glarum (fla.) - motion to take judicial notice

8/3/2019 Glarum (Fla.) - Motion to Take Judicial Notice

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STATE OF FLORlDAFOURTH DISTRlCT COURT OF APPEAL

GARY GLARUM and ANITAGLARUM, CASE NO.: 4DlO-1372L.T. CASE NO.502008CA028930XXXXXMBAppellants,

v .

LASALLE BANK NATIONALASSOCIATION, as Trustee forMerrill Lynch Mortgage InvestorsTrust, Mortgage Loan Asset-BackedCertificates, Series2006-FFI, et al.,

Appellees.

APPELLEE'S MOTION TO TAKE .nJDICIAL NOTICE OF POST-DECISION ARTICLES REFLECTING UNINTENDED CONFUSION

AND POTENTIAL UNCERTAINTY CREATED BY DECISIONAppellee, LaSalle Bank National Association, as Trustee for Merrill Lynch

Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-FFI ("LaSalle"), asks this Court to take judicial notice of three post-decisionarticles from respected publications -- which demonstrate the unintended confusionand potential uncertainty created by this Court's September 7, 2011 Opinion(tlOpiniontl), and why clarification on rehearing or rehearing en bane review of thatOpinion is critical: (1) an American Banker article published September 20, 2011,titled Computer Records "Inadmissible Hearsay') in Foreclosure Court; (2) a


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Florida Bar News article published September 15~2011, titled Fourth DCA Rulesin Robosigning Case; and (3) a Palm Beach Post article published September 7,

2011, titled Ruling in Wellington Case Could Further Complicate FloridaForeclosure.

Simultaneously with the filing of this motion, LaSalle has filed a motionseeking clarification, either through rehearing or rehearing en bane of the Opinion,which reverses summary judgment in a mortgage foreclosure case. The articlesdemonstrate that the Opinion raises significant questions regarding Florida'sevidence laws and injects calamitous confusion into the hundreds of thousands ofpending foreclosure cases in Florida, as well as cases in virtually every other legalcontext. Through the Opinion, this Court may have inadvertently underminedFlorida's long-standing rules for admission of business records and affected alltypes of civil and criminal cases, not just mortgage foreclosures.

As the articles reflect, some in the national and state media have seized onthe potential impact of the Opinion on the backlog of pending Florida mortgageforeclosure cases and have misinterpreted the Opinion, thus requiring clarification.For example, the American Banker article states: "[The Opinion] strikes at theheart of what is known in legal terms as the 'business records exception to the

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hearsay rule.ml The Palm Beach Post article predicts that the Opinion "could havestaggering implications on foreclosure proceedings statewide.t''' Finally, the

Florida Bar News reports the Opinion ruled "that the person signing the affidavit ofindebtedness for a foreclosure had to have personal knowledge of the debt."

Although an appellate court will not take judicial notice of non-recordnewspaper articles to establish a factual issue on the merits," an appellate courtmay take judicial notice of post-decision articles and acts reflecting the decision'simpact and the confusion created by the decision. For instance, in Broward Countyv. Payne, 437 So. 2d 7i9 (Fla. 4th DCA 1983), this Court took judicial notice ofarticles to show the confusion caused by a Florida Supreme Court decision, stating:

We also take judicial notice of the fact that the recent lower courtdecisions, law review notes and legal periodical articles redound withwailing and gnashing of teeth on how to define and apply the dictatesof Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010(Fla. 1979). The so-called Modlin doctrine discarded by Commercial

