CRIMINAL LAW: EVIDENCE: HEARSAY: RULE OF COMPLETENESS: UNDER RULE OF COMPLETENESS, TRIAL COURT ERRED BY ADMITTING ONLY DEFENDANT’S INCULPATORY STATEMENT TO PARAMEDIC AND EXCLUDING EXCULPATORY STATEMENT ALTHOUGH IT WAS SELF-SERVING HEARSAY: WHEN THE STATE OPENS THE DOOR, OTHERWISE INADMISSIBLE EVIDENCE MAY BE INTRODUCED TO AVOID MISLEADING THE JURY

Newton v. State, ___ So. 3d ___, 40 Fla. L. Weekly D761 (Fla. 5th DCA March 27, 2015)

The defendant’s girlfriend died when his truck rolled over after they left a bar. It was undisputed that the defendant was intoxicated, but he contended that his girlfriend was the driver. At trial, the State called a paramedic, who testified that … Click To Read Full Case Law Review...

REAL ESTATE: MORTGAGE FORECLOSURE: STANDING: EVIDENCE: HEARSAY: BUSINESS RECORDS: LOAN PAYMENT HISTORY: FINAL JUDGMENT OF FORECLOSURE REVERSED BECAUSE BANK FAILED TO ESTABLISH THAT LOAN PAYMENT HISTORY SATISFIED BUSINESS RECORDS EXCEPTION TO HEARSAY RULE OR THAT IT HAD STANDING WHEN LAWSUIT WAS FILED

Henderson v. Deutsche Bank National Trust Company, ___ So. 3d ___, 40 Fla. L. Weekly D380 (Fla. 4th DCA February 11, 2015)

The appellate court reversed final judgment of mortgage foreclosure after a bench trial because the bank failed to establish that its loan payment history qualified under the business records exception to the hearsay rule or that it possessed … Click To Read Full Case Law Review...

REAL ESTATE: MORTGAGE FORECLOSURE: PAYMENT HISTORY: NOTICE OF DEFAULT; EVIDENCE: HEARSAY: BUSINESS RECORDS: ALTHOUGH WITNESS FOR CURRENT NOTE HOLDER TESTIFIED THAT THE TWO PRIOR NOTE HOLDERS APPEARED TO COMPLY WITH GENERALLY ACCEPTED PRACTICES IN THE MORTGAGE SERVICING INDUSTRY, HE FAILED TO ESTABLISH FOUNDATION FOR BUSINESS RECORDS EXCEPTION TO HEARSAY RULE BECAUSE HE DID NOT IDENTIFY, OR TESTIFY THAT HE WAS PERSONALLY FAMILIAR WITH, THE RECORD KEEPING SYSTEMS USED BY THE PRIOR NOTE HOLDERS: JUDICIAL NOTICE: ALTHOUGH COURT MAY TAKE JUDICIAL NOTICE OF COURT FILE, INDIVIDUAL DOCUMENTS IN THE COURT FILE ARE INADMISSIBLE UNLESS THEY SATISFY RULES OF EVIDENCE: VERBAL ACTS: NOTICE OF DEFAULT IS A VERBAL ACT BECAUSE IT IS OFFERED TO SHOW THAT THE STATEMENTS IN IT WERE MADE RATHER THAN THAT THE STATEMENTS WERE TRUE: AFFIDAVITS IN COURT FILE WERE INADMISSIBLE HEARSAY FOR PURPOSE OF SHOWING THAT NOTICE OF DEFAULT WAS MAILED

Holt v. Calchas, LLC, ___ So. 3d ___, 40 Fla. L. Weekly D296 (Fla. 4th DCA January 28, 2015)

The trial court reversed final judgment of mortgage foreclosure and remanded with instructions “to dismiss the case for failure to prove a prima facie case at trial.” (1) The trial court erred by admitting the payment history into evidence because … Click To Read Full Case Law Review...

REAL ESTATE: MORTGAGE FORECLOSURE: NOTICE OF DEFAULT: EVIDENCE: HEARSAY: TRIAL COURT ERRED BY ALLOWING LENDER’S ORAL TESTIMONY REGARDING BORROWER’S CHANGE OF ADDRESS AND NOTICE TO BORROWER AT NEW ADDRESS, RATHER THAN REQUIRING LENDER TO INTRODUCE ITS BUSINESS RECORD OF THE WRITTEN CHANGE-OF-ADDRESS FORM EXECUTED BY BORROWER

Webster v. Chase Home Finance, LLC, ___ So. 3d ___, 40 Fla. L. Weekly D213 (Fla. 5th DCA January 16, 2015)

The appellate court reversed final judgment of foreclosure because the trial court erred by allowing the lender to introduce inadmissible hearsay evidence to prove that it provided notice of default to the borrower at his new address. The … Click To Read Full Case Law Review...

REAL ESTATE: MORTGAGE FORECLOSURE: EVIDENCE: HEARSAY: BUSINESS RECORDS: LOAN PAYMENT HISTORY: CURRENT LOAN SERVICER’S BUSINESS RECORDS, WHICH INCLUDED BUSINESS RECORDS RECEIVED FROM PRIOR LOAN SERVICER, WERE ADMISSIBLE BECAUSE THE CIRCUMSTANCES SURROUNDING THE TRANSFER ESTABLISHED TRUSTWORTHINESS AND THE RECORDS CUSTODIAN ESTABLISHED THE FOUR REQUIREMENTS FOR APPLICATION OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE

Bank of New York v. Calloway, ___ So. 3d ___, 40 Fla. L. Weekly D173 (Fla. 4th DCA January 7, 2015)

The appellate court reversed an order of involuntary dismissal in a mortgage foreclosure following the exclusion of the borrower’s loan payment history as inadmissible hearsay. At trial, the bank called a litigation specialist for the current (fourth) loan … Click To Read Full Case Law Review...