The Lies And Perjury in Foreclosure Cases
The Legal Fiction of the Robo Testifier
CITIMORTGAGE, INC., Plaintiff, v. BARBRA A. HOSKINSON, et al., Defendant(s). Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 48-2011-CA-017485-O, Division 43A. September 26, 2014. Emerson R. Thompson, Jr., Senior Circuit Judge. Counsel: Lindsay Wickham, Albertelli Law, Tampa, for Plaintiff. Adam H. Sudbury, Apellie Legal Services, PLLC, Orlando; and Christopher C. Pennington, Law Office of Christopher C. Pennington, P.L.L.C., Orlando, for Defendants, Barbra A. Hoskinson and Michael P. Hoskinson.
FINAL JUDGMENT OF DISMISSAL
THIS CAUSE came upon before the Court for trial on this 24th day of September, 2014. Upon receiving and considering the evidence presented by the Plaintiff in support of its complaint, having fully considered the arguments of counsel, and being otherwise fully informed of the premises, the Court hereby makes the following findings of fact and conclusions of law:
1. This action was called for trial on September 24, 2014. The Plaintiff was represented by Dennis M. Ballard, Esquire on behalf of Robertson, Anschutz & Schneid, P.L. The Defendants were represented by Adam H. Sudbury, Esquire on behalf of Sudbury Law, PL.
2. At trial, the Plaintiff called one witness through whom it sought to admit the loan documents and certain business records as proof of their right to enforce the note and foreclose the mortgage at issue in this case.
3. After successfully offering in evidence the promissory note, mortgage, and payment records ledger, the Plaintiff sought to admit a copy of a pre-suit notice required by paragraph 22 of the mortgage. These pre-suit notices are commonly referred to in the context of residential mortgage foreclosures as the “breach letter.” In this case, the breach letter in question did not bear a certified mail tracking number and was not supported by any other extrinsic proof of mailing.
4. The Defendants objected to admission of the document on grounds of hearsay, trustworthiness, and that the Plaintiff’s witness was not qualified to authenticate the letter as a record of regularly conducted business activity under Section 90.803(6), Florida Statutes (2013). The Defendants argued that the witness was not the custodian of the record, and did not meet the definition of a person otherwise qualified to authenticate the document or testify about its contents.
5. The witness was examined and cross-examined as to her duties, training, knowledge, and experience with respect to CitiMortgage, Inc.’s business practices. The witness testified that her primary duties involved the assembly and examination of loan records in preparation for litigation. In performing these duties she had access to a computer system called Citrix, which amalgamated the records from various separate subsystems into a single report from which she could generate a full loan history printout.
6. The witness’ training involved visiting the relevant departments and observing the personnel performing their duties and entering data into the departmental computer system. The witness testified that she did not at any point work in or supervise any of these departments, nor was she in charge of any of the departmental activities.
7. With respect to the breach letter, the witness testified that during her training she met with the breach department’s supervisor for one day in 2013 during which she observed the printing of the letters, ‘stuffing’ of the envelopes, and the delivery of receptacles containing these letters to the building mail room.
8. On cross-examination, the witness acknowledged that the date printed on the breach letter identified the date that the letter was printed, and did not necessarily indicate the date that the letter was mailed. The witness sought to testify that it was the routine business practice of CitiMortgage, Inc. to mail these letters by ordinary first class mail within one business day of printing.
9. The witness admitted that the department responsible for generating and processing the letters was not actually responsible for delivering the letters to the United States Postal Service. Rather, the letters were delivered to the mail room, which was responsible for delivering the outgoing mail to the Postal Service. The witness acknowledged that she had no personal knowledge of the practices and procedures of the mail room.
10. After full consideration of the testimony described above, as well as the legal arguments of the attorneys, the Court sustained the Defendants’ objection as to the admissibility of the breach letter in evidence.
11. Specifically, the Court finds that the Plaintiff’s witness does not meet the legal definition of a custodian of records, nor does she otherwise qualify as a person with the requisite knowledge with respect to the business activities of the breach department and mail room to authenticate the breach letter for the purposes of establishing that the Plaintiff complied with the pre-suit notice requirements of paragraph 22 of the mortgage. See Yisreal v. State, 993 So. 2d 952 (Fla. 2008) [33 Fla. L. Weekly S131a]; Lassonde v. State, 112 So. 3d 660 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D966a]; Hunter v. Aurora Loan Services, LLC, 137 So. 3d 570 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D475a].
12. The Plaintiff has therefore failed to carry its burden of proof to present sufficient admissible evidence entitling it to the equitable remedy of mortgage foreclosure.
13. As such, the Court grants the Defendants’ motion for involuntary dismissal pursuant to Rule 1.420(b), Florida Rules of Civil Procedure. It is therefore
ORDERED AND ADJUDGED that Plaintiff CITIMORTGAGE, INC. take nothing by this action and that the Defendants, BARBRA A. HOSKINSON, MICHAEL P. HOSKINSON, ISLE OF CATALINA HOMEOWNERS ASSOCIATION INC., TENANT 1, TENANT 2, TENANT 3, TENANT 4, THE UNKNOWN SPOUSE OF BARBRA A. HOSKINSON, and THE UNKNOWN SPOUSE OF MICHAEL P. HOSKINSON go hence without day.
IT IS FURTHER ORDERED that the NOTICE OF LIS PENDENS recorded on JANUARY 1, 2012 at Book 10313, Page 9488, Public Records of Orange County, Florida, and which bears Document No. 20120003170, is hereby discharged of record.
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