3rd DCA Florida Reverses Judgment for Homeowner

“This is an example of self-validating bias. While the court’s reasoning was correct, the application of that reasoning to the facts was incorrect. The Judgment should have been affirmed.”
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See https://www.law.com/dailybusinessreview/sites/dailybusinessreview/2017/11/08/miami-dade-judge-erred-in-denying-foreclosure-appellate-court-rules/

And while you are at it, look at this post on Deadly Clear — https://deadlyclear.wordpress.com/2017/11/06/the-court-has-absolutely-no-confidence-in-any-of-green-trees-financial-documents/#more-8430


Deutsch v Briito HEARSAY Exceptions

  1. The Appellate Court clearly went to extremes in order to find that a proper prima facie case for foreclosure was made by Deutsch Bank National Trust Company — an entity that most probably had no interest or rights with respect to the subject mortgage.
  2. The 3d District starts off with a misapprehension or misapplication of the facts. The last payment in 2008 was rejected by whoever received it. Yet the court assumes that the failure to make that payment was a default by the elderly homeowners.
  3. The court then glosses over the nonexistent boarding process based upon the testimony of a robo-witness from a servicer.  It is important to drill down on the robo-witness in cross examination. At the base of his/her testimony there is nothing at all. The whole purpose of using a robo-witness is to make absolutely certain that he/she doesn’t slip up and tell the truth. They don’t know the truth.
  4. The Trial Court correctly concluded that the testimony from the robo-witness was inadmissible hearsay, based upon her assessment of all the facts. But the appellate court said this was in conflict with the Court’s admission into evidence of the proffered testimony and documents into evidence. The Appellate Court sailed overhead on the their own assessment of the testimony as credible and twisted the case into a judgment for Deutsch.
  5. The trial judge’s decision was based upon its rejection of the case presented by the named Plaintiff.
  6. But the Appellate Court’s reasoning that the witness need not be a person who actually performed the “boarding process” is correct. But to assume that the boarding process actually occurred in connection with the subject loan was a giant leap that the 3d DCA was more than willing to make.
  7. In virtually every case the witness for the foreclosing party is NOT a person with personal knowledge of anything. Such a witness is essentially reading the content of documents that were produced for the exclusive purpose of presentation at trial. That is hearsay on hearsay.
  8. This quote says it all: “the trial court decided that Mr. Blanchard was not familiar enough with the practices and procedures of Moss Codilis, one of the prior third party vendors, and excluded the demand letter for that reason.” On the surface this looks like a potential error by the trial court. But it wasn’t. For the trial judge, there was no proper foundation for admitting the hearsay documents and hearsay testimony into evidence probably because she didn’t believe it. The Appellate court, instead of determining whether the Judge’s belief was based upon any evidence that would support her, decided that she could not make the choice. If that were true we would need computers not trials.
  9. The Appellate court once again ignored the obvious bad faith and iniquity of the servicer and absolved Deutsch of any possible wrongdoing, preemptively including the fact that this Deutsch entity was neither the trustee for a trust that owned the subject loan nor a party with an interest or right over the subject mortgage.
  10. The fact remains that neither Deutsch in this case, nor any other purported “lender” could or would prevail in a judicial proceeding that was conducted without the application of presumptions which is a ruling that the party preferring documents and testimony is credible. They are not credible and the public domain has dozens of examples of a long-standing pattern of conduct including fabrication of documents, false representations or misleading information about the ownership of the loan and outright fraud, in addition to unclean hands in the handling of the loan account even if we assume that they had any right to administer the loans account.
  11. The essential question remains: Under what legal theory can a party reap the rewards of a contract in which it was (a) not a party and (b) not a third party beneficiary?

2 Responses

  1. Bruce your narrative is correct and unfortunately all too common. I too have been in a similar battle here in SC, and with the grace of God and help from blogs like this one, I have managed to stave them off for over 6 years now, with on dismissal for lack of standing, and now in the same battle with newly created papers (from the pretender lender’s servicer OCWEN). They have blatantly violated RESPA, FDCPA and many others, with a clear paper trail of their misdeeds. Heck, OCWEN even sent me a ‘fake’ foreclosure sale date letter… that is being investigated (huh, cough, choke) by CFPB, for what that’s worth. At the end of this saga I assume that Wilbur Ross’ cronies will defeat my wife and I, but like you said we must laugh our way through this passage of life. What else can we do? My human and manly existence has been reduced to merely a ‘pro se litigant’ with no resources to hire big guns to fight their fellow big guns in the arena of court jesters. Hence I continue to press on in this David and Goliath construct. Thank you Mr. Garfield, for your blogging is the reason we are still in our home.

  2. Its a fact the courts don’t want banks to fail…or lose.

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