Florida, once hit with the worst of the foreclosure crises, has also gained notoriety for judges who look the other way when it comes to robo-witnesses. Since the dawn of the foreclosure frenzy, bank attorneys will often come to trial with a single witness who lacks the first-hand knowledge of the mortgage records described.
Robo-witnesses resulted from the 2010 decision that forced lenders to stop filing new foreclosure cases because the evidence they had was often forged. Banks went from robo-signing to robo-witnesses to help them achieve positive verdicts.
As foreclosure defense attorneys, we are often astonished with judges’ refusal to toss out the obviously flawed testimony presented by an unknowledgeable witness on the bank’s behalf. Plaintiff witnesses in all cases must meet a minimum criteria, but the witnesses testifying in many of these foreclosure cases are unqualified and usually do not meet the criteria. Despite witnesses’ lack of understanding of the bank’s practice, or the case at hand, judges were awarding verdicts in the bank’s favor. The fact the system was flooded with foreclosures is not a valid excuse for disregarding the rights of so many citizens and homeowners.
There is good news however, the days of robo-witnesses could finally be over. In mid-October, three cases in the First District Court of Appeals threw out evidence submitted in foreclosure actions. It was ruled that the lender’s witnesses were not qualified and they failed to meet the criteria necessary to testify. The court decided that the trial courts in two of the three cases should dismiss the lawsuits in favor of the homeowner.
The Oct. 13 and Oct. 14 decisions are believed to be the first to strike down robo-witnesses in a homeowner’s case with a lender as the plaintiff. Prior to this, it is believed that robo-witnesses were only found inadmissible in a foreclosure case against an HOA foreclosure. This decision has the potential to become effective statewide if the 30-day deadline for filing a motion for a rehearing expires without further action from the lender.
For a long while, we have been waiting for there to be a bank case that flat out prevents lenders from using these robo-witnesses. Foreclosures should not follow rules different from other cases thus; foreclosure courts should treat evidence just as all other courts do. There should not be a double standard. In other areas of the law, witness coaching would never be tolerated, and is considered hearsay.
As foreclosure defense attorneys, we are constantly looking out for the rights of homeowners, and feel that the courts should as well. We are hopeful that this decision will be in effect statewide, and that robo-witnesses become just another failed practice of the mortgage lenders.