Note Worthy Foreclosure Cases for August 2015

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There are many recent changes to foreclosure case law that effect  consumers.    in an effort to keep you informed of what you may see in your foreclosure defense case, I have listed the very case synopses here.  Many  of these case synopsis were done by Judge Cynthia Cox in the 19th Circuit.  Judge Cox’s synopsis  could not be improved upon so I posted hers.  Pinellas , Pasco and Hillsborough counties are 2nd DCA and a link to the case is included.  Contact us for your foreclosure defense today.

Voce v. Wachovia, Case No. 4D15-34 (4th DCA 8/26/15) Borrowers moved to vacate FJ due to the failure of the Bank to offer modification and  claimed disclose settlement was extrinsic fraud per 1.540(b). For Florida Statute  1.540(b) fraud motion must be within one year and the motion was untimely at three years later! Additionally, the motion was without merit because it  must prove borrowers were prevented from participating to allege extrinsic fraud and  they had no rights nor were they the  intended beneficiary or party to settlement between  the State and Bank. 

Deutsche v. Stone, Case No. 4D14-2514 (4th DCA 8/26/15) Court may not involuntarily dismiss a case before plaintiff rests its case.

Vercosa v. Fields, Case No. 4D14-4724 (4th DCA 8/26/15) When damages are unliquidated, a defaulting party is entitled to notice and an opportunity to be heard.   When the notice is mailed to the wrong address or lists the wrong courtroom (or the location is later changed), the final judgment is void and should be vacated/set aside.   

Fiorito v. Chase, Case No. 4D13-2813 (4th DCA 8/26/15) Reversed and dismissed for lack of standing. Copy of note attached contained no endorsements or allonges and after the dismissal of  the lost note count in the complaint,  the original note  contained an undated blank endorsement,  but no testimony was presented as to the date the endorsement was placed on note. 

Nationstar v. Brown, Case No. 1D14-4381 (1st DCA 8/24/15) A subsequent and separate default creates a new and independent right to accelerate payment in a subsequent foreclosure action and it is  irrelevant that acceleration was sought in an earlier foreclosure action or that dismissal with prejudice  was granted and  is not time barred under 95.11.   See Singleton v. Greymar.  

Fowler v. TD Bank, Case No. 5D14-4134 (5th DCA 8/21/15) Affidavit that rental properties never intended to be encumbered and conflict in street address and legal descriptions creates an ambiguity and question of material fact that should not have been decided on SJ.

BOA v. Enclave, Case No. 2D14-3643 (2d DCA 8/21/15) BOA sought enforcement of FJ of 718.116 safe harbor.   Assn estopped from taking a position contrary to which it affirmatively took in the f/c proceeding –its answer of entitlement to only lesser of 6 mos or 1% was a waiver of any other claim.

Grand Cent v. Space Coast, Case No. 2D14-2740 (2d DCA 8/19/15) More than a year after FJ, Space Coast filed a motion to enforce FJ seeking entitlement to safe harbor for condo fees under 718.116(1)(b). Trial court lacked jurisdiction because assessments was neither litigated nor adjudicated and there was no reservation of jurisdiction to determine the assessments.   Trial courts lose jurisdiction after expiration of rehearing or new trial or 1.540 unless reserved. “We would encourage courts to consider specific language reserving jurisdiction to address entitlement to and amount of any unpaid assessments.”  

Bayview v. Hambleton, Case No. 1D14-1703 (1st DCA 8/19/15) Condo association foreclosure proceeding, to which Bank was not a party, does not extinguish a bank’s superior interest and Bank owned and held the Note and thus  had standing.

Lamb v. Mortgage, Case No. 4D13-3125 (4th DCA 8/19/15) Aurora filed and Nationstar substituted  as Plaintiff upon assignment of mortgage (note not assigned). Original note was lost and copy endorsed to Aurora. No testimony about standing provided; only that Nationstar acquired Aurora, but nothing about this Note.   When seeking to enforce a note endorsed to another, standing is proven through assignment, proof of purchase of the debt or evidence of an effective transfer. 

Donado v. Pennymac, Case No. 4D13-1383 (4th DCA 8/19/15) Complaint dismissed without prejudice as defective when complaint was filed as not verified as required.   In 2010, it was Rule 1.110(b) but now Rule 1.115. 

Cardona v. Nationstar, Case No. 4D14-1609 (4th DCA 8/19/15) FJ reversed when bank’s witness testified about business records which were not introduced into evidence. Without the business records, the employee had no personal knowledge. 

Perez v. Deutsche, Case No. 4D13-4812 (4th DCA 8/19/15) Bank offered undated blank note and witness did not know when note was endorsed; PSA was insufficient to establish standing and there was no evidence of transfer prior to filing. FJ reversed lack of standing.

