Over the course of three days, Florida’s First District Court of Appeal tossed evidence submitted in foreclosure actions after the panel found lenders’ witnesses were not qualified to testify. The panel further remanded the cases with encouragement to trial courts to dismiss the cases in favor of homeowners.
The decisions, handed down in mid-October, are suspected to be the first to overturn a foreclosure case due to “robo-witnesses,” at least in a case where the lender was plaintiff.
Robo-witnesses are those called by the lender to testify as to the accuracy and origin of mortgage records. The problem is, these individuals lack firsthand knowledge of the facts to which they are attesting.
Our Miami foreclosure lawyers first wrote about the rise of robo-witnesses in Florida last year. In one example, a single bank witness testified in more than 200 foreclosure cases in just 11 months. Most trial courts issued rulings in favor of plaintiffs.
The problem stems from the fact that lenders were forced to stop filing new foreclosure cases after the robo-signing scandal in 2010. When filings resumed, they flooded the court system. But there were a host of deadline pressures to get these cases through the system, so banks often leaned on witnesses who had very limited knowledge of mortgage records – and judges let them get away with it.
The recent appellate court decisions seem to indicate a reversal in trend on this issue.
Those decisions are:
- Burdeshaw v. BNY Mellon
- Kiefer v. Nationstar Mortgage
- Lacombe v. Deutsche Bank National Trust
The Burdeshaw case garnered the longest opinion, a 17-page ruling responding to an appeal by two homeowners against the final judgment of foreclosure. The couple argued evidence used to support the assertion of their default was inadmissible and hearsay because the lender’s prime witness didn’t have first-hand knowledge of their case.
The loan servicer employee/witness lacked any knowledge regarding payments made before the bank’s acquisition of the account. Further, plaintiffs argued defendant lender failed to establish key records as any foundation that would indicate the employee was a person with knowledge of the required elements of the case.
The appellate court ruled the case should have been dismissed years ago in favor of the homeowner because a motion to dismiss for inactivity in 2010 was valid. (It had gone more than 60 days without plaintiff filing any motions or taking any other actions.) As to the quality of evidence, the appellate court found it lacking and noted the appeals courts do not generally allow either side the chance to retry their case simply because they failed to prove it the first time. Thus, the case was remanded with instructions to dismiss.
In the Kiefert case, appellate panel reversed because a key bank witness could not establish that its predecessor was in possession of the mortgage note at the time the foreclosure complaint was filed.
In Lacombe, the court found the bank’s main witness to be “incoherent” with regard to important evidence. Because the case had languished in the courts for more than five years, the court remanded with instructions to dismiss.
The decisions suggest that, maybe, finally, the foreclosure courts will start holding evidence in these cases to the same standard as evidence in all other civil procedures. There is inevitably a level of judicial coaching that goes on in foreclosure courts that would not be tolerated in, say, a medical malpractice trial.
There are still a number of cases pending in other appellate courts, so it will be interesting to see how those courts decide. Conflicts would have to be settled with the Florida Supreme Court, though no such challenge has been brought to date.
If you’re battling foreclosure in Miami or the surrounding areas contact Bruce Jacobs & Associates for a confidential appointment to discuss your rights. Call (305) 358-7991. Also, don’t miss Miami Foreclosure Attorney Bruce Jacobs on 880AM/the Biz, every Wednesday from 5 p.m. to 6 p.m. on “Debt Warriors with Bruce Jacobs,” discussing foreclosure topics that matter to YOU.
Foreclosure Reversal Issued in Case With ‘Robo-Witness’, Oct. 24, 2014, By Adolfo Pesquera, Daily Business Review
More Blog Entries:
“Relief” Of National Mortgage Settlement a Farce, Oct. 2, 2014, Miami Foreclosure Defense