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 : 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]

 

 

2nd Circuit- Servicing Notice Not Exempt from FDCPA

A case which may change how you proceed in your foreclosure defense recently came out.  I have listed a brief synopsis of it below.   So discuss how this may apply to your case contact us for your free consultation.

The mortgage servicer argued that because the purpose of the servicing transfer notice was to provide transfer-of-servicing information in order to comply with the federal Real Estate Settlement Procedures Act (RESPA), not to collect the debt, it had no obligation to provide the information required by the FDCPA.

The Second Circuit side-stepped the issue, “concluding that an attempt to collect a debt—which we believe the Letter was—qualifies as a communication ‘in connection with the collection of any debt.’” They also held that viewed objectively it was an attempt to collect since it (a) referred to the consumer’s particular debt;  (b) instructed him to send payments to the new servicer at a particular address;  (c) contained boilerplate language expressly stating that “this is an attempt to  collect upon a debt” specifically referencing the FDCPA; and, (d) warned that he must dispute the debt’s validity within 30 days after receiving the letter or the debt would be assumed to be valid.

http://www.ca2.uscourts.gov/decisions/isysquery/32503ca2-ffec-4f95-9eaf-f244781216b8/1/doc/14-191_opn.pdf

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

Parent Company Lacks Standing to Foreclose

The 4th DCA decided on July 1, 2015  that a Final Judgment of foreclosure be reversed due to lack of standing, where  the whole owned subsidiary  rights to n the note could not be enforced by the parent company    Wright v. JPMorgan Chase Bank N.A., 4th DCA Case No. 4D14-565 (July 1, 2015).  The Court held that absent evidence that the loan was purchased by JPM, it could not enforce the note. JPM did not introduce any purchase agreement or other evidence that it had acquired the note.  The Court also cited   Am. Int’l Group, Inc. v. Cornerstone Bus., Inc., 872 So 2d. 333,336 (Fla. 2nd DCA 2004) and  Federated Title Insurers, Inc. v. Ward, 538 So. 2d 890,891 (Fla. 4th DCA 1989).

 

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

Bankruptcy Filings have Decreased 41% since 2011

In 2011 there were 53503 filings in the Middle District of Florida, by 2015 there is projected to be only 31760.

2011  53503

2012 45898

2013 41100

2014 36305

1st Quarter of 2015 7940   67.5% were Chapter 7 and 31.5% were Chapter 13 with 20% of all filings being done pro se

Of the 1st Quarter of 2015 of  7940 Tampa Division accounted for  11356 of those filings done

A google search for Bankruptcy Attorney in Tampa Bay returns  192,000 hits.  We want you to chose wisely, and choose us.

Our Chapter 7 starts at $795.00

2013 Avvo Client Choice Award

A+ BBB rating again no paid advertisement with BBB to boost ratings Avvo 9.3 rating- no paid Avvo Advertising to boost account to 10.0- rating actually earned

 

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

 

11th Cir Holds Lower Court Erred in Holding Bank Waived Arbitration as to Unnamed Putative Class Members

The Eleventh Circuit  Court of Appeals in  In Re Checking Account Overdraft Litigation, Celia Spears-Haymond held that District Court erred in ruling that a bank waived its rights to compel arbitration of unnamed putative class members’ claims.

The lower court lacked jurisdiction to resolve issues involving unnamed putative class members prior to certification, and that the named plaintiffs lack standing.  Accordingly, the Eleventh Circuit reversed the district court’s order.

Plaintiff’s were consolidated into case number 13-12082 previously had 5 separate class actions regarding bank overdraft charges pending.

http://media.ca11.uscourts.gov/opinions/pub/files/201312082.pdf

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

FL (2nd DCA) Reverses Foreclosure Judgment Due to Inadequate Proof of Amount Due, But Remands Without Involuntary Dismissal

2nd DCA reversed a final judgment of foreclosure, holding that the mortgagee failed to properly establish the amount of its damages. the court, however, affirmed State Farm had established its standing as the holder of the note and mortgage, and the default of the mortgagor/borrower under the note.  The borrower failed to move for dismissal at the close of evidence, the proper remedy was reversal and remand, rather than involuntary dismissal.

Colson v. State Farm and Wachovia

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2015/April/April%2015,%202015/2D13-5526.pdf

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

CFPB Updates Its Supervision and Examination Manual as to TILA and RESPA, Issues “‘Know Before You Owe’ Mortgage Shopping Toolkit”

The Consumer Financial Protection Bureau (“CFPB”) recently released two updates to its Supervision and Examination Manual:

(1.) “TILA Procedures – TILA RESPA Integrated Disclosures (applicable for examinations after the August 2015 effective date), and Higher-Priced Mortgage Loan Appraisals (January 2014), Escrow Accounts (January 2014), and Mortgage Servicing Requirements (January 2014)”

A copy is available at: http://files.consumerfinance.gov/f/201503_cfpb_truth-in-lending-act.pdf

(2.) “RESPA Procedures – TILA RESPA Integrated Disclosures (applicable for examinations after the August 2015 effective date), and Mortgage Servicing Requirements (January 2014)”

A copy is available at: http://files.consumerfinance.gov/f/201503_cfpb_regulation-x-real-estate-settlement-procedures-act.pdf

The CFPB also recently released its new “’Know Before You Owe’ Mortgage Shopping Toolkit.” The toolkit will replace the current Settlement Costs Booklet.

A copy of the toolkit is available at: http://files.consumerfinance.gov/f/201503_cfpb_your-home-loan-toolkit-web.pdf

According to the CFPB, “[t]he updated toolkit is designed to be used in connection with the new Loan Estimate and Closing Disclosure forms that will be effective on August 1, 2015. Creditors must provide the toolkit to mortgage applicants as a part of the application process, and other industry participants, including real estate professionals, are encouraged to provide it to potential homebuyers.”

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

Bank of America v Caulkett

Bank of America v. Caulkett (March 24 US Supreme Court Hearing) — A complex bankruptcy issue: When there are multiple liens on a property, can the debtor “strip off” junior mortgage liens if the debt owed a senior lien holder exceeds the value of the property? (Bank of America v. Toledo-Cardona also deals with the same issue and will be heard on the same day.)

 

 

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

IL App Ct Vacates Foreclosure Due to Alleged HAMP Violation, But Rejects Borrower’s Challenge to Notice of Sale

The Illinois Appellate Court, First District,  vacated an order confirming a foreclosure sale and remanded the matter for an evidentiary hearing, where the mortgagee allegedly moved forward with a foreclosure sale despite an allegedly pending FHA-HAMP application. http://ow.ly/IHcjh

This dual tracking is common throughout the country and many times the foreclosure attorney and the loss mitigation  office of the lender are not in communication

 

 

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

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