Bis v. US Bank, Case No. 4D13-3310 (4th DCA 8/19/15) Bank voluntarily dismissed foreclosure action and amount of the fee hearing not accompanied with transcript.   Rule 1.420(d) is unambiguous as to costs, which are to be assessed upon voluntary dismissal. 

Fed Home v. Beekman, Case No. 4D13-4086 (4th DCA 8/19/15) Borrower had not complied with trial modification payment plan and then tried to force bank into a modification at trial.   Trial court erred by forcing a modification offer or imposed a new contract on the parties – it was outside the scope of the pleadings and was not tried by consent.   

Citation Way Condo v. Wells Fargo, Case No. 4D14-2667 (4DCA 8/19/15) Distinguishable from Sienna Ridge requiring independent action for unpaid condo assessment because it was raised in the foreclosure action and FNMA and Wells had direct relationship as its servicer. 

TD Bank v. Graubard, Case No. 5D14-1505 (5th DCA 8/14/15) A deficiency is a continuation of the foreclosure proceeding and no additional proof of debt is necessary. Bank only has to prove and introduce evidence that property’s FMV on date of sale was less than total amount of FJ. Court does not have to take judicial notice of orders it entered in the case. 

Boumarate v. HSBC, Case No. 5D14-1379 (5th DCA 8/14/15) Bank has to prove more than mere possession for lost note; but that it was entitled to enforce note at the time of loss. 

Tanner v. Bayview, Case No. 5D14-3746 (5th DCA 8/14/15)   Third persons whose rights or interests are adversely affected have standing to contest a foreclosure action and Plaintiff to present its case at trial.   Consent FJ thus improper and not binding on junior lienors. 

Assil v. Aurora Loan, Case No. 4D14-2257 (4th DCA 8/12/15)   Bank failed to prove standing as nonholder in possession by relying on a letter notifying of transfer of servicing rights; not a servicing agreement that proved Aurora had the right to enforce when it filed the action and had claimed Note was lost in first complaint, with 3 amendments of varying allegations.

Onewest v. Cummings, Case No. 2D14-2397 (2d DCA 8/12/15) Dismissal reversed, Bank had standing.   A plaintiff who is not original lender may establish standing by submitting note with blank or special endorsement, assignment or affidavit proving status as holder at time the complaint was filed. 

Balch v. Lasalle Bank, Case No. 4D14-2057 (4th DCA 8/4/15 on rehearing) Standing not proven through an assignment executed after complaint was filed and by MERS who was not even a party to the PSA and there was no evidence indicating when the indorsement was placed on the note. 

Citi v. Turner, Case No. 1D14-1137 (1st DCA 8/4/15) The plain language of the mortgage unambiguously gave the bank a security interest in the entire property, the Court erred in concluding bank not entitled to foreclosure ½ interest.   Contracts must be interpreted and enforced in accordance with their meaning and in rational manner.

Snowden v. Wells Fargo, Case No. 1D14-2529 (1st DCA 8/4/15) Without a transcript, appellate courts presume the trial court’s judgment was based on evidence adduced at the hearing.

 

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: [email protected]

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Note Worthy Foreclosure Cases In Florida July 2015

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There are many recent changes to foreclosure case law that effect  consumers.    in an effort to keep you informed of what you may see in your foreclosure defense case, I have listed the very case synopses here.  Many  of these case synopsis were done by Judge Cynthia Cox in the 19th Circuit.  Judge Cox’s synopsis  could not be improved upon so I posted hers.  Pinellas , Pasco and Hillsborough counties are 2nd DCA and a link to the case is included.  Contact us for your Foreclosure Defense Needs.

For other districts : http://www.flcourts.org/florida-courts/district-court-appeal.stml

Schmidt v. Deutsche Bank,Case No. 5D14-1616 (5th DCA 7/31/15) Bank failed to prove standing, no evidence it  was holder  at time of filing. Assignment was dated 18  days after foreclosure suit  was filed.

Yefim v. Wachovia, Case No. 5D13-3468 (5th DCA 7/31/15) Defective default notice of 28 days (v. 30) not material breach and distinguishable from Samaroo.

Vasilevskiy v. Wachovia, Case No. 5D13-3468 (5th DCA 7/31/15) Purpose of notice provision is to allow borrower to cure the default. In this case, the defective letter (dated 28 days v. 30 days after written to cure) was not material or prejudicial because borrowers never attempt to cure in the following 4 years. The shortage of 2 days was insignificant – breach was not material. 

