Bank of New York Fails Test for Business Records – Fla. 1st DCA
Posted on October 28, 2014 by Neil Garfield
For further information, assistance or consultation please call 954-495-9867 or 520-405-1688.
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The Burdeshaws appeal the final judgment of foreclosure in favor of The Bank of New York Mellon (“BNYM”), contending that the evidence to support the amount of indebtedness was inadmissible hearsay and thus, no admissible evidence supported the trial court’s determination of the amount due. In addition to reversal of the final judgment, the Burdeshaws seek remand of this case with instructions to dismiss, based on a meritorious motion pursuant to rule 1.420(e), Florida Rules of Civil Procedure, taken under advisement by the trial judge and denied de facto when the court eventually conducted a bench trial and issued a final judgment. We agree on both points, reverse the final judgment of foreclosure, and remand for dismissal of the action.The Burdeshaws filed their notice of inactivity, pursuant to rule 1.420(e), on July 20, 2010. After sixty more days with no record activity, on September 20, 2010, the Burdeshaws filed their motion to dismiss. Other than this notice and motion, no paper was filed in the court file by either party or the court between September 16, 2009 and October 4, 2010.
Suntrust did not file a response to the motion to dismiss for lack of prosecution but did file other papers in the record on October 4, 2010, and thereafter. A motion hearing was held on November 8, 2010, and one of the motions considered by the court was the Burdeshaws’ motion to dismiss under rule 1.420(e). The record does not contain a transcript of this hearing and Suntrust did not file a written assertion of good cause why the action should have remained pending. In the order entered November 29, 2010, the court stated that it was taking the rule 1.420 motion to dismiss “under advisement.”BNYM was substituted as party plaintiff on January 25, 2013, and a bench trial took place on May 13, 2013. In support of its documentary evidence, BNYM presented the testimony of Nancy Johnson, twenty-two year Suntrust employee currently in the position of “default proceedings officer.” She testified that Suntrust was servicing the loan and that she had reviewed Suntrust’s records in preparation for the trial. Counsel for BNYM inquired about the documents it sought to admit into evidence, including the letter notifying the Burdeshaws of the default, the note and mortgage, and a “computer printout from Fidelity system” purporting to show the transactions on the account and the balance owed. Counsel for the Burdeshaws objected to Ms. Johnson’s testimony regarding each document in turn, stating that there was no predicate for Johnson’s testimony, that BNYM had not established any of the elements to qualify her as the custodian of the records, and that BNYM had not otherwise qualified Ms. Johnson to authenticate the computer-generated records. The trial court overruled each objection until eventually, counsel requested “a standing objection, so I don’t keep making it,” which was granted.On cross examination, Ms. Johnson explained that her knowledge of the amounts owed came from her review of the printout and that the printout was “on our system.” When asked by whom or how fees and expenses were posted to the account, Johnson testified that “everyone” was using the Fidelity system and “they would input any transactions, any adjustments.” Ms. Johnson stated that she had reviewed the numbers on the printout theThursday of the week prior to trial and that the initial principle balance of the loan “would have been input by someone handling the origination of the loan.”It is true that defense counsel did not use the words “hearsay” or “section 90.803(6), Florida Statutes” in his objections. However, he did challenge BNYM’s failure to establish “the steps to make her a records custodian,” the “complete lack of predicate to establish her bona fides at least to authenticate the document,” and he offered “to provide the court with some law on what a records custodian has to establish.” The context of the objections to the witness’ testimony about the records in this case made it clear to the court and to opposing counsel that the objection was directed towards the admission of computer-generated hearsay documents due to the plaintiff’s failure to establish any of the grounds required for the business records exception to the hearsay rule under section 90.803(6).
Furthermore, because Ms. Johnson was the only witness to authenticate the only documentary evidence to support the amount owed at a bench trial, rule 1.530(e), Florida Rules of Civil Procedure, allows Appellants to challenge the sufficiency of the evidence on appeal even without the repeated objections made by counsel. Although a failure to object is not a prudent or advisable practice, Appellants’ challenge to the sufficiency of the evidence to support the judgment is cognizable on appeal pursuant to rule 1.530(e) regardless of the specificity of defense counsel’s numerous objections during the bench trial. The rule provides:
When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.
