Author Archive for Andrew Chan

Fla. App. Court Rules New Foreclosure Plaintiff Following Transfer of Servicing Failed to Prove Standing

The District Court of Appeal of the State of Florida, Fourth District, recently reversed summary judgment in favor of a mortgagee, holding that a genuine issue of material fact as to whether the original plaintiff or the substituted successor in interest held the note when the complaint was filed precluded summary judgment, and thus that

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Fla. App. Court (4th DCA) Upholds Foreclosure in E-Note Case

The District Court of Appeal of Florida, Fourth District, recently upheld a trial court’s ruling that a plaintiff mortgage loan servicer had authority to initiate foreclosure proceedings against borrowers on a mortgage loan evidenced by an electronic note. The Fourth DCA also held that the e-note was a transferable record under the Uniform Electronic Transactions

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Florida Court Holds Erroneous Legal Description Does Not Require Dismissal, Restart of Foreclosure

The District Court of Appeal of the State of Florida, Fourth District, recently reversed the dismissal of a mortgage foreclosure action, holding that the mortgagee was deprived of due process because the dismissal was entered sua sponte and without notice or opportunity to be heard, and because correction of an erroneous legal description did not

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Florida Court Holds Foreclosure Invalid as Mortgagee Did Not Meet Burden to Prove Standing

The District Court of Appeal of the State of Florida, Fourth District, recently reversed summary judgment of foreclosure in favor of a mortgagee, holding that the plaintiff mortgagee failed to satisfy its heightened burden of proving the absence of any genuine issue of material fact on the issue of standing applicable because the motion for

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Florida Court Reverses Dismissal of Foreclosure Due to Mortgagee’s Generic Witness Disclosure

The Third District Court of Appeal, State of Florida, recently reversed the dismissal of a mortgage foreclosure action based on the mortgagee’s failure to provide the name of the corporate representative who was to testify at trial, holding that dismissal was an overly harsh sanction given that no prejudice was shown. A copy of the

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Florida Court Holds New Default Notice Not Req’d After Voluntary Dismissal of Prior Foreclosure

The District Court of Appeal of the State of Florida, Fourth District, recently affirmed a final judgment of foreclosure in plaintiff mortgagee’s favor, holding that the plaintiff mortgagee was not required to send a second notice of default after it voluntarily dismissed its first foreclosure action before filing the second foreclosure action. A copy of the opinion in Michael E.

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Florida Court Affirms Dismissal of Foreclosure as Plaintiff Not Party to Documents in Evidence

The District Court of Appeal of the State of Florida, Fourth District, recently affirmed the dismissal of a mortgage foreclosure action because the mortgagee failed to present competent, substantial evidence that it had standing to foreclose, due to lack of conformity between the name of the plaintiff mortgagee and the names in the transactional documentation

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Florida Court Holds Voluntary Dismissal of Foreclosure Could Not Be Undone

The District Court of Appeal of Florida, Second District, recently reversed a trial court’s order vacating a voluntary dismissal based on mistaken advice from counsel regarding the statute of limitations, holding that the voluntary dismissal was the result of a deliberate judgment by counsel, and not the type of non-judgmental, clerical mistake that Florida law

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Florida Court Reverses Dismissal of Foreclosure, Holds Evidence Was Sufficient

The Third District Court of Appeal, State of Florida, recently reversed a trial court’s dismissal of foreclosure proceedings due to a ruling that a lost note was not properly re-established, holding that the trial court should have entered judgment for the plaintiff mortgagee because the plaintiff mortgagee met the statutory requirements for re-establishing the lost

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Florida Appellate Court Rejects Borrower’s Alleged Oral Modification of Mortgage Loan

The District Court of Appeal of the State of Florida, Fourth District, recently reversed a final judgment in favor of a borrower based on an alleged oral modification of the mortgage and the doctrine of promissory estoppel, holding that because the mortgage fell within the statute of frauds, it could not be orally modified, and

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Bankruptcy Court Holds Mortgagee’s Secured Claim Not Time-Barred

The U.S. Bankruptcy Court for the Middle District of Florida recently overruled a debtor’s objection to a mortgagee’s secured claim and denied the debtor’s motion to determine secured status, holding that the issues should have been brought by adversary proceeding, and in any event neither Florida’s statute of limitations nor its statute of repose barred

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Florida Court Holds Third Party Purchaser During Foreclosure Had No Standing to Appeal

The District Court of Appeal of Florida, Second District, recently dismissed the appeal of a foreclosure judgment by a third party purchaser of the collateral property, where the third party purchased the collateral property while it was the subject of a foreclosure proceeding and a recorded lis pendens. In so ruling, the Appellate Court confirmed

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