Case Law Update PT II

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Unrue v. Wells Fargo Bank, N.A., — So.3d —-, 2014 WL 4648205 (Fla. 5th DCA 2014).

 

A court must allow at least one attempt at amendment of a quiet title counterclaim to a mortgage foreclosure; Badgley v. SunTrust Mortg., Inc., 134 So.3d 559, 561 (Fla. 5th DCA 2014), is distinguished because the Badgley dismissal was of amended complaint.

 

 

 

Handel v. Nevel, — So.3d —-, 2014 WL 4627765 (Fla. 3d DCA 2014).

 

Failure to check emailed proposed orders which purportedly misstate a trial court ruling does not constitute excusable neglect under Rule of Procedure 1.540.

 

 

 

Ledo v. Seavie Resources, LLC, — So.3d —-, 2014 WL 4628549 (Fla. 3d DCA 2014).

 

Striking of pro se pleadings is examined under the Ham v. Dunmire, 891 So.2d 492/Mercer v. Raine, 443 So.2d 944 (Fla.1983), analysis instead of the Kozel factors. Consistently failing to respond to discovery despite repeated court orders to do so satisfies the Ham/Mercer requirement for striking pro se pleadings.

 

 

 

Pennington v. Ocwen Loan Servicing, LLC, — So.3d —-, 2014 WL 4629173 (Fla. 1st DCA 2014).

 

The assignment of a mortgage does not necessarily assign or transfer the note.

 

 

 

Sto Corp. v. Greenhut Const. Co., Inc., — So.3d —-, 2014 WL 4629200 (Fla. 1st DCA 2014).

 

Certiorari review is generally not available for orders striking pleadings for discovery violations unless the order results in a “cat out of the bag” scenario or effectively punishes a party in a manner that is not remediable by plenary appeal.

 

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

 

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: [email protected]

Summary Judgment of Debt Collector Reversed

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Foreclosue Defence Lawyer

The Sixth Circuit reversed an award of summary judgment in favor of a debt collector, where the debtor argued the law firm a failed to verify the disputed debt, as required by the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”).

By failing to properly validate the debt , the Court held that the Firm violated §1692g(b).

The Court granted Summary Judgment to the Debtor.

http://www.ca6.uscourts.gov/opinions.pdf/14a0153p-06.pdf

 

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

 

Ocwen $2 Billion Principal Reduction Settlement

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In December, 2014, Ocwen Financial Corporation and Ocwen Loan Servicing along with Litton Home Servicing and Homeward Residential Holdings (previously known as American Home Mortgage Servicing or AHMSI)  entered into a consent order with 49 States and the District of Columbia to provide $2 billion in principal reduction to underwater borrowers and provide $125 million to foreclosure victims as a result of Ocwen’s systemic misconduct at every stage of the mortgage servicing process.  If they think you qualify for a cut a notice package has been mailed to you. http://www.ncbrc.org/blog/2014/07/10/claim-forms-available-in-ocwen-settlement/

How to apply:   https://nationalocwensettlement.com/

http://www.consumerfinance.gov/blog/claim-forms-for-the-ocwen-settlement-available-now/

Where to apply:

https://nationalocwensettlement.com/mainpage/ClaimForm.aspx

National Ocwen Settlement Administrator with questions at 1-866-783-5382, Monday through Friday, 7:00 a.m. – 7:00 p.m. Central Time

Claim forms submitted by mail must be postmarked by September 15, 2014.

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

 

Consumer Financial Protection Bureau Report

Consumer Financial Protection Bureau Report

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More senior homeowners with mortgages: Older consumers are carrying more mortgage debt into their retirement years than in previous decades. For homeowners age 65 and older, the percentage carrying mortgage debt increased from 22 percent to 30 percent from 2001 to 2011. Among those aged 75 and older, the rate more than doubled during that same time period, from 8.4 percent to 21.2 percent.

Median mortgage debt for seniors increased by 82 percent: From 2001 to 2011, the median amount older homeowners owed on mortgages increased 82 percent from about $43,300 to $79,000. In addition to carrying increased mortgage debt, many older Americans have also accrued less home equity than their age group did a decade ago. This decline in home equity may have an outsize impact on older Americans, for whom home equity is frequently their primary or even only asset. The result is less financial security and greater financial risk. Those considering taking out a home equity loan will want to know about the home equity loan interest rates before committing to anything. Some might find that looking mortgage notes might be a way to get a handle on their mortgage debt. If you want to know what is a mortgage note you can do research online to find out more.

Senior delinquency and foreclosure rates increased five-fold after the financial crisis: From 2007 to 2011, the percentage of homeowners age 65 to 74 who were seriously delinquent in paying their mortgage, meaning they were more than 90 days late or in foreclosure, increased from 0.85 percent to 4.96 percent. For those over 75, it increased from 1.01 percent to 5.87 percent. While delinquency and foreclosure rates have decreased since 2012, foreclosure among older homeowners is still a significant problem. Among other things, older consumers have greater difficulty recovering from foreclosure than their younger counterparts due to their increased incidences of health problems, cognitive impairment, and difficulties returning to the workforce.

http://www.consumerfinance.gov/reports/snapshot-of-older-consumers-and-mortgage-debt/

If you find yourself in this situation a loan modification may be available. Contact our office for a free consultation today!

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

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