MASLAK v. WELLS FARGO, Nos. 4D14-4672, 4D14-4673 and 4D14-4707 [April 6, 2016]

Following Maslak’s default on three loans, Wells Fargo foreclosed.  The cases, consolidated for trial, resulted in three final judgments, each of which was appealed and further consolidated.  The sole issue presented was whether the bank had properly introduced evidence in accordance with the business records exception – in order to overcome Maslak’s hearsay objections.  Not unusual, the records in question were printed screen shots of the payment histories.  It was not necessary for the bank to present the person who actually prepared the business records.  However, the witness was unable to testify that the information was supplied by someone who had personal knowledge and created the records “in the course of a regularly conducted business activity.”  Although, the witness did testify as to each of the four elements underlying a business records exception, just saying the “magic words” was not enough.  The witness was unable to testify as to whether someone at the office of the attorneys representing the bank could have changed the records, nor did she know how the payments were received and processed.  Judgments were reversed and the case was remanded for further proceedings. 

Vidal -v- Liquidation Prop., 104 So. 3d 1274 (Fla. 4th DCA 2012)
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Following entry of summary judgment of foreclosure for the lender, the Vidals appealed arguing that affirmative defenses precluded such judgment.   Among the defenses were lack of standing, Truth In Lending Act (TILA) violations, and two types of fraud.  Having untangled the facts, the appellate court agreed with the Vidals that for the lender to have standing, the lender had to prove ownership and possession of the note on the date suit was filed.  An assignment of mortgage was produced, but it transferred only the mortgage not the note, and as all should know “the mortgage follows the note.”  An allonge to the note was produced but it was not dated.  An affidavit by the lender attesting that it received transfer of the note prior to filing would have evidenced standing.

The appellate court also combed through Vidals argument as to the TILA defense and agreed with them.  While the remedy of rescission has a three year statute of limitations, there is only a one year period for the remedy of recoupment unless brought by way of defense, as it was.

The defense of fraud allegedly arising from the lender’s knowledge that income was overstated was cut because one suffering from fraud cannot recover when they knew the statement to be false.
On the second fraud defense, wherein it was alleged that the lender had orally represented that the loan was a fixed rate when in fact it was adjustable, the appellate court found that such contention was expressly washed out by the written contract.

PALM BEACH MARKETPLACE -v- ALEYDA’S MEXICAN,  103 So. 3d 911 (Fla. 4th DCA 2012)

Petition for Mandamus was filed to compel the trial court to enter a default judgment and writ of possession.  Tenant had failed to timely post rent into the court’s registry that came due and owing, as required by F.S. §83.232.  The statute provides that failure to post rent alleged as past due, or that subsequently comes due, in an action for possession is an absolute waiver of defenses entitling the landlord to immediate default for possession. 

​This is a ministerial duty of courts, meaning there is no discretion beyond that stated in the statute.  Although mandating entry of the writ of possession, the appellate court reminded the trial court that the statute only speaks to a default for possession and not to any entitlement to money damages or even to the funds previously deposited.

Blue Star -v- LED Trust, 128 So. 3d 36 (Fla. 3d DCA 2012)(cert. den'd)

LED Trust filed a lis pendens against property owned by the Blue Star group, an entity in which the LED Trust was investing.  LED’s action turned on counts including breach of contract, violations of corporate statutory duties, fraud, conspiracy to commit fraud, and for an accounting.  None of those counts could be plugged into the property owned by Blue Star.  Other counts in equity were brought for declaratory and injunctive relief, imposition of a constructive trust or equitable lien, and for specific performance. 

​ But, the appellate court found LED’s equitable claims to be dim in that they were lacking a necessary connection to the subject property.  The appellate court illuminated that LED was really seeking damages arising from mere membership interests in an LLC.  In conclusion, the appellate court found that LED’s claims failed to establish a fair nexus between the equitable or legal ownership of the subject property and LED’s claim.  Accordingly, the lis pendens could no longer cast a shadow on the title.