Monday, September 12, 2011

Florida Trial Judge Fumbles Another F'closure Ruling; Sworn Affidavit By One Without Personal Knowledge Of Facts = Inadmissible Heresay: Appeals Court

In West Palm Beach, Florida, The Palm Beach Post reports on the latest, incorrect homeowner-unfavorable ruling by Palm Beach County Circuit Judge Meenu Sasser that has subsequently been reversed on appeal: (1)

  • In a decision that could have staggering implications on foreclosure proceedings statewide, an appeals court ruled Wednesday in favor of the owners of a Wellington home whose bank filed documents sworn to by employees with no personal knowledge of the case.(2)

  • The ruling from the 4th District Court of Appeal reversed in part a 2010 Palm Beach County Circuit Court summary judgment that said homeowners Gary and Anita Glarum owed LaSalle Bank $422,677.

  • That amount was based on an affidavit of indebtedness signed by loan servicer employee Ralph Orsini, who pulled the information from a company computer ­-- a move that appeals court judges said amounts to hearsay.

  • "Orsini did not know who, how, or when the data entries were made into Home Loan Services' computer system," the decision states. "Orsini could state that the data was accurate only insofar as it replicated the numbers derived from the company's computer system."

  • The ruling means the home on Amesbury Court, which has been in foreclosure since September 2008, can't go to a foreclosure sale until the bank either gets another summary judgment or goes to trial. The Glarums still live in the home.

  • Tom Ice, whose firm Ice Legal represents the homeowner, said Wednesday's decision hits at the essence of the nation's foreclosure robo-signing scandal in which tens of thousands of foreclosure court documents were signed by people swearing that they had personal knowledge of cases when they did not.

  • While some lenders called the document problem a technicality, foreclosure defense attorneys called it perjury and fraud.


  • The appeals court ruling was called "rock solid" by Sarasota-based attorney Henry Trawick, an expert on Florida's judicial rules and author of Trawick's Florida Practice and Procedure.

  • He said a valid affidavit of indebtedness would have to be sworn to by the person who actually entered the information into the computer system. He expects the decision to further snarl Florida's courts.

  • I think a whole lot of summary judgments on these foreclosures are not valid because of this," said Trawick, who is also concerned about how allegedly bogus affidavits will affect getting clear title to homes. "The real problem ahead of us is years to come when all these properties are being sold."

For more, see Ruling in Wellington case could further complicate Florida foreclosures.

See also, Reality Check: Florida Appeals Court Rules Banks Must Follow The Rules:

  • Ruling that LaSalle’s affidavit of indebtedness was inadmissible hearsay was unremarkable as a matter of law. But in a state where some judges have displayed pro-bank bias so powerful they don’t require the banks to follow the rules, the decision is stunning.

For the ruling, see Glarum v. Lasalle Bank, No. 4D10-1372 (Fla. App. 4th DCA September 7, 2011).

(1) This is not the first foreclosure screw-up by Judge Sasser that Florida's 4th District Court of Appeal has been compelled to clean up (maybe she's just trying to 'pad her resume' when she quits the bench and goes into private practice working for a foreclosure mill sweatshop? Possibly following in the footsteps of her Broward County, Florida judicial colleague, Victor Tobin? See "See No Evil, Hear No Evil" Broward County Chief Judge Knew Exactly What He Was Doing After All! ).

For examples of Judge Sasser's other reversed foreclosure 'handiwork', see:

(2) Unmentioned by The Palm Beach Post story, but deserving of attention, is that the appeals court also reversed another screw-up by the trial judge in this matter, Palm Beach County Circuit Judge Meenu Sasser, in which she improperly sanctioned homeowner's attorney Ice Legal, P.A. for allegedly filing frivolous pleadings, pursuant to section 57.105, Florida Statutes. (Go here for more on Section 57.105).

From the court ruling:

  • The trial court also entered sanctions against appellants’ counsel for filing a “form affidavit” from an expert, Rita Lord, who opined on the ability of lay persons to distinguish between original and high-quality copies of promissory notes.

    Lord did not represent in the affidavit that she reviewed the papers at issue in this case. Nevertheless, the trial court was distressed by appellants’ counsel’s habit of filingthe same affidavit in ten different cases, when [Lord] hasn’t seen the documents in this case.”

    The court awarded LaSalle its reasonable attorney’s fees for having to file a motion to strike Lord’s affidavit.

    We note that LaSalle moved for sanctions under section 57.105, Florida Statutes. That statute permits a trial court to award a “reasonable attorney’s fee” to the “prevailing party” where the plaintiff’s claim was frivolous or to a party to compensate for the opposing party’s dilatory conduct. § 57.105(1)-(2), Fla. Stat.

    The trial court did not find that appellants’ claims were frivolous, and the trial court did not conclude that Lord’s affidavit was filed to cause unreasonable delay. Thus, section 57.105 could not serve as a basis for the award of attorney’s fees to LaSalle.

    To the extent that the trial court may have been exercising its inherent authority to sanction parties or their attorneys, we also find error. “[A] trial court possesses the inherent authority to impose attorneys’ fees against an attorney for bad faith conduct.” Moakley v. Smallwood, 826 So. 2d 221, 226 (Fla. 2002).

    To impose attorney’s fees as a sanction under its inherent authority, the trial court must make anexpress finding of bad faith conduct” that is “supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees.” Id. at 227.

    The trial court did not make any specific findings of bad faith on the record, and the sanctions order must be reversed without prejudice. See Finol v. Finol, 912 So. 2d 627, 629 (Fla. 4th DCA 2005). “Upon remand, should the court be asked to reconsider the issue, any future hearing and order must comply with the requirements of Moakley.” Id.

See also, Daily Business Review: 4th DCA bars affidavit over failure to verify:

  • The 4th DCA also tossed out a disciplinary action against Ice and his firm, Legal Ice in Royal Palm Beach.

    Ice had presented an affidavit from a document review expert that didn't sit well with Sasser. The expert testified that it was hard to prove if the note presented by the lender at the hearing was the original document, as required by law. Ice asked the judge for more time to make a technical analysis of the note to determine that it wasn't a "mere" copy of the original document, he said.

    "Judges across the state have a tendency to believe that when they see blue ink on a signature, that is the original note" and make a decision based on a document that could be a copy, he said.

    Sasser rejected Ice's argument and entered sanctions against Ice Legal at the request of LaSalle, which called the action a frivolous claim.

    The judge ordered Ice Legal to pay the lender's attorney fees. The 4th DCA reversed the sanctions against the Ice firm.

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