Posted on February 12, 2010 by  LivingLies dot WordPress dot com


First, rule 1.110(b) is amended to require verification of
mortgage foreclosure complaints involving residential real property. The
primary purposes of this amendment are (1) to provide incentive for the
plaintiff to appropriately investigate and verify its ownership of the
note or right to enforce the note and ensure that the allegations in the
complaint are accurate; (2) to conserve judicial resources that are
currently being wasted on inappropriately pleaded ―lost note counts and
inconsistent allegations; (3) to prevent the wasting of judicial
resources and harm to defendants resulting from suits brought by
plaintiffs not entitled to enforce the note; and (4) to give trial
courts greater authority to sanction plaintiffs who make false

Next, the Task Force proposed a new form Affidavit
of Diligent Search and Inquiry. In its petition, the Task Force
explained that many foreclosure cases are served by publication. The new
form is meant to help standardize affidavits of diligent search and
inquiry and provide information to the court regarding the methods used
to attempt to locate and serve the defendant. We adopt this form as new
form 1.924, with several modifications.

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Florida 2d DCA Gets It — Rules of Evidence Prevail!

Posted on February 16, 2010

Fla 2d DCA BAC v Ginelle Jean-Jacques

This is the reason why I am offering the workshop
on Expert Witnesses, i.e. — to highlight the rules of evidence, to
coach those who would present opinions as evidence and to hone the
skills of the litigator. While apparently narrow in its scope and
reasoning, this decision nails down the issue of evidence versus
assumptions or presumptions with finality. The case clearly establishes
that merely filing papers with “argument” about what they are or what
they mean is insufficient to establish anything at all.

The lesson here is not only that you can beat the pretender
lenders, but also that YOU must conform to the rules of evidence,
establishing a proper foundation and not try to finesse the court. And in non-judicial states the
argument is plain: if they could not prevail in a judicial action, why
should the court rubber stamp their non-judicial actions?

U.S. Bank filed documents that named other parties along with
defective assignments that were not executed in recordable form. They
tried to finesse the court by filing “original Note and Mortgage”. The
Trial Court granted Summary Judgment, fooled by the appearance of proper
documentation and the appellate court said that was an error and
reversed the trial court’s summary final judgment.

Notable excerpts follow:

space for the name of the assignee on this “assignment” was blank, and
the “assignment” was neither signed nor notarized. Further, U.S.
Bank did not attach or file any document that would authenticate this
“assignment” or otherwise render it admissible into evidence.

Bank failed to meet this burden because the record before the trial
court reflected a genuine issue of material fact as to U.S. Bank’s
standing to foreclose the mortgage at issue. The proper party with
standing to foreclose a note and/or mortgage is the holder of the note
and mortgage or the holder’s representative. See Mortgage Elec.
Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA
2007); Troupe v. Redner, 652 So. 2d 394, 395-96 (Fla. 2d DCA 1995); see
also Philogene v. ABN Amro Mortgage Group, Inc., 948 So. 2d 45, 46 (Fla.
4th DCA 2006)

exhibits are attached to a complaint, the contents of the exhibits
control over the allegations of the complaint. See, e.g., Hunt Ridge at
Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000) (“Where
complaint allegations are contradicted by exhibits attached to the
complaint, the plain meaning of the exhibits control[s] and may be the
basis for a motion to dismiss.”); Blue Supply Corp. v. Novos Electro
Mech., Inc., 990 So.2d 1157, 1159 (Fla. 3d DCA 2008); Harry Pepper &
Assocs., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA 1971)
(holding that when there is an inconsistency between the allegations of
material fact in a complaint and attachments to the complaint, the
differing allegations “have the effect of neutralizing each allegation
as against the other, thus rendering the pleading objectionable”).

Bank was required to establish, through admissible evidence, that it
held the note and mortgage and so had standing to foreclose the mortgage
before it would be entitled to summary judgment in its favor. Whether
U.S. Bank did so through evidence of a valid assignment, proof of
purchase of the debt, or evidence of an effective transfer, it was
nevertheless required to prove that it
validly held the note and mortgage it sought to foreclose
See Booker v. Sarasota, Inc., 707 So. 2d 886, 889 (Fla. 1st DCA 1998)
(holding that the trial court, when considering a motion for summary
judgment in an action on a promissory note, was not permitted to simply
assume that the plaintiff was the holder of the note in the absence of
record evidence of such).

incomplete, unsigned, and unauthenticated assignment attached as an
exhibit to U.S. Bank’s response to BAC’s motion to dismiss did not
constitute admissible evidence establishing U.S. Bank’s standing to
foreclose the note and mortgage, and U.S. Bank submitted no other
evidence to establish that it was the proper holder of the note and/or
mortgage. Essentially, U.S. Bank’s
argument in favor of affirmance rests on two assumptions: a) that a
valid assignment or transfer of the note and mortgage exists, and b)
that a valid defense to this action does not. However, summary judgment
is appropriate only upon record proof—not assumptions.

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