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IN THE DISTRICT COURT OF APPEAL

FOURTH DISTRICT OF FLORIDA


CASE NO.: 4D13-3514
TAOUFIQ SEFFAR,
Appellant,
vs.
BAYVIEW LOAN SERVICING, LLC,
Appellee.
On appeal from the Seventeenth Judicial
Circuit Court in and for Bro\vard County. Florida
L.T. Case No.: 10 25802
INITIAL BRIEF OF APPELLANT
TAOUFIQ SEFFAR
DAVID H. CHARLIP, B.C.S.
CI-IARLIP LAW GROUP, LC
17501 Biscayne Blvd.
Suite 510
Aventura, Florida 33 1 60
Telephone: (305) 354-9313
Facsimile: (305) 354-9314
Counsel for Appellant
TABLE OF CONTENTS
PAGE NO.
TABLE OF AUTHORITIES ui-vu
STATEMENT OF THE CASE 1
STATEMENT OF THE FACTS 1
STANDARD OF REVIEW 10
SUMMARY OF ARGUMENT 10-11
ARGUMENT 12
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 12
H. REVERSAL IS REQUIRED WHERE TRIAL COURT ERRED
IN OVERRULING APPELLANTS LACK OF FOUNDATION,
AUTHENTiCATION AND HEARSAY OBJECTIONS TO
APPELLEES DOCUMENTARY EVIDENCE AND
TESTIMONY 14
IlL THE TRIAL COURT ERRED BY FAILING TO GRANT
APPELLANTS MOTION FOR INVOLUNTARY
DISMISSAL 21
a. Appellee failed to prove that its predecessor held the note at the time
the Complaint was filed, or was otherwise authorized to bring suit on
behalf of the true holder.
b. The alleged Notice of Default alleged to have been given by
Appellee was defective in that it failed to conform to the language set
forth in paragraph 22 of the Mortgage.
c. Appellee failed to prove Notice of Default was sent to Appellant
I
CONCLUSION
.24
CERTIFICATE OF SERVICE
25
CERTIFICATE OF COMPLIANCE
25
II
TABLE OF AUTHORITIES
PAGE NO.
Cases
A.JD. v. State, 842 So.2d 297 (Fla. 3d DCA 2003)
27
Amos v. Gartnei; Inc., 17 So.3d 829, 833 (FIa. 1 OCA, 2009) 25
Baker v. Florida Unemployment Appeals Commission, 35 Fla. L. Weekly Dli 88
(Fla. 3d TIay 26, 2010)
35
Carapezza v. Pate, 143 So.2d 346, 347 (Fla. 3d DCA 1962) 37
Corcoran v. Brody, 347 So. 2d 689, 690 (Fla. 4th DCA 1977) 39
CWCapital Asset Mgmt., LLC v. Chicago Properties, LLC, 610 F3d 497(7th Cir.
0)
23, 40
Dainico i. Lundberg, 379 So.2d 964, 965 (Fla. 2d DCA 1979) 36
azicJl4ili, 491 So.2d at 1 139
36
Ederer v. Fisher, 183 So.2d 39, 41 (Fla. 2d DCA 1965) 32
Elston Leetsdale LLC v. CWCapital Asset, 87 So. 3d 14 (Fia. 4th DCA 2012). 22
FCD Dev.. LLC v. S. Fla. Sports Comm., Inc., 37 So.3d 905, 909 (Fla. 4th DCA
2010)
21, 37
Feints v. US. BankNat lAss ii, 80 So.3d 375, 377 n. 2 (FIa. 2d DCA 2012) 32
Fla Stat. 671.201(44) (2011)
3 1
Forester v. Norman Roger Jewell & Brooks Intern., Inc., 610 So.2d 1369, 1373 (Fla.
1St 1:)(D\. 1992)
26
Frost v. Regions Bank, 15 So. 3d 905, 906-07 (Fla. 4th DCA 2009) 42
Gordon v. State, 787 So.2d 892, 894 (Fla. 4th DCA 2001) 29
Hack v. Estate qfffelling, 811 So. 2d 822, 825 (Fla. 5th DCA 2002) 36
Haves v. Wal-Mart Stores. Inc., 933 So. 2d 124 (FIa. 4th DCA 2006) 21
Jackson v. State. 738 So.2d 382. 386 (Ha. 4th DCA 1999) 29
Johnson v. Dept ofHealth & Rehab. Sens., 546 So.2d 741, 743 (Fla. 1St DCA
1989)
30
Juega v. Davidson, 8 So. 3d 488 (Fla. 3d DCA 2009) 23
Kelly v. State FarmMut. Auta Ins., 720 So.2d 1145, 1146 (Fla. 5th DCA 1998)....29
Kingv. State, 590 So.2d 1032 (Fla. 1st DCA 1991) 28
Lowes of Tallahassee v. Giabno, 552 So.2d 304. 305 (Fla. I st DCA 1989) 25, 26
Mazine 1. M&I Bank, 67 So. 3d 1129, 1129 (Fla. 1st DCA 2011) 25
McCabe v. Hanlei, 886 So. 2d 1053, 1055 (Fla. 4th DCA 2004) 36
McKenzie Tank Lines, Inc. v. Roman, 645 So.2d 547 (Fla. 1st DCA 1994) 28
Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA
2007) ... . . 37
Nationwide Mitt. Fire Ins. Co. v. Bruscarino, 982 So.2d 753 (Fla.
