Note Worthy Foreclosure Cases In Florida July 2015

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 :

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: