STATEMENT OF THE CASE AND THE FACTS

Appellants, Michael Trotter and Tracy Trotter, appeal a "Final Judgment of Mortgage
Foreclosure" entered on March 22, 2016 by the Twentieth Judicial Circuit Court in and for
Charlotte County, Florida against them and in favor of the Appellee, Green Tree Servicing, LLC
(Green Tree), the foreclosing Plaintiff in the Trial Court. (R 864-868, 884-891) Appellants
timely filed a notice of appeal on April 22, 2016 that also appeals the June 19, 2015 Order
Denying Appellants Motion for Reconsideration of an order denying Appellants motion to
dismiss Green Trees foreclosure complaint for not being verified as required by law. (R 230)
Green Tree filed a residential foreclosure complaint against the Appellants, Michael
Trotter and Tracy Trotter, on January 4, 2013 and then on February 8, 2013, Appellants filed their
pro se motion to dismiss that complaint because the complaint was verified by anm
indecipherable foreclosure clerk and not in compliance with Rule 1.110(b) of the Florida Rules
of Appellate Procedure that requires verification of all residential foreclosure complaints filed in
the state.

(R 41-48)

Green Tree attached to its complaint a copy of the Appellants 2004 promissory note with
chronologically impossible endorsements, a copy of the Appellants mortgage, and a copy of
what is purported to be a 2012 assignment of Appellants mortgage. (R 1-29) In Appellants pro
se motion to dismiss, they ask the court to dismiss Green Trees complaint for the failure to state
a cause of action for noncompliance with Rule 1.210(a) of the Florida Rules of Civil Procedure
because Green Tree failed to attach to its complaint any document to support its claim that the
Federal National Mortgage Association (Fannie Mae) was the owner of the Appellants note
and that Fannie Mae had authorized Green Tree to file the foreclosure action. (R 41-48)
Appellants also asked the court to dismiss Green Trees complaint because the purported
1

endorsements on the copy of the note were chronologically impossible and this that eliminated
the existence of a valid endorsement that could transfer the Appellants note from First Magnus
Financial Corporation (First Magnus), a company that went out of business and bankrupt in
2007, to Countrywide Bank NA, a company that did not exist until 2009. Appellants also asked
for dismissal of Green Trees foreclosure complaint because the purported August 29, 2012
assignment of mortgage was also a chronological impossibility given that First Magnus had
dissolved and filed bankruptcy in Arizona in 2007 and had no lawful existence or authority to
execute an assignment in 2012. (R 41-48)
Appellants attached to their pro se motion to dismiss a copy of the records maintained by
the State of Arizona Corporation Commission that provided official notice that First Magnus had
not transacted business since 2008 and that First Magnus has been administratively dissolved. (R
41-48)
On August 8, 2013, Green Tree filed the original of the Appellants promissory note with the
court that had what appears to be three stamped endorsements on it. (R 66-68)
On October 16, 2013,, Appellants, through counsel, filed an amended motion to dismiss
Green Trees complaint for failure to state a claim or, alternatively, to abate the action on account
of the void verification. (R 69-80) Appellants requested dismissal because Green Tree was not a
proper or authorized party to bring the foreclosure action under Rule 1.130(a) of the Florida
Rules of Civil Procedure and had failed to invoke the court's subject matter jurisdiction as a
result. Appellants pointed out that the exhibits attached to Green Trees complaint were, on their
face, inconsistent with Green Ttrees claim that it was the real party in interest. The court denied
the Appellants motions to dismiss by order approving the foreclosure magistrates report and
recommendations on February 6, 2014. (R 92-95)
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Appellants filed their Answer, Affirmative Defenses, Counterclaims and Demand for Jury
Trial on February 28, 2014. Appellants denied that Green Tree was the real party in interest or
that Green Tree was authorized by the holder of their note to bring this foreclosure action.
Appellants denied that there was a lawful acceleration or that the condition precedent notice
required by their mortgage were complied with pre-foreclosure. Appellants also denied that their
note had been lawfully accelerated. (R 96-107)
Appellants have owned the residence that is the subject of the foreclosure action since
2006 and, in their answer, Appellants repeat their claim that Green Tree had no right to
foreclosure and denied that Green Tree had sent them a contractual notice of default and intent to
accelerate the debt before filing the foreclosure. Appellants asserted that on their its face, the
notice of default and intent to accelerate sent by Green Tree pre-foreclosure did not conform to
the mortgage. Appellants denied alleged that Green Tree lacked standing and was not the real
party in interest entitled to enforce the debt or foreclose their mortgage. (R 11) Appellants
withdrew their counterclaims at trial. (R 8)
On March 8, 2016, the day of trial, Appellants filed a formal request for the court to take
judicial notice of the online public bankruptcy court records maintained about the First Magnus
bankruptcy filed in the United States Bankruptcy Court in Arizona under case number 4:07 bk-01
578-JMM and also asked the court to take judicial notice of State of Arizona Corporation
Commission records confirming that First Magnus had not transacted business and was had been
administratively dissolved since 2008. (R 860-863) Appellants attached and incorporated
complete copies of these public records into their formal request for judicial notice which
documents had previously been filed with the court attached to the Appellants answer. (R 694,
695-696, 697-859) Appellants request for judicial notice of these public and judicial records
3

