Monday, September 14, 2015

Florida Appeals Courts Continue (Seemingly Never-Ending) Clean-Up/Reversals Of Trial Judge Screw-Ups Involving Rulings Unfavorable To Homeowners In Foreclosure Cases

The following case notes are taken from recent client alerts from the Florida law firm Carlton Fields Jorden Burt:
  • Foreclosure/Standingplaintiff failed to establish by competent, substantial evidence it was owner and holder of note at time complaint filed by failing to establish that endorsement had been placed on note prior to filing of complaint. – Fiorito v. JP Morgan Chase Bank, National Association, as purchaser of the Washington Mutual Bank, f/k/a Washington Mutual Bank, P.A., No. 4D13-2813 (Fla. 4th  DCA August 26, 2015) (reversed and remanded)
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  • Foreclosure/Standinglender failed to establish standing to enforce note, and therefore, entry of final judgment of foreclosure was improper – Lamb v. Nationstar Mortg., LLC, Case No. 4D13-3125 (Fla. 4th DCA Aug. 19, 2015) (reversed and remanded for entry of involuntary dismissal)
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  • Foreclosure/Standingplaintiff [lender] failed to establish standing because no evidence was introduced showing note was transferred to plaintiff prior to commencement of lawsuit and pooling and servicing agreement was insufficient to establish standing – Perez v. Deutsche Nat’l Trust Co., as Trustee, Case No. 4D13-4812 (Fla. 4th DCA Aug. 19, 2015) (reversed and remanded with instructions to enter involuntary dismissal)
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  • Foreclosure/Business Recordstrial court erred in entering final judgment of foreclosure because plaintiff’s employee’s testimony regarding standing was based on business records that were never introduced into evidence – Cardona v. Nationstar Mortg. LLC, Case No. 4D14-1609 (Fla. 4th DCA Aug. 19, 2015) (reversed and remanded for new trial)
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  • Foreclosure/Summary Judgment: material issues of fact regarding whether certain properties were meant to secure two mortgages precluded entry of summary judgment in lender’s favor – Fowler v. TD Bank, N.A., etc., Case No. 5D14-4134 (Fla. 5th DCA Aug. 21, 2015) (affirmed in part, reversed in part, and remanded)
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  • Foreclosure/Standing: judgment of foreclosure in favor of lender reversed when lender failed to prove standing to enforce and foreclose mortgage before the action was filedTomlinson and Crump v GMAC, Case No. 2D13-6030 (Fla. 2nd DCA September 2, 2015) (foreclosure judgment reversed)
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  • Foreclosure/Deficiency: deficiency judgment in favor of an alleged assignee, who purportedly received assignment of right to pursue deficiency post foreclosure, was improper where alleged assignee failed to present any evidence of the assignmentBarry and Ruff v Vantium Capital, Inc, Case No. 2D14-3200 (Fla. 2nd DCA September 4, 2015) (deficiency judgment revered).

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