FL 1st DCA Fraudclosure Reversed | Mazine v. M&I Bank “None of the Requirements for Admission of a Business Record Were Met”

MOSHE MAZINE and JAACOV E. BOUSKILA,
Appellants,
v.
M & I BANK,
Appellee.

_____________________________/

An appeal from the Circuit Court for Levy County.
Stanley H. Griffis, III, Judge.
David H. Charlip of Charlip Law Group, LC, Aventura, for Appellants.
Erin Berger, Florida Default Law Group, PL, Tampa, for Appellee.

From the complaint…

The only witness to testify at the bench trial regarding the allegations of the amended complaint was David Taxdal, the regional security officer for “M & I Marshall and Ilsley Bank” in the State of Florida.

According to Taxdal’s testimony, his “duties and responsibilities are fraud investigation, internal investigation and physical security for the branches” in Florida, and he does not originate loans, service loans or collect loans in default.

Through Taxdal, the bank attempted to introduce several documents, including an affidavit as to amounts due and owing. The affidavit was executed by Michael Koontz, who did not appear at trial, and the bank sought to introduce it as a business record.

Taxdal testified that he had no knowledge as to who prepared the documents submitted at trial by the bank as he is not involved in the preparation of documents such as the ones proffered by the bank, that he does not keep records as a records custodian, that he has no personal knowledge as to how the information in the affidavit as to the amounts due and owing was determined or whether it was prepared in the normal course of business, and that he did not know whether such information was accurate.

Counsel for the defendants vigorously opposed admission of the affidavit of indebtedness, the only evidence of the amount allegedly in delinquency, as a business record. Counsel observed that the affiant (Koontz) was not subject to cross-examination, and that given the matters to which Taxdal testified it was evident that Taxdal “has no knowledge of the basis upon which this affidavit was prepared.”

The trial court denied defendants’ objection and admitted the affidavit without explanation.

This was error. Before a document may be admitted as a business record, a foundation for such admission must be laid. Section 90.803(6), Florida Statutes (2010), allows the admission of records of a regularly kept business activity when the business record was made at or near the time of the matters reported and when the business record is made by a person having personal knowledge of the matters reported or when the information supplied in the record is supplied by a person with knowledge.

Further, it must be shown that the business record was kept in the ordinary course of a regularly conducted business activity and that it is the regular practice of the business keeping the record to make such a business record. Yisrael v. State, 993 So.2d 952 (Fla. 2008).

While it is not necessary to call the individual who prepared the document, the witness through whom a document is being offered must be able to show each of the requirements for establishing a proper foundation. Forester v. Norman Roger Jewell & Brooks, 610 So.2d 1369, 1373 (Fla. 1st DCA 1992).

Here, none of the requirements for admission of a business record were met. As noted, Taxdal candidly admitted that he had no knowledge as to the preparation or maintenance of the documents offered by the bank, including the affidavit as to amounts due and owing. Taxdal did not testify and, indeed, could not testify, that the affidavit as to the amounts owed was actually kept in the regular course of business.

Further, he did not know if the source of the information contained in the affidavit was correct. He did not know if the amounts reported in the affidavit were accurate. There was no attempt to admit the affidavit by certification or declaration pursuant to section 90.803(6)(c), Florida Statutes.

Accordingly, because no foundation was laid, the admission of the affidavit was erroneous. Because the affidavit was the only evidence as to the amount of defendants’ default, the error was harmful necessitating that the amended final judgment of foreclosure be reversed.

Full opinion below…

~

4closureFraud.org

~

Mazine v. M&I Bank

[scribd id=60961013 key=key-1zj2f6d4fjg6o7qr7wvf mode=list]

Comments
21 Responses to “FL 1st DCA Fraudclosure Reversed | Mazine v. M&I Bank “None of the Requirements for Admission of a Business Record Were Met””
  1. Dave8040 says:

    What’s missing here is common sense as it may apply to the law. In this case, you have a bank that funded the loan that defaulted, and holds the Promissory Note. There is no issue of standing. Rather, it filed as its brand name as opposed to the correct legal name. That does not entitle the defendants to a free ride in an already overloaded court system. But wait! In today’s environment, debtors are owed everything; they may take out a loan, and, when they default, it is the bank that is the predator, not the debtors who want to walk away from investments at the expense of the banks. Sorry, but the only victim here is the lender.

