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Guerro v. Chase

Guerro v. Chase

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Published by: DinSFLA on Mar 23, 2012
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Third District Court of Appeal
State of Florida, January Term, A.D. 2012
Opinion filed March 21, 2012.Not final until disposition of timely filed motion for rehearing.________________No. 3D11-1404Lower Tribunal No. 07-42953________________
Juan Luis Guerrero and Patricia Guerrero,
Chase Home Finance, LLC.,
Appellee.An Appeal from the Circuit Court for Miami-Dade County, Eugene J.Fierro, Judge.Carrillo & Carrillo and Felix R. Carrillo, for appellants.Marshall C. Watson and Robert R. Edwards, (Ft. Lauderdale), for appellee.Before WELLS, C.J., and RAMIREZ, and LAGOA, JJ.WELLS, Chief Judge.Juan Luis Guerrero and Patricia Guerrero appeal from a final judgment of foreclosure complaining of a number of technical deficiencies in the record below.
 2Faced with a record that may best be described as a “mess,” we conclude that atleast one of these “technicalities” mandates reversal.This action was commenced by Chase Home Finance, LLC as the “presentdesignated holder of [a] note and mortgage” executed by the Guerreros. Copies of the promissory note at issue in the amount of $316,000 made payable to FreedomMortgage Corporation and the mortgage securing that note in favor of “‘MERS’[Mortgage Electronic Registration Systems, Inc.] . . . acting solely as a nominee forLender and Lender’s successors and assigns,” were attached to the complaint.
 The Guerreros filed their Answer and Affirmative Defenses, admitting toentering into the loan and to defaulting, but indicating they were withoutknowledge of the relationship between Chase and the original lender, anddemanding “strict proof thereof.”On April 27, 2011, this matter came on for trial. When the proceedingsbegan, Chase’s counsel informed the court that the original note and mortgage atissue could not be located but that his law firm’s records custodian was presentwith an affidavit regarding these lost documents. The Guerreros objected arguingthat no lost note claim had been alleged. The court reserved ruling on theGuerreros’ objection and proceeded to take testimony on the foreclosure claim.
An Assignment of Mortgage evidencing MERS’ assignment of its interest asservicing agent for the lender to Chase subsequently was filed of record.
 3As to this claim, Chase called a representative from IBM, Lender BusinessProcess Services Company, who testified that IBM was now the servicing agentfor Fannie Mae, the most recent assignee of the Guerrero note and mortgage.According to this witness, because no payments had been made by the Guerrerossince August 1, 2007 on the $316,000 note and mortgage at issue, the Guerreroswere in default thereby entitling Chase/IBM/Fannie Mae (for convenience “Chase”throughout) to a foreclosure judgment.The second witness called by Chase was the records custodian/documentsupervisor at the law firm now representing Chase in the foreclosure action. TheGuerreros promptly objected to this witness because he was not listed on Chase’switness list. When Chase’s counsel advised the court that this witness was goingto testify that the mortgage and note were missing for the purpose of reestablishingthem, the Guerreros objected again, arguing that “there is no lost note count.”At this juncture, Chase’s counsel asked the court to permit it to amend itspleadings to conform to the evidence it was going to present, to which the courtresponded:THE COURT: That we would do at the conclusion of the case, not asa preemptive motion.The records custodian was permitted to testify.According to this witness, the original note and mortgage had been deliveredto the law firm where he worked (the firm representing Chase) and had been

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