In 2010, Chase filed a document that they called an “Original Note”. Except that at trial it turns out this was only a photocopy. But it’s even worse than that…..after the foreclosure judgment was entered…we discovered that the mortgage had been assigned to the Secretary of Housing and Urban Development…
A MONTH BEFORE THE TRIAL!
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 Ricardo Lopez on direct examination, Mr. Lopez 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. Lopez 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.
Q. (By Mr. Weidner) The documents, which
are Plaintiff’s Exhibits 1 and 2, which are the
Mortgage and which are these name affidavits,
which are signed in bright blue ink.
Q. Were they signed in sequence or at the
same time and at the same place as what is
marked as Plaintiff’s Exhibit 1A?
Q. And where was that?
A. At my house.
Q. And remembering back to that closing,
did you change pens?
A. No, everything was in blue ink.
Trial Transcript, pg. 50, lines 9-21. Bold emphasis added.
Q. (By Mr. Weidner) Again, did you change
your pen in the middle of closing?
Q. Were these documents signed in
sequence one after the other?
Trial Transcript, pg. 51, lines 22-25 through pg. 52, lines 1-2. Bold emphasis added.
Mr. unrebutted testimony therefore established that the note Plaintiff introduced as Exhibit 1A was in fact not the original because: (1) there was only one closing; (2) at the closing he executed Plaintiff’s Exhibit 1B and Exhibit 2; (3) Exhibits 1B and 2 were all signed in blue ink; and (4) he did not change his pen in the middle of closing.
Rather than conceding the undisputed, Plaintiff attempted to “authenticate” its Exhibit 1A as the “original” by having its corporate representative lick his fingers and run his bodily fluids over the signature page to see whether the signature would “smudge.” Trial Transcript, pg. 132, lines 7-11.
Such testimony cannot be considered anything other than a pallor trick by Plaintiff which provides absolutely no evidentiary support. Further, Plaintiff conceded that it was not attempting to introduce its corporate representative’s testimony as an expert witness opinion. Trial Transcript, pg. 129, lines 7-10. As such, Plaintiff’s corporate representative testified as a fact witness only.
However, upon cross-examination, the witness admitted that he had no personal knowledge of the facts at hand, that he was not present when the loan was originated or closed, and that his testimony was based solely upon his review of Plaintiff’s purported “business records”:
Q. (By Mr. Weidner) Just so the record is
clear, you were not present when this loan was
A. When it was originated, no.
Q. And you were not present at any
A. No, I was not.
Q. And your testimony is based
exclusively on business records?
Trial Transcript, pg. 137, lines 4-13.
Consequently, Plaintiff’s attempt to “smudge” the promissory note provides absolutely no evidentiary weight upon which the Court can rely in determining that Plaintiff’s Exhibit 1A was, in fact, the original promissory note.
Most importantly, and filed in support of this motion, Defendants have retained a qualified expert witness who has averred that it is “highly probable” that Plaintiff’s Exhibit 1A is a “machine-copy” and therefore not the original note. See Defendants’ Notice of Filing Expert Findings and attached findings.
Consequently, there is no competent, substantial evidence to support a finding that Plaintiff’s Exhibit 1A is the original note.
By law, Plaintiff is required to surrender the original promissory note prior to judgment
It is an axiomatic principle of black letter law that “To maintain a mortgage foreclosure, the plaintiff must either present the original promissory note or give a satisfactory explanation for its failure to do so.” State Street Bank and Trust Company v. Lord, 851 So. 2d 790, 791 (Fla. 4th DCA 2003).
Indeed the failure to surrender the promissory note at a foreclosure trial requires the appellate court to either affirm an involuntary dismissal in favor of a defendant or reverse a final judgment of foreclosure in favor of a plaintiff. See e.g. Deutsche Bank National Trust Company v. Huber, Case No. 4D12-3696 (Fla. 4th DCA April 23, 2014) (affirming involuntary dismissal in favor of defendant in foreclosure case where plaintiff presented original promissory note but moved a copy of the note into evidence and noting that “Because a promissory note is a negotiable instrument, a plaintiff seeking to foreclose on a defendant must produce the original note (or provide satisfactory explanation of the failure to produce) and surrender it to the court or court clerk before the issuance of a final judgment in order to take it out of the stream of commerce.”); Fair v. Kaufman, 647 So. 2d 167 (Fla. 2d DCA 1994) (reversing final judgment of foreclosure after trial because plaintiff failed to introduce, at trial, the original note even though “the original note…[was] filed and placed into evidence at the summary judgment hearing. This is not sufficient. The introduction of such documents at a summary judgment proceeding does not obviate the necessity for proper introduction at trial.”)
Therefore, Plaintiff’s failure to surrender the original note requires either judgment in Defendants favor, or in the alternative, a new trial.
The Court did not make a finding that the original note had been surrendered
When it accepted Plaintiff’s Exhibit 1A into evidence, the Court did not make a factual determination that the proffered “note” was in fact the original. Rather, the Court merely “received into evidence as the documents of the original of the Note.” Trial Transcript, pg. 40, lines 24-25 through pg. 41, lines 1-6.
Moreover, while the Court’s written trial findings and orders “found that the Note and Mortgage were duly authenticated,” it failed to contain any finding that Plaintiff’s Exhibit 1A was in fact the original promissory note. See Trial Findings and Orders, Trial Proceedings, ¶4.
Consequently, and without a determination that Exhibit 1A was, in fact, the original promissory note at issue, the Court simply cannot predicate a judgment in Plaintiff’s name.
Newly discovered evidence reveals that Plaintiff may not have had the right to enforce the promissory note and mortgage
Trial courts have broad discretion to grant a new trial for newly discovered evidence provided that the newly discovered evidence fits in the following parameters:
Would the new evidence probably change the result if a new trial is granted? Has it been discovered since the trial? Could it have been discovered before the trial by the exercise of due diligence? Is it material to the issues? Is it merely cumulative or impeaching?
EI Du Pont de Nemours v. Native Hammock, 698 So. 2d 267, 269 (Fla. 3d DCA 1997).
The newly discovered evidence in this case is the assignment of mortgage which Defendants filed on March 17, 2014. Because the answer to each of the EI Du Pont analysis questions is a resounding “yes,” this newly discovered evidence creates a second basis for vacating the final judgment.
First, the assignment probably would change the result because it is further evidence that Plaintiff does not have the right to enforce the subject promissory note even had it tendered the original.
Second, the assignment was discovered after the trial.
Third, the assignment could not have been discovered before the trial because: (1) it was not recorded in Public Records of Pinellas County until three days after the trial was complete; and (2) Plaintiff refused to provide it when responding to Defendant’s pro-se second request for production #9, which was filed on July 11, 2013 and explicitly requested “[c]opies of all assignments…concerning the note and mortgage.” To the extent Plaintiff argues the assignment came into existence after this request, Plaintiff was under the continual ethical duty to furnish updated documents previously requested by Defendants.
Finally, the assignment is material to a central issue of this case, namely whether Plaintiff had standing to sue. Indeed, the Court’s trial findings and orders specifically “found that Plaintiff had standing to prosecute the foreclosure.” See Trial Findings and Orders, Trial Proceedings, ¶2. Consequently, the newly discovered evidence cannot be said to be merely cumulative or impeaching.
Therefore, the final judgment should be vacated and a new trial ordered.