IN THE DISTRICT COURT OF APPEALFOR THE STATE OF FLORIDA

FIFTH DISTRICT

GLADYS ANTOINE,

APPELLANT,vs.

ONE WEST BANK, FSB,

APPELLEE.

CASE NO. 5D14-1219Lower Case.: 2009-CA-000 120

I

APPELLANT'S INITIAL BRIEF

JAMES R. EVANS, ESQUIREJAMES R. EVANS, P.A.Florida Bar Number 0044441322 Silver Beach AvenueDaytona Beach, FL 32118(386) 226-8036FAX (386) 252-5052Jamesevanslaw@grnail .comAttorney for Appellant

E-Copy Received Jul 25, 2014 3:08 PM

TABLE OF CONTENTSPage

TABLE OF CONTENTS .

CITATION OF AUTHORITIES .......................................... ii-iv

INTRODUCTION ........................................................... i

STATEMENT OF THE CASE AND FACTS ........................... 2-5

SUMMARY OF ARGUMENT ............................................ 5-7

ARGUMENT:I: The Trial Court abused its discretion by admitting into

evidence the Loan Payment History, Plaintiff's Exhibit 1,

under the Business Record Exception because it includedhearsay within hearsay ....................................... 7-13

II: The Trial Court abused its discretion by admitting intoevidence the Demand Letter, Exhibit 5, sent by the priorservicer before any involvement of the Appellee/Lender,under the Business Record Exception because it constitutedhearsay and there was no evidence that satisfied the criteriafor Business Record Exception ............................... 13-16

III: The Trial Court abused its discretion by admitting intoevidence the Note, Exhibit 3, because it lacked standing .. 16-19

CONCLUSION ............................................................... 19

CERTIFICATE OF SERVICE ............................................. 20

CERTIFICATE OF COMPLIANCE ..................................... 20

CITATION OF AUTHORITIES

Page

Beerman y. Rollar, 710 So. 2d 93 (Fia. 4th DCA 1998). 8, 14

Brown y. Snell, 6 Fia. 741 (1856) ......................... 17

Century Group Inc. y. Premier Fin. Services East L. P., 724 ..... 18

So. 2d 661 (Fia. 2 DCA 1999)

Costa Bella Development Corp. y. Costa Development Corp.,441 So. 2d 1114 (Fia. 3rd DCA 1983) ...................... 17

Fladeii y. Palm Beach County Canvassing Board, 772 So.2d

1240 (Fia. 2000) ....................................... 17

Glarum y. LaSaiie Bank Nationai Association, 83 So.3d 780

(Fia. 4th DCA, 2011) ................................... 11

Greenwaid y. Triple D Properties, Inc., 424 So. 2d 185, 187

(Fia. 4th DCA 1983) .................................... 17

Grier y. M.H.C. Realty Co., 274 So. 2d 21 (FIa. 4 DCA 1973)... 18

Hunter y Aurora Loan Servs., LLC, 137 So.3d 570 (2014) 19

Janke y. Corinthian Gardens, Inc., 405 So. 2cl 740 (FIa. 4th DCA1981), cert. denied, 413 So. 2d 876 (Fia. 1982) ............... 8, 14

Jentv. State, 408 So. 2d 1024 (Fia. 1982) ................... 8, 14

Johnson y. Dep't ofllealth & Rehab. Servs., 546 So. 2cl 741 , 743

(Fia. 1stDCA 1989) .................................... il

Margiewicz y Terco Prop., 441 So. 2d 1 124 (Fia. 3 DCA 1983) . . I 7

11

CITATION OF AUTHOPJRIES(continued) Page

McClean y. JP Morgan Chase Bank Nail Ass'n, 79 So. 3d 170,173 (Fia. 4th DCA 2012) ................................. 18

Mellor y. Goldberg, 658 So. 2d 1162 (Fia. 2 DCA 1995) ........ 18

Mendoza y. State, 700 So. 2d 670 (Fia. 1997), cert. denied,67 U.S.L.W. 3231, 119 S.Ct. 101, 142 L.Ed.2d 81(1998) ....... 8, 14

Moshe Mazine y. Jaacov E. Bouskila, 67 So.3d 1129,(Fia. ist DCA 201 1) Id 1 132 ............................... 13, 16

Pepe y. Shepherd, 422 So. 2d 910 (FIa. 3 DCA 1982) ........... 17

Scott y. Taylor, 58 So. 30 (Fia. 1912) ........................ 18

Stone y. BankUnited, i 15 So. 3d 41 1, 413 (Fia. 2d DCA 2013)(quoting BAC Funding Consortium Inc. ISAOA/ATIMA y.Jean-Jacques, 28 So.3d 936, 939 (Fia. 2d DCA 2010)) .......... 18

Sobe! y. Mutuai Dey. Inc., 313 So. 2d 77 (Fia. i DCA, 1975) . ...

