Fla 4th DCA Reverses Based Upon Trial by Ambush

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see 4th DCA Reive v Deutsch Trial by Ambush J Oftedal reversed DOC032515-001

Those of us who have been fighting this ground war have seen it again and again. The “corporate representative” is allegedly employed by the servicer. Nobody shows up representing the Plaintiff, except a lawyer who says he represents the Trust or other Plaintiff but we really don’t know that this lawyer has been retained by, say, US Bank as trustee for XYZ Securities Pass Through Trust 200X-A. In fact, we don’t even know if US Bank is the Trustee.

And even if they are the Trustee neither they nor their so-called trust (probably unfunded, so it couldn’t have purchased or originated any loans) have legal standing because they don’t own the loan. There is a huge difference between pleading and proof. AND standing means different things depending upon what you are looking at. If party files a complaint alleging the requirements of standing then the complaint will stand up to a motion to dismiss based upon standing. But if at trial they don’t prove standing, they lose.

The erroneous procedure I have seen at trial is that the standing issue has already been decided when the borrower filed the motion to dismiss. But that required the court to assume the allegations of the complaint were true —a presumption that definitely does not apply at trial. But Judges use it anyway because of the pressure to clear their docket. As a result, cases are not heard on the merits — they are tried by presumptions to which the banks and servicers are not entitled to use because the testimony and the exhibits are fabricated for trial and they have a long history of submitting fraudulent documents to courts across the country.

Hence the presumption of credibility, trustworthiness and authenticity should not apply and the servicer or bank or trustee must be required to prove the facts, which they cannot. Which is why the foreclosures all mostly wrongfully entered as judgments end up in a judicial sale despite the actual facts that would show that none of the parties in the chain relied upon by the foreclosing party actually have any interest in any of the transaction, any of the documents or any actual loan to the borrower.

Piling inference upon inference and then applying legal presumptions that the banks are certainly NOT entitled to employ (given their prior conduct in fabricating, forging, backdating, and robo-signing), the Judges enter rulings that make it inevitable that a foreclosure judgment will be entered.

One of the ways that the Servicer (allegedly representing the Trust) comes to court is with new witnesses and new documents never before seen by the Defendants. Judges frequently point to the fact that you didn’t try to depose them nor compel your previous request for production so somehow you waived your right to object to new witnesses, new testimony, and new documents never provided to you.

Two lessons come out of this decision from the 4th DCA in Florida.

The first lesson is that attorneys should object to anything new that was not provided before trial. The use of witness lists with 35 names on it is the equivalent of no notice at all and puts a burden far too great on the Defendant, who must guess which witness will be used. The defendant can investigate off record or take the deposition of the actual witness or both. If you file a motion in limine to strike their witness list and exhibit list as not giving you notice of what or who they intend to use, you will probably now be sustained in the jurisdiction of the 4th DCA. The key here as specifically enunciated per curium by the 4th DCA is that they will not stand for any “trial by ambush,” which has been the stock and trade of lawyers representing alleged parties owning the loan contract, note or mortgage.

The second lesson is that if there is time, you should move to compel discovery and actually take the deposition of the actual witness who will testify at trial. This is a problem for the servicers since they have robo witnesses whose schedule is not confirmed for more than 30 days at a time.

With Patrick Giunta, Esq. as my counsel we employed the same objections and the objection was sustained. An attempt was made to introduce for the first time a new power of attorney that corrected obvious deficiencies in the first power of attorney we were shown. The trial judge sustained the objection and denied the motion for continuance on the grounds that even the new power of attorney, taken in the context of the other evidence, failed to convey or confer any rights to SPS to represent either the previous servicer or the Trustee of the REMIC, or the REMIC Trust itself or even the holders of certificates in the trust.

The rest of the evidence showed that there was nobody present to testify the date of the alleged default, which in that case was because there was no default. A Final Judgment of dismissal was entered referring to the court’s finding of fact and law in the transcript of the trial.

PRACTICE NOTE: What the banks and servicers are doing is slipping layers in between the true actors and the companies that send robo-witnesses in to testify at trial. They are relying on the so-called “boarding process” done by a “new servicer” who has not serviced a single payment in or out of the subject loan account. They do this because the prior servicer has a lot of explaining to do and would be subject to investigation and discovery as to whether the Plaintiff (REMIC Trust or other entity) actually purchased the loan or was in fact representing an unidentified creditor. The boarding process does not stand up to scrutiny. It IS evidence in most cases but it is NOT credible evidence. The witness cannot explain anomalies in the records of the prior servicer nor testify as to actual ownership or beneficial interest in the loan. But your cross examination (and/or  voir dire examination) will be a lot better if you have already found those errors. These witnesses have no connection with any actual transaction either with money coming in from the borrower, from a third party or anyone else. And they can’t say who the money was paid to as creditor. Failure to object to surprise witnesses or surprise documents is a fatal error at trial.

Tags: exhibit list, motion for continuance, Trial by Ambush, TRIAL OBJECTIONS, witness list
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