    • Dave,

      Whats missing here is you forgot to mask your ip address while surfing from inside your employer of M&I Bank…

      So get the hell out of here you bankster shill…

      Search Referral: http://www.google.com — M&I mazine appeals florida

      Host Name: Browser: IE 7.0

      IP Address: 207.250.52.225

      Operating System: WinXP

      Location: Milwaukee, Wisconsin, United States Resolution: 1024×768

      ISP: Marshall & Ilsley Corporation

      • lvent says:

        Thank You, 4closure fraud!!!!!!! MAINSTREET ARE THE ONLY VICTIMS HERE OF THE BIGGEST PONZI SCHEME SWINDLE AND HEIST OF THE AMERICAN PEOPLE IN HISTORY……………..WHEN THE SO CALLED LENDERS COMMITTED MASSIVE MORTGAGE FRAUD IN OUR NAMES, THEY KILLED THEIR OWN CONTRACTS.

    • Dave8040 says:

      I have nothing to mask, you moron. It’s folks like you who have all but destroyed the country with the ideology that everyone is OWED something. In this case, you have people who had an investment property (vacant land) and the investment went bad. They defaulted not because they are broke or cannot afford their homestead; they defaulted because they chose to. The bank holds the Note, and has the right to foreclose. Now what is your issue exactly? This is a public forum, right?

      • Fury says:

        on the contrary, people like michael redman are saving the country.

        yeah, people are OWED. they are OWED justice.
        it’s not happening anymore in america
        due to the corruption that is running rampant.

        do you get paid by the word when you post comments on anti-fraudclosure sites from work?

      • lvent says:

        Dave, Noone chose to default on anything……The New World Order forced us to…..You aren’t safe either…..BTW, THE BANKS NOT ONLY _DO NOT_ HAVE THE _ORIGINAL_NOTES, BUT THEY _DO NOT_ HAVE THE _ORIGINAL_MORTGAGE EITHER,,,,,,COPIES PROVE NOTHING………..THEY DESTROYED ALL OF THE ORIGINALS TO COVER UP FOR ALL OF THEIR FRAUD………….

      • lvent says:

        BTW DAVE, SEE THE YOU TUBE VIDEO ENTITLED: CNBC ILLUMINATI CRASHES STOCK MARKET…………..

      • Dave8040 says:

        The posts here, as well as the topics and recommendations made on this site as a whole, only serve to exemplify how naive, child-like and selfish its owners and supporters really are. While the site claims to be anti-fraud, the obvious truth is that the site’s publishers are the true fraudsters, along with those who follow its ideas. The site promotes ways to steal from lending institutions (i.e. defraud them).

        I would go on to outline why the ideas posted here are faulty and childish, but it is hard to win an argument when trying to rationalize with children. In fact, my two-year-old, who has logged many hours of Baby Einstein and Sesame Street viewing, likely has a better understanding of economic fundamentals than the majority of bloggers here.

        You cannot be given the privilege of borrowing money, a lot of money, and expect that you do not have to pay it back. If that were the case, no one, save the extremely wealthy, would be able to purchase homes or cars, while the majority would have to rent and never have the ability to own. With freedom comes responsibility, yet no one here seems to want that. Like children, many subscribe to the greedy, fraudulent and self-serving idea that they are entitled to everything, and owe nothing. Frankly, you should be ashamed.

        I also find it interesting that the site’s administrator went to the trouble to publish what should be my confidential server address; however, he lazily fails to research or understand the cases he cavalierly posts, and points to as bank fraud.

        The good news here is that this case (Mazine) has a happy ending that is still being written. While Mazine and Bouskila (the two debtors who walked away from a large loan secured by 40 acres of vacant horse land in central Florida), have fought the foreclosure every step of the way, anticipating a deficiency claim post sale, and while they have on numerous occasions through their counsel offered up a deed in lieu of foreclosure for waiver of deficiency, they were granted their wish: the bank will be forced to re-file its foreclosure under the full legal bank name. What they are missing is that the market continues to devalue, meaning that their fun little investment property continues to lose its worth. So, the bid that was entered and which has now been vacated will likely be much higher than the bid that will be entered when the bank is forced to go back to sale a year from now, meaning… more deficiency owed. Good work, defendants and defendant’s counsel. Better, the debtors are wealthy businessmen who own and operate several real estate businesses in Miami, so there is no doubt that they will eventually be able to pay this debt, even if it takes a judicial deficiency claim post sale to do so.

        I love happy endings.

      • So, Mr Bankster shill, you want to pick a fight?

        You got one.

        I hereby challenge you to a radio duel on your opinion vs mine.

