Florida Appeals Courts Continue Reversing Lower Court Screw-Ups In Foreclosure Cases, Highlighting Importance Of Hiring Competent Counsel When Fighting Off Sloppy Banksters (& Snoozing Trial Judges)
Three recent appeals court rulings indicate that Florida homeowners continue having problems finding trial judges competent in foreclosure matters to hear and issue correct rulings in their cases. Fortunately for the homeowners who were victimized by the unfavorably incorrect rulings in these cases, they were represented by counsel who appealed the rulings and successfully obtained reversals of the trial judges' screw-ups.
In one case, the trial judge improperly allowed the foreclosing bankster to enforce the note and mortgage, despite the fact that said note and mortgage was actually owned by its wholly-owned subsidiary. On appeal, Florida's 4th District Court of Appeal reversed the trial judge, noting that the parent entity has no right to enforce a note and mortgage owned by a subsidiary entity absent evidence that the parent entity acquired such right.
Not only did the parent entity not own the note and mortgage, a notice of a transfer of servicing rights filed in the court file purporting to be proof the parent entity acquired the servicing rights for the note was found not to be competent evidence because it was never authenticated and admitted into evidence at trial.
For the ruling, see Wright v. JPMorgan Chase Bank, N.A., Case No. 4D14-565 (Fla. 4th DCA July 1, 2015) (foreclosure judgment reversed and dismissed).
Editor's Note: Information contained in this appeals court ruling indicates that the foreclosure action commenced in 2009 (the trial court case file number - CACE 09-065166). Being that we are now in the year 2015 (more than five years after the case was originally filed), and being that the appeals court, in reversing, directed judgment in favor of the homeowners, dismissing the foreclosure on the mortgage for the bankster's failure to prove its standing, I wonder if the five-year Florida statute of limitations clock on refiling this foreclosure action has now expired. See, generally:
In a second case, the trial judge's screw-up involved admitting the foreclosing bankster's loan transaction records into evidence where there was no testimony as to whether the prior servicer’s records had been checked or verified for accuracy and no evidence the foreclosing bankster's witness had any knowledge of prior servicer’s recordkeeping system. Again, it was a Florida appeals court that came to the rescue to clean up the mess, stating, among other things, "We conclude that the foundation [for admissibility of business records into evidence] laid in this instance was woefully inadequate."
For the ruling, see Channell v. Deutsche Bank Nat. Trust Co., No. 2D14-2318 (Fla. 2d DCA June 24, 2015) (affirmed in part; reversed in part; remanded).
In the final case, the trial judge improperly failed to dismiss a foreclosure action where the foreclosing bankster, when initiating the action and including a lost note count in its original complaint, attached a copy of the note to its complaint that lacked an endorsement. Once again, it was the appeals court that was called upon to reverse the ruling.
For the ruling, see Eagles Master Ass', Inc. v. Bank of America, N.A., No. 2D14-1047 (Fla. 2d DCA June 26, 2015) (reversed).
Editor's Note: The court noted that theforever-infamous, now-disbarred foreclosure attorney David Stern played a role in this case when the foreclosure was initiated, only to be yanked in midstream not long before the commencement of The Florida Bar probe into his extensively-reported on handiwork that ultimately led to his unceremonious boot from the legal profession.
Reference: Carlton Fields Jorden Burt Real Estate Update (July 7, 2015).
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In one case, the trial judge improperly allowed the foreclosing bankster to enforce the note and mortgage, despite the fact that said note and mortgage was actually owned by its wholly-owned subsidiary. On appeal, Florida's 4th District Court of Appeal reversed the trial judge, noting that the parent entity has no right to enforce a note and mortgage owned by a subsidiary entity absent evidence that the parent entity acquired such right.
Not only did the parent entity not own the note and mortgage, a notice of a transfer of servicing rights filed in the court file purporting to be proof the parent entity acquired the servicing rights for the note was found not to be competent evidence because it was never authenticated and admitted into evidence at trial.
For the ruling, see Wright v. JPMorgan Chase Bank, N.A., Case No. 4D14-565 (Fla. 4th DCA July 1, 2015) (foreclosure judgment reversed and dismissed).
Editor's Note: Information contained in this appeals court ruling indicates that the foreclosure action commenced in 2009 (the trial court case file number - CACE 09-065166). Being that we are now in the year 2015 (more than five years after the case was originally filed), and being that the appeals court, in reversing, directed judgment in favor of the homeowners, dismissing the foreclosure on the mortgage for the bankster's failure to prove its standing, I wonder if the five-year Florida statute of limitations clock on refiling this foreclosure action has now expired. See, generally:
- The Florida Bar Journal: Deceleration: Restarting the Expired Statute of Limitations in Mortgage Foreclosures,
- The New York Times: Foreclosure to Home Free, as 5-Year Clock Expires,
- WTVJ-TV Channel 6 (Miami): Five Years After Foreclosure, Some Keep Homes ("The Florida Supreme Court has set aside Oct. 6, 2015 to hear oral arguments on the matter and could issue an order resolving the issue once and for all").
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In a second case, the trial judge's screw-up involved admitting the foreclosing bankster's loan transaction records into evidence where there was no testimony as to whether the prior servicer’s records had been checked or verified for accuracy and no evidence the foreclosing bankster's witness had any knowledge of prior servicer’s recordkeeping system. Again, it was a Florida appeals court that came to the rescue to clean up the mess, stating, among other things, "We conclude that the foundation [for admissibility of business records into evidence] laid in this instance was woefully inadequate."
For the ruling, see Channell v. Deutsche Bank Nat. Trust Co., No. 2D14-2318 (Fla. 2d DCA June 24, 2015) (affirmed in part; reversed in part; remanded).
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In the final case, the trial judge improperly failed to dismiss a foreclosure action where the foreclosing bankster, when initiating the action and including a lost note count in its original complaint, attached a copy of the note to its complaint that lacked an endorsement. Once again, it was the appeals court that was called upon to reverse the ruling.
For the ruling, see Eagles Master Ass', Inc. v. Bank of America, N.A., No. 2D14-1047 (Fla. 2d DCA June 26, 2015) (reversed).
Editor's Note: The court noted that the
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Reference: Carlton Fields Jorden Burt Real Estate Update (July 7, 2015).
posted by Home Equity Theft Reporter at 4:04 AM
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