was first made in their motion to dismiss Green Trees complaint and they repeated their request
in their answer and affirmative defenses and in their motion for summary judgment. (R 10, 11)
During the trial, the court granted Appellants request to take judicial notice of First
Magnuss Arizona bankruptcy court records from the United States Bankruptcy Court in Arizona
that establish that First Magnus filed for bankruptcy and that all of the assets of First Magnus
were transferred to the bankruptcy trustee by the Bankruptcy Court in 2007. These bankruptcy
records which established that the endorsements on the note were chronilogically impossible
because the entity to whom the note was purportedly endorsed, Countrywide Bank, N.A., did not
exist until 2009, which was two years after all of First Magnuss assets were transferred to the
trustee in the Arizona bankruptcy. pursuant to the bankruptcy court records. (R 123, 125)
The trial court denied the Appellants request to take judicial notice of the state of
Arizona Corporate Commission records that stated that First Magnus went out of business in
2008 on the basis that the State of Arizona record was not a recordknown within the
territorial jurisdiction of this court because it is from Arizona. (R 120, 121, 123-125)
Green Trees witness at trial was Charles Kevorkian, an employee of DiTech Financial
(DiTech). (R 19) Mr. Kevorkian testified that DiTech and Green Tree merged in August, 2015
and that he knows that these companies merged because he was employed by Green Tree at the
time of the merger and that after the merger his paychecks no longer came from Green Tree, but
came from DiTech. Mr. Kevorkian did not testify that he had any personal knowledge of the
facts of the relationship between Green Tree and DiTech, only that he was employed by Green
Tree and then by Ditech.
Mr. Kevorkian testified that his job title as an employee of DiTech is the same that it was
4

when he was employed by Green Tree - foreclosure mediation specialist. (R 19) Mr. Kevorkian
tesified that he started working for Green Tree in April, 2014 and that he had been a foreclosure
mediation specialist, first at Green Tree and then at DiTech for a combined total of 14 months,
since January 2015. (R 20) Mr. Kevorkian testified that his job duties involved the review of
documents and business records to prepareing DiTech for foreclosure proceedings and that he
had the same job duties when he was employed by Green Tree. (R 20)
Mr. Kervorkian testified that he had no personal knowledge of any events that occurred at
Green Tree in 2011, 2012 or in 2013 because he didnt work with the company then. (R 20)
He also tesitfied that he did not know that First Magnus had gone out of business or had filed
bankruptcy. (R 20) He testified that he had no knowledge about whether First Magnus was in or
out of business and that he did not recall when Bank of America took over Countrywide Bank,
N.A. or when Countrywide Bank, N.A. ceased to exist. (R 73, 76)
Mr. Kevorkian testified that before April, 2014, his only other mortgage related
employment was with Citigroup where he was a regional vice president for six to seven years
engaged in marketing and selling mortgages, investments and insurance. (R 21) Mr. Kevorkian
testified that he received training from Green Tree in various departments including the
cashiering department and that he continues to receive training and education at DiTech. (R 21,
22) Mr. Kevorkian testified that he worked one on one with an agent in the office at DiTech
observing what they did day to day and that he primarily worked within one department and that
he received training while at Green Tree on how default letters were sent and on Green Trees
policies and procedures. (R 22, 23) Mr. Kervorkian testified that he is aware that documents
received by Green Tree were imaged into the Green Trees system of business records on a loan
servicing platform and he testified that he had reviewed the documents relating to the Trotter
5