Tayton y. American Nat'i Bank, 57 So. 678 (Fia. 1912) .........Thomas y. Hartman, 553 So. 2d 1256 (Fia. 5 DCA 1989) ........Steven Lawrence Thomas y. State ofFlorida; 993 So.2d 105,(Fia. iSt DCA 2008). Id 108...............................Yisraei y. State, 993 So.2d 952, (FIa. 2008) ..................Young y. Victory, 150 So. 624 (Fia. 1933) ...................

111

17

17

18

11

5,11,12

18

CITATION OF AUTHORITIES(continued) Page

FLORIDA STATUTES

Florida Statutes, § 90.80 1(1)(c) ............................ 8

FloridaStatutes,90.802 ................................. 8,10

Florida Statutes, § 90.803(6)(a) ............................ 6, 9, 10, 15

Florida Statutes, § 90.804 ................................. I O

Florida Statutes, § 90.805 ................................ 11, 12, 14

Florida Statutes, § 90.902 (11) ............................. 11

Florida Rules of Civil Procedure section 1 .2 1 O(a) .............. 18

iv

INTRODUCTION

Appellant, GLADYS ANTOINE, will be referred to herein, interchangeably,

as Appellant or Antoine. Appellee, ONE WEST BANK, FSB will be referred to

herein, interchangeably, as Appellee or OneWest. The prior plaintiff/loan servicer

INDYMAC FEDERAL BANK will be referred to herein, interchangeably, as

IndyMac.

The symbol R will be used to designate references to the record on appeal,

followed by the page number, to-wit: (R.1)

The symbol T will be used to designate references to the Transcript of

Proceedings, followed by the page number and lines, to-wit: (T. i )

STATEMENT OF THE CASE AND OF THE FACTS

This action involves a mortgage foreclosure filed by Appellee, ONEWEST

BANK, FSB (the "Appellee/Lender"), on real property owned by the Appellant,

GLADYS ANTOINE (the "Borrower"). The Complaint to Foreclose Mortgage

and To Enforce Lost Loan Documents was filed on January 13, 2009 by IndyMac

Federal Bank. On July 22, 20 1 0 the plaintiff substituted OneWest Bank, FSB in

place of IridyMac.

The foreclosure trial was held on March 1 1, 2014. The Appellant raised

several objections pertaining to hearsay and lack of predicate on what were

claimed to be business records, which objections were eventually overruled by the

trial court resulting in a Final Judgment of Foreclosure. Appellant's Motion for

directed verdict based on Appellee's lack of standing, specifically, was also

denied.

Sole Witness

At the tria!, Sally Torres, Senior Litigation Analyst (the "Witness") was the

sole witness on behalf the Lender. The Witness was employed by Ocwen Loan

Servicing ("Ocwen") which was the servicer of the loan on behalf of the Lender.

(T. 5), beginning August 19, 2013. (T.18)

The Witness admitted on cross-examination that the business records she

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reviewed contained Ocwen's name only on the first page of the loan history.

(T. 10) Ms. Torres testified that the remaining pages of the loan history were those

of IndyMac and OneWest Bank ("OneWest") and admitted that she was never an

employee of either. (T. 10) The Witness admitted she had no personal knowledge

as to the manner in which IndyMac or OneWest created those records, compiled

those records and checked them for accuracy. (T. i I and T. i 9)

Plaintiff's Composite Exhibit iPayment History

The Lender asked the Court to receive into evidence, Plaintiff's Exhibit I, as

a business record ofthe Plaintiff. Plaintiff's Exhibit i is the loan payment history.