4th
DCA 2008)..2 I
111
Phil4ppon v. Shreffler, No. 4D07-4104 (Fla.
4th
DCA 2010)
.21
Phillips v. State, 621 So.2d 734 (Fla. 3d DCA 1993)
28
Phiogene v. ABNAmro Mortgage Group Inc., 948 So.2d 45,46 (Fla. 4th DCA
2006)
37
Reynolds v. State, 934 So.2d 1128 (Fla. 2006)
21
Saporito v. Madras, 576 So.2d 1342 (Fla. 5th DCA 1991)
37
Servedio v. US. BankNat. Assn, 46 So. 3d 1105 (Fla. 4th DCA 2010) 37
Snelling & Snelling, Inc. v. Kaplan, 614 So.2d 665 (Fla. 2d DCA 1993) 28
State. Department ofHealth and Rehabilitative Services v. Thibodeaux, 547 So.2d
1243 (Fla. 2d 1De 1989)
36
Stone v. Bank, 115 So. 3d 411 (Fla. 2nd DCA 2010)
40
Sunshine Chevrolet Oldsmobile v. Unemployment Appeals Commission, 910 So.2d
948 (FIa. 2d D 2005)
27
Sykes v. Eastern Metal Supply. Inc., 659 So.2d 475, 477 (Fla. 4th DCA 1995) 31
7ill,r,csrz v. Baskin, 260 So.2d 509 (Fla. 1972)
.36
I.J.D.cD. 1201(44)
31
t.i.c.ir. 3403
31
Verizzo v BankofN.1. 28 So.3d 976, 978 (Ha. 2d DCA 2010 37
flarl7er-Lambert Co. v. Patrick, 428 So. 2d 718 (Fla. 4th DCA 1983) 39
Williams v. State, 666 So.2d 187 (Fla. 2d DCA 1995)
27
Wilson v. Tanner, 346 So.2d 1077 (Fla. 1st 1)CA 1977)
21
Yang v. Sebastian Lakes Condominium Association, Inc., Nos. 4D12-3363 and
4D123364 (Fla. 4th tDA 2013)
21
Yisrael v. State, 993 So. 2d 952. 956-57 (Fla.. 2008) 28
Zervas v. Wells Fargo Bank N.A., Case NO. 2D1 1-750 (FIa. 2d DCA July 18, 2013)
.
32
Iv
F,
PREFACE
DefendantsAppellants, Taouflq Seffar and Hanan Seffar will he referred to,
throughout this brief, as Seffar or Appellants. PlaintiffAppellee, Bavview Loan
Servicing, LLC, will be referred to as Bavview or Appel lee. The original
plaintiff in this case, Residential Credit Solutions Inc.. will be referred to as
Original Plaintiff or RCS.
As used throughout this Brief the following symbols will be used:
_____)
Record, followed by page number;
(A.
______
)
Appendix, followed by page number; and
iT.
)
Transcript of hearing beftre the 1-lonorable Dale Ross, Judge of
the 17th Judicial Circuit, in and for Broward County, Florida, on September 12,
201 3, followed b page number.
STATEMENT OF THE CASE
On June 28, 2010, the Original Plaintiff, RCS, filed its Complaint for
mortgage foreclosure against Appellants [R.
].
Thereafter, on March 17, 2011,
Appellants filed their Answer and Af1rmative Defenses
I
R. j. Among their
defenses, Appellants challenged RCS ability to bring the action. The primary basis
of Appellants challenge was that RCS made no allegations concerning the chain of
title. The note and mortgage attached to RCS complaint named the lender as ABN
Amro IVIortgage Group, Inc. and purported to have been executed on October 1 6.
2006. [R.
].
While RCS attached an assignment from the FDIC as receiver for
FRANKLIN BANK, S.S.B. FRANKLIN BANK) to MERS as nominee for
RESIDENTIAL CREDIT SOLUTIONS, INC. (RCS), it did not attach any
documents to the Complaint that would allege the circumstances of the Notes
alleged transferred from ABN Amro Mortgage Group. Inc. to Franklin Bank. As
such, the chain of assignments and/or endorsements of the Note and Mortgage was
broken, that is, the transfer from ABN to FRANKLIN BANK was not shown,
Moreover, the Complaint neither asserted that RCS owned nor held the note and
mortgage. Instead, it asserted that the RCS had the right to enforce the mortgage,
without alleging or disclosing from whence that right emanated.
