Florida is Its Own Worst Enemy

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MORTGAGE EXPERT
6 · 18 · 12

Florida has more foreclosure problems than most other states, and its problems are being exacerbated by judges who continue to obstruct lenders in their efforts to liquidate distressed inventory. Many of the foreclosure battles in the state are being fought by Deutsche Bank National Trust Co.

RealtyTrac reported that Florida had 26,412 properties that were hit with a foreclosure filing in April — second only to California’s 42,243 filings. But while Florida’s foreclosures were at 62 percent of California’s level, its population is less than half of California’s.

Completed foreclosures in the Sunshine State exceeded 6,000 while fewer than 7,500 were completed in California.

Some of Florida’s problems are due to its trial court judges, who seem to take every opportunity to block mortgage servicers from clearing out their distressed portfolios.

Deutsche filed a foreclosure lawsuit against Ezra and Carol Clarke. At the close of all evidence, the defendants — for the first time — asked for a dismissal because only copies of the note and mortgage were submitted instead of the originals, and the trial court granted the dismissal. So Deutsche appealed, and the District Court of Appeal of Florida, Fourth District, reversed the final judgment granting the motion for dismissal and remanded to the circuit court.

It was a similar outcome for Deutsche in its foreclosure case against Aisa Cagigas in which the trial court dismissed its complaint as a sanction. The decision was reversed, and the case was remanded for further proceedings.

The District Court of Appeal of Florida, Second District, reversed and remanded a final summary judgment in favor of Deutsche against Elena Gonzalez. The bank initiated its action in January 2009 as it also sought to re-establish a missing note. Then it apparently located the note and two months later filed a notice of filing original note and original mortgage. By August of that same year a notice of filing the assignment of mortgage was filed in which Mortgage Electronic Registration Systems Inc. assigned the instant mortgage to Deutsche as of December 2009 — almost a year after the foreclosure was filed.

However, the trial court still granted a summary judgment to Deutsche and denied Gonzalez’s motion from relief from final judgment. But the judgment was overturned on appeal.

Deutsche mistakenly attached an unrecorded mortgage that was signed only by the husband in its foreclosure action against Damasino and Rosalinda Taperi. But even though it subsequently followed up by filing the original mortgage, note and assignment of mortgage in February 2011, the trial court granted summary final judgment in favor of Mrs. Taperi.

On appeal, the District Court of Appeal of Florida, Fourth District, determined that the trial court erred in granting the motion for summary judgment because the bank had cured its clerical error in failing to file the mortgage that both Taperis signed by its notice of filing a copy of that mortgage. The judgment was reversed and remanded.

Anthony Acosta’s attorney claimed that he inadvertently missed a summary judgment hearing that ended up in favor of Deutsche Bank National Bank Co., and he filed a verified motion to set aside final judgment of foreclosure and stay the foreclosure sale — which was denied. But the decision was reversed by the District Court of Appeal of Florida, Fourth District, and the case was remanded for a hearing on the motion.

A complaint filed in Dec. 2008 against Darcy Caravalho Cleveland by Flagstar Bank, F.S.B., was scheduled for an August 2009 summary judgment hearing then canceled after the borrower filed a “suggestion of bankruptcy” — which she never followed through on. Flagstar obtained a final summary judgment of foreclosure in March 2010, and a foreclosure sale was set for the following month.

But four days prior to the sale, Caravalho filed a motion to dismiss despite that a nearly identical motion had been denied four months earlier. The new judge in the case granted the motion in August 2010. For an unknown reason, however, the foreclosure sale continued but was set aside in September. Flagstar filed an appeal with the District Court of Appeal of Florida, Fourth District, and the trial court’s order setting aside the foreclosure sale and final summary judgment of foreclosure as well as a subsequent order granting Caravalho’s motion for injunctive relief was reversed and the case was remanded.

Gafoor and Nina Jaffer’s denied motion to vacate default, set aside summary judgment and cancel a foreclosure by Chase Home Finance LLC was reversed by the District Court of Appeal of Florida, Fourth District, and remanded back to the trial court. At issue are affidavits that were signed by Chase representatives without having personal knowledge of the facts. Chase had acknowledged the faulty documentation and was granted a motion to cancel the sale. But the Jaffers’ motion was denied at the trial level.

The dismissal of JP Morgan Chase Bank, N.A.’s, foreclosure against Ralph and Connie Jurney was reversed and remanded by the District Court of Appeal of Florida, Second District. The trial court had dismissed the action as a sanction because Chase failed to comply with an amendment to Florida Rule of Civil Procedure 1.110(b) that requires mortgage foreclosure complaints to be verified. Although there was a valid reason for the violation, which the appeals court called “an honest mistake,” the trial court wouldn’t hear it.

A trial court dismissed a foreclosure action filed by trustee Wells Fargo Bank, N.A., against Darren D. and Melissa Reeves because it found, as alleged in the motion to dismiss, that Wells filed the complaint without attaching a document required by the circuit court’s administrative order governing foreclosure actions, committed fraud upon the court by pleading false allegations of its identity and existence, filed the action without standing and capacity to do so and conducted trust business without complying with section 660.27, Florida Statutes. But on appeal, the District Court of Appeal of Florida, First District, reversed the decision.

A mistake by CitiMortgage Inc. on a $41,581 foreclosure in December 2010 caused it to miss the sale and enabled an investor to pick up the property for just $800. Eight days after the sale, Citi filed a motion to vacate the foreclosure sale because of the grossly inadequate sales price — which was denied. In addition, the investor’s motion to confirm the sale was granted. On appeal, the District Court of Appeal of Florida, Fourth District, agreed with Citi that the trial court grossly abused its discretion and reversed the decision.

The District Court of Appeal of Florida, Third District, decided that a trial court improperly dismissed U.S. Bank, N.A.’s, foreclosure action against Tonya Cowell, reversed the decision and remanded the case. The trial court had based its decision on an Eleventh Circuit administrative memorandum in 2010 that required a packet of materials accompany requests for summary judgments. While U.S. Bank was late in filing the packet, the appeals court determined that the dismissal of its foreclosure action was too severe of a sanction.

Florida Supreme Court justices are being asked to clarify whether a trial court can overturn a voluntary dismissal in which the lender is accused of fraud in a case where Bank of New York Mellon dismissed its foreclosure action (Supreme Court Case No. SC11-697) against Roman Pinto allegedly because robo-signing was involved, according to a statement from Kaufman, Englett and Lynd, PLLC. The Orlando law firm hopes to capitalize on a decision against the lender since it represents hundreds of delinquent borrowers facing foreclosure.

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