The Witness admitted that Plaintiff's Exhibit 1 only had one page from

Ocwen and the remainder of the pages are the payment history records of IndyMac

and OneWest Bank. (T. i 0) The Witness admitted that the records of IndyMac and

OneWest are not based upon business records prepared by Ocwen Loan Servicing

and that she had no personal knowledge as to the manner in which IndyMac or

OneWest created those records, compiled those records and checked them for

accuracy. (T. i I).

Appellant objected on the basis on hearsay. (T.9, T. 1 1 , T. i 4 and T. i 9). The

Witness went on to testify that these records came to Ocwen from InclyMac and

OneWest when Ocwen acquired OneWest Bank in August of 20 1 3 . (T. 1 1 ) The

3

Witness stated that these records were checked and went through Ocwen's quality

control prior to boarding them into Ocwen's system, however the Witness stated

she had no personal knowledge as to the manner in which IndyMac or OneWest

created, compiled and checked them for accuracy prior to Ocwen obtaining them.

(T.11 and T.19)

The court overruled the hearsay objection and allowed the exhibit into

evidence. (1.20)

At no point did the Witness ever attempt to establish any of the criteria for

the exhibit as hearsay exception under the business records rule with respect to the

prior servicer information.

Plaintiff's Exhibit 3Original Note

Appellee/Lender then offered as Exhibit 3, the original adjustable rate note

dated October 31, 2005. (T.22, T.23) The Witness testified that the endorsement

on the back by IndyMac was endorsed en blanc and the other endorsement was

from Market Street Mortgage Corporation to IndyMac. (T.23) Market Street

Mortgage was the originator ofthe loan. Counsel for the Appellant objected on the

grounds of hearsay, relevance and lack of predicate. (T.24) The Court overruled

the objection and allowed the Note into evidence. (T.24)

Plaintiffs Exhibit 5Demand Letter

Appellee/Lender then offered as Exhibit 5 the demand letter sent by

IndyMac on September 15, 2008 to Gladys Antoine, the Borrower. (T.25) The

Witness testified that she was never employed by IndyMac, had no personal

knowledge of the manner in which that letter was created by IndyMac or

maintained for accuracy, she had no personal knowledge as to whether or not that

letter was actually sent or mailed but simply relied on the previous servicer's notes.

She admitted that she did not have a copy of those notes. (T.27, T.28) Counsel for

the Appellant made the same objection on the grounds of hearsay and lack of

predicate, citing Yisrael, 993 So.2d 952. (T.28) The Court overruled the objection

and allowed Exhibit 5 into evidence. (T.28)

SUMMARY OF ARGUMENT

Point I

Plaintiff's Exhibit i , which was Lender/Appelle's loan payment history

clearly constituted hearsay within hearsay because it included substantial financial

information from a prior loan servicer and was being offered to prove the truth of

such financial information. Appellee/Lender relied upon the Business Exception

Record for admissibility ofthe exhibit.

The Appellee/Lender's sole Witness, admitted that the prior servicer's

5

history was not based upon business records prepared by her office, Ocwen, and at

no point in the trial did the sole Witness attempt to establish any of the criteria for

Plaintiff's Exhibit I or any trial exhibits as hearsay exceptions under the Business

Records Rule with respect to the financial information from the prior servicer.

The Florida Evidence Code clearly prohibits "hearsay within hearsay" unless

each part of the combined statements conform with an exception to the Hearsay

Rule. Appellee/Lender as the proponent of the evidence had the burden of

supplying a proper predicate to admit its evidence under an exception to the rule

against hearsay. Further, if evidence is admitted under one of the exceptions, it

must be offered in strict compliance with the requirements of the particular

exception.

Appellant was prejudiced because the business records were the only

evidence as to damages. But for the erroneous admission of the hearsay

documents, over Appellant's objection, Appellee/Lender would not have proven its

case.

Point II

Plaintiff's Exhibit 5, IndyMac's Demand Letter, was a hearsay document

prepared by a prior servicer on the loan. The letter was not any memorandum,

report, record or data compilation, as required pursuant to §90.803, F.S. for a

Business Record Exception. Further, the Witness admitted that she had no personal

knowledge of dealings on the loan prior to it coming to Ocwen and no prior

knowledge of OneWest providing their servicing. The Witness had no personal

knowledge as to the manner in which the letter was delivered or prepared and

based her testimony on the purported review of a OneWest business record/note

that she did not produce in Court. The Witness also did not establish the criteria

for a Business Record Exception, and even if it was an Ocwen record, in that she

could not testify that the letter was kept in the course of a regularly business

activity and that it was the regular practice of such business to make such a letter.