See also Wolkoff v. Am. Home Mtg. Servicing, Inc., 39 Fla. L. Weekly D1159, 2014 WL 2378662, at *1 (Fla. 2d DCA May 30, 2014) (“The Wolkoffs were not required to make a contemporaneous objection to the sufficiency of the evidence in order to preserve the issue for appeal.”). Accordingly, Appellants’ challenge to the sufficiency of the evidence to support the final judgment of foreclosure, due to the failure of BNYM to establish the business records exception to the hearsay rule for the documents upon which the judgment is based, is properly before this Court.if not properly authenticated, loan payment history printouts and other evidence of the amount due on a loan are inadmissible hearsay. For example, in Glarum, the court reversed summary judgment for the bank because the bank’s sole witness testified from a bank printout without first establishing the hearsay exception for business records. There, the witness/affiant was a “specialist” for the loan servicer and his affidavit stated that he obtained the amount of indebtedness from “his company’s computer system.” Id. at 782. However, the specialist “did not know who, how, or when the data entries were made into [the servicer's] computer system” and “could not state if the records were made in the regular course of business.” Id. The specialist had even less knowledge about the business practices of the prior loan servicer, the apparent source of the data upon which his own company relied to open the file. Accordingly, both the witness’ testimony and the affidavit containing the data for the amount owing were inadmissible hearsay, unqualified for the business records exception under section 90.803(6)(a). Because there was no other competent evidence to prove the amount due and owing, summary judgment was reversed.
This Court reversed the final judegment of foreclosure in Mazine v. M & I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011), due to the erroneous admission of an affidavit of the amounts due and owning. The bank’s witness at the bench trial was “the regional security officer” for the bank, who “candidly admitted that he had no knowledge as to the preparation or maintenance of the documents offered by the bank,” “did not know if the source of the information contained” in the record was correct, and “did not know if the amounts reported in the affidavit were accurate.” Mazine, 67 So. 3d at 1132. Because the affidavit was the only evidence supporting the amount of defendants’ default, admission of the document was harmful error requiring reversal of the judgment of foreclosure.
The final judgments of lien foreclosure were reversed in Yang v. Sebastian Lakes Condo. Ass’n Inc., 123 So. 3d 617 (Fla. 4th DCA 2013), because the current management company’s witness had no knowledge of the starting balance of the loan, never worked with the original accountant, and had no knowledge of how the original figures were entered into the ledgers. Over objection to the hearsay account ledgers as not properly authenticated via the business records exception, the trial court admitted the ledgers. These documents were the only support for the amounts owed. Finding that the foundation for admitting the ledgers into evidence was lacking, the appellate court reversed the final judgment of foreclosure.While this appeal is not based on a challenge to BNYM’s standing to foreclose, the business records exception to the hearsay rule as set out in section 90.803(6)(a) was applied to proof of standing in Hunter v. Aurora Loan Services, LLC, 137 So. 3d 570 (Fla. 1st DCA 2014). There, Aurora offered into evidence “certain computer-generated records” pertaining to transfers of the note and mortgage. Hunter, 137 So. 3d at 571. The printouts contained no indication that they were prepared by the original lender, MortgageIT, and Aurora attempted to authenticate the documents through the testimony of Mr. Martin, an employee of the servicer of the loan at the time of trial.Regarding notations on the computer printouts, Mr. Martin “had no knowledge about who generated the notations, or how and where that individual obtained the information. Neither did he have such knowledge about the Account Balance Report.” Id. at 572. He could not testify from personal knowledge that either document belonged to or was generated by the original lender but he did testify that the computer program from which the notes log originated was “used across the industry, that a records custodian for the loan servicer is the person who usually inputs such notes, and that normal industry practice is for a lender’s accounts payable department to create an account balance report reflecting a zero balance on the loan when it is sold to another entity.” Id.
This Court found that Mr. Martin’s testimony was insufficient to “establish the necessary foundation for admitting the Account Balance Report” and the other documents under the business records exception. Hunter at 573. The witness was never employed by the original lender and lacked “particular knowledge of MortgageIT’s record-keeping procedures.” Id. “Absent such personal knowledge, he was unable to substantiate when the records were made, whether the information they contain derived from a person with knowledge, whether MortgageIT regularly made such records, or, indeed, whether the records belonged to MortgageIT in the first place. His testimony about standard mortgage industry practice only arguably established that such records are generated and kept in the ordinary course of mortgage loan servicing.” Id.