case on that loan servicing platform in preparation for his testimony at trial. (R 26)
Through Mr. Kevorkian, the Ccourt admitted into evidence the Appellants original note
as unmarked Exhibit 2. The original note that was admitted into evidence was the same as the
copy that was attached to Green Trees complaint with the disputed endorsements. In admitting
the original note into evidence, the trial court thereby effectively overruleding the Appellants
objection to the admission of the endorsements that appeared stamped on the original note. (R
152, 153). Appellants objected on the basis that the endorsements were in dispute, constituted
hearsay evidence and were not entitled to any presumption of authenticity. (R 35, 36) The
court found the evidence was not sufficient to overcome the presumption that (the
endorsements) are correct. (R 152, 153) Maybe the overruling part goes here?
Mr. Kervorkian testified that the first endorsement on the original note is from First
Magnus to Countrywide Bank, NA, the second endorsement is from Countrywide, NA to
Countrywide Home Loans and that the third and final endorsement stamped on the original note
is from Countrywide Home Loans to blank. (R 37) Mr. Kervorkian testified that Green Tree
obtained the Appellants original note from the prior servicer, Bank of America, in 2011. (R 37)
Over Appellants relevence objection, Mr. Kervorkian was allowed to testifiy that Bank
of America acquired the loan from First Magnus and that he knew that Bank of America acquired
the Appellants loan from First Magnus based on his review of the chain of endorsements on
the note. Mr. Kevorkian testified that he did not recall seeing any records showing that the note
was transferred or physically delivered from First Magnus to Bank of America. (R 72) He
testified that the records from Bank of Americas servicing file, including the payment history
and copies of letters were boarded through a secured data connection from Bank of America
and verified and audited by Green Tree and imaged into a new system maintained by Green Tree.
6

(R 48, 49. 50, 51, 71)

Over objection, Green Tree introduced a copy of the Appellants recorded mortgage, a
copy of a bailee letter that Green Tree sent to its attorney on July 16, 2012 and notes from
Green Trees records confirming the sending of the bailee letter together with the Appellants
original note to the attorney. (R 41, 44, 45) Also over objection, the Green Tree introduced a
limited power of attorney dated July 18, 2011, purporting to be from Fannie Mae and granting
Green Tree basic servicing rights that included the maintenance and acceptance of payments,
the right to send a breach letter to the Appellants upon default on the note and to file a
foreclosure action upon breach of the mortgage contract on behalf of Fannie Mae. (R 42, 43, 44)
Although Mr. Kevorkian did not work for Fannie Mae, he testified that the power of attorney was
made at or near the time it was documented by Green Tree and that it was in Green Trees
records kept in the ordinary course. (R 42, 43, 44)
Appellants objected to the admission into evidence of the purported Fannie Mae power of
attorney because the document was hearsay not within any exception and that there was no
evidence to authenticate the document or to show how it pertained to the Appellants loan. (R
42.43.44) Mr. Kervorkian did not testify about Fannie Maes business practices, or his
familiarity with those practices, but upon inquiry from the court as to whether Mr. Kervorkian
knows the regular business practice of Fannie Mae, counsel for Green Tree did inform the
court that (he) knows the regular business practice at which point the court stated that it had
received those documents into evidence before. Ill receive this one in evidence. (R 48, 49. 50,
51, 71) Mr. Kervorkian testified that there should exist a servicing agreement pursuant to which
Green Tree is authorized to service the Appellants loan, that he has seen other servicing
agreements, but that he has never seen a servicing agreement that pertains to the servicing of the
7

Appellants loan. (R 88, 90)

Green Tree introduced into evidence two January 3, 2012 Notices of Default and Intent to
Accelerate that Green Tree sent to the Appellants notifying them that Green Tree was the
creditor of their mortgage loan. (R 55, 95) The January 3, 2012 Nnotice of Ddefault and intent
to accelerate states that the Appellants have the right to reinstate after acceleration and the right
to bring a court action to assert the existance of a default of any other defense of borrower to
acceleration and sale, but the mortgage contract requires the notice of default and intent to
acclerate that is sent upon a default by Appellants must give them notice of the right to reinstate
after acceleration and the right to assert in the foreclosure proceeding the nonexistance of a
default. (R 88, 90)
Appellants did not appear or attend the trial and, at the start of the trial, their attorney
advised the court that Appellants had, in good faith, determined not to appear for trial; that
Appellants had not been served with a subpoena requiring their appearance and that the subpeona
issued by Green Tree was not effective to compel their attendance due to failure of Green Tree to
tender the fee required by the applicable statute. (R 4,5) At the end of the trial, after the
conclusion of the evidence, the court advised the parties that it was applying the rule of law set
out in Developers Surety and Indemnity Company versus Vitech Construction (at) 979 Fed
Supplement 22nd (sic) 1307 against the Appellants for their nonappearance at the trial because
its the common proposition of law that is mentioned in there(that) says (w)henever a party
fails to call a witness, that may permissively support an inference of the witnesss testimony
would have been adverse. Thats particularly true when its one of the parties, so the court is
committed to draw adverse inferences from the failure of the borrowers to testify. The trial
court went on to declare that the Court is committed to draw adverse inferences from the failure
8

of the borrowers to testify. (R 152)