On March 11, 2011, RCS filed what purported to be the original note and for
the first time the note was coupled with an al longe [R.
j.
The al longe was not dated
and appeared to have been endorsed in blank by one named Helene I)imitroffi
who was listed as the First Vice President of ABN AMRO MORTGAGE GROUP,
The facts surrounding the supposed assignment of the mortgage from the
FDIC to RCS reflect that the Attorney in Fact lacked authority to execute that
assignment because the Limited Power of Attorney was not conferred upon her until
after her execution of the Assignment of the Mortgage. In any event, the Appellee
never sought to introduce that Assignment as a trial exhibit.
2
The allonge was neither an exhibit to the Complaint nor was it attached to the
Note when documents were produced to Seffar as he requested in a debt validation
letter or in discovery.
INC. (ABN) [Declaration of Taoufiq Seffar 4(h)]. Review of the Notice of Filing
Original Note disclosed that the allonge did not appear to bear an original signature
but instead appeared to be stamped with a signature stamp. Additionally, the allonge
did not appear to be permanently affixed to the Note, particularly because it did
not
bmaterialize
until months after the action was filed. 3
On October 19, 2011, RCS moved for summary judgment arguing that no
genuine issues of material fact remained with respect to its ability to bring suit [R.
].
On December 1, 2011, Appellants filed their Response and Opposition to RCS
Motion for Summary Judgment asserting that because genuine issues of material
fact remained with regards to both RCS case-in-chief and Appellants affirmative
defenses, namely, RCS ability to maintain standing and that RCS Motion for
Summary Judgment should therefore be denied [R.
1.
On April 17, 2013, the trial court ordered that the Motion for Summary
Judgment be deferred and the matter set for trial [R.
].
On August 30, 2013, RCS
In a line of questioning regarding how RCS came to be the holder of the Note and
Mortgage at issue in this case, RCS corporate representative answered that she did
not know how the Note was transferred from ABN to Franklin Bank and had not
seen any documents reflecting such a transfer. See M. Sequete depo., Nov. 28, 2011,
p.
2829. She also responded that she did not know how much RCS paid for the
Note and that such information was not listed on RCS computer system. Id. at p.
30. She further testified that she was not involved in the assignment of the mortgage.
Id. at
p.
38. It should also be noted that RCS corporate representative was unable to
say whether the allonge was transferred with the note or was even attached to the
note when it allegedly came into RCS possession, or whether the allonge or the
note that was filed with the court were original documents. Ii at
p.
3234.
3
filed its Motion to Substitute Party P1aintiff allegedly based upon an unsworn
service transfer from RCS to Bayview [R.
].
A hearing was held on September 10,
2014, two (2) days before trial was to commence to rule on RCS Motion to
Substitute Party Plaintiff [R.
1.
Despite Seffars objections on the grounds of
prejudice, the trial court granted the motion and denied an ore tentis motion for trial
continuance [R. ][Tr.
].
The trial was held on September 12, 2013[R.
1.
On the day of trial, Seffar filed his Trial Brief and Motion for Involuntary
Dismissal pointing out to the trial court that there was no documentation or
testimony reflecting transfer from ABN to FRANKLIN BANK; that the Complaint
was filed with a note as an exhibit but with no allonge; that the corporate
representative of Bayview would not be the appropriate person to testify as to the
business records of RCS, the previous servicer and that the notice of default letter in
this case was insufficient to satisfy the conditions precedent required by the
acceleration clause of the mortgage. this motion was also orally argued at the close
of Bayviews case [R.
ijTr.
1.
The case proceeded and Bayview put on its sole witness, Mr. Ilosh
Azarsepandan, an employee of Bayview, to testify as to the business records of all
of the servicers that had allegedly serviced this loan Citi, RCS and Bayview. [Ti.
1
It was established through Mr. Azarsepandans testimony that he was neither the
4
records custodian for Bayview nor did he have personal knowledge as to the records
in the case [Tr.
].
As a result of his lack of competency in this regard, Seffar made
numerous objections on the grounds of foundation, hearsay and authenticity, which
are more fully set out in the Statement of Facts portion ofthis brief [Tr.
].
At the close of Bayviews case, Seffar argued his Motion for Involuntary
Dismissal on the grounds that Bayview could not prove the requisite standing on the
basis that (a) Appellee did not put forth a competent witness; (b) the documents
presented lacked a proper foundation, were not authenticated, and constituted
hearsay, (c) the proof of indebtedness was inadmissible; and (d) the Notice of
Default was defective [Tr. 63]. Seffars motion was denied [Tr. 73].