In this case, BNYM failed to establish any foundation qualifying the printout Ms. Johnson read as a business record and failed to establish any foundation qualifying Ms. Johnson as a records custodian or person with knowledge of the four elements required for the business records exception. See Yisrael, 993 So. 2d at 956. Accordingly, the admission of Ms. Johnson’s testimony about the loan balance and the admission of the computer printouts she was called to authenticate, over the objections of opposing counsel, constituted reversible error. Johnson’s only knowledge about the amount due and owing came from her review of the computer printouts and she had no information about how and when those records had been prepared or where the data came from. Her testimony that “everyone” was using the Fidelity system and “they would input any transactions, any adjustments” is comparable to the witness’ testimony in Hunter about general mortgage industry practices. Ms. Johnson’s assumption that the original loan amounts “would have been input by someone handling the origination of the loan” was merely supposition, based on her general knowledge of ordinary mortgage industry practices, not any specific knowledge about this debt or the transaction of the information between the original lender and subsequent servicers, including Suntrust. She was thus unable to show any of the requirements for establishing a proper foundation for the amounts or the documents she relied on.
Under these circumstances and considering the testimony elicited from the witness in this case, the admission of BNYM’s composite exhibit 3 was reversible error and no other evidence was presented to support the amount owed on the note. Because there is no evidence to support the amounts contained in the final judgment, reversal is required.
Finally, although it might be appropriate to remand for further proceedings under other circumstances, this case does not present a reason to afford BNYM additional time and another opportunity to prove its case. As the Second District has held “[a]ppellate courts do not generally provide parties with an opportunity to retry their case upon a failure of proof.” Wolkoff, 2014 WL 2378662, at *3. The complaint initiating this action was filed in 2009. The defendants’ motion to dismiss for lack of prosecution, filed in 2010, was supported by the absence in the record of any activity in the file for the time periods set out in rule 1.420(e), and by the absence of an assertion by the plaintiff of good cause, or any cause, prior to the hearing on the motion, for the action to remain pending. As noted in Wilson v. Salamon, 923 So. 2d 363, 368 (Fla. 2005), and Metro. Dade Cnty. v. Hall, 784 So. 2d 1087 (Fla. 2001), the mandatory language of the rule — “the action shall be dismissed” — leaves the trial court with no discretion in the matter. “There is either activity on the face of the record or there is not.” Metro. Dade Cnty v. Hall, 784 So. 2d at 1090.
Accordingly, the final judgment of foreclosure is reversed and this cause is remanded for entry of an order of dismissal of the case. (VAN NORTWICK and ROBERTS, JJ., CONCUR.)
are fully prosecutable under RICO.
Therefore, those “Investors” could not lend you your own titles to your
person, property or possessions now
could they? How could they because
you already paid them years ago
when they stole your Social Security
Numbers by hijacking our Birth
Certificates, our U.S. Citizenship
papers and fraudulently induced those into stocks and bonds without our knowledge or consent. That is how these “investors”
allowed themselves to direct deposit our money into their “coffers” by
committing identity theft and numerous other felony frauds. They did that by investing in their own fraud. They used “investing” from behind the scenes of their own crimes to fraudulently conceal their true
identities.
accounts. You could be none the wiser, although you might suspect wrongdoing by the bank, you would more than likely not suspect your own brother is an investor in everything that effects your life, liberty and
property as well as your legal right to defend it. Then when you are broke and fighting him in fraud closure he may offer you credit by doing odd jobs for him around his mansion. What a great guy.
fraudclosing upon? The politicians, judges, lawyers and all of their comrades are fraudulently invested in their own fraud, lies and abuse. Therefore they are all compromised. Obama’s pension fund is invested in Vanguard. Vanguard are one of the top 5 institutional investment firms in the world. Their Board of Directors are comprised of mainly Russian Generals. That can only mean quite frankly We The People are under siege by our enemy in the land many of our fathers fought and died for.
aka as an obligation, relied upon
Performance by the Issuer of the
Original Sales Contract who would by and large be the U.S. Taxpayers vis a vis the U.S. Treasury Department. All of those
Provisions are clearly laid out and
stipulated in Article 2, section 9 of
the UCC. These were not Sales Contracts, they were 10 year Government bonds that were backed by our Birth Certificates as Security for the debt the Mortgage Bankers Ass. Created off of the backs of the U.S. Taxpayers. In other words, all of the so called mortgage bonds are frauds because that information was never disclosed to We The People at the
issuance of the Bond/Stock as the law
requires. That means the stocks are worthless because the bonds that were supposed to secure them were fraudulently derived. Therefore all subsequent transfers of title were fraudulent conveyances. Foreclosure is not only a cover up for Income Tax Fraud and another way for these crooked Mortgage Bankers to Income Tax Evade, fraudclosure is in fact, a fraudulent reconveyance of title because the Mortgage Contract was fraudulently induced at its inception. Fraudclosure is yet another hoodwink of the U.S. Taxpayers who pay for
everything upfront in this country by
the traitors from within being directed by our enemies both close at hand and far away.
