Second DCA to Switch to eDCA System

At this Morning’s State of the Second DCA CLE, Clerk Mary Beth Kuenzel announced a big and imminent change in the way that Court will be processing changes: as soon as March 1st, the Court will have transitioned to the eDCA filing system, and away from the Florida Court’s Portal. What does this mean for practitioners? If you are used to practicing in other DCAs, this transition won’t be too difficult, but for folks who only know the Portal, there will be some adjustment needed.

Sign Up Early. Watch the Clerk’s Website for the chance to sign up for eDCA in the next week. You’ll want to get your registration processed before it goes live and you need to file. You need a separate login for each District’s eDCA system.

Be Ready to Effectuate Separate Service. While eDCA provides “Case Mail” as soon as something is filed, that does not count as Service under Florida Rule of Judicial Administration Rule 2.516. You have to go back to sending a separate email for service.

Instant Orders. What we give up with service, we’ll get back tenfold by getting Court orders and opinions by email instead of U.S. Mail. This will save the Clerk more than $50,000 a year in postage, and save attorneys a lot of hassle, too.

Record on Demand. With eDCA, attorneys of record can download from the docket any DCA filing, including the Record on Appeal once transmitted. No more need for the FTP work around, which worked, but was time intensive for Court staff.

Briefs on Demand. Registrants to the system will also be able to pull briefs in cases where they are NOT counsel of record. Pretty handy if you are briefing the same issue!

Portal for Payment. The Second District will still be on the portal for one reason — to accept payment of filing fees. If you pay through the portal, plan to upload a simple payment transmittal letter, and ONLY a payment transmittal letter. Any other document or pleading will be kicked.

The hope is that the portal will be ready to work with the DCA internal docketing systems by Spring of 2018, and at that point, all of them will switch to the portal. But for now, all DCAs will require separate eDCA login.

Editor’s Note: We were in such a rush to get out this news, we forgot to mention the payment issue. This article is updated to reflect that information!

Evidence Rules Matter: Best Evidence Rule and Hearsay Require Reversal

In an appellate victory for DPW Legal, the Second District Court of Appeal issued an opinion today reaffirming that banks seeking to foreclose on homes must strictly adhere to evidentiary rules governing negotiable instruments and business records.

In Heller v. Bank of America NA, No. 2D14-3530 (Fla. 2d DCA. Jan. 27, 2017) [.pdf], the Bank at a foreclosure trial offered into evidence a copy of the note, rather than the original note, with its counsel asserting that the original had been recently filed with the court clerk. The trial court admitted the copy over defense counsel’s objection, citing the Best Evidence Rule, Section 90.953, Florida Statutes. The Bank also admitted into evidence (again over the homeowner’s objections) testimony of its representative based not on personal knowledge, but on his review of business records that were not in evidence or elsewhere in the court file.

DPW Legal attorney Dineen Pashoukos Wasylik argued on appeal that both rulings were abuses of discretion and an erroneous interpretation of the evidence code, and the Second District agreed. First, the Court held that Section 90.953 of the Florida Evidence Code requires any party seeking to enforce a negotiable instrument—such as the promissory note involved here—to produce and surrender the original of the instrument to the court. The Court rejected the Bank’s argument that the trial court was entitled to rely upon counsel’s assertions that the original had been filed with the clerk. The Court reaffirmed the longstanding tenet of law that a trial court may not “rely on an unsworn statement of counsel to make a factual determination.”

Plaintiffs Must Overcome Defenses to Win Summary Judgment

Another appellate victory for  Dineen Wasylik and DPW Legal, overturning an improper grant of summary judgement in a foreclosure appeal.

Another appellate victory for
Dineen Wasylik and DPW Legal,
overturning an improper
grant of summary judgement
in a foreclosure appeal.

We are proud to report our firm racked up another appellate win yesterday — DPW Legal secured the reversal of summary judgment against our clients in a mortgage foreclosure action. In this case, the Bank before the trial court won summary judgement, even though its summary judgment motion made no mention of the defendants’ numerous affirmative defenses set out in their answer.

On appeal, we correctly pointed out that Rule 1.510 Requires that a motion for summary judgment “shall state with particularity the grounds upon which it is based and substantial matters of law to be argued,” as well as the myriad of cases that require plaintiffs to affirmatively overcome each and every defense before they can earn summary judgment. The appellate court ultimately agreed, and reversed the summary judgment, explaining:

It is true that the Bank did submit a response to an affidavit regarding the Paragraph 22 notice, disputing the Amstones’ affidavits that the notice had not been received or was deficient. But the Bank did not address the affirmative defenses in its motion for summary judgment. And at the hearing, the Bank’s counsel simply asserted that “the Affirmative Defenses were dealt with.” The Amstones’ counsel responded that the Bank had failed to refute all of the affirmative defenses…The Amstones’ counsel also emphasized that the affidavits regarding the Paragraph 22 notice crated a factual dispute that needed to be resolved. The court made no findings regarding any of these defenses. Accordingly, genuine issues of material fact remained, and summary judgment should not have been granted.

In our view, this was a case where strong advocacy at oral argument made a huge difference. What is not clear from the opinion is that the Bank argued that the defendants had waived this issue by failing to argue it on the record below, and the court seemed to want to buy that waiver argument. At oral argument, we were able to refute the waiver argument with citation directly to the proper part of the record showing why it was not waived. We’ve ordered the oral argument video, and will further expound on the important preservation issues in a later post, when we can share the video. But in the meantime, the lesson to be learned is that at the trial level, preservation is key, and at the appellate level, knowing your record cold is key (see my prior post on preparing for oral argument).

Attorney Ralph Fisher acted as able trial counsel, and ensured the issues were preserved on appeal.

The case is Amstone v. The Bank of New York Melon, No. 2D14-5480 (Jan. 6, 2016) [.pdf].