1 Computer Records "Inadmissible Hearsay" inForeclosure Court, Am. Banker,Sept. 20,2011, at 1-2, available athttp://www.al11ericanbanker.com/issuesIl76 183/robo-signing-mortgage-servicers-foreclosures-tlorida-l042354-1.html (last visited Oct. 5, 2011) (subscriptionrequired).2 Ruling in Wellington Case Could Further Complicate Florida Foreclosures,Palm Beach Post, Sept. 7, 2011, at 1, available athttp://www.palmbeachpost.com/money/foreclosures/ruling-in-wellington-case-could- further-complicateflorida-182622 7.html (last visited Oct. 5, 2011).3 FourthDCA Rules in RobosigningCase, Fla. Bar News, Sept. 15,2011, at 15,available athttp://www.tloridabar~org/divcom/iniinnewsOl.nsfIRSSFeed/43AE82302E5EBAC4852579090041ED36 (last visited Oct. 5,2011).4 Thornber v. City of Ft. Walton Bch, 534 So. 2d 754 (Fla. 1st DCA 1988).

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http://www.al11ericanbanker.com/issuesIl76http://www.al11ericanbanker.com/issuesIl76


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Carrier may well have been unsatisfactory but at least we allunderstood it!See also Grubstein v. Urban Renewal Agency of City of Tampa, 115 So. 2d 745(Fla. 1959) (O'Connell; J. dissenting) (we can take judicial notice of the effect theAdams decision has had and the legislature's reaction to that decision). Moreover,where, as here, a party believes a court's decision may be misconstrued orinterpreted in a manner not intended by the court, a motion for clarification isappropriate, as are by the submission of accompanying post-decision articlesgermane to the issues raised by the motion. See generally Philip Padovano, MotionPractice in Florida Appellate Courts, 32 Stetson L. Rev. 309, 341 (2003); Fla. R.App. P. 9.300 (motion may include appropriate supporting documents. notcontained in the record).

WHEREFORE, LaSalle requests that this Court take judicial notice of thethree attached articles -- (1) the American Banker article published September 20,2011, titled Computer Records "Inadmissible Hearsay" in Foreclosure Court; (2)the Palm Beach Post article published September 7, 2011, titled Ruling inWellington Case Could Further Complicate Florida Foreclosures; and (3) theFlorida Bar News article published September 15, 2011, titled Fourth DCA Rulesin Robosigning Case -- because they illustrate the potential negative impact andconfusion inadvertently created by this Court's decision.

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Respectfully submitted,McGUIREWOODS LLP

B y K _ f ~ ~ -R. Eric BilikFlorida Bar No. 0987840Jeffrey S. YorkFlorida BarNo. 0987069Sara F. Holladay-TobiasFlorida Bar No. 002622550 N. Laura Street, Suite 3300Jacksonville, Florida 32202(904) 798-3200(904) 798-3207 (fax)

AKERMAN SENTERFITTKatherine E. GiddingsFlorida Bar No. 949396Nancy M. WallaceFlorida Bar No. 65897106 E. College Avenue, 12th FloorTallahassee, Florida 32301(850) 224-9634(850) 222-0103 (fax)AKERMAN SENTERFITTWilliam P. HellerFlorida Bar No. 987263William C. CrenshawFlorida Bar No. 236829350 E. Las Olas BoulevardSuite 1600Fort Lauderdale, Florida 33301(954) 463-2700(954) 463-2224 (fax)

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APPELLEE'S MOTION TO TAKE JUDICIAL NOTICE

Computer Records "Inadmissible Hearsay"in Foreclosure CourlAmerican BankerSeptember 20, 2011

Glarum v. Lasalle Bank National Association, et al..State of Florida, Fourth District Court of AppealCase No. 4010-1372; L.T. Case No.502008CA028930XXXXXMB


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On Focus and In Depth

Computer Records 'InadmissibleHearsay' in Foreclosure: CourtBy Kate BerrySEP 20, 2011 3:41pm EDT

A Florida court ruling could make it harder for mortgage servicers to usecomputer records as evidence for foreclosure without verifying the underlyinginformation.