        You claim the borrowers are defrauding the lenders and I say the opposite. Instead of writing your childish rants on this site, join me for a debate on our radio show, Citizen Warriors WDJA 1420, live to discuss the topic.

        I will have a panel of three and you may have the same. In order to proceed with the debate, you must disclose your names and titles at M&I Bank.

        Are you up for it, Mr Bankster?

        Or are you scared?

        I look forward to your response…

        I love happy endings too…

      • housemanrob says:

        And Dave, One more thing……………FUCK YOU!!

      • Michael Olenick says:

        $20 trillion in bailout money. $20,000,000,000,000 dollars, and you have the GALL to argue that debtors think THEY’RE owed something.

        Let’s repeat that number: $20,000,000,000,000 in bank subsidies.

        $20,000,000,000,000 for BANKS. $20,000,000,000,000 for YOU.

        For debtors .. $0. Nothing. Don’t give me crap about HAMP, the program that paid servicers to “consider” a modification. HAMP was a servicer giveaway. $20,000,000,000,000 for banks. ZERO for borrowers.

        $20,000,000,000,000 for worthless, incompetent, irresponsible, dishonest bankers.

        Here’s what SHOULD have happened, and still might. YOU and your employer should have been forced into liquidation in 2008. Those notes should have been sold at auction for a few cents on the dollars. The note buyers could and would have renegotiated to FMV, because they’d receive less in foreclosure. THAT’S the free market.

        What YOU and your buddies have done is pervert the US economic system into some unrecognizable MESS that me, my children, the children they’ll someday hopefully have — that all American children for a very long time — will be paying back. All that’s ignoring the fraud-fest you unleashed to perfect your scam.

        So shut up self-righteous PR flack. You and the crooks you work for have DESTROYED THE COUNTRY. Not us .. Y*O*U. Feel happy you got your mega-bailout, and you’re still getting them ($5.1 BILLION more for “private companies” Fannie and Freddie LAST MONTH ALONE). BOA just got a sweetheart deal but it doesn’t matter; they’re so poorly managed they’re begging Arab oil barons for a $15 billion recapitalization; hopefully they’ll get it, because the sheiks are likely to lose their shirts.

        Want to see hard stats from big record sets? Ask me. Want to see a timeline? Ask Michael. Want to see the people you’ve run over? Ask Lisa. Want to see irrefutable proof on the property and court records? Ask Lynn. Want to talk about the violence you’ve done to the legal system. Ask Matt. But don’t DARE to show up here and disparage the tiny number of people that are trying to restore the free market, to save the US legal system, and to build even the tiniest resemblance of balance about how justice and markets work — especially while collecting a fat corporate welfare funded paycheck.

        [Michael R .. feel free to re-post this rant as an entire post, adding to it if you feel like.]

      • housemanrob says:

        What note are you talking about……………THEY ABSOLUTELY DO NOT EXIST………….just computer generations!

      • chunga says:

        Take the challenge Mr. Pinstripe. Do it.

        We’re reaching financial Omega. You are running out of time.

      • marilyn lane says:

        To Mr Bankster’

        We know how you run your business. You can’t fool us any longer

        The abominable banking system that is in place today, gives a bank great incentive to foreclose on an Ultra Vires contract, as the bank demands lawful money returned for the unlawful money lent.

        By what Authority are the Banks doing this? There is no authority for doing this. This is in complete prohibition to Art 1 Para 10 Cl1 of our US Constitution.

        All of our cases with slightly different facts all stem from the same Fraud.
        The Bank did not lend you ‘LAWFUL MONEY” but the Bank intentionally wrote
        a “bad check” and gave it to you –to circulate as “money”

        I certainly did not know this kind of fraud wass going on when I signed my mortgage and note. Did you?

        The Mortgagor puts up a down payment, the Mortgagor pays a lot of fees and probably paid an attorney to represent them, all in order to get this “bad check”

        Would a Mortgagor have put in all that money, if one knew the truth of how the Banks ran their illegal business. I bet not.

        Did anyone notify you after that big day – the Bank’s check bounced – of course not. When the check that the Bank wrote came back to the Bank that wrote it, the bank didn’t say “we only have 5% , if that much and it was not stamped “insufficient funds” the bank stamped it “paid”

        So since the Bank did not have the money sitting in the bank’s account when they wrote the check, what the bank gave you is their credit.

        That is exactly what is prohibited by Art. 1 Para 10 Cl 1 of the US Constitution.