The case proceeded and Appellant put forth two witnesses. One of the
witnesses was Mr. Seffar who, among other matters, testified that he believed the
signature on the allonge was fraudulent [Tr.
].
The other testimony heard was
certain portions of the deposition testimony of RCS corporate representative, which
was read into the record [Tr.
].
After the witnesses testified and closings were
heard, the trial court granted judgment in favor of Plaintiff [R.
].
5
STATEMENT OF THE FACTS
During the trial, the parties each put on one witness and Seffar also read into
the transcript portions of the testimony of the Original Plaintifrs RCS) testimony.
Each of the witnesses testimonies will be addressed in turn.
a. Trial Testimony of Appellees Witness, Ilosh Azarsepandan
During its case-in-chiet Bayview put on Mr. Ilosh Azarsepandan to testify as
to the banks business records [Tr. 89]. Mr. Azarsepandans job description
included reviewing and managing the portfolio of litigated loans and mediations,
hearings and trials [Tr. 9]. 1-Ic indicated that Bayview was the servicer and holder of
the subject note [Tr. 9]. Before any business records were presented to the court, Mr.
Azarsepandan was asked about the individuals that entered the data that were the
subject of the business records [Tr. 9]. Appellants counsel immediately objected on
the grounds that there were no business records before the court at that particular
point in time [Tr. 10]. Appellants objections were overruled twice, at which point
counsel requested to you dire the witness [Jr. 10].
During voir dire, Mr. Azarsepandan admitted that he had come onto the case
approximately two months prior and that Bayview would not have had any business
records about this case [Jr. 10Il]. The mortgage had previously been serviced by
two prior servicers, Citi and RCS [Tr. 1415]. When asked who would have
generated business records about this case prior to that time, he admitted that it
6
would have been the prior servicer, RCS [Tr. 11]. The witness thereafter agreed that
he had not worked for RCS, was not the records custodian for RCS, nor was he
present at the time that RCS generated its business records [Tr. 1 112]. He thrther
admitted that he was not familiar with the policies of RCS as to how the records
were generated, did not know the people who created the records for RCS, nor was
he fbmiliar with the computer system that RCS used to generate the records [Tr.
12]? The witness agreed that to the extent that Bayview received RCS business
records, he took all of those records as being true; having no knowledge as to
whether the information was input correctly or not [Tr. 13]. He testified that he was
not the record custodian for Bayview and admitted that he could not vouch for the
accuracy of those records; only that he received them from the prior servicers [Tr.
1415]. His testimony would be, in part, based on Citis records even though he was
not the records custodian for Citi [Tr. 15].
After Seffars voir dire of Bayviews witness, Bayview proceeded with direct
examination and began by asking questions pertaining to the business records and
the individuals who were responsible for entering the data at the time when the
events occurred [Tr. 16]. Seffars counsel objected twice on the basis that the
witness lacked the requisite knowledge and therefore a foundation had not been laid

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[.]

90.902(1 l)(a)-(c), Fla. Stat. (2004).


If evidence is to be admitted under one of the exceptions to the hearsay rule, it must
be offered in strict compliance with the requirements of the particular exception.
Johnson v. Dep! of Health & Rehab. Sens.. 546 So.2d 741. 743 (Fla. 1st DCA
1989). 1-lere, a records custodian did not appear as a witness j. the parties
did not stipulate to admissibility, and the Appellee did not provide a certiflcation
under Section 90.902(11) Fla, Statute (2013).
Much like in Marine as well as Kelse, where the appellate courts ultimately
reversed the cases in favor of the defendant on the grounds that plaintiffs main
witnesses did not have the requisite knowledge to have been considered the records
custodian sand that the records were inadmissible as business records, here, none of
the requirements for admission of a business record were met by Ba view. The trial
hearing transcript is replete with objections by Seffars counsel regarding the
untrustworthiness of this evidence, namely that the proper foundation was lacking.
there was no authentication, and that the evidence constituted hearsay.
In this case, Bayviews sole witness lacked knowledge as to the preparation or
maintenance of the documents offered. He testified that he did not work for RCS,
was never the records custodian for RCS, nor was he present at the time that RCS
generated its business records [Tr. 1112]. He further testified that he was not
familiar with the policies of RCS as to how the records were generated, did not
know the people who created the records for RCS, nor was he familiar with the
computer system that RCS used to generate the records [Tr. 12]. The witness agreed
that to the extent that Bayview received RCS business records, he took all of those
records as being true; having no knowledge as to whether the information was input
correctly or not [Tr. 13].
With respect to whether the witness knew if 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, that question was never answered [Tr. 17].