Appellant was prejudiced because the letter was the only evidence of a Notice of

Intent to accelerate, which was required under the mortgage. But for the erroneous

admission of such hearsay document, over Appellant's objection, Appellee/Lender

would not have proven material condition precedent to its cause of action.

Point III

Appellee/Lender failed to provide any evidence that it owned the Note prior

to initiating the underlying foreclosure action.

ARGUMENT

Point iAppellant's Point

The Trial Court abused its discretion by admittinginto evidence the Loan Payment History, Plaintiff's

7

Exhibit 1, under the Business Record Exceptionbecause it included Hearsay within Hearsay

A. Standard of Review.

The admissibility of evidence lies in the sound discretion of the trial court

and tria! court decisions on the matter will be affirmed absent a showing of abuse

ofdiscretion. See. e.g., Mendoza y. State, 700 So. 2d 670 (Fia. 1997), cert. denied,

67 U.S.L.W. 3231, 1 19 S.Ct. 101, 142 L.Ed.2d 81 (1998);Jentv. State, 408 So. 2d

1024 (F!a. 1982); Beerman y. Rollar, 710 So. 2d 93 (Fla. 4th DCA 1998); Janke y.

Corinthian Gardens, Inc., 405 So. 2d 740 (FIa. 4th DCA 1981), cert. denied, 413

So. 2d 876 (Fia. 1982).

B. Factual arguments.

§ 90.801(1)(c), F.S. defines hearsay as:

"Hearsay" is a statement, other than one made by the declarantwhile testifying at the triai or hearing, offered in evidence toprove the truth of the matter asserted.

§ 90.802, F.S. states the Hearsay Rule as:

Except as provided by statute, hearsay evidence is inadmissible.

The sole witness of the Plaintiff admitted that she had no personal

knowledge of any of the dealings on this !oan prior to it coming to Ocwen and that

she had no knowledge as to how the prior servicers, IndyMac and OneWest,

[,]

performed their servicing. The Loan Payment History was clearly hearsay because

the statement was prepared by one other than the Witness and was being offered to

prove the truth of the amount due. The Plaintiff's sole method of meeting its

burden of proof at trial was to rely on the business record exception to the hearsay

rule under §90.803 F.S.

The business record exception under § 90.803(6)(a) F.S., states:

( 6) Records ofregularly conducted business activity.

( a) A memorandum, report, record, or datacompilation, in any form, of acts, events, conditions,opinion, or diagnosis, made at or near the time by, orfrom information transmitted by, a person withknowledge, if kept in the course of a regularlyconducted business activity and if it was the regularpractice of that business activity to make suchmemorandum, report, record, or data compilation, allas shown by the testimony of the custodian or otherqualified witness, or as shown by a certification ordeclaration that complies with paragraph (e) and s.

90.902(1 1), unless the sources of information or othercircumstances show lack of trustworthiness. The term"business" as used in this paragraph includes a business,institution, association, profession, occupation, andcalling of every kind, whether or not conducted for profit.

(Emphasis Supplied).

The Witness testified that Plaintiff's Exhibit i included information from

predecessor servicers of the loan and that the pay history was from IndyMac and

OneWest. The Witness also admitted that the prior servicers' history was

based upon business records prepared by Ocwen.

At no point in the trial did the Witness attempt to establish any of the criteria

for any of the trial exhibits as hearsay exceptions under the business records rule

with respect to the prior servicer.

The Appellant objected on the basis on hearsay and the Trial Court

eventually overruled the objection and allowed Plaintiff's Exhibit i into evidence.

There was never any effort to establish that the prior servicers' records satisfied the

criteria for the Business Record Exception (or any other exception) for the prior

servicer.

Hearsay within Hearsay

The Florida Evidence Code clearly prohibits hearsay within hearsay unless

each part satisfies a statutory exception. §90.805, F. S. states:

Hearsay within hearsay is not excluded under s. 90.802,provided each part of the combined statementsconforms with an exception to the hearsay rule asprovided in s. 90.803 or s. 90.804.

