The judgment must be vacated because Plaintiff failed to SURRENDER the original promissory note or give a reasonable explanation for its failure to do so
Plaintiff’s parlor tricks do not constitute competent, substantial evidence that Plaintiff has surrendered the original note to the Court
In its opening statement, Plaintiff alleged that
This is a foreclosure matter,
the original Note and Mortgage were filed
with the court back in September 30, 2010.
Trial Transcript, pg. 4, lines 12-14.
However, Plaintiff thereafter contended that the September 30, 2010 “filing” was in fact not the original note:
Well, I was unaware that
this was not an original blue ink copy of
the Note. So I’m going to be moving the
Court to amend to allow the plaintiff to
proceed under a lost note when it’s clear
that there is partial –
Trial Transcript, pg. 27, lines 7-12.
- Plaintiff thereafter “withdrew” its motion to amend to “conform to the evidence” because it represented that that the purported original note “was misfiled and I don’t know why.” Trial Transcript, pg. 29, lines 11-12.
- When Plaintiff presented this purported original note to defendant testified as follows:
I don’t know if this is the exact one
I signed because that’s where I had — I had
been requesting to inspect these documents. So
when you said you didn’t have any knowledge that
it wasn’t in here, I’d been requesting this
since this whole thing started. I even
requested special dates and times to meet with
you guys to see it, and I never got any of that
afforded to me.
So I’ve also had other documents here
where I saw date changes. I don’t know what’s
original and what’s not.
Trial Transcript, pg. 30, lines 14-25. Bold emphasis added.
I don’t see any blue ink on that, so I
don’t know that that’s the original. You said
the other one is a copy, now you’re showing this
Trial Transcript, pg. 30, lines 14-22. Bold emphasis added.
- On cross-examination, Mr. testified as follows:
I want you to compare what is marked
as Plaintiff’s Exhibit 1B, I suppose, and I want
to ask you, for the record, is there anything
that’s different about this signature and the
way it appears on 1A and 1B?
Q. What’s the difference, sir?
A. The color is different.
Q. And Plaintiff’s Exhibit 2, I’m showing
that to you, do you recognize that as the
original Mortgage that you signed?
Q. And were these — are these documents
all dated on the exact same day?
Q. Did you sign these documents the same
Q. Can you explain to the Court why one
is — well, can you describe what this subset of
Exhibit 1 is? Read from the top there.
A. The name affidavit.
Q. Yes, sir. Can you describe it for the
A. Yes. It’s all in blue ink…
Trial Transcript, pg. 46, lines 1-25. Bold emphasis added.
Q. The next document, this I believe is
Plaintiff’s 2, can you describe what that
document looks like to you?
A. The Mortgage where we initialled the
bottom of every page.
Q. What color is that initial?
A. All in blue ink.
Q. And then turning to the last page of
that document, describe this document for the
A. The signatures for the Mortgage.
Q. And what else can you tell us about
A. Those are all in blue ink.
Trial Transcript, pg. 47, lines 9-22. Bold emphasis added