The Note & Allonge
Of particular importance are the facts concerning the sudden appearance of an
allonge purporting to convert the note to a bearer instrument which are suspicious at
best and otherwise raise numerous factual issues concerning when, where, how, and
why such an allonge was created, how, when, whether and why it was affixed to the
26
Note, whether it was an original or not and whether the signature was real.
Fla. Stat. 673.4021(1 )(20 11) provides, in pertinent part, that an
unauthorized signature is ineffective. An unauthorized endorsement includes a
forgery. Moreover, [a]n unauthorized signature also includes any endorsement
made without actual, implied or apparent authority. Sykes v. Eastern Metal Supply,
Inc., 659 So.2d 475, 477 (Fla. 4th DCA 1995); Fla Stat. 671.201(44) (2011); see
also U.C.C. 1-201(44); Official Comment 1 to U.C.C. 3403. Indeed, [t]here is
no presumption that the endorsements of a prior holder are genuine, and when
properly put in issue by the pleadings, the party seeking to establish the status of
holder of order paper must prove the validity of those endorsements on which his
status depends. Ederer v. Fisher, 183 So.2d 39,41 (Fla. 2d DCA 1965).
Seffar consistently maintained and defended against the underlying
foreclosure action based on RCS failure to demonstrate negotiability of the
instruments at issue, including the allonge. Instead of attempting to reffite that
affirmative defense, RCS filed in the court file what was labeled, without any proper
testimony authenticating same, the original note and allonge. That allonge was
never attached to the complaint nor was leave of court ever sought to amend the
complaint to allege the existence of an allonge. Introduction of this document into
the court file was patently improper. Zervas v. Wells Fargo Ban/c N.A., Case NO.
27
2D 11-750 (Fla. 2d DCA July 18, 2013
),9
During the trial, Seffars counsel challenged the admission of the allonge on
the basis of authenticity. Given that Seffar had put at issue the blank endorsement on
the supposed allonge and pointed out certain discrepancies to Bayview (e.g., the
dates surrounding the purported execution of the allonge, the fact that it was not
attached to the complaint, the fact that it appeared to be a signature stamp of
someone who was not even employed with ABN at the time the purported transfer
took place), Bayview was required to prove that the allonge was, in fact, dully
executed, when it was executed, and when it was transferred. Bayview did not offer
such proof and without adequate admissible proof of those facts, Seffars Motion for
involuntary dismissal should have been granted [Tr. 1 00].
In Zervas, the Cowi stated:
We also note that the mortgage and note attached to the complaint show
the lender to be Fremont Investment and Loan. On April 1 , 201 0,
approximately six months after the complaint was filed, Wells Fargo
filed a lost note affidavit, which alleged that the note was lost by its
attorney some time after the attorney received it on November 2, 2009.
In their motion to dismiss, the Zervases alleged, among other grounds,
that Wells Fargo did not have standing to bring the foreclosure
complaint because it did not have a written assignment of the loan.
Then on July 26, 2010, seven days before the hearing on the motion for
summary judgment, Wells Fargo filed the note as a supplemental
exhibit to its complaint. The note contains an endorsement in blank, but
there is no evidence in the record establishing that the endorsement in
blank was made to Wells Fargo prior to the filing of the foreclosure
complaint. See Feitus v. U.S. Bank Nat 1 Ass n, 80 So.3d 375, 377 n. 2
(Fla. 2d DCA 2012) (holding that bank was required to prove the
28
As grounds for his Motion for Involuntary Dismissal and during closing
arguments, Seffar emphasized that since he put at issue the blank endorsement on
the supposed allonge and pointed out the discrepancies regarding the dales and the
fact that the allonge was not attached to the Note, pursuant to Fla. Stat.
673,4O21(l), Bayview had the burden to prove the allonge was duly executed as
well as the date of the execution and the purported transfer. [Tr...].
The IZr/denee
/
Iiidehtedness
Even if Bayview were to argue that Mr. Azarsepandan was indeed a proper
records custodian for the documents, a fact which Mr. Azarsepandan himself
denied [Tr j, his testimony as to the amounts allegedly due under the Note
and Mortgage was based upon a proposed Final Judgment, apparently prepared by
his counsel which proposed Final Judgment fails to meet any of the predicate
requirements for a business record.
First, the proposed Final Judgment was not made at or near the time of the
events that it describes and is based upon other records which predate it, Second, the
proposed Final .Judgment was clearly made at the request of Appellees counsel for
submission to the Court at trial j R.
]
[Tr.
1.
)7siue! again counsels that:
a document is made for something other than a regular
business purpose, it does not fall within the business record
exception,
and [w]henever a record is made for the purpose of
preparing for litigation, its trustworthiness is suspect and should be
endorsement in blank was effectuated before the lawsuit was 1led).
