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Removing Barriers in Foreclosure Documentation

Admissibility is a key question in foreclosure cases. Authenticating documents for admission may complicate a plaintiff’s ability to prevail at trial. The Second District Court of Appeal has explained that loan modification agreements and various other documents are self-authenticating, thus easing the process of admission.

In foreclosure trials, the plaintiff is normally correct about most of the facts: “There is a note.” “The borrower signed a mortgage.” “The borrower breached by failing to make required payments.” “A breach letter was sent.” “The payment history and related documents reflect the amounts due and owing under the terms of the note and mortgage.”

Apart from the muddled issue of standing, the key issue in a case is normally focused on whether the servicer’s documentary evidence is admitted by the court. Admissibility involves two questions: Is the document authentic? Is the document admissible? Each question is equally important.

Authentication or identification requires that a party present sufficient evidence to support a finding that the matter in question is what its proponent claims. However, documents which are self- authenticating are not subject to this rule. While it has been understood that certain documents, including the note, are “self-authenticating” within the meaning of section 90.902, Florida Statutes, the scope of documents subject to the self-authentication rule has been less clear.

In Wells Fargo Bank, N.A. v. Quest Systems, LLC, 2D17-1184 (Fla. 2d DCA Apr. 3, 2019), the court clarified this issue. The court highlighted the fact that the statute provides that all documents “relating to” commercial paper are self-authenticating. Based on this proposition, the court found that a loan modification agreement, being related to the note, was self-authenticating. Other documents that relate to the note may be similarly self-authenticating, removing one of the barriers to admission of the evidence and, thus, judgment in favor of plaintiff.

About Author: Van Ness Attorneys

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Van Ness Attorneys aka Van Ness Law Firm is a South Florida law firm located in Deerfield Beach and Miami with its roots representing the loan servicing industry handling Foreclosures, creditor-side bankruptcy, eviction and litigation. Anthony Van Ness Van Ness sits on the Legal League 100 Advisory Board and the law firm is also a certified minority owned business.
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