Judge Has Enough, Tells Bank Lawyer She is Referring Him to The Bar in Our Latest Trial Win!
Cross-posted from The Law Offices of Evan M. Rosen
Plaintiff starts off wanting leave to amend to add a lost note count at the beginning of trial. Despite pleading that the Plaintiff is the owner and holder of the note in a “verified” complaint, they now know the note was lost all along. First, opposing counsel attempts to place blame on the clerk of court but the clerk whom he calls to testify, proffers during their motion that the original was never filed. What they show was that a Notice of Filing of original note was filed in a prior 2009 case but when the bank was ordered to transfer the original note via an order from the Judge in the current 2013 case, they found that only a copy of the note was attached to Plaintiff’s notice of filing the “original note.” This is not the first time we’ve seen or heard this…
Without me saying a word, the Judge denies their motion. We wait around to be called up for trial. During which time, I watch the Judge, with a little unsolicited input from the “peanut gallery” (me), refuse to apply a recent Calloway case – a case which turns the evidence code on its ear. I informed the Defendant’s counsel during his argument that motions for rehearing and for certification were filed, therefore, the Calloway case is not final law. I hated to do it but the Judge was very seriously considering Calloway and I wanted to do all I could to prevent the well from being tainted! So, I was talking out loud a few times but ultimately whispered to Defendant’s counsel a few times and passed him some notes. The Judge asked Defendant’s counsel how he knew and he said a “little birdie told me.” The Judge looked right at me so I offered to show her the motions on my ipad but she said it’s was okay. Then she said, even if it the law was final, “the 4th is now legislating from the bench” and are trying to change the evidence code! Calloway conflicts with the 3rd. She asks what the case from the 3rd on this. I yell out Holt v Grimes. She says, right. So, there is a conflict with the 3rd and I’m bound to follow the 3rd. She excludes the payment history. Plaintiff’s lawyer asks for continuance. Judge denies and then the bank takes a voluntary dismissal. Beautiful.
We go to lunch…
After lunch, opposing counsel shows me his exhibits. We get called up. Despite being shot down the first time around, opposing counsel renews his motion for continuance. It’s now later in the day and the Judge sees a way out, to go home. She asks me to state my position. I go through the six times the Plaintiff could and should have known this the lost note was a problem and could and should have addressed it sooner. Starting with their “verified” complaint which alleges they own and hold yet they attach a copy of a note made payable to someone other than the Plaintiff… Let us not forget that verification is a special act required by the Supreme Court of Florida, only for plaintiff’s in residential foreclosure cases because of so many issues (the Judge is nodding her head up and down in agreement). Times five and six that the Plaintiff should have known of their lost note issues were when the last two trial orders got entered which specifically say basically, go get your note or else… and no motions for continuance will be granted.
Opposing counsel still argues clerk lost the note. Then, when the Judge gets defensive, standing up for the clerk, opposing counsel switches gears and says his law firm lost the note and an associate is there to testify! The Judge says, this only proves you were wrong all this time. She asks the associate to come up who proffers he has records to show they had the note prior to filing. However, the associate admits he doesn’t know if it was lost before suit was filed or not. The Judge says sternly, “this only shows you don’t know if you had the note in your hands at the time suit was filed and you pled you did! Motion for Continuance denied. Start your case!”
Opposing counsel calls his young associate who started with firm in the past year. He was not there when this suit was filed. He begins to walk the witness through the business record prongs to admit a 47 page printout from their law firm. I object. This 47 page printout was not on any of the three Witness and Exhibits lists, not provided as part of my exhibit request, which they gave me just days before and this was not shown to me just an hour ago when I asked to review all their exhibits after lunch. Opposing counsel says, I just saw this today for the first time myself. Exhibits excluded by the Judge!
Then, opposing counsel proceeds to ask his associate about the contents of the records, which are now excluded. I object, hearsay – Sustained.
After that, opposing counsel starts to ask about conversation with the supervisor at their law firm about location of note. Objection, hearsay – Sustained! This is where the Judge had enough and goes off! She says to opposing counsel, “I’m going to print this transcript and refer it to the bar. What you are doing is insulting to me and to your opposing counsel. I am a trial Judge. You think I don’t know the rules of evidence?!?! You think I don’t know basic hearsay. You think it’s okay to try to testify about the contents of documents which are not in evidence and which have been specifically excluded. You think your witness can testify about what someone told him and that, that is not hearsay!?!? I’m taking a recess. I’ve had it.”
Recess ensues. Then, opposing counsel tells me they are taking a voluntary dismissal. While another trial is pressing on, as the Judge signs the order dismissing the case, she looks over at me shaking her head in disbelief.
By the way in this case, we had certified copies of a prior complaint with no note attached, a certified copy of a notice of filing the “original note,” also with no note attached, a certified copy of new complaint with unindorsed note made payable to someone other than Plaintiff, and lastly, a certified copy of the order transferring note in which there was a note from the clerk which states “only copies found.” I was only able to use the copy of the order with the note from clerk during my argument against P’s Motion for Continuance.
Another case dismissed! I’m so grateful when judges just follow the rule of law and evidence.
That’s all we ask.
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