Florida Appellate Courts Reverse Foreclosure Judgments

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1 · 08 · 13

While mortgage servicers are making some progress in Florida foreclosure cases, many recent decisions involve overturned foreclosures or other negative rulings for lenders. Much of the action is happening at the state’s fourth district court of appeal.

HSBC Bank USA obtained a foreclosure judgment for $787,474 on a Florida loan, and an electronic foreclosure sale was scheduled for March 7, 2011. But even though HSBC’s prior counsel, David J. Stern P.A., moved to withdraw and sought a 60-day continuance for HSBC to find a new law firm — Stern didn’t publish notice of the sale or set the motion to withdraw for a hearing. The property was sold at foreclosure sale for $1,600 to 3L Real Estate LLC.

When HSBC had its new counsel in place, it moved to vacate the foreclosure sale but was denied. An appeal affirmed the lower court decision, noting that the trial court didn’t err when it didn’t find “that the inadequacy of the bid resulted from some mistake, fraud or other irregularity in the sale.”

OneWest Bank FSB financed a home purchase for Steven Spikes. A portion of the proceeds went to pay off the seller’s two loans against the property, and the rest went to the seller. When the loan defaulted, OneWest sued but was only granted an equitable subrogation lien in the amount of the prior owner’s two mortgages and not the full sales price.

Spikes, whose wife Nicole was inadvertently left off of the loan, appealed the decision claiming that his wife’s interest couldn’t be foreclosed, and OneWest appealed the amount of the judgment. The District Court of Appeal of Florida, Fourth District, ruled in favor of OneWest on both appeals.

A summary judgment in favor of Bank of America, N.A., was reversed by the District Court of Appeal of Florida, Fourth District. The decision said that BofA didn’t file evidence of the mortgage assignment and a lost or misplaced note affidavit until the day of the summary judgment hearing — even though the requirement was for 20 days ahead of the hearing. The case was remanded.

A final judgment of foreclosure in favor of BAC Home Loans Servicing LP against Marcos Acevedo was vacated and the case was remanded. The borrower argued, and BofA conceded, that the trial court erred by receiving live testimony at the summary judgment hearing and entering final judgment that did not purport to re-establish a lost note consistent with the evidence presented at the hearing.

Eugene Dominko appealed a final summary judgment of foreclosure in favor of Wells Fargo Bank, N.A. Dominko alleged that Wells Fargo failed to comply with the pre-suit notice requirement in the acceleration clause of the mortgage contract. The District Court of Appeal of Florida, Fourth District, agreed, reversed the decision and remanded the case.

Another decision out of the fourth district on a Wells Fargo foreclosure reversed the trial court’s dismissal of a foreclosure action in a case after a default had been entered against the borrower. The trial court said that Wells Fargo had a lack of standing.

On Nov. 21, 2012, the Fourth District Court of Appeal of Florida affirmed a trial court denial of Star Funding Solutions LLC’s motion to vacate an order dismissing its foreclosure action against John and Florence Krondes. The order only impacts the action originating from the earlier default and not any actions from subsequent defaults.

A final summary judgment in favor of Deutsche Bank against Joanne Finnegan was overturned by Florida’s appellate court. The decision noted that material issues of fact remain because Finnegan claims she never received a notice of default. The bank only presented copies of letters allegedly sent to the borrower that were not sworn and could not be considered on a motion for summary judgment.

IndyMac Federal Bank FSB completed the foreclosure process on the home of Kevin J. Hagan and Monica P. Hagan. After it purchased the property at a foreclosure sale and obtained a certificate of sale from the clerk, the Hagans filed a motion characterized as both an objection to the foreclosure sale and a motion to vacate the final judgment of foreclosure. But the court declined to issue a certificate of title for the subject property.

So IndyMac filed an appeal with the District Court of Appeal of Florida, Third District., which found that the objection to the foreclosure sale was facially deficient and the motion to vacate the final judgment was time-barred. The decision was reversed and the case was remanded for immediate issuance of the certificate of title.

David and Julianne Walker filed a motion to quash service of process by Fifth Third Mortgage Co., and the trial court denied the motion. But when they appealed to the fifth district of Florida’s appeals court — they found a sympathetic ear. A decision reversing the decision and remanding the case indicated that while a process server personally served the Walkers with a summons and copy of the complaint, he failed to include the date, time of service and identification number on any of the documents served.


Mortgage Daily Staff


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