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 opinion in Deutsche Bank Nat’l Trust Co. v. Perez, et al. is available at: Link to Opinion. In October 2009, the trustee of a mortgage-backed securities trust sued to foreclose a mortgage on real property in Miami-Dade County, Florida. In October 2014, the case was set for…
Posts tagged as “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. Sill a/k/a Michael Sill v. JPMorgan Chase Bank, National Association is available at: Link to Opinion. In April 2007, the borrower signed a promissory note and mortgage securing the loan, but defaulted on July 1, 2009. Pursuant to paragraph 22 of the mortgage, the mortgagee sent…
The U.S. Court of Appeals for the Ninth Circuit recently held that, under California law, a two-year delay in failing to investigate the facts entitling a party to rescind a foreclosure sale transaction barred that equitable remedy, even though there was a genuine issue of material fact as to whether the plaintiff foreclosure buyer could have discovered material defects before the foreclosure sale. A copy of the opinion in DM Residential Fund II v. First Tennessee Bank is available at: Link to Opinion. A mortgagee (“lender”) initiated a non-judicial foreclosure of residential real estate in California, and sold that property at a foreclosure sale to…
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 by which the plaintiff mortgagee claimed an interest in the note at issue. A copy of the opinion in Bank of New York Mellon Trust Company, N.A. v. Dennis M. Conley, et al. is available at: Link to Opinion. A mortgagee filed a foreclosure action. The promissory note contained…
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 recognizes as a basis to undo a voluntary dismissal. A copy of the opinion in Cottrell v. Taylor, Bean & Whitaker Mortgage Corp. is available at: Link to Opinion. In March 2013, borrowers created a land trust, naming their attorney as trustee. They then transferred to the…
The U.S. Court of Appeals for the Sixth Circuit recently rejected a borrower’s “robo-signing” challenge to his foreclosure. In so ruling, the Court also held that a Michigan state court’s issuance of a preliminary injunction against a mortgagee in a foreclosure action did not bar subsequent removal and entry of summary judgment in favor of the mortgagee by a federal district court. A copy of the opinion in Burniac v. Wells Fargo Bank, NA is available at: Link to Opinion. The borrower obtained a mortgage loan, and the mortgage was later assigned. The new mortgagee continued to send the borrower his monthly…
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 note, and because the trial court admitted business records without objection into evidence showing the note was in default. A copy of the opinion in Nationstar Mortgage, LLC v. Marquez, et al. is available at: Link to Opinion. The borrower signed a note and mortgage in…
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 enforcement of the note and mortgage. A copy of the opinion in In re Anthony is available at: Link to Opinion. A mortgagee filed a mortgage foreclosure action in Florida state court in 2009. The complaint contained a paragraph accelerating the note. The mortgagee also…
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 a third party purchaser had no standing to appeal a final judgment of foreclosure where the purchaser did not appeal a prior denial of its motion to intervene, even though the third party purchaser’s name was erroneously placed in the style of the uniform final…
The District Court of Appeal of the State of Florida, Fifth District, recently held that the trial court erred by denying the borrower’s motion to involuntarily dismiss a foreclosure action, because the plaintiff mortgagee’s counsel failed to properly introduce evidence to reestablish the lost note, prove that it had standing to foreclose, prove the amount owed, and demonstrate compliance with the mortgage’s condition precedent of giving notice of default. A copy of the opinion in Figueroa v. Federal National Mortgage Association, etc., et al is available at: Link to Opinion. A servicer foreclosed alleging that the borrower defaulted under the note by failing…
The District Court of Appeal of Florida, Second District, recently affirmed the trial court’s denial of a third party record title holder’s motion to cancel a mortgage foreclosure sale, even though the third party movant acquired title in a prior homeowners association lien foreclosure action, and even though the third party movant alleged that the mortgagee thwarted its redemption rights by supposedly failing to provide an estoppel letter. A copy of the opinion in Whitburn, LLC v. Wells Fargo Bank, N.A. is available at: Link to Opinion. In December 2012, a mortgagee filed a foreclosure action along with a lis pendens against…
The District Court of Appeals of the State of Florida, Fourth District, recently reversed final judgment of foreclosure in favor of a mortgagee for entry of judgment in favor of the mortgagors, where the mortgagee failed to prove that it came into possession of the note containing an undated, blank endorsement before the foreclosure was filed. In so ruling, the Fourth District confirmed that a trial court abuses its discretion in admitting business records if it is not established that the records were made at or near the time of the event. In addition, the Fourth District held that a…