Thursday, June 10, 2010

Appeals Court Tags Another Florida Trial Judge With "Abuse Of Discretion" In Case Involving Two Lenders Simultaneously Foreclosing On Same Mortgage

Another Florida trial court gets tagged for "abuse of discretion." This time it was Miami-Dade County Circuit Court Judge Mark King Leban being held accountable by Florida's 3rd District Court of Appeal. The case apparently involved a situation where two different mortgage lenders were foreclosing on the same mortgage in two separate actions occurring simultaneously in different divisions of the trial courts in Miami. The ruling was limited to one, short & sweet, paragraph (bold text is my emphasis, not in the original text):
  • Based on the unique circumstances of this case,(1) we conclude that the trial court abused its discretion by denying the motion to continue the final summary judgment hearing and by failing to grant the motion to transfer the foreclosure action to the division where a separate foreclosure action was pending in which another bank was simultaneously seeking to foreclose the same mortgage. Accordingly, we reverse the final judgment of foreclosure and remand with instructions to reinstate the foreclosure action filed by plaintiff, HSBC Bank USA, and to allow the defendants, Glazy Ruscalleda and Jose Ruscalleda, to answer the complaint and assert affirmative defenses.

    Reversed and remanded.

For the ruling, see Ruscalleda v. HSBC Bank USA, Case No. 3D09-997 (Fla. 3rd DCA, June 9, 2010).

Representing the appellant/homeowners were Miami's John H. Ruiz and Karen Baker. For the lender was Boca Raton's own Shapiro & Fishman and Heidi J. Weinzetl.

(1) I wonder how unique the circumstances of this case actually are, given the light being shined on the sloppy (and possibly fraudulent) work being churned and cranked out by the assembly line, foreclosure mill law firms.