The Fourth District Court of Appeals ruled on Sept. 7 that Ralph Orsini, an employee atmortgage servicer Home Loan Services lnc., relied on "inadmissible hearsay" when heused computer records to assess the mortgage debt of a delinquent homeowner,Orsini got his information from computer records compiled by another servicer, LittonLoan Servicing LLC, which had previously serviced the mortgage. He did not otherwiseverify the information, the court found."Orsini did not know who, how or when the data entries were made," the appeals courtjudges wrote in their ruling. "He could not state if the records were made in the regularcourse of business .... He had no knowledge of how the data was produced and he wasnot competent to authenticate that data."The ruling calls into question a common practice by mortgage servicers seeking toforeclose on delinquent borrowers, at a time when regulators are already scrutinizing thepaperwork and processes underlying the largest banks' foreclosure decisions. Last yearmany servicers' employees were found to be robo-signing hundreds of foreclosuredocuments a day without verifying the underlying information.The Florida court ruling could have "broad sweeping application in the lending and loanservicing industries and affect thousands of foreclosure cases," wrote Michele Stocker,


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chair of the financial services lit igation practice group at Greenberg Traurig LLP, in anote to bank clients last week.Plaintiffs' lawyers may use the opinion to depose servicing employees, "resulting inadditional delays to and costs in the foreclosure process," Stocker wrote.The appeals court reversed a Palm Beach County Circuit Court's judgment againsthomeowners Gary and Anita Glarurn, whose home has been in foreclosure since 2008.They owe $422,677 on their home loan, for which LaSalle Bank is the trustee, butdispute the amount.The Florida ruling strikes at the heart of what is known in legal terms as the "businessrecords exception to the hearsay rule." Mortgage servicers and trustees have routinelyrelied on affidavits of indebtedness signed by servicing employees to prove the amounta borrower owes, without the need to additionally verify that amount or to testify to itsaccuracy in court.Thomas Ice, a lawyer whose firm Ice Legal represents the Glarums, says the Floridaappeals court decision exposes some of the same issues as last year's robo-signingscandal. In this case, the employee relied on a computer "screen shot" to verifyinformation on the borrowers. But that information was compiled by a company that didnot employ Orsini, and he had no personal knowledge of who made the data entries orhow and when the information was obtained."Banks consider the hearsay rule - the cornerstone of due process - to beantiquated," Ice says. "It is apparently too troublesome for them to provide more thanone affidavit to take someone's home.""Even if the Florida court ruling has a broad impact, homeowners in foreclosure would stil lhave to hire an attorney and take a full deposition of the servicing employees signing theaffidavits to prove the information servicers provided amounts to hearsay. The vastmajority of foreclosure cases are uncontested.Stocker suggested in her note that servicers may need to have such affidavits include"language addressing the procedures that the company takes to ensure that theinformation put into its computer system is accurate." 2011 American Banker and SourceMedia, Inc. All Rights Reserved. SourceMedia is an lnvestcorp company. Use,duplication, or sale of this service, or data contained herein, except as described in the Subscript ion Agreement, is strict lyprohibited.


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Ruling in Wellington Case Could FurlherComplicate Florida ForeclosurePalm Beach PostSeptember 7, 2011

Glarum v. Lasalle Bank National Association, et a/..State of Florida, Fourth District Court of AppealCase No. 4010-1372; L.T. Case No. 502008CA028930XXXXXMB


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Ruling in Wellington case could further complicateFlorida foreclosuresBy KIMBERLY MILLERPalm Beach Post Staff WriterUpdated: 9:21 p.m, Wednesday, Sept. 7,2011Posted: 5:09 p.rn. Wednesday, Sept 7,2011In adecision that could have staggering implications on foreclosure proceedings statewide, an appealscourt ruled Wednesday in favor of the owners of a Wellington home whose bank filed documents swornto by employees with no personal knowledge of the case.The ruling from the 4th District Court of Appeal reversed in part a 2010 Palm Beach County Circuit Courtsummary judgment that said homeowners Gary and Anita Glarum owed LaSalle Bank $422,677.That amount was based on an affidavit of indebtedness signed by Joan serviceremployee Ralph Orsini,who pulled the information from a company computer -- a move that appeals court judges said amountsto hearsay."Orsini did not know who, how, or when the data entries were made into Home Loan Services' computersystem," the decision states. "Orsini could state that the data was accurate only insofar as it replicatedthe 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. TheGlarums still live in the home.Tom Ice, whose firm Ice Legal represents the homeowner, said Wednesday's decision hits at theessence of the nation's foreclosure robo-signing scandal in which tens of thousands of foreclosure courtdocuments were signed by people swearing that they had personal knowledge of cases when they didn o t