(Emphasis Supplied).

The First District Court in addressing admissibility of a business record

which contained a second layer ofhearsay, consistent with §90.805, F.S., held that

the statement in the record itself (i.e. the second layer of the hearsay) would have

to be admissible under some exception to the hearsay rule. The Court stated:

10

When a business record contains a hearsay statement, theadmissibility of the record depends on whether the hearsaystatement in the record would itself be admissible under someexception to the hearsay rule. In other words, if the person whoprepared the record could not testif' in court concerning therecorded information, the information does not becomeadmissible as evidence merely because it has been recorded inthe regular course of business.

Steven Lawrence Thomas y. State of Florida, 993 So.2d 105, (Fla. 1' DCA 2008).Id 108.

Plaintiff's Exhibit 1, as admitted by the Witness, clearly contained hearsay

from prior servicers. In order to be admissible, over a hearsay objection, would

have required satisfying the business record exception criteria for the prior

servicers. As evident in the trial transcript, there was no such effort whatsoever. It

was, therefore, an error for the Trial Court to admit Plaintiff's Exhibit 1.

The proponent of the evidence has the burden of supplying a proper

predicate to admit his evidence under an exception to the rule against hearsay.

Yisrael y. State, 993 So.2c1 952, (Fia. 2008).

"If evidence is to be admitted under one of the exceptions to the hearsay

rule, it inust be offered in strict compliance with the requirements of the particular

exception." Johnson y. Dep't ofHeaith & Rehab. Servs., 546 So. 2d 741 , 743 (Fia.

ist DCA 1989).

In a more recent decision, the Fourth DCA in Glarum y. LaSalle Bank

il

National Association, 83 So.3d 780 (Fia. 4th DCA, 2011), relying upon Yisrael y.

State, found that an Affidavit in a mortgage foreclosure action was improperly

admitted as business records because the Affidavit constituted inadmissible

hearsay. The Court did state that there was no per se rule precluding the admission

of computerized business records acquired from prior loan servicer, however, the

Affidavit had relied upon data supplied by a different loan servicer whose

procedures he was even less familiar with and could not state that the data supplied

in the Affidavit was accurate. The court found for a number of reasons, including

that because the data relied upon was from a prior servicer, with whose procedures,

the Affiant was not familiar, that the Affidavit was inadmissible hearsay and that

there was no competent evidence to prove the amount of damages.

When business records contain information that is based upon business

records from a prior business, such records clearly constitute double (potentially

triple) hearsay. The business record exception requires proof that the data

compilation was made pursuant to the specified criteria. Pursuant to the Hearsay

within Hearsay statute, §90.805, this would require proof that all of the layers of

information in the business record meet such criteria -- including information from

any prior business. Otherwise, this would simply allow hearsay on hearsay on

hearsay and permit someone to evade the evidentiary requirements by simply

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transferring the records to a new servicer and have that new servicer simply

establish the criteria for itself.

C. Prejudice.

When a party, such as a lender, fails to establish a proper foundation for the

admission of business record, such constitutes error. If the business records are the

only evidence as to the amount of a defendant's default, the error is hariiifìil

necessitating that a Final Judgment of Foreclosure be reversed. ßvfoshe Mazine y.

JaacovE. Bouskila, 67 So.3d I 129, (Fia. iSt DCA 201 1). Id i 132.

But for the Trial Court erroneously admitting the exhibit, the

Appellee/Lender would not have proven its case because there would have been no

competent substantial evidence ofthe amount ofdamages, i.e., the amount due.

Point ItAppellant's Point

The Trial Court abused its discretion by admittinginto evidence the Demand Letter, Exhibit 5, sent bythe prior servicer before any involvement of theAppellee/Lender, under the Business RecordException because ¡t constituted Hearsay and therewas no evidence that satisfied the criteria for BusinessRecord Exception.

A. Standard of Review.

The admissibility of evidence lies in the sound discretion of the trial court

13

and trial court decisions on the matter will be affirmed absent a showing of abuse

of discretion. See Mendoza, 700 So. 2d 670; Jent, 408 So.2d 1024; Beerman, 710

So. 2d 93; and Janke, 405 So. 2d 740.

