Foreclosure cases can prove to be quite complex and difficult, even for those with plenty of experience in such cases. As a result, there are some mistakes that lenders in Plantation, FL involved in a foreclosure case. Any lender can make mistakes, especially during a foreclosure case. The nature of these mistakes can also vary a great deal in many respects, from the severity of the mistake to the possible solutions and the consequences. That’s why it is a good idea to go over some mistakes that Plantation, FL lenders involved in a foreclosure case.
You Might Not Have An Authenticated Promissory Note in the Evidence
One mistake lenders could make in a foreclosure case is not introducing the original promissory note into evidence. It is worth noting that entering the original promissory note is vital so that the plaintiff can maintain the legal action and work to prove that defendant was liable. The promissory note is a crucial piece of summary judgment evidence that the lender has to serve in order to properly establish liability. According to the rules of the Florida Court, all of the summary judgment evidence has to be served a minimum of 20 days prior to the hearing.
You might be surprised that plaintiffs do not always include the promissory note in their summary judgment evidence. However, this does certainly happen. It is vital for the lender that they avoid this mistake because making this mistake means that the summary judgment motion has no chance of succeeding. A related mistake that a lender could make is not including evidence that proves that the promissory note is authentic. This is also problematic because the summary judgment evidence must have evidence that the borrower signed the note so that the liability of the borrower on a particular promissory note can be established.
The only way that the lender does not have to prove that the borrower signed the note is if the borrower has already admitted that they did. Otherwise, the lender has to prove this fact in order to get a summary judgment. It is common for the borrower not to admit that they signed the note. As a result, the lender must make sure that they include evidence that you did sign the promissory note. If the lender does not do this, it can prove detrimental to their summary judgment motion.
The Lender Doesn’t Put Admissible Evidence About the Amount of Money Owed into The Summary Judgement Evidence
Typically, the summary judgment evidence from the plaintiff includes an affidavit from one of your representatives that states the amount owed on the relevant loan. Despite this usually being the case, the summary judgment evidence, as well as the affidavit, don’t include documentation that someone reviewed to figure out the amount they claim to be owed. This is a serious issue for any foreclosure case. This is because, without such documentation, the statement in the lender’s affidavit regarding the amount owed violates what is known as the best evidence rule. As you are probably aware, that means that the statement is actually classified as inadmissible hearsay.
According to the Florida Statutes that cover this rule, “When a party is trying to prove the contents of a writing, only the original or duplicate of the writing is admissible.” One exception to this rule that may apply to these documents in your foreclosure case is the business records exception. However, the plaintiff must first establish the appropriate predicate for these documents to be admitted. One part of this process is authenticating these documents properly.
It is important to clarify that only the documents themselves would be admissible. The opinion of the lender’s representative about what they believe the records indicate would still be inadmissible. The lender’s representative’s summary of what they believe the records indicate would also remain inadmissible. By themselves, the statements of your representative are, legally speaking, technically hearsay. That means that they are not admissible as evidence.
Technically speaking, even the documents are actually hearsay, but a hearsay rule exception could make them admissible. If the documents are not in evidence, then the statements of the lender’s representative actually become double hearsay. Simply put, the lender must ensure that admissible evidence about the amount of money owned is part of the summary judgment evidence.
The Lender Fails to Disprove All of the Relevant Affirmative Defenses
One thing that the lender has to do if they move for summary judgment is to disprove the affirmative defenses of the defendant. As you would expect, the lender has to disprove all of these defenses. The lender must either disprove the affirmative defenses of the defendant by presenting admissible evidence or the lender has to demonstrate that the defenses are not valid even in the event that the supposed facts which support these defenses are proven to be true. Some lenders totally ignore the affirmative defenses of the defendant. This is even more common in residential foreclosure cases.
However, if the lender does do this, then you will win the case. If the lender fails to disprove all of the relevant affirmative defenses, then they will be unable to get a summary judgment. The lender also has to ensure that you disprove every single affirmative defense, as previously mentioned. The lender’s motion for summary judgment will be denied if they only disprove some of the affirmative defenses. The lender must address all of the affirmative defenses in addition to disproving all of them.
You should know that lenders make these mistakes most commonly in residential foreclosures. Of course, this does not mean that the lender cannot make these mistakes in any other sort of foreclosure. Regardless of the kind of foreclosure, however, these three mistakes are extremely costly for the lender. You should do your utmost to notice and point out these mistakes if they occur in a foreclosure case. An experienced attorney can help you discover any such mistakes. Carlos M. Amor is an experienced foreclosure attorney and can assist you with your foreclosure cases.
