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Preparing for Trial In a Foreclosure Case

Posted on May 11, 2011 by Mark Stopa

I have a trial tomorrow in a foreclosure case. It’s in Lee County, of course – the county where the
judges prosecute cases by setting trials sua sponte. Right now, I’m earnestly preparing for trial,
but I thought I’d take a break to discuss the two issues are paramount in virtually every
foreclosure case/trial. Depending on the facts of a particular case, there may be other issues, of
course, but these two issues are critical to a Plaintiff’s ability to win at trial and should, in my
view, be vigorously defended in virtually every case:
1. Introducing the Note into evidence.
2. Proving the homeowner’s default in payments and the amount owed.
Re. the former, we all know the Plaintiff must introduce the original Note into evidence, failing
which a foreclosure judgment cannot lawfully be entered. The fact that a Note is “self-
authenticating” makes this seem like a low hurdle – the Plaintiff’s attorney simply needs to hand
the original Note to the judge and it will be admitted into evidence. Fortunately for homeowners,
it’s not that simple.
Under Fla. Stat. 673.3081, if a homeowner denies the authenticity of a Note or the signatures
thereon in the pleadings, the Plaintiff must authenticate the Note, and its signatures, at trial.
There is still a presumption the Note and all signatures are authentic, but by contesting
authentication, a homeowner can force the bank to authenticate the Note at trial. This may be
harder than you think. For instance, if I challenge the authenticity of a blank indorsement, the
Plaintiff must put on testimony from someone who can swear, under oath, that he/she saw the
indorsement executed or that he/she recognizes the signature and it is authentic. Similarly, if I
challenge the authenticity of the Note, the Plaintiff must present a witness who can testify he/she
saw the homeowner sign the Note or who recognizes the homeowner’s signature based on other
documents. The way that Notes change hands between banks, neither of these things would be
very easy, and I doubt the Plaintiffs’ lawyers will be prepared to deal with these evidentiary
issues. In other words, it’s quite possibly that if the homeowner preserves these evidentiary
objections at trial, the Plaintiff’s lawyers won’t be prepared for them and won’t even have the
requisite witness(es) at trial to testify.
Re. the second issue, testimony at trial must generally be based on personal knowledge. That
means the Plaintiff must testify to events he/she has seen with his/her eyes or heard with his/her
ears. This is virtually impossible to do with regard to proving a homeowner did not pay a
mortgage payment or proving the amount owed, so the Plaintiff invariably must rely on
documents to prove these facts. This is permissible, but only if the Plaintiff can introduce these
documents under the business records exception to the hearsay rule.
Again, this is harder than you think. The Plaintiff must show: (1) the documents are a
memorandum, report, record, or data compilation; (2) made at or near the time of the event; (3)
by or from information transmitted by a person with knowledge; (4) kept in the course of
regularly conducted business activity; and (5) that it was the regular practice of that business to
make such a record. All five elements must be satisfied or the documents cannot be used as
evidence at trial.
I’m not trying to teach anyone how to practice law. Rather, my point is that there are virtually
always things that can be done to make it difficult for a bank to prevail in a foreclosure case;
these are just two examples. So don’t give up – keep fighting Foreclosure!
Mark Stopa Esq.