Thereafter, the court granted judgment in Green Trees favor and set the date for a public
foreclosure sale of the Appellants home.
Green Tree announced in open court that Green Tree was not seeking attorneys fees in
this case. (R 93) Appellants emergency motion for stay of the foreclosure sale pending this
appeal was granted on May 19, 2016. (R 892-894, 898-899)
SUMMARY OF ARGUMENT
The trial court misapplied the law and committed reversible legal error by granting
judgment of foreclosure in favor of Green Tree because Green Tree failed to present admissible
evidence at trial to establish any interest in the Appellants note sufficient to entitle Green Tree to
foreclose the Appellants mortgage.
The trial court also misapplied the law and should have dismissed Green Trees
complaint because it was not verified in accordance with the 2010 amendment to Rule 1.110 of
the Florida Rules of Civil Procedure.
Green Trees January 3, 2012 pre-foreclosure notices of default and intent to accelerate,
sent to each Appellant, failed to conform to and did not constitute the contractual condition
precedent notice that it was required to send to Appellants before there could be a valid
acceleration of the Appellants residential mortgage debt which is an essential element of the
right to foreclose their mortgage that did not exist in this case.
The trial court did not follow the rules of evidence and relied exclusively on inadmissible
hearsay to grant the judgment of foreclosure to Green Tree. Florida does not allow discretion on
the part of the trial courts to ignore the Rules of Evidence or the Rules of Civil Procedure.
Failure to follow the Rules constitutes an error of law. Castaneda v. Redlands Christian
9

Migrant Ass'n Inc., 884 So.2d 1087, 1093 (Fla. App., 2004) The trial courts abuse of discretion
and incorrect application of law to the facts in this case caused harmful error to result to the
Appellants as they are being subjected to an illegal foreclosure judgment which orders the sale of
their home.
The court also abused its discretion and caused harmful error to result to Appellants by
making and acting upon erroneous, negative and prejudicial judicial inferences against the
Appellants on the record at the trial of this action based on the Appellants lawful nonappearance
at trial. This egregious abuse of the courts discretion constitutes a harmful error alone and
entitles the Appellants to a reversal of the foreclosure judgment entered against them.

STANDARD OF REVIEW
All of the orders entered by the trial court being challenged in this appeal are contrary to
law. The standard of review is therefore de novo. DAngelo v. Fitzmaurice, 863 So. 2d 311, 314
(Fla. 2003), Armstrong v. Harris, 773 So.2d 7 (Fla. 2000), Calderon v. J.B. Nurseries, Inc., 933
So. 2d 553 (Fla. 1st D.C.A. 2006), Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc,
743 So.2d 627 (Fla. 1st D.C.A. 1999), Jacobsen v. Ross Stores, 882 So.2d 431 (Fla. 1st D.C.A.
2004), Klonis v. Dep't of Revenue, 766 So.2d 1186 (Fla. 1st D.C.A. 2000) (Review of this pure
question of law is de novo.) Questions of law are subject to a de novo standard of appellate
review. Reinish v. Clark, 765 So.2d 197 (Fla. 1st DCA 2000). The standard of review of the
application of a rule of law is de novo review. See Castaneda v. Redlands Christian Migrant
Ass'n Inc., 884 So.2d 1087, 1093 (Fla. App., 2004), Canakaris v. Canakaris, 382 So.2d 1197
(Fla., 1980), and Carpenter v. State, 785 So.2d 1182, 1201 (Fla., 2001)

10

ARGUMENT
GREEN TREE FAILED TO PRESENT ADMISSIBLE EVIDENCE AT TRIAL TO
ESTABLISH ANY INTEREST IN APPELLANTS NOTE OR ANY LEGAL RIGHT TO
FORECLOSE THE APPELLANTS HOME MORTGAGE
F.S. 673.3011 (2010) provides that a person is entitled to enforce an instrument if the
person is the holder of the instrument, a nonholder in possession having the rights of a holder or
a person not in possession entitled to enforce the instrument pursuant to F.S. 673.3091 (lost,
destroyed or stolen instruments) or F.S. 673.4181(4) (payment or acceptance by mistake). Under
the statue, aA person is entitled to enforce the instrument even though the person is not the
owner of the instrument or is in wrongful possession of the instrument.
Holder is the person in possession of a negotiable instrument that is payable either to
bearer or to an identified person that is the person in possession. A person who is a successor to
the holder or otherwise acquires the holders rights can enforce the instrument even though not a
holder. An assignee of the holder who did not receive a proper indorsement can be a holder and
have standing to maintain a foreclosure action as can an agent for the holder. Mortgage
Electronic Registration Systems v. Azize, 965 So. 2d 151 (Fla 2d DCA 2007); Mortgage
Electronic Registration Systems v. Revoredo, 955 So. 2d 33 (Fla. 3d DCA 2007), Ederer v.
Fisher, 183 So. 2d 39, 42 (Fla. 2d D.C.A. 1965) (where the authenticity of the endorsements are
disputed, the burden is on the person claiming to be the holder of the note to present admissible
evidence of the authenticity of the endorsements).
The trial court in this case failed to follow the law in ruling that Green Tree established the
11