Says
” mortgage backed securities (MBS) are debt obligations that represent a claim to the cash flows from pools of mortgages, most commonly on residential property. Mortgage loans are purchased from banks, mortgage companies and other originators and then assembled into pools BY ( caps mine) a governmental, quasi- governmental, or private entity. The entity then issues securities that represent claims on the principle and interest payments made by borrowers on the loan in the pool, a process known as securitization”
In my motion I pointed out that therefore, with MBS there is actually no sale of real estate or purchase of real estate. It is backed only by mortgage securities.
A question ( well most certainly in my case being from that point of view I write being not an attorney) arises here because I have a trustee of a mortgage backed securities that is also representing itself as a buyer of real property. Trustees generally are not real owners of real property but simply control mortgage payments in its distribution to BENEFICIARIES.
never formed any legitimate Investment Accounts. They were drawing the funds they needed to keep their Ponzi Scheme going directly from our own private tax payer funded Central Bank,
the U.S. Treasury Department. That is not only criminal and involved multiple felonies being committed by our own elected officials but it was and is up to this very day an Act of high treason and an Act of War against We The People of these United States because we are a Constitutional Republic.
The debt a rises from the receipt of the money but it does not arise as an asset to anyone other than the source of funds — or someone in privity with the source of funds. That doesn’t exist in virtually all alleged acquisitions of debt by “trusts.” ”
Securities Contract expires and not
thereafter. These so called stock
certificates were never Secured
Contracts because they were in actuality, backed
by our Birth Certificates, our U.S.
Citizenship paper. That was agreed to by
traitors from within Congress and the Senate, directed by the head of the
U.N. who was Gorbachev at the
time. In other words, all of these
foreclosures were and are illegal because we are at war with our enemy on U.S. soil. This war is being waged upon the American people from inside of our own tax payer funded
courthouses and courtrooms.
a Russian National pretending to be an American who works for the U.S. Treasury Department, the IRS or some other State run Agency. However, that is absolutely and unequivocably not the
case. These Attorneys who are representing unknown and unregistered businesses are in fact, war criminals who are not only in direct violation of the 5th Amendment Takings Clause of the U.S. Constitutuon but are in direct violation of the U.S. Articles of Confederation.
Because of their direct involvement in 9/11, the traitors from within violated the 42nd bylaw of the U.S. Constitution and destroyed it. As a result We The People of these United
States are governing ourselves under
the Original Articles of Confederation,
directed solely by the first Ten
Amendments of the U.S. Bill of Rights, the law of this land. That also means
that foreclosure can
only be considered an Act of War upon
the American people by the Russian
Republic. We The People are in fact at war with the Russians. Furthermore, We The People are all having our legal rights violated by being forced against our will to pay a mortgage to these human rights abusers and human rights violators. Any U.S. Citizen born here who are defending a foreclosure as a pro se defendant harbor
POW status under the 45th Protocol of the Geneva Accords.
The PSA Agreement, which follows
New York Trust Law, directs
the Trustee of the Trust precisely how
the Trust is to be set up in regards to a U.S. Government Backed Security Contract.
A-201) Formation and Construction of
Lease Contract. In other words the Mortgage Bankers Association used the U.S. Citizenry and they should be held liable for the damage which was caused by the loss, reduction or damage to the goods since the acceptance for carriage was upon delivery to the purported trust aka the Destination station. The Mortgage Bankers Ass. are the duckers who caused the damage to the cargo by instructing their perps to let the goods rot on their railroad up in cyberspace.
(1) whether the interests of a transferee of a mortgage note have both “attached” and become “perfected” so
that those interests will prevail over conflicting claims of third parties
to the underlying mortgage that secures the mortgage note.
not evidence an order to pay, and does not contain an acknowledgment by a bank that the bank has received
for deposit a sum of money or funds.” UCC § 9-102(a)(65).
notes in common use today are typically “promissory notes” for purposes of Article 9.
a . . . buyer of . . . a promissory note in a transaction that is subject to Article 9.” UCC § 1-201(b)(35) (emphasis 13 Article 9 also applies to the creation of a lien on, or a “less-than-ownership security interest” in, a mortgage note.
classified. That issue is left to the courts.”
is transferred by delivery with any necessary indorsement or assignment.”
sold.”
interest must “attach.” A security interest attaches when (1) value has been given for the sale, (2) the seller has rights in the mortgage note or the power to transfer rights in the mortgage note to the buyer and (3) either (a) the mortgage note is in the possession of the buyer pursuant to a security agreement of the seller or (b) the seller has signed a written or electronic security agreement that describes the mortgage note. See UCC § 9-203(b). Article 9 defines “security agreement” as “an agreement that creates or provides for a security interest,”
the mortgage note pursuant thereto effects a sale of the mortgage note, which would thus, under Article 9, constitute a “security agreement.” Significantly, the attachment of a security interest in a mortgage note that is itself “secured by a security interest or other lien on personal or real property is also attachment of a security interest in the security interest, mortgage or other lien.” UCC § 9-203(g)
of a subsequent lien creditor of the mortgagee, which includes a bankruptcy trustee (see UCC § 9-102(a)(52)). See
UCC § 9-308 cmt. 6.
In summary, under the UCC, the transfer of a mortgage note that is a negotiable instrument is most commonly effected by indorsing the note, which may be a blank or special indorsement, and delivering the
mortgage note to the transferee (or the agent acting on behalf of the transferee). As the residential mortgage notes in common usage typically are “negotiable instruments,” this is the most common method of transfer.
In addition, even without indorsement, the assignment can be effected by transferring possession under UCC § 3-203(a). Moreover, the sale of any mortgage note also effects the assignment and transfer of the mortgage under Article 9. The attachment and perfection of the buyer’s interest in the mortgage note attaches and perfects the buyer’s interest in the underlying mortgage that secures the mortgage note.
the mortgage notes to the trustee in accordance with the explicit requirements of the UCC.3.
Div. 2d Dept. 2007) (“the mortgage . . . passed as an incident to the promissory note”); Restatement (Third) of Property, Mortgages § 5.4(a) (1997) (“A transfer of an obligation secured by a mortgage also transfers themortgage . . . . ”).
to UCC § 9-203(g), that section “codifies the common-law rule that a transfer of an obligation secured by a security interest or other lien on personal or real property also transfers the security interest or lien.” UCC §9-203 cmt. 9. All states follow this rule.
the assignments are all made years after the closing date/cutoff date. This isn’t allowed under NY trust law, and imposes a 100% tax on the investors in each REMIC.
The Va. AG was told by the IRS that “we (IRS) do not use the tax code to further social agendas”, which is of course untrue. So the IRS knows that there were no “2 true sales” of the notes before they were deposited into the trusts- because none of them were. I got 3 attorneys who have collectively handled over 1000 foreclosures and they have yet to see one ( 1) note which was legally deposited into any trust. Not assigned, which is an irrelevant procedure for a trust. That ain’t how trusts operate.
WASHINGTON, D.C. 20549
THE SECURITIES EXCHANGE ACT OF 1934 OR SUSPENSION OF DUTY TO FILE REPORTS UNDER
SECTIONS 13 AND 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934.
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Trust
(Exact name of registrant as specified in its charter)
Minneapolis, Minnesota 55437,
(952) 857-7000
registrant’s principal executive offices)
under section 13 (a) or 15(d) remains)
provision(s) relied upon to terminate or suspend the duty to file reports:
Rule 12g-4(a)(1)(ii) |_| Rule 12h-3(b)(1)(ii) |_|
Rule 12g-4(a)(2)(i) |_| Rule 12h-3(b)(2)(i) |_|
Rule 12g-4(a)(2)(ii) |_| Rule 12h-3(b)(2)(ii) |_|
Rule 15d-6 |X|
date: 3
Residential Asset Securities Corporation, acting solely in its capacity as
depositor for the above-referenced Trust, has caused this certification/notice
to be signed on its behalf by the undersigned duly authorized person.
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Name: Mark White
Title: Vice President
G-D BLESS AMERICA