Servicers Win Some Motions in Florida Foreclosure Cases

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MORTGAGE EXPERT
4 · 18 · 12

Florida borrowers continue to find every judicial opportunity to put off final foreclosure. Issues holding up the process include lost notes, substitute service and outstanding discovery items. But some decisions have been made in favor of mortgage servicers.

Dilcia Osorto filed an appeal of a trial court’s final order granting a final judgment of foreclosure by Deutsche Bank National Trust Co. with the District Court of Appeal of Florida, Fourth District. Osorto claims that outstanding discovery items included the original note, mortgage and assignments, and the mortgage, and the court agreed.

“We find in favor of Osorto and hold that the trial court granted summary judgment prematurely where there were outstanding discovery requests,” the March 28 decision stated. “As such, we reverse and remand for discovery to be completed.”

The District Court of Appeal of Florida, Second District, on March 23 vacated a default judgment in favor of Stearns Bank, N.A. The decision was reversed because Stearns didn’t sufficiently show that it perfected substituted service.

In another case out of Florida, Guerrero v. Chase Home Finance LLC, the District Court of Appeal of Florida, Third District, reversed a final judgment of foreclosures against Juan Luis Gurrero and Patricia Guerrero. The court said it couldn’t agree that the burden of re-establishing a lost note and mortgage was met.

“Other than representations made in the records custodian’s stricken affidavit, there is no evidence that the Guerreros will be ‘adequately protected against loss that might occur by reason of a claim by another person to enforce the[se] instrument[s]’ as required by section 673.3091 of the Florida Statutes,” the decision stated.

A final summary judgment in favor of Novastar Home Mortgage Inc. and successor The Bank of New York Mellon against Marc D. Beaumont was reversed on Feb. 17 by the District Court of Appeal of Florida, Fifth District. Mellon sought to re-establish a lost note and recover on it. The appeals court ruled that “Mellon failed to prove who lost the note and when it was lost, offered no proof of anyone’s right to enforce the note when it was lost, and produced no evidence of ownership, due to the transfer from Novastar to Mellon.”

But not all recent Florida decisions were bad for lenders. The District Court of Appeal of Florida, Third District, on March 14 overturned an order vacating a judgment in favor of Freddie Mac against Jefferson De Souza. The borrower alleged discrepancies in the dates when Freddie’s right to foreclose came to exist, though the court wrote, “But, neither De Souza’s motion nor the record supports a prima facie case of fraud.”

A motion to dismiss that was granted by a trial court in a foreclosure against William L. Knight was appealed by U.S. Bank N.A., and the District Court of Appeal of Florida, Fourth District, reversed the decision and remanded the case. The appeals court found that U.S. Bank, as holder of a note indorsed in blank, had standing to foreclose, despite the trial court’s finding assignments attached to U.S. Bank’s complaint fatal to its allegation of standing.

Andrze J. Madura and Anna Dolinska-Madura waived their right to a jury trial in their note dated July 26, 2000. But when Bank of America, N.A., filed a foreclosure, the Madura’s demanded a jury. BofA filed a motion to strike jury demand, which was granted by the U.S. District Court, M.D. Florida, Tampa Division.

A final summary judgment of foreclosure in favor of trustee Wells Fargo Bank, N.A., against David and Kathlyn Rigby was reversed by the District Court of Appeal of Florida, Fourth District, on April 4. The decision indicated that Wells Fargo failed to meet its burden and didn’t establish that it had standing to foreclosure upon the note.

Mortgage Expert

Mortgage Daily Staff

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