existence of the chain of title to the note that is required to entitle Green Tree to foreclose the
Appellants mortgage. Green Tree did not introduce any admissible non-hearsay evidence that it
received the Appellants note through possession and delivery from a person with the rights of a
holder or from a person in possession of the note. Green Tree failed to present admissible
evidence that it was a successor to the holder of the Appellants note, or that it acquired the
rights of a holder or the right to enforce the Appellants note as an assignee or agent of the
holder.
Green Tree failed to properly invoke the subject matter jurisdiction of the court and this
action should be dismissed based on Green Trees lack of standing at the commencement of the
action. Standing is the legal right to set judicial machinery in motion. One cannot rightfully
invoke the jurisdiction of the court unless some real interest in the cause of action, or a legal or
equitable right, title or interest in the subject matter of the controversy exists. Green Tree failed
to prove its standing and the court Court was without subject matter jurisdiction to determine the
cause.
Green Tree failed to present evidence at trial to establish that Green Tree was in possession
of the Appellants note endorsed in blank at the time this action was filed. The only witness at
trial, Mr. Kevorkian, was not able to testify as to when Green Tree came into possession of the
note. Green Tree claimed in its complaint that it was the holder of the Appellants note
authorized to foreclose their mortgage by the Federal National Mortgage Association (Fannie
Mae) who Green Tree described as being the owner of Appellants note, but Green Tree failed to
introduce any admissible evidence to support this claim. Appellants repeatedly and consistently
disputed the validity of the endorsements that appear stamped on the original note that Green
Tree introduced into evidence. Appellants disputed the validity of the endorsements in their
12

answer and at trial. Appellants contest as to the validity of the endorsements required that no
presumption of validity be applied and that Green Tree had the burden of proving that the
disputed endorsements were valid. F.S. 673.2031 and see, Ederer, Id.
Green Tree did not present admissible evidence to show that the Appellants note was ever
delivered to Green Tree by any person with the purpose of giving Green Tree the right to enforce
the Appellants note. On the other hand, the Ccourt took judicial notice of First Magnus
bankruptcy that established the existence of a chronological gap in the chain of title to the
Appellants note which became an asset of First Magnus bankrupt estate in 2007 but which note,
according to Mr. Kevorkian, did not come into Green Trees possession until two years later in
2009. (R 8, 9, 36) It is chronologically impossible to track the travel of the Appellants
promissory note from the time it was endorsed in blank by First Magnus to when that
endorsement was obviously changed to add the name of Countrywide Bank to the blank
endorsement. (R 9)
Green Tree failed to present evidence at trial to support its claim of being a real party in
interest. Hershel California Fruit Products Co. v. Hunt Foods, 111. F. Supp. 603 (1975);
Klebano v. New York Produce Exchange, 344 F.2d (2nd Cir. 1965). Green Tree failed to present
admissible evidence that Fannie Mae was the owner of the Appellants note or that Fannie Mae
authorized Green Tree to prosecute this foreclosure. The trial court erred by awarding Green
Tree a foreclosure because the evidence at trial did not establish that Green Tree held the note or
owned the mortgage at the commencement of the action. Your Construction Center, Inc. v.
Gross, 316 So. 2d 596 (Fl. 4th DCA 1975)
The Ccourt abused its discretion and caused the Appellants to be harmed by relying on
inadmissible hearsay testimony of Mr. Kevorkian, a witness who admitted that he had no
13

