here.
22
of the
instrument
itself.
Novastar Mortgage, Inc., 862 So. 2d 793, 798 (Fla. 4th DCA 2003).
is
crucial
in
promissory notes and the mortgages that secure pa)rynent on same are sold
routinely on the secondary market without the documents ever physically moving.
But even more important is recognizing that Florida's law regarding negotiable
instruments does not displace the law
of agency,
to RCS's
undisclosed principal (the party to whom the debt was owed). RCS, then, only
it.
The transfer
of
or
constructively
Therefore, because both RCS and its predecessor plaintiff AHMSI were
beholden to their undisclosed principal vis-d-vis a servicing agreement that was
never introduced into evidence, neither party qualifies as the holder of the note.
The law of agency thus required, as argued supra in Argument I(a), that the
principal join in or ratifu their acts. Since this was not done, RCS failed to prove
its standing to sue.
23
THE TRIAL COURT COMMITTED REVERSAL ERROR WHEN IT SUSTAINED RCS'S OBJECTION TO THE ASSIGNMENT
When the trial court sustained RCS's objection
to the assignment on
relevance grounds,
Fla. Stat. 590.902(4). Consequently, there was no need for preliminary testimony
Florida Evidence $902.1 (2010 ed.) (providing that "[b]oth courts and
proofofits
The assignment also met the evidentiary test for "rslevancy" because it
tended to disprove a material fact proffered by the AHMSI wifiress: that AHMSI
o'possessed"
probative value
unfair
prejudice, confusion
of the
or
needless
presentation of cumulative evidence. Finally, excluding the assignment was not a o'harmless" error because
Therefore, it was reversal error for the trial court to exclude the assignment.
Because the assignment tended to disprove that AHMSI possessed the note
prior to the commencement of the action (and thereby tended to prove that AIIMSI
did not garner standing until after the lawsuit was filed), the assignment was
relevant piece ofevidence which should have been introduced.
material fact,"
Fla. Stat. $90.401, and "all relevant evidence is admissible, except as provided by
Morgan Mortg. Acquisition Corp.,51 So. 3d 1176, 1179 (Fla. 2d DCA 2010)
("Because J.P. Morgan did not own or possess the note and mortgage when it filed
its lawsuit, it lacked standing to maintain the foreclosure action'); JeffRay Corp.
v. Jacobson,566 So. 2d 885, 886 (Fla. 4th
complaint failed to state a cause of action where plaintiffs relied on assignment of mortgage that was dated four months after the lawsuit was
filed).
See also
generally Progressive Exp. v. McGrath Chiropractic, 913 So. 2d 1281, 1285 (Fla.
2d DCA 2005) (providing, that a "plaintiff s lack of standing at the inception of the
25
case is not a defect that may be cured by the acquisition ofstanding after the case
is filed.")
At fial, RCS argued the assignment was irrelevant on its face merely
because "[s]tanding is who held possession of the note on the date of the
flling."
as explained in Argument
promissory note was negotiable and that negotiation of the note could transfer "in
equlty'' the terms of the mortgage, the assignment was evidence of a possible "delivery" of those documents to AHMSI.
Thus, because the assignment was dated after the action was frled [T. 579580], it tended to disprove that AHMSI "possessed" the note prior to the inception of the lawsuit.
While RCS failed to argue this below, there was no danger of unfair
prejudice, confusion
needless
26
[i]n undertaking this balancing, the trial judge may consider the need for the particular evidence, the availability of altemative means of proof, and the likelihood that the jury will follow a limiting instruction
by the court. C. Ehrhardt, Florida Evidence $403.1 (2010 ed.).
Not only was there no objection made by RCS at trial that the assignment
should be excluded under $90.403, but none ofthe reasons for exclusions given by the rule were even present. There was no unfair prejudice to RCS, no confusion
of
harmless
Finally, refusing to admit the assignment was not a harmless error because it
was reasonably probable that Homeowners would have obtained a more favorable judgment without the error.
of...rejection of evidence. ..unless in the opinion of the court to which application is made after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of
justice.
27
in
more favorable result without the error. See In re Commitment of DeBolt, 79 So. 3d 335 (Fla. 2d DCA 2009); Esaw v. Esaw,965 So. 2d 1261(Fla. 2d DCA 2007);
Fla. Inst. for Neurological Rehab., Inc. v. Marshall, 943 So. 2d 976 (Fla. ZdDCA
2006); Damico v. Lundberg, 379 So. 2d,964 (Fla.ZdDCA 1979).
When considering that no note was attached to thd initial complaint which would evidence an "endorsemenf in blank prior to the inception of the action [R.
commencement of the action. As this was a central issue tried before the court below, it was not a harmless error to refuse to admit the relevant assignment.
VI.
