Foreclosure Attorney, Melbourne, FL - Defenses to Foreclosure


Melbourne Florida Foreclosure Attorney at the Bowin Law Group recently filed an appeal from a foreclosure judgment in Brevard County, Florida. Although the goal in every case is to win at trial, homeowners should be mindful that the trial court can make mistakes. It is imperative that your foreclosure defense attorney has experience in the appellate courts just in case the judge in your case makes an error. Bowin Law Group handles foreclosure cases from before the foreclosure complaint is filed through the appeal if necessary (though we prefer to win at trial). Below is just an excerpt from one of the appeals we recently filed. More excerpts will follow in future blogs.

Nature of Case

This appeal arises from a residential mortgage foreclosure case filed in the Eighteenth Judicial Circuit in and for Brevard County, Florida. The appeal is to review the final judgment of foreclosure entered in favor of Greentree Servicing, LLC at the July 18, 2014 trial. Mr. Helton argues that the Foreclosure Judgment was improper because Greentree failed to prove Bank of America's standing at the inception of this foreclosure case, and failed to prove that Bank of America provided Mr. Helton with the required notice of acceleration before filing this foreclosure case. Mr. Helton further argues that the evidence used to prove Mr. Helton's alleged default was inadmissible hearsay within hearsay and was otherwise unreliable.

Summary of Argument

Bank of America filed the instant foreclosure complaint alleging that Fannie Mae is the "owner" of the Note. Bank of America's only alleged grounds for standing to foreclose are its rights as a "servicer" for Fannie Mae and as the "holder" of the Note. Greentree, the present servicer of the loan and Plaintiff at trial, failed to prove that Fannie Mae is indeed the "owner" of the Note or that Bank of America was the "servicer" for Fannie Mae or the "holder of the Note at the inception of this case.

There is nothing in the record to show that Fannie Mae is the true owner of the loan, or that Fannie Mae had the authority to grant "servicing" rights to Countrywide, Bank of America or Greentree. Indeed, the record is completely silent on these issues. Even if Greentree could show that Fannie Mae owned the Note, Greentree failed to provide any evidence of Bank of America's rights as a "servicer" for Fannie Mae. The record is complete silent on this issue as well.

The only remaining ground for Bank of America's standing is as a "holder" of the Note. The only record Greentree submitted to show Bank of America's rights as a "holder" of the Note was Greentree's introduction of the original Note with a blank-endorsement from Countrywide d/b/a, "America's Wholesale Lender, a New York Corporation." There is nothing in the record to substantiate Countrywide's alleged authority to endorse the Note for America's Wholesale Lenders, a New York Corporation.

The validity of Countrywide's endorsement aside, the blank endorsement was undated, and there was no testimony or record evidence to establish when the endorsement occurred. The original Note containing the alleged endorsement was not filed until 5 months after the case was filed. Because Greentree cannot show that the blank endorsement occurred before this foreclosure case was filed, and has presented no other evidence of a pre-foreclosure assignment of the Note to Bank of America, Greentree did not establish Bank of America's rights as a "holder" of the Note prior to filing this foreclosure.

There is simply nothing in the record to establish Bank of America's standing to foreclose at the inception of this case, as a "holder", a "servicer" or in any other capacity.

Bank of America failed to Comply with Paragraph 22 of the Mortgage

Greentree failed to show that Bank of America complied with paragraph 22 of the Mortgage, which required Bank of America to give Mr. Helton a Notice of Acceleration 30 days before accelerating the loan filing this foreclosure action. Mr. Visser's testimony that the notice was "sent" was hearsay based on a computer "screen shot" that was not admitted or even offered into evidence.

Even if Mr. Visser's testimony from that "screen shot" were admissible, Mr. Visser's testimony fails to establish when, how or by whom the letter was "sent", whether by first class mail or otherwise. Greentree presented no other evidence that the notice was ever mailed to Mr. Helton, much less that it was mailed 30 days before Bank of America accelerated this loan and filed this foreclosure.

In addition, the Notice of Acceleration should have been excluded from evidence for lack of authentication. Not only did Mr. Visser testify that he did not know how, when or by whom the notice was allegedly created or "sent," Mr. Visser testified that he did not know if the person that sent the notice did so in the ordinary course of Bank of America's business or if it was that person's job to send notices for Bank of America. Mr. Visser also didn't know whether Bank of America sent the notice or if it was done by a third-party vendor. Mr. Visser never even testified how he recognized the Notice of Acceleration to be a bank of America document in the first place, which is a fundamental question to be answered before admitting any document into evidence. Based on Mr. Visser's testimony, the Notice of Acceleration should have been excluded for lack of authentication. Without a record of the Notice of Acceleration, Greentree could not show Bank of America's compliance with paragraph 22.

Even if the trial court overlooked all the above mentioned deficiencies with Mr. Visser's testimony and the unauthenticated Notice of Acceleration, the notice was addressed to a P.O. Box, not the Property Address as required by paragraph 7 of the Note and paragraph 15 of the Mortgage. Greentree presented no records to show that Mr. Helton instructed Bank of America to send notices to any address other than his Property Address, and Mr. Helton testified that he never actually received the notice. For these reasons, this case should be dismissed.

The Loan Payment History was Inadmissible Hearsay
within Hearsay within Hearsay (Triple Hearsay) under § 90.805.

Since the entries in the Loan Payment History were derived from information transmitted by Countrywide/America's Wholesale Lender to Bank of America, and then by Bank of America to Greentree, the Loan Payment History contained hearsay within hearsay within hearsay (triple hearsay), which is governed by Florida Evidence Code, Section 90.805. For all three levels of hearsay to be admissible under § 90.805, each level of the hearsay must satisfy its own hearsay exception. Otherwise, the hearsay must be excluded.

To establish the business records exception for each level of hearsay, the testifying witness must have particular knowledge of the prior servicers' record keeping procedures. Absent such personal knowledge, the witness is unable to substantiate (i) when the records were made, (ii) whether the information they contain derived from a person with knowledge, (iii) whether the recording was made in the ordinary course of the recording business' business or (iv) whether it was that person's job to make such records. Without personal knowledge, the witness cannot even establish that such recordings actually belonged to the prior servicers.

In this case, Mr. Visser testified that he never worked for Bank of America and that he had no particular knowledge of Bank of America's record keeping procedures. Although Mr. Visser testified that Greentree employs an "auditing" process to "verify" information it receives from prior servicers, Mr. Visser was unable to provide any specifics of that process other than "I know it was audited." Even the trial court was at loss to understand this process, stating "[Mr. Visser] said that we somehow checked to make sure those records are accurate...I don't know what it is. But, they have some way of doing it." (Vol. 2, page 23, lines 10 – 20). Mr. Visser's testimony falls short of establishing any hearsay exception for the information first recorded and transmitted by Bank of America (double hearsay) much less the information first recorded by Countrywide and then transferred to Bank of America (triple hearsay).

Because Greentree failed to establish any hearsay exception for the information recorded in the Loan Payment History by Bank of America or by Countrywide, and offered no assurance of reliability for that information, the Loan Payment History did not comply with §§ 90.803(6), 90.805, or any other hearsay exception. The Loan Payment History should have been excluded from evidence.