personal knowledge of any facts about a purported transfer of Appellants note to Green Tree
from anyone and who also admitted that his testimony was based only a review of Green Trees
business records from 2011, records that were created three years before he became employed by
Green Tree in 2014. The business records exception that allows for the admission of hearsay
evidence was not met in this case and the court erred in admitting the hearsay evidence presented
by Green Tree to support its claim of right to foreclose Appellants mortgage. F.S. 90.803(6)(a)
Green Tree failed to present any admissible evidence from which the court could make a
finding that the records that were reviewed and relied upon by the Mr. Kervorkian were
trustworthy on this crucial issue of standing to foreclose. McNair v. Nationstar Mortgage, LLC.,
Case No. 5D14-4140 (Fla. 5th DCA February 19, 2016) Mr. Kevorkians testimony did not lay
a foundation for the court to admit Green Trees business records into evidence. See Yang v.
Sebastian Lakes Condo. Ass'n, Inc., 123 So. 3d 617, 621 (Fla. 4th DCA 2013) (witness failed to
establish the foundation for the business records exception even though she "employed all of the
magic words"). Mr. Kevorkian was a DiTech employee of recent vintage who was not employed
by Green Tree until years after Green Trees records in this case were created. Mr. Kevorkians
testimony was wholly insufficient to authenticate Green Tree's records. Mr. Kevorkian had
limited information and he demonstrated his lack of familiarity with Green Trees procedures or
documents. Mr. Kevorkian was not able to testify from his own knowledge when Green Tree
came into possession of the Appellants note or where the note was or in whose possession at the
time after 2007 when the blank First Magnus endorsement was altered to add Countrywide Bank.
There was no evidentiary foundation for the court to admit Green Trees records through Mr.
Kevorkian. See Bank of New York City v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015),
McNair v. Nationstar Mortgage, LLC., supra Thompson v. Citizens National Bank of Leesburg,
14

Florida, 433 So. 2d 32 (Fla. 5th DCA 1983) (employee of the lenders predecessor in interest,
the FDIC, who claimed to be in custody of the banks business records could not state he had
personal knowledge of its predecessors records which were also not kept under his supervision
and control)
The lack of evidentiary basis to support the Ccourts admission of the rank hearsay
presented by Green Tree in this case constitutes an abuse of judicial discretion. Pawlik v. Barnett
Bank of Columbia County, 528 So. 2d 965, 966 (Fla. 1st DCA 1988) See also Thompson v.
Citizens National Bank of Leesburg, Florida, 433 So. 2d 32 (Fla. 5th DCA 1983) (employee of
the lenders predecessor in interest, the FDIC, who claimed to be in custody of the banks
business records could not state he had personal knowledge of its predecessors records which
were also not kept under his supervision and control).
The foreclosure judgment also fails because the Ccourt did not require that the action be
prosecuted in the name of the real party in interest as is required by Rule 1.210(a) of the Florida
Rules of Civil Procedure. The evidence did not establish that Green Tree was the real party in
interest. Your Construction Center, Inc., supra; Greenwald v. Triple D Properties, Inc., 424 So.
2d 185, 187 (Fla. 4th DCA 1983), Boyd v. Wells Fargo Bank, N.A., 143 So.3d 1128, 1129 (Fla.
4th DCA 2014), Ham v. Nationstar Mortgage, LLC, 1D14-4024 (Fla. 1st DCA, May 12, 2015);
Pennington v. Owen Loan Servicing, LLC, 151 So. 3d 52, 53 (Fla. 1st DCA 2014); May v. PHH
Mortgage Corp., 150 So. 3d 247, 248 (Fla. 2d DCA 2014); Focht v. Wells Fargo Bank, N.A.,
124 So. 3d 308, 310 (Fla. 2nd DCA 2013)
Green Trees evidence did not establish that it was in physical possession of the note when
this foreclosure was filed. Schmidt v. Deutsche Bank, 5D14-1616 (5th DCA, July 31, 2015),
Snyder v. J.P. Morgan Chase Bank, 4D13-4036 (4th DCA, July 29, 2015), McLean v. J.P.
15

