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Memo in Opp to Note Coming Into Evidence

Memo in Opp to Note Coming Into Evidence

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Published by Foreclosure Fraud
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Published by: Foreclosure Fraud on May 05, 2014
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11/26/2014

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IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA  NATIONSTAR MORTGAGE )CASE NO: 2008 4248 CA 01Plaintiff, ))vs. ))RITA LAWHORN, ET AL., )Defendants. ) ________________________________/
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S OBJECTION TO THE NOTE’S ADMISSIBILITY INTO EVIDENCE
1.This is a foreclosure action. 2.Trial in this case began on January 31, 2014 and was continued to February 20, 2014. 3.Due to the events that transpired at trial, and for the following reasons, the Promissory  Note in this case should not be admitted into evidence.
I.PARTIES ARE BOUND BY THEIR PLEADINGS
Florida law is clear that “parties are bound by their pleadings…”
 Holub v. Holub
, 54 So. 3d 585, 587 (1st DCA 2011) (citing
City of Delandv. Miller,
608 So. 2d 121 (Fla. 5th DCA 1992);
Carvell v.Kinsey,
87 So. 2d 577 (Fla.1956)).
See also Hart Properties, Inc. v. Slack 
, 159 So. 2d 236, 238-39 (1963) (it is a “...well settled rule that parties[ ]litigants are bound by the allegations of their pleadings…”). Furthermore, F
LA
.R.C
IV
.P. 1.130(b) states “any exhibit attached to a pleading shall be considered a part thereof.” Professor Ehrhardt refers to that which a plaintiff alleges as a “judicial admission” and makes it abundantly clear how those are to be treated. “Admissions under section 90.803(18) are dissimilar from judicial admissions
made in a pleading 
 or pursuant to Florida Rule of Civil Procedure 1.370.
Those formal admissions are binding in the case, and a party may not offer
 
ev
i
dence to dispute them.
” C. Ehrhardt, Florida Evidence §90.803(18) (2013 Edition) (emphasis added).In the instant case, on or about May 2, 2011, Plaintiff properly filed a First Amended Complaint for Foreclosure (hereinafter “Amended Complaint”) (a copy of the note attached to the Amended Complaint is attached herein as Exhibit A). Attached to the Amended Complaint is a copy of a note bearing one indorsement, in blank. Paragraph four therein states “[c]opies of the original note and mortgage are attached hereto and incorporated herein…” The note attached to the Plaintiff’s Notice of Filing Trial Exhibits, filed on January 30, 2014, the day before trial
1
,listed as a “Copy of Original Promissory Note” is the same as the one attached to the Amended Complaint.
2
 (See Plaintiff’s Notice of Filing Trial Exhibits, without attachments, attached as Exhibit B).However, when reviewing these alleged “copies of the original note” provided by Plaintiff both in the Amended Complaint and in the Notice of Filing Trial Exhibits, it is evident that these copies are materially different than the original. The original note, filed on May 29, 2009, almost two full years
before
 the Amended Complaint was filed, has two indorsements. (Copy of a certified copy of the original note contained in the Court’s file is attached as Exhibit C). One indorsement is apparently signed by Amanda Alvarez, Closing Manager of First Magnus Financial Corporation, the original lender, indorsing the note to Residential Funding Company, LLC. The second indorsement is apparently signed by Judy Faber, Vice President of Residential Funding Company, LLC, indorsing the note to Deutsche Bank Trust Company Americas as Trustee. However, both the copy of the note attached to the Amended Complaint filed on May 2, 2011, which again is
after 
 the original note was filed with the court, and the copy of the “original
1
 The trial order required exhibits to be made available to opposing counsel on 1/10/2014. Defendant requested copies on 1/13/2014 via a filing and serving a Notice of Request to Make Trial Exhibits Available.
2
 There was no note at all attached to the original complaint.
 
 promissory note” provided in Plaintiff’s Notice of Filing Trial Exhibits on January 30, 2014, shed the Judy Faber indorsement from Residential Funding to Deutsche Bank Trust Company as trustee in its entirety. On the one remaining indorsement that exists on both the original and the “copies,” the words “Residential Funding Company LLC” are
removed 
, leaving behind, on the “copy” only an apparent indorsement in blank from the original lender.This issue was clearly addressed at trial: MR. ROSEN: Judge, I have to object to this note coming into evidence. The  plaintiff has sought to amend its complaint and had an order amending its complaint. The note attached to the amended complaint is different materially than what is here as the original note. THE COURT: What is material? MR. ROSEN: There's an additional endorsement that is not on the note that's attached to the amended complaint. This is the original complaint as was submitted to the Court for summary judgment. If there is a specific endorsement to Deutsche Bank as trustee not naming a trust. The note attached to the amended complaint, interestingly enough, has copies of every single page. It even has those notes, and, I believe, that's the judge's signature or initials that they were accepted into evidence at summary  judgment. If you keep flipping the page, every page is identical, even the evidence of what I will call the endorsement to Deutsche Bank is noticeable on the amended complaint copy of the note, but, yet, if you look at that page, there's the back of the Judy Faber endorsement that you can see right through here on this page, but yet on the amended complaint, when you flip to the next page, that's the endorsement in blank. This was filed after this original was filed. Furthermore, the exhibits that we received today in response to trial order, we requested exhibits. We followed up with e-mails. The copy of the original note, which was listed, that's how it was listed on the exhibit list, excuse me, on the copies of the exhibits that were provided, provided this note, and the parties are bound by their pleadings. THE COURT: I'm very disturbed by this. What's the explanation? MR. DROSKY: I don't have an explanation at this point, your Honor. We're going to get into that with the witness. We're just trying to seek to introduce it to the witness right now. The test is prejudice, so I don't understand that there would be any prejudice to defendant. If there's prejudice to anybody in this case, it would be to me in trying to prove my case. MR. ROSEN: Just, this has nothing to do with prejudice. This is what's been deemed as a judicial admission by Erhart, parties are bound by their  pleadings. That's the note that's coming in. Furthermore, I appreciate why you're disturbed about this…

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