Tuesday, April 12, 2011

Florida Appeals Court Reverses Foreclosure Judgment, Boots Case Back To Lower Court As 'Senior' Judge Gets 'Nabbed' For Empty-Headed, Rubber-Stamping

In a straightforward, two-paragraph ruling, a three-judge panel of Florida's Fifth District Court of Appeal recently reversed a foreclosure judgment from an Orange County Circuit Court issued by Senior Judge Emerson R. Thompson, Jr.

The dearth of extensive legal analysis in a case a court needed only two paragraphs to dispose of,(1) coupled with the fact that no attorney bothered to appear on appeal on behalf of the foreclosing bankster, is an indicator that the foreclosure judgment was so obviously flawed on its face that it shouldn't have required the effort and expense to seek an appeals court correction to arrive at the proper result in the first place.

In my view, this foreclosure judgment is an example of garbage cranked out by an out-of-control 'rocket docket' fueled by rubber stamping, senior trial judges called out of retirement to keep the court's foreclosure 'assembly line' moving along (and to pocket an additional retirement check), and it took the filing of an appeal by the victimized homeowner to obtain vindication.(2)

Representing the homeowner was Kaufman, Englett & Lynd, PLLC, of Orlando, Florida.

For the ruling, see Khan v. Bank of America, 5D10-3288 (Fla. 5th DCA, April 8, 2011).

(1) The court's analysis follows:

  • In its amended complaint to foreclose a mortgage on the Khans' home, Bank of America alleged that it was the owner and holder of the note and mortgage. However, the copy of the note attached to the amended complaint bears an endorsement from Bank of America to Wells Fargo Bank, N.A. as trustee for the holders of Banc of America Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series 2006-B. The Khans correctly raised the issue of Bank of America's standing to prosecute the foreclosure based on the assignment of the note to Wells Fargo Bank.

    The proper party with standing to foreclose a note and mortgage is the holder of the note and mortgage or the holder's representative. See Taylor v. Deutsche Bank Nat. Trust. Co., 44 So.3d 618, 622 (Fla. 5th DCA 2010); BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010). While Bank of America alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the note attached to the amended complaint contradicts that allegation. When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 401 (Fla. 2d DCA 2000). Because the exhibit to Bank of America's amended complaint conflicts with its allegations concerning standing, Bank of America did not establish that it had standing to foreclose the mortgage as a matter of law. As a result, the trial court acted prematurely in entering the final summary judgment of foreclosure in favor of Bank of America. We, therefore, reverse the final summary judgment of foreclosure and remand for further proceedings.

(2) In a related story, see Housing Wire: Florida foreclosure defense attorneys allege 'rocket docket' abuses:

  • [A]ffidavits filed last week by ACLU attorneys representing homeowners, suggest Florida's attempt to speed up the process has been a detriment to homeowners challenging their foreclosures.

  • The ACLU filed its petition with a Florida appellate court last week in an attempt to block the court from rushing foreclosures through this "rocket docket." In its filing, defense attorneys from across the state complained of judges' actions.

For more from the American Civil Liberties Union in their recent efforts to curb the crap created by Florida 'rocket dockets', see:

posted by Home Equity Theft Reporter at 4:04 AM