Mark Stopa: Preparing for Trial In a Foreclosure Case

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EDITOR’S NOTE: Stopa makes some very good points for lawyers to consider, the main one being that you should make it as hard as possible for the would-be forecloser to prove their case. If they really have the goods, they will prove it; but as we have seen time after time, the documents are fabricated, even forged and they have no witnesses to authenticate the documents. The mistake made by lawyers and pro se litigants alike is that they know they signed a note and they assume the note was valid. So they shy away from denying the authenticity of the documents or the validity of the documents. That is a mistake.

Start at the beginning. Look carefully at the documents and see if they actually describe the transaction as you NOW understand it given the claims of securitization and transfers. Look even more carefully — the so-called original note might be mechanically fabricated indicating that they did not proffer the original note into evidence — which means that the original note is still out there, somewhere, in the hands of someone else. Of course it also means that the attorney and his/her client are attempting to perpetrate a fraud upon the court, especially if the attorney’s office had anything to do with fabricating or signing the documents offered at a hearing or at trial.

If you start from the premise that the documents are invalid, not the originals, and do not describe the transaction that actually occurred — as to parties or terms — then you are on the right track. To assume otherwise, is to give up most of your ground before you even begin. And of course that means a gift to the pretender lender who is now attempting to foreclose on a home using a loan that it did not fund or purchase.

Preparing for Trial In a Foreclosure Case by Mark Stopa

Posted on May 11, 2011 by Mark Stopa http://www.stayinmyhome.com
I have a trial tomorrow in a foreclosure case. It’s in Lee County, of course – the county where the judges prosecute cases by setting trials sua sponte. Right now, I’m earnestly preparing for trial, but I thought I’d take a break to discuss the two issues are paramount in virtually every foreclosure case/trial. Depending on the facts of a particular case, there may be other issues, of course, but these two issues are critical to a Plaintiff’s ability to win at trial and should, in my view, be vigorously defended in virtually every case:

1. Introducing the Note into evidence.

2. Proving the homeowner’s default in payments and the amount owed.

Re. the former, we all know the Plaintiff must introduce the original Note into evidence, failing which a foreclosure judgment cannot lawfully be entered. The fact that a Note is “self-authenticating” makes this seem like a low hurdle – the Plaintiff’s attorney simply needs to hand the original Note to the judge and it will be admitted into evidence. Fortunately for homeowners, it’s not that simple.

Under Fla. Stat. 673.3081, if a homeowner denies the authenticity of a Note or the signatures thereon in the pleadings, the Plaintiff must authenticate the Note, and its signatures, at trial. There is still a presumption the Note and all signatures are authentic, but by contesting authentication, a homeowner can force the bank to authenticate the Note at trial. This may be harder than you think. For instance, if I challenge the authenticity of a blank indorsement, the Plaintiff must put on testimony from someone who can swear, under oath, that he/she saw the indorsement executed or that he/she recognizes the signature and it is authentic. Similarly, if I challenge the authenticity of the Note, the Plaintiff must present a witness who can testify he/she saw the homeowner sign the Note or who recognizes the homeowner’s signature based on other documents. The way that Notes change hands between banks, neither of these things would be very easy, and I doubt the Plaintiffs’ lawyers will be prepared to deal with these evidentiary issues. In other words, it’s quite possible that if the homeowner preserves these evidentiary objections at trial, the Plaintiff’s lawyers won’t be prepared for them and won’t even have the requisite witness(es) at trial to testify.

Re. the second issue, testimony at trial must generally be based on personal knowledge. That means the Plaintiff must testify to events he/she has seen with his/her eyes or heard with his/her ears. This is virtually impossible to do with regard to proving a homeowner did not pay a mortgage payment or proving the amount owed, so the Plaintiff invariably must rely on documents to prove these facts. This is permissible, but only if the Plaintiff can introduce these documents under the business records exception to the hearsay rule.

Again, this is harder than you think. The Plaintiff must show: (1) the documents are a memorandum, report, record, or data compilation; (2) made at or near the time of the event; (3) by or from information transmitted by a person with knowledge; (4) kept in the course of regularly conducted business activity; and (5) that it was the regular practice of that business to make such a record. All five elements must be satisfied or the documents cannot be used as evidence at trial.

I’m not trying to teach anyone how to practice law. Rather, my point is that there are virtually always things that can be done to make it difficult for a bank to prevail in a foreclosure case; these are just two examples. So don’t give up – keep fighting foreclosure!

Mark Stopa

Tags: AUTHENTICATION OF DOCUMENT, borrower, COMPETENCE OF A WITNESS, disclosure, evidence, foreclosure, foreclosure defense, foreclosure offense, personal knowledge, quiet title, securitization, TILA audit, TRIAL
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