Monday, August 03, 2015

And The Beat Goes On! Florida Appeals Courts Continue The Clean-Up Of Trial Judge Screw-Ups That Unfairly Hurt Already-Hurting Homeowners In Foreclosure Cases

The Florida appeals courts were at it again lately, reversing trial court errors in foreclosure cases that, unsurprisingly, were unfavorable to homeowners (For an earlier post, see 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)).

The following newer cases once again highlight the importance of homeowners having competent counsel able to secure these reversals and avoid being screwed over by sloppy banksters & seemingly one-sided trial judges in foreclosure cases.

1- Foreclosure/Standing:
  • Original note was insufficient to prove plaintiff’s standing at the inception of the case because there was no evidence indicating when the blank endorsement was placed onto the note and the assignment, despite containing a purported effective date before the complaint was filed, it was executed after the complaint was filed and the witness could not verify when the assignment took place. – George Kenney v. HSBC Bank USA, National Association, as Trustee for the Holders of Deutsche Alt-A Securities, Inc., Mortgage Loan Trust, Series 2005-6, et al. No. 4D13-4165 (Fla. 4th DCA July 22, 2015) (reversed)
2- Foreclosure/Standing:
  • Plaintiff’s trial testimony did not establish that the promissory note was endorsed at the time the complaint was filed, and thus, Plaintiff had not established its standingKelly v. Bank of New York Mellon, Case No. 1D13-2778 (Fla. 1st DCA July 14, 2015) (reversing final judgment of foreclosure)
3- Foreclosure/Standing:
  • Bank failed to establish it had standing because it did not show that it received the instrument from a holder with enforcement rights – St. Clair v. U.S. Bank Nat’l Ass’n, as Trustee, Case No. 2D14-2111 (Fla. 2d DCA July 17, 2015) (reversed and remanded)
4- Foreclosure/Reverse Mortgage:
  • Entry of final judgment of foreclosure was improper because defendant was a co-borrower, as contemplated under the mortgage, and because she had not died, a condition precedent to plaintiff’s right to foreclose had not occurred– Smith v. Reverse Mortg. Solutions, Inc., Case No. 3D13-2261 (Fla. 3d DCA July 15, 2015) (reversed and remanded with instructions to determine whether property was co-borrower’s principal residence)
5- Foreclosure/Damages:
  • Affirming trial court’s finding that plaintiff had standing to foreclose, and admission of payment history into evidence under business records exception to hearsay, but concluding that plaintiff did not properly establish the amount owedPeuguero v. Bank of Am., N.A., Case No. 4D13-3210 (Fla. 4th DCA July 15, 2015) (reversed and remanded for determination of the amounts owed)

    Editor's Note: For more on this case, see Daily Business Review: Oops! How a Mistake Cost Bank of America in Foreclosure Case, in which it appears the appeals court may have had shaky reasoning in (1) finding that the plaintiff lender had standing to foreclose, and (2) further finding that the payment history was admissible into evidence under the business exception to hearsay, given the specific facts of this case.

P.S.: There's been at least one recent case where the trial judge actually got it right - ruling in favor of the homowner in foreclosure - a ruling subsequently affirmed by a Florida appeals court:
  • Foreclosure/Lost Note:

    Plaintiff failed to prove who lost the note, when it was lost, who had the right to enforce the note when it was lost and failed to produce any evidence of ownership at the time of loss. – Wells Fargo Bank, N.A. v. Robinson et al., No. 5D14-2819 (Fla. 5th DCA July 24, 2015) (affirmed)

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