29
closely scrutinized, Charles W. Ehrhardt, Florida Evidence 803.6,
at 876 n. 3, 877 (2007 ed.) (citing, e.g.. United States v. Kim, 595 F.2d
755. 760-64 (D.C.Cir. 1 979) (rejecting an argument that a document
created solely for litigation purposes was admissible as a business-
records summary of otherwise admissible records. which were not
produced)).
Yisrael at 993 So. 2d 957. Similar to the telefax at issue in Kim, the proposed Final
Judgment at issue herein cannot be admitted as a summary of otherwise admissible
records, which were not produced. Yisiae/ at 993 So. 2d 957. Moreover, such a
document cannot form the basis for testimonial evidence of its contents,
notwithstanding the fact that it was not. itself, offered for admission. See ct/so
Thompson v. State, 705 So.2d 1046, 1048 (Fla. 4th DCA 1998) ([T]he business-
records exception to the hearsay rule ... does not authorize hearsay teslinloiR
concerning the contents of business records which have not been admitted into
evidence.); United States v. Marshal!, 762 F.2d 419, 423-8 (5th Cir. 1985)
The Deftiult Notice
One of the four (4) exhibits Bayview introduced into evidence is a purported
form letter allegedly providing notice of default to
SelThrW.
The letter is
inadmissible hearsay unless it is admissible under the business records exception to
the hearsay rule. Mr. Azarsepandan testified that he was not the records custodian of
the letter [T
].
Seffar did not stipulate to the letters admissibility nor did
30
Bayview provide a certification or declaration that complies with Sections
90.803(6)(c) and 90.902(1 1). Florida Statutes (2013). Accordingly, the letter is
inadmissible hearsay which was admitted improperly.
Prejudicial Not Harmless Error
The admission of Bayviews exhibits the Note, Mortgage, Affidavit and
Default letter was prejudicial to Seffar and was not harmless error because
Bayviews entire prima facie case depended upon those documents. In a civil case,
an error is reversiblethat is, harmful errorwhere it is reasonably probable that a
result more favorable to Seffar would have been reached if the error had not been
committed. Damico v. Lundberg, 379 So.2d 964, 965 (Fla. 2d DCA 1979).
Harmless error is not a device for the appellate court to substitute itself for the trier-
of-fact by simply weighing the evidence. The focus is on the effect of the error on
the trier-of-fact. The question is whether there is a reasonable possibility that the
error affected the verdict. DiGuillo, 491 So.2d at 1139. Here, but for the
erroneously admitted exhibits, Bayview would have no evidence upon which to
saisiS its burden of proof. As such, such error cannot, by definition, be considered
harmless.
[R.
].
The Third DCA has recently held an unsigned computer generated letter is not evidence of date
of mailing. Baker i Florida Unemployment Appeals Commission, 35 Fla. L. Weekly Dli 88 (FIa.
3d DCA May 26, 2010).
31
III. THE TRiAL COURT ERRED BY FAILING TO
GRANT APPELLANTS MOTION FOR
INVOLUNTARY DISMISSAL.
An involuntary dismissal or directed verdict is properly entered only when
the evidence considered in the light most favorable to the non-moving party fails to
establish a prima /icie case on the nonmoving partys claim. McCabe v. Han/e),
886 So. 2d 1053, 1055 (Fla. 4th DCA 2004) (quoting Hack v. Estate of Heiling, 811
So. 2d 822, 825 (Fla. 5th DCA 2002)). On a motion for involuntary dismissal, made
at the close of the plaintiffs case in a nonjury trial, a trial court is limited to
determining whether or not the plaintiff has made a prima facie case. Ti//man v.
Baskin, 260 So.2d 509 (Fla.1972) and State, Department of Health and
Rehabilitative Services v. Thibodeaux, 547 So.2d 1243 (Fla. 2d DCA 1989). The
court in making such a determination can neither weigh the evidence nor consider
the credibility of witnesses. Saporito v. Madras, 576 So.2d 1342 (Fla. 5th DCA
1991).
a. Appellee failed to prove that its predecessor held the note at the time the
Complaint was filed, or was otherwise authorized to bring suit on behalf of
the true holder.
Whether a party is the proper party with standing to bring an action is a
question of law to be reviewed c/c novo. FCD Dcv., LLC v. S. F/a. Sports Comm.
Inc., 37 So.3d 905, 909 (Fla. 4th DCA 2010) (quoting Westport Recoveiy Corp. v.
