Objections To Note
Fort Lauderdale attorney Matthew Bavaro has two cases pending in the Third and Fourth DCAs questioning the validity of a witness testifying on documents prepared by a previous loan servicer.
"It happens you go to trial where the servicer who issued the [default notice] is no longer involved, so the new servicer brings a witness to testify on a document that wasn't prepared by them," he said.
At a recent trial, a witness for JPMorgan Chase testified about a copy of a note filed by the bank's former foreclosure law firm, Ben-Ezra & Katz. The Hollywood law firm imploded in 2011 during a state investigation of alleged fraudulent practices.
Foreclosure defense attorney Mark Hirsch of Temple and Hirsch in Aventura objected to Andrew Houser's testimony on the validity of a note filed years earlier by Ben-Ezra & Katz, according to a transcript of the trial last Dec. 11.
Senior Miami-Dade Circuit Judge Eugene Fierro overruled him.
Jacobs said he was not surprised at that outcome. He said lenders' witnesses often testify on documents that were created by others in an industry where mortgages were sold, resold and packaged into Wall Street investment vehicles.
"We see many of them comment on how the bank owns the note when there is nothing to prove that that is true," he said. Often those who filed a note on behalf of a lender at the height of the foreclosure crisis are no longer around.
"If this were criminal court and this were happening, people would have a real problem about it," he said.
Open To Appeal
Miami-Dade Circuit Judge Jennifer Bailey said business record custodians don't need personal knowledge of a case like the so-called robo-signers did.
"What they can testify to is the protocol for the creation of the business record and what the business records say," the judge said. Custodians can be cross-examined about the "procedure under which these records were created," something that didn't apply to the robo-signers.