FL App Ct (4th DCA) Reverses Dismissal of Foreclosure Based on Missing Original Note

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The District Court of Appeals of the State of Florida, Fourth District, reversed the involuntary dismissal of a bank’s mortgage foreclosure action.

The bank filed the original promissory note prior to trial, but at trial the parties discovered that it was missing from the court file. The bank tried to introduce a copy into evidence, but the borrowers objected on the basis of the “best evidence” rule. The clerk of court later found the original note and mailed it back to the bank, which then moved for rehearing or a new trial. The trial court denied the motion and entered final judgment for the borrowers.

On appeal, the Appellate Court analyzed the text of Florida Rule of Civil Procedure 1.420(b), which governs involuntary dismissal in bench trials, pointing out that Florida courts have interpreted the rule as preventing a trial court from involuntarily dismissing a case before the plaintiff rests the case which is what was done by the lower court.

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

http://www.4dca.org/opinions/Jan%202015/01-28-15/4D13-3654.op.pdf   

Florida Trial Court Rules Mortgagee’s Notice Including Info as to Overdue Payments, Amount of Arrears Was Not an Attempt to Collect a Debt

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Robinson v Wells Fargo (FCCPA, Brevard County FL)

A Florida trial court  held that a mortgagee’s direct communication to a borrower regarding funds applied to the loan (which included information as to overdue payments, amount of arrears, and the status of loss mitigation) did not constitute a debt collection communication, and therefore did not violate the Florida Consumer Collection Practices Act’s prohibition on communicating directly with a consumer with knowledge that the consumer is represented by an attorney. 

The Florida Consumer Collection Practices Act (hereinafter FCCPA) defines communication as “the conveying of information regarding a debt directly or indirectly to any person through any medium.”  See §559.55(5).

Under the FCCPA, in collecting consumer debts, no person shall “[c]ommunicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the debtor’s attorney fails to respond within 30 days to a communication from the person, unless the debtor’s attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication.”  See §559.72(18).

The Florida trial court held that the correspondence at issue was “informational and not an attempt to collect a debt,” and was not a prohibited communication in violation of §559.72(18).

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

Individual HealthCare Waiver For Obamacare

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If I’m unemployed, do I have to pay the fee for not having coverage?      Yes.

Like other Americans, you must have minimum essential coverage or pay a fee. This is true regardless of your employment status.

There are several exemptions from the fee that may apply to people who have no income or very low incomes. If you have an exemption, you don’t need to pay the fee for being uncovered.

 

Hardship Application Link: https://marketplace.cms.gov/applications-and-forms/hardship-exemption.pdf

The individual shared responsibility provision requires you and each member of your family to have basic health insurance coverage (also known as minimum essential coverage), qualify for an exemption, or make an individual shared responsibility payment when you file your federal income tax return.

How you get the exemption depends upon the type of exemption for which you are eligible. You can obtain some exemptions only from the Marketplace in the area where you live, others only from the IRS, and yet others from either the Marketplace or the IRS.

that can sometimes lead to bankruptcy.

If you must make an individual shared responsibility payment with your return, the annual payment amount is the greater of a percentage of your household income or a flat dollar amount, but is capped at the national average premium for a bronze level health plan available through the Marketplace. You will owe 1/12th of the annual payment for each month you or your dependent(s) don’t have either coverage or an exemption.

For 2014, the annual payment amount is:

  • The greater of:
    • 1 percent of your household income that is above the tax return filing threshold for your filing status, or
    • Your family’s flat dollar amount, which is $95 per adult and $47.50 per child, limited to a family maximum of $285,
  • But capped at the cost of the national average premium for a bronze level health plan available through the Marketplace in 2014. For 2014, the annual national average premium for a bronze level health plan available through the Marketplace is $2,448 per individual ($204 per month per individual), but $12,240 for a family with five or more members ($1,020 per month for a family with five or more members).  See Rev. Proc. 2014-46.
  • http://www.irs.gov/Affordable-Care-Act/Individuals-and-Families/ACA-Individual-Shared-Responsibility-Provision-Calculating-the-Payment

http://www.irs.gov/Affordable-Care-Act/Individuals-and-Families/ACA-Individual-Shared-Responsibility-Provision-Exemptions

https://www.healthcare.gov/fees-exemptions/hardship-exemptions/

 

Mortgagors Lack Standing

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The Illinois Appellate Court, Second District, held that mortgagors lack standing to challenge the propriety of an assignment of mortgage loans into a pooled-asset trust in alleged violation of a pooling and servicing agreement, as any alleged failing would not void the assignment but instead was a “voidable” act that could be ratified by trust beneficiaries. 
 

The Court also ruled that the mortgagors could not rely on a breach of contract theory as to the pooling and servicing agreement, because they were not third-party beneficiaries of the pooling and servicing agreement.

 

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

False Claim under FDCPA

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The Eleventh Circuit held that debtors’ complaint stated a false representation claim under the federal Fair Debt Collection Practices Act, where the debt validation/1692g notice identified the loan servicer who started servicing the loan after it was in default as the creditor.”

The Lender transferred the serving rights to the mortgage and note. The Loan Servicer hired a law firm to foreclose. The law firm sent a notice to the Debtor stating that the notice was being sent pursuant to the federal Fair Debt Collection Practices Act (“FDCPA”) to collect on the debt. The notice also identified the loan servicer as the creditor on the loan.

The Debtor filed suit against the Law Firm in federal district court, claiming that the notice sent to him by the Law Firm violated Section 1692e of the FDCPA by falsely representing that the loan servicer was the creditor on the loan. The Debtor claimed that the loan servicer, having been assigned a debt already in default solely for purposes of collecting on the debt, was not a creditor under the FDCPA. The Court found that even if the loan servicer were not a creditor under the FDCPA, it was harmless error to use the term with respect to the servicer, because the loan servicer had the authority to foreclose and otherwise act as the creditor on the loan. See 15 U.S.C. § §1692a(40; 15 U.S.C. §§ 1692e, 1692g(a)(2), 1692k(a).

However, the Court found that the Debtor’s complaint contained allegations as to the date of default, that the debt was assigned to the loan servicer after the default, thus the law firm violated the FDCPA by falsely identifying the loan servicer as the creditor in its debt collection notice.

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

SUE OR BE SUED CLAUSE

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The Ninth Circuit Court of Appeals  held that Federal National Mortgage Association’s (“Fannie Mae”) federal corporate charter confers federal question jurisdiction over claims brought by or against Fannie Mae.

The Ninth Circuit  held that under the rule announced in American National Red Cross v. S.G., 505 U.S. 247 (1992), Fannie Mae’s federal charter confers federal question jurisdiction over claims brought by or against Fannie Mae. The sue-and-be-sued clause in Fannie Mae’s charter authorizes Fannie Mae “to sue and be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” 12 U.S.C. §1723a(a).

 

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

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]

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]