Morgan Chase Bank, N.A., 79 So.3d 170, 173 (Fla. 4th DCA 2012), Verizzo v. Bank of New
York, 28 So.3d 976, 978 (Fla. 2d DCA 2010), Philogene v. ABN Amro Mortgage Group, Inc.,
948 So.2d 45, 46 (Fla. 4th DCA 2006) and May v. PHH Mortgage Corp., 150 So. 3d 247, 248
(Fla. 2d DCA 2014) See also, Creadon v. U.S. Bank, N.A., as Successor Trustee for Bank of
America as Trustee for Thornburg Mortgage Securities Trust 2007-03, 166 So. 3d 952 (Fla. 2d
DCA 2014) (Plaintiff failed to demonstrate how or when U.S. Bank became the successor
trustee to Bank of America, the trustee of the securitized trust at issue.) (citing Murray v. HSBC
Bank USA, 157 So.3d 355, 358 (Fla. 4th DCA 2015) (explaining that a holder is the person in
possession of the instrument and that a nonholder in possession must prove each prior transfer
of the note in order to enforce it.)
The court erroneously presumed Green Trees standing based on its servicing of the loan.
St. Clair v. U.S. Bank, National Association, 2D14-2111 (2d DCA, July 17, 2015) (We cannot
as advocated by U.S. Bank, presume standing simply because it serviced the loan.) There was
no substantial competent evidence presented in this case that showed that Green Tree was
entitled to enforce the note. JH Home Mortgage Rescue v. Fannie Mae, 2D14-3398 (Fla 2d
DCA 2014) Green Tree failed to establish its standing to foreclose or the existence of an
agency relationship through competent substantial evidence. Phan v. Deutsche Bank, (Fla. 2d
DCA 2016) The limited Power of Attorney from Fannie Mae was obvious hearsay evidence
upon which Green Tree sought to bootstrap its claim that an agency contract existed between it
and Fannie Mae. The quantum of evidence presented by Green Tree at trial fell short of proving
its agency, an essential element of its claim of right to foreclose Appellants mortgage.
The decision in One West Bank FSB v. Cummings, Fla 2d DCA 2012 is not dispositive of the
standing challenge presented by Appellants in this case because in Cumminngs there was no
16

dispute about the authenticity of the endorsements on the original note. Here, Appellants
disputed the authenticity of the endorsements on the note in their answer and affirmative
defenses. Green Tree did not present any credible evidence to prove that the endorsements on
the Appellants note are authentic. Instead, the evidence established that the endorsements were
chronologically impossible and that there existed an unexplained and unaccounted for break in
title to the Appellants note. It is as if there are no endorsements on the note at all. It was clear
error of law for the court to rule in Green Trees favor in this case finding that the note was
properly endorsed with a complete chain of title.

THE COURTS DIRECT APPLICATION OF THE ADVERSE INTEREST STANDARD

AGAINST APPELLANTS FOR THEIR LAWFUL NONAPPEARANCE AT TRIAL WAS
CONTRARY TO LAW AND WAS PREJUDICIAL
The general rule that the failure of a party to appear or testify as to material facts within his
knowledge creates an inference that he refrained from appearing or testifying because the truth,
if made to appear, would not aid his contention is not applicable to the facts of this case because
there was a good and sufficient explanation given to the court for the Appellants lack of
testimony and their nonappearance at trial. Geiger v. Mather of Lakeland, Inc., 217 So. 2d 897,
898 (Fla. 4th DCA 1968) In this case, at the beginning of trial, Appellants, through counsel, gave
a good and sufficient explanation for the absence of the Appellants advising the court that it was
Appellants personal choice to not appear unless they were compelled by subpoena to come to
court. By incorrectly applying the adverse interest standard against the Appellants, the trial court
abused its judicial discretion causing extreme harm and prejudice to them at trial.

