Know the Law, the Rules ofEvidence andProcedure, the Facts and Don't Give Up!Foreclosure Defense, UncategorizedJanuary 29, 2014

13 o4We won another trial recently. Both the Plaintiff and theoriginal lender were Suntrust. For some reason, the Plaintiffmoved to substitute to Fannie at the outset of trial. I arguedprejudice and fairness - considering our motion for leave toamend our answer and affirmative defenses was just denied 5 weeks ago, Plaintiff's motion tosubstitute, which is effectively the same thing as our motion to amend, should also be denied. Judgeruled. P's Motion - GRANTED.

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On voir dire, the witness from Seterus testified that he just saw the original note today for the firsttime and learned of the file a few weeks ago in prep for trial. Same facts as Kelsey vs SunTrustMortgage. Inc. I argued authenticity of the note. Also, the note the Plaintiff had in Court wasdifferent than note attached to complaint! I argued several cases that say the Plaintiff is bound byits pleadings. The pleadings frame the case and are considered judicial admissions. Objectionsoverruled - Note in evidence.

Mortgage - No evidence it was ever recorded (no stamps from the clerk's office) and it was not evencertified! I argued that it was not self authenticating and based on Yang v. Sebasian LakesCondominium Assoc, Glarum v Lasalle Bank National Association and my voir dire of the

Seterus representative, who confirmed he knew nothing about a Suntrust mortgage, the mortgage is '.also hearsay. Objections overruled - Mortgage in evidence. - ---~-

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Next, I did an extensive voir dire on the acceleration letter and loan history. The witness from Seteruswas honest. No cutsey B.S. like some of the other robo-witnesses. He just flat out has no idea whathappens at Suntrust because he works for Seterus and has never worked for Suntrust. Yet, both theacceleration letter and loan history are from Suntrust. I explain to the Judge and make authenticationand hearsay objections. Overruled - Both the acceleration letter and loan history are in evidence.

On cross examination, I cover that the amount in default in the acceleration letter is wrong. We findmore and more of these mistakes during our very thorough, item by item review of the pay history.Also, the witness can't compute any totals. I tee up the issues up via my questions and then argue Sasv. Federal National Mortgage Association. There are all kinds of other Paragraph 22 problems withthe standard Suntrust acceleration letter which I walk the witness through.

The Judge did keep out a Fannie Mae screen shot and Power of Attorney based on my reliance onBinger v. King Pest Control- neither were listed on the exhibit list nor provided in response to ourrequest to make copies of exhibits available.

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At the close of the Plaintiff s case, I move for involuntary dismissal. I go b~ck over all of the aboveissues, adding in the witness' lack of comfort and familiarity with t~e pay ~story. I also rely on my"reverse Elston" as I call it. On cross, I get the Seterus rep to admit there s no recordsevidencing that Seterus is authorized to testify, foreclose, enforce, or possess ?n beh~lf ofthe .Plaintiff Fannie Mae. The acceleration letter is deficient and there was no evidence It was mailed - Iwas able to obtain a crystal clear admission on that point via my cross examination as well.

In response, Plaintiff's attorney mis-characterizes all the evidence, as they typically do. J take car~fulnotes and call her out on it. Then, the Plaintiff's attorney repeats some nonsense ~nd adds ~o~~thingto the effect of "Judge, everyone knows Plaintiff owns the loan, you can look It up onlme. Inmy response, ldeflate a couple of her issues, highl.ight that the Plaintiffha~ had over 2 years toprepare for this day, their day in court, to meet their burden etc. .. Then, With a.look of "bewilderment J slowly repeat the Plaintiff's argument back to the court, verbatim, about everyoneknows ... lookit up online!?!" Judge cuts me off, she's finally had enough - Involuntary DismissalGRANTED!

Once again, the lesson rebranded in my psyche - stay. foc:used, stay calm ~nd keep pushing! Keepmaking simple, concise evidentiary and procedural objections, d~monstratlng that you know exactlywhat you are doing, ,!p,dkeep handing the judge cases on key pomts. What J cannot accurately --recount a ove, without the transcript, is all the evidentiary and procedural obiections that J raised

~throughQ!lt this trial. It depends on the Plaintiff and the witness and moreover, the questions asked,but in this trial J had- so much to which J needed to object. I was standing up to 'object so much tomake objections that about half way through the trial, I just stopped sitting back down and stayedstanding. By diligently and consistently pressing, only with good faith, legally sound objections andargument, eventually, the cumulative effect paid off. This is certainly not the first time we have won acase after most of the trial has gone horribly wrong. Hopefully, it won't be the last.

This particular judge's courtroom has been a known slaughterhouse for the defense. I was told by anexcellent foreclosure defense attorney, who lost three recent trials with this Judge, that this may havebeen that Judge's first defense ruling. Hopefully, we've helped this judge see the light and comearound to many more defense rulings in the future!

I had the pleasure of having an attendee from one of my Foreclosure Trial Workshops observe thistrial. She gave me the second nicest compliment I've received from a fellow lawyer. She saidwatching me in trial was "like watching ice skating." I was completely relaxed, completely focusedand just kept pushing - mostly with a smile on my face. (If you're curious, the nicest complimentI've ever received from a lawyer came from a bank lawyer, from a large law fmn. At a case statusconference he told an associate from our office that he will do whatever it takes to push their client tosettle because, "I've seen Evan in trial and I really don't want to face that again!")

If you are in Florida and are looking for help with debt, foreclosure, real estate or want moreinformation about bankruptcy law, call us at (855) 55-ROSEN or fill out our online form for a FREECONSULTATION. Let the lawyers and staff at the Law Offices of Evan M. Rosen serve you!