Martins v. PNC, Case No. 5D13-3604 (5th DCA 7/31/15) Error to enter SJ when there are material disputed issues of fact, affidavit is legally insufficient and/or good faith discovery still in progress.   However, if the non-moving party does not act diligently in completing discovery or uses discovery to thwart or delay, SJ is proper (when borrowers made no efforts for 7 months prior to SJ hearing). Titles do not shed light on trustworthiness or documents or competence of affiant to testify about matters or records therein.

Messina v. Deutsche, Case No. 5D14-1616 (5th DCA 7/31/15) When Bank files a lost note count and then later claims it had possession of the Note on the date of filing without any personal knowledge as to the date the Bank actually obtained possession and assignment dated after filing, the Bank lacks standing. 

James Perry v. CRSJ, Case No. 3D14-2510 (3d DCA 7/29/15) Lien terminated five years after its maturity date since extension must be recorded to extend time to file foreclosure action. 

Snyder v. JP Morgan, Case No. 4D13-4036 (4th DCA 7/29/15) Involuntary dismissal should have been granted when Bank failed to prove it had possession of note upon filing and lack standing to enforce the note.

DeSousa v. JP, Case 4D14-4638 (4th DCA 7/29/15) Generally, intervention is not allowed post-judgment and a purchaser can protect itself by checking the public records for liens and lis pendens. 

Greentree v. Milam, Case No. 2D14-660 (2d DCA 7/29/15)   Contractual condition precedent evaluated for substantial compliance or performance. When default letter (paragraph 22) is nearly equivalent or varies only in immaterial respects, letter substantially complies.

Wells v. Robinson, Case No. 5D14-2819 (5th DCA 7/24/15)   Bank failed to prove who lost the note or who had right to enforce note when it was  lost. Court properly dismissed for failure to reestablish lost note.   Dismissal does not preclude new action based on different dates of default.

Kenney v. HSBC, Case No. 4D13-4165 (4th DCA 7/22/15)  Unendorsed note attached to complaint. The assignment was later backdated and the note introduced at trial had a blank endorsement and there was no testimony as to the date the endorsement was placed on the Note.

Chappelle v. South Fla. Guard, Case No. 4D13-2613 (4th DCA 7/22/15) judge must consider the 6 Kozel factors and must make a finding that the conduct was equivalent to willfulness or deliberate disregard before entry of judicial default or sanctions.

St. Clair v. US Bank, Case No. 2D14-211 (2d DCA 7/17/15) Bank failed to demonstrate it had standing when it relied on possession of the note, a pooling servicing agreement, default notice letter and fee payment schedule as nonholder in possession with rights of holder.  Mere possession is inadequate and the Bank failed to provide evidence it had acquired the loan from Lenders Direct (PSA was with SLS).   ** case brief by Judge Cynthia Cox****

Central v. Amtrust, Case No. 5D14-1511 (5th DCA 7/17/15) without reservation in FJ  court lacks jurisdiction to alter, modify, or vacate judgment or rule on post-judgment condo  assessments §718.116.

Smith v. Reverse Mtg, Case No. 3D13-2261 (3d DCA 7/15/15) Condition precedent not met in reverse mortgage foreclosure upon death of husband, as wife was co-borrower under the mortgage, although she didn’t sign note.  ** case brief by Judge Cynthia Cox****

Peuguero v. Bank of America, Case No. 4D13-3210 (4th DCA 7/15/15) Testimony was sufficient to prove the endorsement was executed prior to filing and to admit payment history per Cayea.

Kelly v. BNY Mellon, Case 1D13-2778 (1st DCA 7/14/15)   Undated blank endorsement on Note insufficient to prove standing without evidence that it occurred prior to filing which was not provided at trial.

Blue Infiniti v. Wilson, Case Nos. 4D14-813, 14-887 (4th DCA 7/8/15)  voluntary dismissal does not make defendant prevailing party- must prevail on significant issues,  re in Padow … when Plaintiff obtained most of what it sought before it voluntarily dismissed defendant is not prevailing party.  A full evidentiary hearing is required for 57.105 good faith issue with detailed findings.

TD Bank v. Graubard, Case No. 5D14-1505 (5th DCA 7/2/15)   Claim for deficiency is continuation of the original foreclosure suit and reintroduction of final judgment of f/c is not necessary to establish right to deficiency in same case.

Wright v. JP Morgan, Case No. 4D14-545 (4th DCA 7/1/15)   No evidence note and mortgage transferred from Chase to JP Morgan Chase.   A parent and its subsidiary are separate and distinct legal entities.  Parent company cannot exercise rights of its subsidiary without proof of transfer or servicing agreement.   Notice of servicing transfer is not competent evidence when never authenticated and admitted. 

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