Part II - Summary Judgment Evidence in Foreclosure Case


Foreclosure Attorney, Melbourne FL - Palm Bay, FL.

Below is a continuation in a series of arguments made by our foreclosure defense attorney to prevent the bank from foreclosing on Brevard County Homes. This blog discusses the Rule of Completeness, which is an often overlooked rule of evidence, even by attorneys.

Rule of Completeness:

Pursuant to Florida Evidence Code, §90.108, when any party introduces a part of a writing or recording, the other party may request the entry of any other part that ought to be considered. The purpose of the statute, known as the Rule of Completeness, is to remove the potential for misleading evidence which may result from taking statements out of context. See Kaczmar v. State, 104 So.3d 990, 1001 (Fla. 2012) ("The purpose of this statute, known as the rule of completeness, is to avoid the potential for creating misleading impressions by taking statements out of context."). (quotations and citations omitted). Under this rule, a party is not allowed to cherry-pick the parts of a record it wants to introduce without allowing the opposing party the opportunity to admit other parts of the record to provide proper context.

In this case, the Account Information Statement cherry-picks the portions of the Thomases' loan payment history that Bank of America wants to introduce. For instance, the Account Information Statement identifies dates of the Thomases' alleged payment defaults, but it omits more than four years of the Thomases' payment history. Indeed, not one of the Thomases' mortgage payments is included in the Account Information Statement. Nor does the Account Information Statement disclose the total amount of payments made on the Thomases' account, or how the Thomases' prior four years of payments were applied. Listing the alleged default dates, without knowing the total amount of the Thomases' prior payments or how they were applied, does nothing to show whether the Thomases were truly in default on the date stated in the foreclosure complaint. Bank of America's failure to include the Thomases' entire payment history, with total payment amounts, has the potential to give a misleading impression of the Thomases' true account status. Removing the potential for such misleading evidence is the exact purpose of the Rule of Completeness. See Id.

Because the Thomases would have the opportunity at trial to request the introduction of their entire loan payment history under §90.108, allowing an incomplete statement to be considered on summary judgment impermissibly circumvents the Rule of Completeness. The Account Information Statement should not have been allowed without Bank of America supplying the Thomases' complete payment history to provide the proper context to the Thomases' alleged payment defaults.

For the reasons stated above, it was improper for the trial court to consider the Account Information Statement at the summary judgment hearing. Because Bank of America presented no other evidence of the Thomases' alleged payment default or of the amounts due on the loan, there remain disputed issues of material fact that preclude summary judgment.

If you are facing foreclosure in Florida ,contact Bowin Law Group to schedule a free consultation to sdiscuss you foreclosure defenses.

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