Florida’s Third District Court of Appeal recently vacated a foreclosure foreclosure judgment because of bank irregularities and technicalities. Specifically, the Third District Court of Appeal vacated a final judgment because the financial institution relied on inadmissible hearsay testimony to prove their case. Hearsay is a legal term for testimony in a court proceeding where the witness does not have direct knowledge of the fact attested to while testifying. In short, secondhand testimony is barred by the hearsay rule.
Kelsey v. Suntrust Mortgage, Inc. involved a mortgage foreclosure dispute. Suntrust Mortgage Inc. prevailed at trial despite the fact that Suntrust’s only witness testified that she had no first hand knowledge of the loan or note. That witness further testified that she had only seen the subject note once during the trial. The mortgage file was first brought to the witness’s attention once litigation had already been filed. SunTrust used the witness’s testimony to try and authenticate the note relating to the mortgage, even though her knowledge had come from out-of-court documents that had not been made available for inspection prior to trial.
On appeal, the Third District Court concluded that such impermissible hearsay testimony could not serve as the basis for the entry of a judgment against the Plaintiff. This appears to be the first result regarding robo-witnesses after the recent fall out from robo signors.
Moreover, the Third District Court of Appeal further determined that the foreclosure plaintiff must show an agreement, a default, an acceleration of debt to maturity, and the amount due. The Plaintiff, in Kelsey, failed to show these documents. Whatever documents were presented at the time of trial were not properly authenticated. Additionally, Suntrust failed to have a witness testify whose testimony was not barred by Florida’s hearsay rules.
For the reasons mentioned above regarding the documents, the only testimony presented at trial was considered to be hearsay and an error in the eyes of the Court. In order for the bank to have properly authenticated the documents it must have been shown that the witness that did testify was a records custodian or had some personal knowledge on the documents. Since she did not, her testimony was impermissible and the judgment was vacated since it was predicated on impermissible hearsay testimony.
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