Midas, 954 So.2d 750, 752 (Fla. 4th DCA 2007)). The party seeking foreclosure
must present evidence that it owns and holds the note and mortgage at issue in order
to establish standing to proceed with a foreclosure action. Servedio v. US. Bank Nat
Ass n, 46 So. 3d 1105 (Fla. 4th DCA 2010); Verizzo v. Bank ofNK, 28 So.3d 976,
978 (Fla. 2d DCA 2010); Phiogene v. ABNAmro Mortgage Group Inc., 948 So.2d
45, 46 (Fla. 4th DCA 2006). Where the defendant denies that the party seeking
foreclosure has an ownership interest in the mortgage, the issue of ownership
becomes an issue the plaintiff must prove. Carapezza v. Pate, 143 So.2d 346, 347
(Fla. 3d DCA 1962). The proper party with standing to foreclose a note and/or
mortgage is the holder of the note and mortgage or the holders representative. See
Mortgage Elec. Registration Svs., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA
2007); Troupe v. Redner, 652 So.2d 394, 39596 (Fla. 2d DCA 1995); see also
Phiogene, 948 So.2d at 46 (Fla. 4th DCA 2006) ([W]e conclude that ABN had
standing to bring and maintain a mortgage foreclosure action since it demonstrated
that it held the note and mortgage in question.).
In regards to Bayviews ownership and holding of the note and mortgage. the
Original Plaintiff alleged in its Complaint only that it it has the right to enforce
the note and mortgage. (emphasis added) [R , 3]. The Note and Mortgage
attached as an exhibit to the Complaint names the payee and lender as ABN
AMRO MORTGAGE GROUP, INC [R
].
Significantly, the Note attached as
33
an exhibit to the Complaint contained no allonge, nor was the Complaint ever
amended to allege the execution of an allonge or of the chain of title or assignments
of the Note and Mortgage [R......].
As the Second District stated in Feltus v. US. Bank Nat! Assn, 37 Fla. L.
Weekly D253a (Fla. 2d DCA Jan. 27, 2012): {w]e view U.S. Banks filing of a
copy of the note that it later asserted was the original note as a supplemental exhibit
to its complaint to reestablish a lost note as an attempt to amend its complaint in
violation of Florida Rule of Civil Procedure [190(a). U.S. Bank did not seek leave
of court or the consent of Feltus to amend its complaint. A pleading filed in
violation of rule 1.190(a) is a nullity, and the controversy should be determined
based on the properly filed pleadings. Warner-Lambert Co. v. Patrick, 428 So. 2d
718 (Fla. 4th DCA 1983). Here the alleged original Note and Allonge were not
even filed as or alleged to be a supplemental exhibit to RCS Complaint [R.
].
Curiously, the exhibits reflect an assignment from the FDIC as receiver for
Franklin Bank, but no exhibit reflects any assignment of the mortgage from the
payee and lender as ABN AMRO MORTGAGE GROUP, INC to Franklin Bank. It
was never alleged that Bayviews predecessor RCS ever owned the mortgage.
Likewise, the record contains no competent testimony that Bayview owns the
mortgage nor was tlat fact ever even alleged. Moreover, there likewise is no
yefj testimony that Bayview holds the mortgage.
34
An action may be prosecuted in the name of someone other than, but acting
for, the real property in interest so long as the requirements of Florida Rule of Civil
Procedure 1.210(a) and applicable Florida law are met. See Corcoran v. Brady, 347
So. 2d 689, 690 (Fla. 4th DCA 1977). A servicer of a note would have to prove that
the owner and holder of the note and mortgage granted the plaintiff filing the action
the authority to do so once the action was commenced. Elston/Leetsdale. LLC v. CW
Capital Asset Mgmt. LLC, 87 So.3d 14 (2012) (citing In re Rosenberg, 414 B.R.
826, 842 (Bankr. S.D. Fla. 2009)).
In considering what would be sufficient to support a finding of standing by a
servicer on behalf of the real party in interest, the this Court in Elston/Leetsdale,
relied on the considerations taken into account by the Seventh Circuit in a case
captioned CWCapital Asset Mgm:., LLC v. Chicago Properties, LLC, 610 F3d 497
(7th Cir. 2010). In that case, 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 ratiiing 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. at 501.
35
At the trial in this case, Bayview relied on Stone v. Bank, 115 So. 3d 411 (Fla.
2nd DCA 2010), for the proposition that a party may establish standing in the
presence of a blank endorsed note assignment of a mortgage or evidence of
equitable transfer. Bayview argued that the evidence of equitable transfer were
certain letters purportedly showing that RCS was the receiver on November 17,
2009. Bayview argued that because Seffar sent a letter to RCS on April 9, 2010, that
fact constituted an admission that RCS was in fact the servicer. However, the
purpose of Seffars letter was to challenge the authenticity of the service transfer and
to request additional information concerning said transfer [R. Tr. 98]. Even taking
Bayviews purported evidence as true, such a transfer of servicing letter is
insufficient to
satis&
the requirement for Bayview to provide competent, substantial
evidence pursuant to Stone.
