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Foreclosure Judgment Reversed

To Get A Foreclosure Judgment Reversed…Buzz Words Just Won’t Cut It!

The Reyes Law Group has been aggressively litigating foreclosure defense cases and serving as the passionate voice for homeowners and investors in court as we fight to defend your property and preserve your rights!

As I have written on more than one occasion, all civil cases are resolved through settlement, at a motion for summary judgment hearing, or finally, at trial.  Trials are the ultimate forum for forcing the lender to prove their case.  At trial, lenders face the challenge of getting necessary evidence “admitted” under the Business Exception Rule.  Whereas, the problem plaguing defendants is that courts routinely admit testimony or documents as evidence at trial – “evidence” which falls well short of the standard in other civil litigation cases.  Typically, the lender’s records custodian will testify by reciting buzz words necessary to establish the Business Records Exception- that is, testimony reflecting timely, concurrent record-keeping in the ordinary course of the lender’s business.  What generally stands out is that, despite the records custodian’s obvious lack of personal knowledge, the courts routinely accept the testimony, and with it, admission of key documents into evidence which lead to a foreclosure judgment.  Five years into the national foreclosure meltdown, this lax evidence standard will not suffice.

The Fourth District Court of Appeal recently reversed a Final Judgment that served to foreclose a lien in favor of a condominium association.  The association presented a management company employee as the records custodian witness.  This witness was to testify as to the business records to establish the amounts owed to the association. The records custodian testified, but the court, not satisfied by the mere use of these “magic words,” insisted on more.  When pushed to substantiate further, the records custodian could not confirm that the data obtained from a prior association accountant was in fact accurate.  Without real, credible testimony that validated the paperwork, the association could not use the Business Records Exception to establish how much money was owed.  The appellate court held that the trial court erred in admitting the evidence and such error warranted a reversal.  Considering the similarities between lien and mortgage foreclosure cases, this reversal bodes well for defendants who challenge lenders to prove their case!

Considering how often the courts have willingly accepted the testimony of records custodians simply based on their reciting of legal “buzz words,” it is a refreshing turn of events to see the appellate court insist that mere buzz words will not do, especially when we are dealing with property rights.  In fact, due process demands a higher standard, and in this case, so did the appellate court.

It is vital that homeowners and investors seek legal advice from an attorney experienced in defending mortgage foreclosure actions.  Hiring an attorney to defend your property and preserve your rights is now more critical than ever!  The Reyes Law Group aggressively litigates these cases, raising all defenses available to our clients, right on up through trial.

Carlos J. Reyes is the Principal of Reyes Law Group. He has been a member of the Florida Bar since 1988 and practices state-wide. Carlos has been awarded a rating of “AV Preeminent” which is the highest possible rating in both legal ability and ethical standards by Martindale-Hubbell – a well-recognized legal resource. Melissa J. Ulloa  is an Associate at Reyes Law Group focusing primarily on mortgage foreclosure defense and civil litigation. The RLG Legal Team also include attorneys Stephan LopezPhillip A. Ortiz and the RLG Legal Support Team to bring you a dedicated, experienced and dynamic legal team to handle your legal needs.

We also assist clients in the areas of: Civil LitigationReal Estate LitigationResidential Purchase & SalesCommercial Acquisitions & SalesResidential Landlord-Tenant LitigationCommercial Landlord-Tenant LitigationShort Sales NegotiationsLoan ModificationsCriminal DefenseCivil Rights ClaimsFamily LawCorporate Work, and Labor & Employment Law.

Call us for a FREE consultation at (954) 369-1993  Se Habla Español.

Visit our firm website ReyesLegal.com and review our credentials.

We are located at 150 S Pine Island Rd #210, Plantation, FL 33324

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The Reyes Law Group BLOG is intended to provide information to firm clients, friends and potential clients about various legal related topics. Nothing in this BLOG should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this BLOG without seeking the advice of legal counsel.

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Written by Reyes Law Group