THE TRIAL COI]RT COMMITTED REVERSAL ERROR WHEN IT OVERRULED HOMEOWNERS' OBJECTION TO TIIE AHMSI WITNESS'S TESTIMONTY REGARDING POSSESSION OF THE NOTE
The only piece of evidence offered by RCS to prove its standing at the
inception of the action was the AHMSI witness's testimony that AHMSI possessed the promissory note that contained a blank endorsement in July, 2008
[T'
34-35]-
However, this testimony was based on the witness's "business records" and not her personal knowledge. [T.
34].
evidence prior
was
AIIMSI
no personal knowledge regarding whether AHMSI had possession of the note in July 2008. In fact, RCS's counsel specifically asked "[C]an you look at your records and tell me
note that
AHMSI had in its possession in July of 2008." [T. 34]. @old emphasis added). The witness represented to the court that her testimony was based off of her
"business records that [she] pulled in order to prepare for. . .the trial today." [T
341. (Bold emphasis added).
evidence
is introduced which is sufficient to support a hnding that the witress has personal knowledge of the matter." Fla. Stat. $90.604. Because the AHMSI witness's testimony was based upon her review
of
b.
Since the witness's testimony was not based upon her personal knowledge,
the testimony could only have been admissible under an enumerated "hearsay"
exception.
It
records" by both RCS's counsel and the AHMSI witness, that the testimony was
meant to come under the hearsay exception for such records, Fla. Stat. 590.803(6).
However, testimony describing the contents of a business record is inadmissible unless the record has previously been introduced under the business records
exception rule. See Richardson v. State,875 So. 2d 673,677 (Fla. lst DCA 2004)
(holding that testimony by an employee, who did not have personal lcrowledge of
the facts recorded, conceming the contents of a business record which had not been
entered into evidence was hearsay); Bolin v. State,736 So.
is
not
admissible under fsection 90.803(6)]"); Cullimore v. Barnett Bank of Jacl<sonville, 386 So. 2d.894,895 (Fla. 1st DCA 1980) (holding that oral testimony concerning
the contents of business records is not admissible unless the record has first been
admitted).
This is because while under the business record exception a record, report,
data,
authortze
hearsay testimony concerning the contents ofbusiness records which have not been
admitted into evidence.o' Thompson v. State,705 So. 2d 1046, 1048 (Fla. 4th DCA
30
revealed
of July, 2008,
the trial court permitted the witness to give secretive testimony that was no longer subject to the test
the
witness's testimony could never have been impeached by the record itself because
the record was not introduced. Therefore, the AHMSI witness's testimony that AHMSI possessed the original promissory note, endorsed in blank, in July, 2008 was inadmissible'
prove that the endorsement was effectuated prior to the commencement of the
action.
ln Feltus v.
ZdDCA
2012), U.S. Bank initiated a foreclosure action but attached to its initial, unverified
complaint a copy
and which
contained no endorsements.
Id.
original promissory note which contained two endorsements, the second of which
was "endorsed in blank." Id. at 376. The trial court granted summary judgment in
31
favor of U.S. Bank, but this Court reversed "because the documents before it did
not establish conclusively that there was no genuine issue of material fact and that U.S. Bank was entitled to foreclose Feltus's mortgage as a matter of law." Id. at
377.
In a very important footnote to its decision, this Court explained that U.S.
Bank "would have needed to prove the endorsement in blank was effectuated
before the lawsuit was
filed." Id.
at n.
2.
AIIMSI was
that the complaint in Feltus as AHMSI's complaint did not even contain a copy
of the note. [R. 1]. The AHMSI witness's testimony was therefore necessary to prove that the
endorsement in blank was effectuated before the action commenced. Since RCS's
of
evidence is
reasonably probable that Homeowners' would have obtained a more favorable result without the error. Therefore, by ovemrling Homeowners' objection to the AHMSI witness's testimony, the trial court committed reversal error.
JZ
CONCLUSION
For the reasons and legal authorities set forth hereirq it is respectfirlly submitted that
this Honorable Court should reverse the final judgment of foreclosure entered in RCS's
favor and enter judgment in Homeowners' name or, in the altemative, order a new trial on
the merits.
Dated June
By
t'fu"*&-(ft '
--
FloridaBarNo. 84191
CERTIFICATE OF SERVICE
&
Registered
Agent, 11380 Prosperity Farms Road#221E, Palm Beach Gardens, FL 33410; and
JJ
Registered
ru,p/4/(.1
Michael P. Fuino, Esq.
->
CERTIFICATE OF COMPLIANCE
The undersigned certifies that this petition complies with the font
requirements set forth in Rule 9,210(a)(2), Fla. R. App. P.
-/4r^1/
Michael P. Fuino, Esq.
34