STAGE 4: SET FOR TRIAL

Courtroom Picture

Why You Should Hire a Foreclosure Defense Attorney

Although beyond the scope of this post, a good foreclosure defense attorney will be able to raise the defenses you previously asserted in order to attempt to prevent the foreclosure of your property.   Unless you have dedicated a significant portion of your life to learning the Florida Rules of Evidence, Procedure and mortgage laws, you will be doing yourself a disservice if you attempt to handle your own foreclosure lawsuit.  An experienced foreclosure defense attorney may be able to win your foreclosure trial and get your case dismissed.  Don’t be intimidated if you feel lost or don’t understand some of the concepts connected with your case.  Our office makes you a priority and will give you and your family the honest assessment and explanations you deserve.  Contact us today to discover if you have overlooked a potential solution to your foreclosure. 

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Foreclosure Case Set for Trial

The trial of a lawsuit is very complicated. Not only must you know the merits or substance of your case, you must also be well versed in both the rules of evidence and procedure in order to meaningfully argue your case.  Unfortunately, we see many people attempt to handle their foreclosure trials themselves or pro-se. Per Florida Statute 702.01 trial for foreclosure will be before a judge without a jury. Although the strategies associated with a foreclosure trial are complex and numerous, this page is an attempt to identify some basic concepts in order to show you why it is in your best interest to retain counsel for your foreclosure trial. 

Basic Elements 

Ultimately, your foreclosure trial breaks down to the following basic concept, the Plaintiff (your lender) must prove entitlement to foreclose your property by a preponderance of the evidence.  In order to do this, your lender’s attorney will submit evidence and proffer testimony in order to establish that the institution bringing the foreclosure is a holder in possession of the note or alternatively has the rights to foreclose your property, that you have breached the terms of the mortgage contract, and that the proper notice was provided. This is typically done through the use of one just one witness, a bank representative who is familiar enough with the documents in your case to provide testimony about the “business records.”  

An Understanding of Florida’s Rules of Evidence are Crucial to Your Defense

The vast majority of foreclosure trials go uncontested.  This has created a scenario where Plaintiff attorneys are often unprepared for trial and have failed to accurately assess critical evidentiary issues.  Here is one example: 

Florida has specific rules of evidence.  Not all information can come before the court. Hearsay, a concept that is beyond the scope of this post, is basically out of court statements (written or oral) that are used to prove the truth of what is being asserted.  Hearsay evidence is inadmissible. So for example, the in court statement “The passenger said the light was red” is hearsay and inadmissible when offered to show that the light was in fact red.  Now lets apply this concept to the foreclosure setting, your lender must prove entitlement to the total amount owed.  It can do that from either testimony or records.  However, the testimony or records cannot be hearsay.  

Florida law contains several exceptions to the hearsay rule, a big one in the foreclosure setting is the “business record” exception.  That means that if evidence which is otherwise hearsay falls into this business record exemption, it can be used in court as evidence.  

The rule for what is a business record for the evidentiary exception is found in Florida Statute 90.083(6)(a) which states: 

(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
 

In order for your lender to get evidence in through this business record, it must fulfill the elements of the Statute.  So if the custodian of the record is not providing testimony, it doesn’t come in.  Also the exception to the hearsay exclusion only applies to the extent that the business records provides information.  For example, although a business record exemption to hearsay may allow for the introduction of a notice of default letter, the failure of an institution to keep a record reflecting when the item was sent may prevent testimony regarding when it was sent, if offered by anyone other than the person who physically sent the item. 

If your lender’s attorney fails to establish, through admissible evidence and by laying the proper foundation, that the Plaintiff is entitled to foreclose your property, you will win your foreclosure lawsuit.