B. Factual arguments.

Appellant incorporates by reference, the Statutes and case law referenced in

Point I.

The prior servicer on this loan, IndyMac, presumably sent a demand letter

o'-' September 1 5, 2008, Plaintiff's Exhibit 5, to the Borrower, at an address which

was not the property address in question. The purpose of the letter was to notify the

Borrower that she was in default and that the lender intended to proceed with the

foreclosure.

The Appellee/Lender's sole Witness testified that she had no personal

knowledge of any dealings on the loan prior to it coming to Ocwen and she had no

prior knowledge of IndyMac and OneWest performing their servicing. Paragraph

22 of the Mortgage requires prior notice to the Borrower before it can be

accelerated. The Witness also admitted that the property address was 1 Rainrock

Place, Palm Coast, Florida but did not testify as to what address the letter was sent

to specifically.

The Witness also admitted that when IndyMac allegedly sent the Demand

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Letter there was no proof that it was actually delivered to the Borrower, but simply

relied on records transferred to Ocwen, and did not have a copy of those notes to

testify to.

Plaintiff's Exhibit 5 was clearly a letter prepared by a prior servicer and was

being offered to satisfy an admitted condition precedent under the mortgage, (i.e. a

notice of intent to acceleration). The exhibit clearly constituted hearsay in that it

was a statement made by one other than the declarant that was being offered to

prove the acceleration letter, in fact, had been sent, as required pursuant to terms of

the mortgage.

Appellant objected, on hearsay grounds exception. Furthermore, the

document was clearly not even a business record under the definition of §90.803

(6)(a), Florida Statutes, in that it was simply a letter presumably sent to what,

based upon the evidence, is an erroneous address.

Plaintiff's Exhibit 5, therefore, neither meets the criteria for even being a

business record, nor has there been any satisfaction of the criteria as a business

record exception in that the Witness never established that it was kept in course of

a regularly conducted business activity or that it was the regular practice of such

business to make such letter (how could she even have testified that it was the

regular practice of his business to make a document by IndyMac which was

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obviously prepared by a prior servicer?)

C. Prejudice.

When a party, such as a lender, fails to establish a proper foundation for the

admission of business record, such constitutes error. If the business records are the

only evidence of an essential element of a cause of action, the error is harmful

necessitating that a Final Judgment of Foreclosure be reversed. Moshe @ i i 32.

But for the Trial Court erroneously admitting the exhibit, the

Appellee/Lender would not have proven its case because there would have been no

competent substantial evidence of the notice of acceleration which was required

under the mortgage.

Point IIIAppellant's Point

The Trial Court abused its discretion by admittinginto evidence the Note, Exhibit 3, because it lackedstanding.

A. Standard of Review.

Florida Rules ofCivil Procedure section 1.210(a) provides:

(a) Parties Generally.

Every action may be prosecuted in the name of the real party ininterest, but a personal representative, administrator, guardian, trustee of anexpress trust, a party with whom or in whose name a contract has been madefor the benefit of another, or a party expressly authorized by statute may suein that person's own name without joining the party for whose benefit the

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action is brought. All persons having an interest in the subject of the actionand in obtaining the relief demanded may join as Plaintiffs and any personmay be made a Defendant who has or claims an interest adverse to thePlaintiff. Any person may at any time be made a party if that person'spresence is necessary or proper to a complete determination of the cause.Persons having a united interest may be joined on the same side as Plaintiffsor Defendants, and anyone who refuses to join may for such reason be madea Defendant.

When exhibits are inconsistent with Plaintiff's allegations of material fact as

to who the real party in interest is, such allegations cancel each other out. Fladell y.

Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwaid y.

Triple D Properties, Inc., 424 So. 2d i 85, 1 87 (Fia. 4th DCA 1983); Costa Bella

Development Corp. y. Costa Development Coip. , 44 1 So. 2d 1 1 1 4 (Fla. 3rd DCA

1983).

Every mortgage loan is composed oftwo documents - the note instrument

and the mortgage instrument. No matter how much the mortgage instrument is

acclaimed as the basis ofthe agreement, the note instrument is the essence of the

debt. Sobe/y. MutualDev. Inc., 313 So. 2d 77 (Fia. i DCA, 1975); Pepe y.