        What authority gives the Bank the right to make contracts with “bad checks”

        Nothing- Nada.

        “Lawful money” is needed to make a contract valid.

        Over and Over Mortgagors gave a Bank a mortgage on their castle , in return for a Bank giving you a credit entry on their books and charging you Interest on this credit. Also illegal.

        Did the Bank give you lawful money or is that what you got, credit?

        Banks are not allowed to lend their credit- Banks are in the business to lend
        “lawful money” There is not a Bank charter that allows a Bank to lend their credit.

        And as we continued to make monthly payments the Bank collected more money on their fraud.

        You try writing a check when you don’t have funds sitting in your account to cover it.
        You can be sure that check is coming back marked”insufficient funds” You are not allowed to do it and either is a Bank.

        This scam of Ultra Vire contracts caused injury to us, the true homeowners.

        In addition the banks are laundering “bad checks”.

        The Banks violate Truth in Lending Laws.

        The Banks are collecting Interest on money that doesn’t exist. (Lending you 5% and collecting Interest on 95% of thin air)

        And once the Bank gets their Ultra Vire contract going, they start flipping them to MERS, Securitizations , Wall Street, Title Companies etc. there is no shortage of people all wanting to get their piece of the illegal profits.
        .

    • housemanrob says:

      Banks don’t fund loans stupid Dave………homeowners do! Do you know anything?

      • lvent says:

        Exactly Rob, The pretender lenders gained our trust and used a wide variety of deceptive practices and unfair dealing to hide from us the fact we were lending them our signatures to allow WALL STREET to create hundreds of trillions in wealth for themselves and the top 2%. Then after that swindle and the intentional stock market collapse where they stole all of our wealth out of the markets and hid it in overseas bank accounts they got Hank Paulson and Congress to swindle all of us, THE ONLY VICTIMS OF THEIR PONZI SCHEME, into bailing them out using terrorist threats, like the whole world was going to end, and so they and their foreign investor minions and cohorts all got paid very well again for our swindle and robbery. And they called all of us the deadbeats and the dirty bastards still are.. It was a Nazi plan and blame the victim is a Nazi tactic…Now they still want to steal homes they don’t own and never did??? Not only are they all greedy pigs but they are all very ungrateful too….!!!!!!

  2. Stupendous Man - Defender of Liberty, Foe of Tyranny says:

    Nothing fancy or exotic here. Defendant’s counsel objected timely and properly, thus preserving the error. Then he/she prepared a brief based on this objection IN ACCORDANCE WITH THE RULES OF EVIDENCE.

    Read the rules folks. It is the surest way to keep the other side from getting away with grabasstic shenanigans.

  3. BB says:

    At least the appeals court seem to be legit. Are the circuit courts corrupt, inept, or just don’t care? Any opinions out there??

  4. Litgant says:

    Wow, just as I have said all along. The lower court judges in Florida are shysters who could care less about the rule of law and evidence. That Levy County judge should collect his trash out of his desk and resign. He is the kind of shyster judges we have had in these rocket dockets. They are immune and use this special protection to defraud citizens of their constitutional rights. The Florida Bar knows this is what he did and has done in many other hundreds of cases. Do they care one wit that judges in the Florida Circuits are denying due process? NO! If they did how come no hearings? How come no published articles in the Journal about this practice? How come no judge yet called before a committee on judicial ethics? As I have said all along also, securing a person’s constitutional rights has been shifted to the Appeals Courts. And here, there are men and women who have their heads out of the laps of the big banks. This reversal shows me there is recognition of Judiciary fraud on the Circuit level. How can we clean out these unrepentant, unremorseful, judges who have no guilt complex for the crimes they are doing while wearing their black robes? Someone needs to give those judges a patch to wear over their hearts, and on it an emblem of a donkey with a big open mouth and a wad of money shoved in it. If not this, then a nice certificate of the same image giving the judge recognition as the jackass of the circuit for the week of _________.

    • lvent says:

      Those Judges should be locked up then..Aiding and abetting a crime by the use of deceptive practices and unfair dealing by a Judge? That is not a democracy.Those are Nazi tactics… Laws apply to everyone espescially in a court of law.. Regardless if it is an attempt to collect a debt or not… For someone to just file a motion and state you owe them money is not enough……These are the property rights of the people and no one is trying to protect those rights. Not the attorneys, not the Judges, not the U.S. Government. This is Illegal and Unconstitutional..

Leave a Reply

Your email address will not be published. Required fields are marked *