In Stone, the court held that the transferee bank had standing to bring suit
because it had presented competent, substantial evidence that it owned the note and
mortgage. The evidence presented included testimony from one of its employees,
who worked for the original lender at the time that the property was seized and
placed into receivership and had remained an employee of the new bank, and
evidence of the receivership and a purchase assumption agreement. The employees
testimony was so compelling, given her personal knowledge of the particular loan in
question, that the court concluded that the argument that the allonge was indorsed in
36
blank and not affixed to the original note carried no weight in light of the testimony
demonstrating that the new bank acquired ownership of the note and mortgage
through the purchase assumption agreement.
The evidence provided by Bayview in this case does not nearly amount to the
evidence provided by the plaintiff in Stone. In this case, there was no authority put
into evidence to demonstrate that RCS was authorized to file suit as servicer of the
loan. A purchase and assumption agreement or a pooling and servicing agreement
was never presented.
Despite the lack of evidence that Bayviews predecessor held the note at the
time the Complaint was filed, the trial court improperly denied Seffars Motion for
Involuntary Dismissal [Tr. 73].
Additionally, where a defendant raises the affirmative defense that the lender
failed to provide him with notice of the acceleration pursuant to the procedures
specified in mortgage, the lender must tender such proof. See Frost v. Regions Bank,
15 So. 3d 905, 906-07 (Fla. 4th DCA 2009) (Because the bank did not meet its
burden to refute the Frosts lack of notice and opportunity to cure defense, the bank
is not entitled to final final summary judgment of foreclosure.). Here, RCS
allegations that it complied with conditions precedent were controverted by Seftar in
his answer and he also asserted an affirmative defense directed to that issue [R.
37
j.
Bayview therefore was obligated to prove that the condition precedent to
foreclosure imposed by paragraph 22 of the Mortgage was satisfied.
b The alleged Notice of Default alleged to have been given by Appellee
was defective in that it failed to conform to the language set forth in
paragraph 22 of the Mortgage.
Bavview failed to satisfy that condition precedent because the language of the
letter did not track the language required to be placed in the Notice by paragraph 22
of the Mortgage because the letter quali1ed the foregoing statements with the word
may by saying: If your loan is accelerated, you may have additional rights to
cure the default under your loan and may have the legal right to to assert the non
existence of a default or any other defense you may have to the acceleration and
foreclosure, . . .. In construing the notice of acceleration requirements, Florida courts
have stated that acceleration letters must satisfy the clear and unambiguous
conditions precedent to foreclosure by giving the required notice. See Konsidian v.
Bzisev Bank. 61 So.3d 1283 (Fla. 2nd DCA 2011) (The language in the mortgage iS
clear and unambiguous. The word shall in the mortgage created conditions
precedent to foreclosure, which were not satisfied). In fact, Judge Haury, Jr. of the
Seventeenth Judicial Circuit Court in I3ank
of\:eu
York Me//on v. Leslie. Case No.
CACE09032841 entered Summary Judgment for the Defendant by stating that the
language in an acceleration letter stating you mciv have the right to bring a court
action.. . does not comply with the mortgage. (Order Granting Defendants Motion
for Summary Judgment is attached hereto as an exhibit).
c. Appellee failed to prove Notice of Default was sent to Appellant.
Bavviews 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 [Ti.
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. 3738]. Based upon such testimony, Bavviews proof of compliance with the
condition precedent of sending out a default letter was deficient. Where, as here, a
plaintiff fails to meet its burden of proof the
iroper
remedy is for the court to grant
a non-suit and dismiss the action with prejudice. It was error here for the trial court
to fail to do so.
CONCLUSION
Based on the foregoing facts and legal authorities, Appellants request this
Court to reverse the entry of the Final Judgment of Mortgage Foreclosure and direct
that the trial court enter judgment on the motion for involuntary dismissal made by
Appellant. Alternatively, Appellant requests this Court to reverse the entry of the
39
Final Judgment of Mortgage Foreclosure and remand this matter for a new trial.
David H. Charlip, B.C.S.
Florida Bar No. 329932
Charlip Law Group, LC
Counsel for Appellant
Aventura Bayview Bldg.
17501 Biscavne 131\Id
Suite 510
Aventura, Florida 33 160
CA
iU3-.)3+.}) 13
re , rv-,
dcharl ipI charl iplawaroup.corn
40
CERTIFICATE OF SERVICE
I HEREBY CERTIFY thai. a cop of the foregoing document was sent
via email to Raymond Hora, Esq.. McCalla Ravmer. LLC,
mrservice(mcca11araymer.com on this day of January, 2014.
I)AVID H. CHARLIP, B.C.S.
CERTIFICATE OF COMPLIANCE
In compliance with Florida Rule of Appellate Procedure 9.2 10(2), counsel for
Appellants certifies that the size and style of type used in this Brief is 14 point type.
Times New Roman.
DAVID H. CHARLIP, B.C,S.
4