While some lenders called the document problem a technicality, foreclosure defense attorneys called itperjury and fraud.Foreclosures came to a virtual standstill in the fall after the robo-signing revelations were made as banksworked to revamp their processes and redo paperwork where they could.Between July 1,2010, and June 30 of this year, 104,126 foreclosure cases were dismissed in Florida'scourts, often by lenders needing to refile pertinent paperwork."Bank officers cannot simply regurgitate what they read off computer printouts," Ice said. "This has beena major battleground in foreclosure cases."A message left for the bank's legal representative, Orlando-based Butler & Hosch, was not returnedWednesday.The appeals court ruling was called "rock solid" by Sarasota-based attorney Henry Trawick, an expert onFlorida'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 enteredthe information into the computer system. He expects the decision to further snarl Florida's courts.


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"I think a whole lot of summary judgments on these foreclosures are not valid because of this," saidTrawick, who is also concerned about how allegedly bogus affidavits will affect getting clear title tohomes. "The real problem ahead of us is years to come when all these properties are being sold."But not everyone is convinced of the magnitude of Wednesday's decision.Palm Beach County Chief Judge Peter Blanc said while it sets precedent for similar cases, it's too earlyto tell what the implications will be.Fort Lauderdale attorney Shari Olefson, who represents banks in foreclosure cases, said the rulingdoesn't change what's been going on since the robo-signing scandal broke. ."The people I've been talking to have set aside affidavits and have to start all over again," she said. "Thisis pretty consistent with the way things have been going~"Find this article at: Print thispagehttp://WNW.palmbeachpost.com/money/foreciosures/ruling-in-wellington-case-cou!d-further-complicate-florida- Close1826227.html
http://wnw.palmbeachpost.com/money/foreciosures/ruling-in-wellington-case-cou!d-further-complicate-florida-http://wnw.palmbeachpost.com/money/foreciosures/ruling-in-wellington-case-cou!d-further-complicate-florida-


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Fourth DCA Rules in Robosigning CaseFlorida Bar NewsSeptember 15, 2011

Glarum v. Lasalle Bank National Association, et al..State of Florida, Fourth District Court of AppealCase No. 4010-1372; L.T. Case No. 502008CA028930XXXXXMB


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ourth D CA rules in robosigning case httpr//www .fioridabar.orglDNCOMlJN/j nnewsO 1.nsfl8c9fl30 12

The Florida Barwww.f1oridabar.orgSearch: ,The Florida Bar News

Advertising Rates Classifieds Attorneys Exchange. Archives Subscribe JournalSeptember15,2011

Fourth DCA rules in robosigning caseAs this News went to press, the Palm Beach Post reported that the Fourth District Court of Appeal ruled ina bankruptcy case that the person signing the affidavit of indebtedness for a foreclosure had to havepersonal knowledge of the debt. The signer had relied on information garnered from the foreclosing bank'scomputer, but the court said that amounted to relying on hearsay evidence.The Post quoted foreclosure defense lawyers as saying the ruling could have a far reaching impact onforeclosure cases,while an attorney representing banks said lenders have already taken corrective actionsto address the problem.

2005 The Florida Bar I Disclaimer I Top of page I [~fJ[Revised; 09"26-2011]Ne~s H O M E I
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glarum (fla.) - motion to take judicial notice

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