THERE IS NO EVIDENCE THAT GREEN TREE COMPLIED WITH THE

17

CONTRACTUAL NOTICE CONDITIONS PRECEDENT TO ACCELERATION OF THE

DEBT. PROPER NOTICE OF DEFAULT AND INTENT TO ACCELERATE IS AN
ESSENTIAL ELEMENT OF A CAUSE OF ACTION FOR FORECLOSURE
Green Trees notice of default and intent to accelerate is not the notice that the mortgage
says is a condition precedent to the accrual of a right to foreclosure of Appellants mortgage.
Appellants argue in good faith, that because the law abhors a foreclosure, when a mortgage
contract gives the lender of a home loan extraordinary power to take away a persons
homestead, the borrower is entitled to be given the exact notice that the mortgage requires to
inform the borrower of their right to defend the foreclosure action.. The judgment awarding
Green Tree a foreclosure of the Appellants mortgage should be vacated because the notice of
default and intent to accelerate sent pre foreclosure failed to meet the requirements of the
mortgage. Green Trees notice did not meet the terms of the mortgage because it did not apprise
the Appellants about their contractual right to freely assert in the foreclosure proceedings the
non-existence of a default or any other defenses they might have had to the foreclosure. Green
Trees notice fails to accelerate the debt because it does not inform Appellants as to the exact
amount of the default or about their contractual right to reinstate the loan after acceleration. The
notice also fails to timely inform the Appellants that failure to cure the default could result in
foreclosure by judicial proceeding and sale of the Property and does not give the Appellants the
full 30 days to which they are contractually entitled to cure the default and avoid a foreclosure.
The notice provisions contained in the Appellants note and mortgage are clear and
unambiguous. The trial court committed reversible error by applying a lesser standard of
compliance with ttohese signficantsignificant contractual notice requirements in a residential
foreclosure action where there is no legitimate basis to downsize these homeowner rights.
Prafford v. Standard Life Ins. Co. of Indiana, 52 So. 2d 910, 911 (Fla. 1951)
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The word shall in paragraph 22 of the Appellants mortgage doesnt does not leave
allowany room for downplaying the importance of a compliant pre foreclosure notice sent to a
homeowner before acceleration or foreclosure. In the context of a residential foreclosure, the
homeowners mortgage creates unavoidable and significant conditions precedent to foreclosure
that must be strictly construed and adhered to. Konsulian v. Busey Bank, NA, 61 So.3d 1283,
1284 (Fla. 2d DCA 2011); Frost v. Regions Bank, 15 So. 3d 905, 906-07 (Fla. 4th DCA 2009)
The substantial compliance paragraph 22 notice decisions to date do not take account of
the Florida Constitutions elevation of homestead status to a special category of private rights
entitled to extra protections. Strict construction of the contractual pre foreclosure notice
provisions in residential mortgage contracts insures that the homeowner is afforded due process
before losing their home. Every provision in the Appellants mortgage contract should be given
meaning and effect. Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938,
941 (Fla. 1979) The weakening of residential borrower protections in regard to the content and
timing of the pre foreclosure notice effectively grants judicial absolution for all defective and
untimely notices sent to homeowners in default and at risk of foreclosure and the public sale of
their homes.
The contract terms should be construed against Green Tree, the party who chose the
language in the mortgage. Green Tree failed to send Appellants a pre--foreclosure notice that
tracks the mandatory language in the mortgage contract. Appellants had a contractual private
right to rely on the pre foreclosure notice terms set out in the mortgage. Security First Federal
Sav. & Loan Ass'n v. Jarchin, 479 So.2d 767, 770 (Fla. 5th DCA 1985) (A party is bound by
the language it adopts in an agreement, no matter how disadvantageous that language later
proves to be."), citing Consolidated Development & Engineering Corp. v. Ortega Co., 117 Fla.
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438, 158 So. 94 (1934) and Carnell v. Carnell, 398 So.2d 503 (Fla. 5th DCA), review denied,
407 So.2d 1102 (Fla. 1981); see also, Rose v. Lurton Co., 111 Fla. 424, 149 So. 557 (1933)
Although the concept of prejudice has no place when considering whether the strict terms of
the pre foreclosure notice requirements in Appellants mortgage have been complied with, there
was harm to the Appellants in this case that was caused to them by being denied the information
that Green Tree was contractually obligated to send to them. In this case, instead of receiving
notice of the requisite protective disclosures and correct information from Green Tree required
by the mortgage, Appellants were sent a notice that contained information skewed in Green
Trees favor. Green Tree harmed the Appellants by to misleading them in the pre foreclosure
notice about their rights and the time for exercising those rights in order to avoid a foreclosure
of their home mortgage.
CONCLUSION
The trial court abused its discretion and entered a foreclosure judgment in Green Trees
favor without any supporting admissible evidence. The final judgment of foreclosure entered in
this case against the Appellants should be reversed and vacated and the trial court should be
directed to enter an order dismissing this action with prejudice. Green Tree failed to strictly
comply with the contractual and due process notice conditions precedent to acceleration of the
note or foreclosure of the defendants Appellants mortgage. The court abused its discretion and
was unfairly biased in Green Trees favor outside the parameters of the law causing prejudice
and harm to result to Appellants.
RESPECTFULLY SUBMITTED,
APRIL CARRIE CHARNEY. ATTORNEY AT LAW
FBN 310425
P.O. BOX 576
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VENICE, FLORIDA 34284-0576

email: aprilcarriecharney@gmail.com

and
DENNIS R. WALLACE,
LAW OFFICE OF DENNIS R. WALLACE II, P.A.
FBN 506336
6230 SCOTT STREET SUITE 112
PUNTA GORDA, FL. 33950
Email: dennis@denniswallacelaw.com

CERTIFICATE OF SERVICE
I certify that a copy of the above document was served via eservice to Counsel for the
Appellee/Plaintiff, Andrew F. Fivecoat, at 9204 King Palm Drive Tampa, Florida 33619-1328 on
_____ of August, 2015 at:
ATTORNEYNOTICE@CONSUEGRALAW.COM
Alexandra.Sanchez@consuegralaw.com

LAW OFFICE OF DENNIS R. WALLACE II, P.A.

6230 SCOTT STREET SUITE 112
PUNTA GORDA, FL. 33950

CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS

I HEREBY CERTIFY that this Petition complies with the font requirements of 9.210(a).

___________________________
DENNIS R. WALLACE, II, ESQ.

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