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

Case Decision Date: Reviewed by

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...