Shepherd, 422 So. 2d 910 (Fla. 3 DCA 1982); Margiewicz y. Terco Prop., 441 So.

2d 1 124 (FIa. 3 DCA 1983). The promissory note is evidence ofthe primary

mortgage obligation. The mortgage is only a mere incident to the note. Brown y.

Snell, 6 Fla. 741 (1 856); Tayton 'y. American Nat'lBank, 57 So. 678 (Fia. 1912);

17

Scott y. Taylor, 58 So. 30 (Fia. 1912); Young y. Victory, 150 So. 624 (Fia. 1933);

Thomas y. Hartman, 553 So. 2d 1256 (Fia. 5 DCA 1989). The mortgage

instrument is only the security for the indebtedness. Grier y. MN. C. Realty Co,

274 So. 2d 21 (Fia. 4 DCA 1973); Mellor y. Goldberg, 658 So. 2d 1162 (Fia. 2

DCA 1995); Century Group Inc. y. Premier Fin. Services East L. P., 724 So. 2cl

661 (FIa. 2 DCA 1999).

B. Prejudice.

When a party, such as a lender, fails to establish standing with inconsistent

exhibits as to Plaintiff's allegations of material fact as to who the real party in

interest is, such allegations cancel each other out and, as noted above, the Note was

erroneously admitted into evidence, over Appellant's objections.

But for the Trial Court erroneously admitting the exhibit, the

Appeilee/Lender would not have proven its case because there would have been no

competent substantial evidence of that the Appeliee/Lender had standing.

"A crucial element in any mortgage foreclosureproceeding is that the party seeking foreclosure mustdemonstrate that it has standing to foreclose." McClean y. iFMorgan Chase Bank Nat'! Ass'n, 79 So. 3d 170, 173 (Fia. 4thDCA 2012). To establish standing, the plaintiff must show itheld or owned the note at the time the complaint was filed. Id."A plaintiff may prove that it has standing to foreclose 'throughevidence of a valid assignment, proof of purchase of the debt,or evidence of an effective transfer." Stone y BankUnited, i i 5So. 3d 411, 413 (Fia. 2d DCA 2013) (quoting BAC FundingConsortium Inc. ISAOA/ATIMA y. Jean-Jacques, 28 So.3d 936,

II

939 (FIa. 2d DCA 2010)).

Hunter y Aurora Loan Servs., LLC, 137 So.3d 570 (2014).

The payment history Appellee/Lender relied on was incorrectly admitted

into evidence as business records, and therefore, could not serve to establish

Appellee/Lender's standing to sue Appellant in foreclosure. No other evidence in

the record before us independently proves that the Appellee/Lender possessed the

promissory note prior to initiating suit, purchase of debt, or effective transfer.

OneWest Bank lacked standing to foreclose.

CONCLUSI ON

All three exhibits aforementioned were erroneously admitted into evidence

and were prejudicial to Appellant. The Final Judgment of Foreclosure should be

reversed.

Dated this -5' day ofJuly, 2014. Resectfu1ly su

JAflES R. EVANS, ESQ.FlMida Bar Number 0044441322 Silver Beach AvenueDaytona Beach, FL 32 1 18(386) 226-8036FAX (386) 252-5052Jamesevans1awgmail .comAttorney for Appellant

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished by E-service to BAKER, DONELSON, BEARMAN, CALDWELL &

BERKOWITZ, PC to FLLService@bakerdonelson.com on July S, 2014.

By: Is! James R. Evans, EsquireJAMES R. EVANS, ESQ.Florida Bar Number 0044441322 Silver Beach AvenueDaytona Beach, FL 32118(386) 226-8036FAX (386) 252-5052

Jamesevansl awgrnaiI .comAttorney for Appellant

CERTIFICATE OF COMPLIANCE OF FONT

I hereby certifs' that this brief has been prepared using Times New Roman 14

in compliance with Rule 9.210(a)(2) ofthe Florida Rules ofAppellate Procedure.

By: Is! James R. Evans, EsquireJAMES R. EVANS, ESQ.Florida Bar Number 0044441322 Silver Beach AvenueDaytona Beach, FL 32118(386) 226-8036FAX (386) 252-5052Jamesevanslaw@grnai I .comAttorney for Appellant

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