Case Law Update

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Roman v. Wells Fargo , Case No. 5D13-2479 (5th DCA 8/1/14) Fact that borrower does not receive notice is not a material issue of fact.   Express language of mortgage only required bank to mail notice, not that borrower receive. 

Wagner v. BOA , Case No. 2D12-6131 (2d DCA 7/18/14)   No evidence to support damages for property inspections and costs/fees reversed.  Damages must be supported by competent, substantial evidence.  Inspections not included in payment history and affidavit not sufficient for fees and costs when the Defendant is entitled to a  evidentiary hearing thereon.

Lafrance v. US Bank , Case No. 4D13-102; 2014 Fla. App. Lexis 10526 (4th DCA 7/9/14)   An undated endorsement fails to support Plaintiff’s standing on the date of filing if not sworn in complaint, affidavit or with testimony.  None of the affidavits filed assert that Plaintiff was owner or holder at the time the complaint was filed and SJ reversed and unendorsed copy was attached to complaint.

Olivera v. BOA, Case No. 2D13-629 (2d DCA 7/11/14)   Proper party with standing is holder of the note and mortgage or holder’s representation and must be established at time of filing.  Holder is a person in possession payable to bearer or person id’d in possession.   SJ denied when affidavit didn’t establish when endorsements were made or when Plaintiff or predecessor became holder and the assignment post-dated complaint.

Ryan v. Wells Fargo , Case No. 4D13-2155 (4th DCA 7/23/14)  At trial, Bank offered original note with no endorsement although a copy of the Note with an endorsement had been filed in the Court file 2 yrs after filing and witness did not know if Bank owned loan upon filing, so Plaintiff lacked standing and case dismissed.

Boyd v. Wells Fargo , Case No. 4D13-208 (4th DCA 8/6/14) FJ reversed without documentation to establish Plaintiff’s standing at the time of filing of complaint.

Arcilia v. BAC , Case No. 2D13-2366 (2d DCA 8/6/14)  1.540 motion for relief from FJ for a mistake, inadvertence, surprise or excusable neglect must be filed within 1 year and cannot be granted without opposing party opportunity to be heard at an evidentiary hearing.

Gann v. BAC, Case No. 2D12-6271 (2d DCA 8/15/14)   Count 1 of Complaint for FCCPA dismissed in error by going beyond the 4 corners.  FCCPA applies to debt collectors and any person (including banks collecting a mortgage loan).  ot be granted without opposing party opportunity to be heard at an evidentiary hearing.

Iberia v. RHN Invs, Ltd , Case No. 4D14-1330 (4th DCA 7/30/14)   Borrower paid off the debt but did not have an affirmative claim for relief when Plaintiff filed its voluntary dismissal.  Court loses jurisdiction to determine attorney’s fees upon VD.

Mathews v. Branch Banking , Case No. 2D13-4065; 2014 Fla. App. Lexis 8629; 39 Fla. L. Weekly D 1199; 2014 WL 2536831 (2nd DCA 6/6/14)   After sale and disbursement, Clerk holds surplus funds for 60 days pending order.  A subordinate lienholder must file its claim within 60 days of the sale to claim surplus funds, filing an answer and AD prior not sufficient.   45.031(7)(b) is clear and unambiguous requiring any person claiming a right “must file a claim.”

Pineda v. Wells Fargo , Case No. 3D13-2968 (3d DCA 7/23/14) Fla. State 45.032(2) creates rebuttable presumption that property owner (Defendant) receives all surplus funds after payment of subordinate lienholders who have timely filed a claim.   There was no basis for third-party purchaser to share in the surplus, even if they wanted to apply toward 1st mortgage debt.

Carol A. Lawson, Esq., 28870 U.S. Hwy19 #300, Hodusa Towers, Clearwater, FL 33761             Phone: (727) 410-2705;   email: