DiGiovanni v. Deutsche Bank National Trust Company
226 So. 3d 984
| Fla. Dist. Ct. App. | 2017Background
- Deutsche Bank (plaintiff) sued DiGiovanni in foreclosure alleging a lost note and seeking to reestablish enforcement rights.
- Complaint attached copies of the note (endorsed to Bankers Trust as Trustee for Vendee Mortgage Trust 1999-3) and an assignment showing transfer from U.S. Department of Veterans Affairs to Bankers Trust.
- Bank of America servicer witness testified the original note was transferred in 1999 to foreclosure counsel and later lost; Bank of America had possessed the note in October 1999.
- Deutsche Bank did not introduce evidence showing that Bankers Trust had been renamed or succeeded by Deutsche Bank, nor that Bank of America served on Deutsche Bank’s behalf.
- After parties rested, the trial judge searched the internet, found an NIC printout showing Bankers Trust was renamed Deutsche Bank, admitted that document over defense objection after reopening the case, and entered judgment for Deutsche Bank.
- The Second District reversed, holding the judge’s independent investigation and the internet printout were improperly handled and that Deutsche Bank failed to prove standing to foreclose.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court appropriately took judicial notice of an internet printout showing Bankers Trust was renamed Deutsche Bank | The NIC printout is a public, authoritative record and the court properly took judicial notice (or admitted it when reopened) | Court erred by independently researching and admitting an unauthenticated internet printout after parties rested; plaintiff failed to prove standing | Court held judge’s sua sponte internet research and reopening created appearance of partiality and the printout was inadmissible without authentication or proper judicial-notice procedure; reversal required |
| Whether Deutsche Bank proved standing to foreclose without the printout | Standing established by endorsement on the note and servicer testimony about possession | Without evidence linking Bankers Trust to Deutsche Bank or showing Bank of America acted for Deutsche Bank, standing was not proved | Court held plaintiff failed to show it was entitled to enforce the note and thus lacked standing |
| Whether a judge may reopen the case sua sponte to admit additional evidence after both parties rested | Plaintiff urged fairness to admit clear public record that cured the only evidentiary gap | Defendant argued reopening based on judge’s own investigation violated judicial conduct and evidence rules | Court held judge should not independently investigate facts or prompt reopening; such conduct creates appearance of partiality |
| Whether the NIC printout was properly admissible or judicially noticeable under Florida law | Printout reflects government-maintained repository and falls within judicial-noticeable public facts | Printout was unauthenticated internet material and not shown to meet exceptions to hearsay or the §90.204 procedures | Court held internet printout was not properly judicially noticed or admissible absent authentication and compliance with statutory procedure |
Key Cases Cited
- Lyles v. State, 742 So. 2d 842 (Fla. 2d DCA 1999) (judge’s independent actions can create appearance of partiality)
- J.F. v. State, 718 So. 2d 251 (Fla. 4th DCA 1998) (judge must not independently investigate facts)
- Chastine v. Broome, 629 So. 2d 293 (Fla. 4th DCA 1993) (criticizing judicial fact-finding outside record)
- In re T.W., 846 So. 2d 581 (Fla. 2d DCA 2003) (improper to sua sponte reopen trial to take additional evidence)
- Nationstar Mortg., LLC v. Marquez, 180 So. 3d 219 (Fla. 3d DCA 2015) (trial judges must avoid suggesting how counsel should try a case)
- Shore Mariner Condo. Ass'n v. Antonious, 722 So. 2d 247 (Fla. 2d DCA 1998) (appearance of favoritism when judge guides counsel)
- Maradie v. Maradie, 680 So. 2d 538 (Fla. 1st DCA 1996) (judicial notice of adjudicative facts must be cautious and follow statutory procedure)
- Dufour v. State, 69 So. 3d 235 (Fla. 2011) (judicially noticed records remain subject to evidence rules)
- Stoll v. State, 762 So. 2d 870 (Fla. 2000) (documents judicially noticed still must meet evidentiary standards)
- Nationwide Mut. Fire Ins. Co. v. Darragh, 95 So. 3d 897 (Fla. 5th DCA 2012) (website printouts are not self-authenticating)
- Whitley v. State, 1 So. 3d 414 (Fla. 1st DCA 2009) (authentication required for online printouts to fall within hearsay exceptions)
- Phan v. Deutsche Bank Nat'l Trust Co., 198 So. 3d 744 (Fla. 2d DCA 2016) (agent possession of note can give principal constructive possession and standing)