The Florida Foreclosure Journal

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1 · 05 · 12

Mortgage servicers are having some luck overturning trial court decisions in the District Court of Appeal of Florida, Second District. But rulings coming out of four other districts haven’t been so good.

A settlement with ProVest LLC was announced by Florida Attorney General Pam Bondi on Aug. 3, according to an assurance of voluntary compliance. The Tampa, Fla.-based company, which the state says cooperated with the attorney general, paid $462,400 to resolve alleged improper service of process in foreclosure cases filed in courts throughout Florida. The funds will go to the Florida Bar Foundation to assist low-income individuals facing foreclosure.

“This settlement is another important step in ensuring the integrity of the mortgage foreclosure process in Florida,” Bondi said in a news release. “This agreement will help ensure the fair administration of foreclosure cases filed in our state.”

A foreclosure judgment in favor of EMC Mortgage Corp. against Elizabeth Spencer was reversed on Aug. 29 by the District Court of Appeal of Florida, Third District. The $75,600 loan was originated by United Companies Lending Corp. in August 1993. Foreclosure commenced in early 1998, but United Companies, itself, filed a petition under Chapter 11 of the U.S. Bankruptcy Code in March 1999. The Spencer loan was sold in September 2000 to EMC, which was substituted as the foreclosing plaintiff, but the case was dismissed in November 2002 for lack of prosecution and the case file was destroyed by the Miami-Dade circuit court clerk’s office. EMC started and subsequently completed a second foreclosure action against Spencer in November 2002.

The foreclosure was reversed and vacated, the case was remanded to the trial court for dismissal and for an award of trial and appellate attorney’s fees and costs.

“Because of the stumbling, bumbling, and general ineptitude of the mortgagee and its representatives, the appellant has managed to remain in the mortgaged premises without payment for over fifteen years after defaulting in 1997,” Senior Judge Schwartz wrote in the decision. “While it therefore pains me deeply to do so, I concur in the reversal of the summary judgment of foreclosure against her.”

In another third district case in Florida, the denial by a lower court of motions to vacate a final judgment of foreclosure entered in favor of Wells Fargo Bank, N.A., and cancel the foreclosure sale was appealed by borrower Monica Vives. While the decision wasn’t reversed the third district, the case was remanded with instructions.

William and Tiffany Hare successfully obtained a emergency motion for a temporary restraining order and preliminary injunction on Aug. 9 to stop Wells Fargo Bank, N.A., from foreclosing on the loan they originally were granted from Wachovia Mortgage, F.S.B. U.S. District Judge Virginia M Hernandez Covington wrote in the decision that the borrowers have a reasonable chance of succeeding in the claims and that they will likely suffer irreparable harm without the order.

Wells Fargo Bank, N.A., conceded that it failed to comply with notice requirements for accelerating Harvey S. Lee’s note. As a result, Lee claimed that the summary judgment was improperly entered. The District Court of Appeal of Florida, First District, agreed, reversed the trial court’s ruling and remanded the case.

Charles and Julia Schofield’s motion to quash service of process by Wells Fargo Bank, N.A., was denied by the trial court. The process server failed to include the date and time of service, his identification number, or his initials on any of the documents served on the Schofields. The District Court of Appeal of Florida, Fifth District, determined that the process server failed to strictly comply with Florida laws and reversed the decision.

A foreclosure judgment in favor of Wells Fargo subsidiary Wachovia Mortgage Corp. was reversed on Aug. 31 by the District Court of Appeal of Florida, Fifth District. The borrowers, Poupy P. Darlene Josecite, entered a forbearance agreement with Wachovia several days before the July 5, 2011, sale, but the foreclosure proceeded anyway. The borrowers’ motion to set aside the foreclosure was denied, but the appeals court found that the trial court applied the wrong legal standard in determining whether the sale should be vacated.

The District Court of Appeal of Florida, Second District, reversed a foreclosure judgment against Anastasios and Dina Zervas on July 18. The Zervases stopped making payments in June 2009 to their lender, Wells Fargo Bank, N.A. The borrowers asked the court for more time to obtain a loan modification in November 2009, but a week after their motion to stay was granted in June 2010 — they filed a motion to dismiss the case. At issue was an acceleration clause in the mortgage that Wells Fargo had allegedly failed to meet and Wells Fargo’s ownership of the note.

“We reverse because Wells Fargo did not establish that no answer which the Zervases might file could present a genuine issue of fact,” the decision stated.

Wells Fargo Bank, N.A.’s, amended foreclosure complaint against Arthur Taboada was dismissed by the trial court because the bank didn’t use exact language outlined in a court order. The trial court also denied Wells Fargo’s request for more time, expressing frustration at the heavy foreclosure caseload in general. The District Court of Appeal of Florida, Second District, reversed the trial court decision and remanded the case.

“First, the trial court erred in determining that the amended complaint’s verification language did not comport with Florida Rule of Civil Procedure 1.110(b),” the decision stated. “Second, the trial court erred in determining that the amended complaint was untimely filed without considering the grounds asserted by Wells Fargo’s counsel regarding the delay in filing.”

In another second district opinion, a final summary judgment of foreclosure on a mortgage in favor of GMAC Mortgage LLC was reversed on July 18. The borrower, Jorge Cerron, argued that the circuit court erred in granting summary judgment when GMAC failed to refute his affirmative defenses. The appeals court agreed, noting that a “plaintiff moving for summary judgment must either conclusively refute the factual bases for the defendant’s affirmative defenses or show that the defenses are legally insufficient.”

The trial court dismissed BAC Homes Loan Servicing L.P.’s foreclosure complaint against Bill R. and Jacklyn L. Stentz because BAC did not properly verify its complaint in accordance with Florida statutes. The trial court dismissed BAC’s original complaint then dismissed an amended complaint due to inadequate language. But the District Court of Appeal of Florida, Second District, found that the trial court erred by requiring verification that was not required under the plain language of the recently amended Florida Rule of Civil Procedure 1.110(b). The decision was reversed.

The second district appeals court also overturned the dismissal of a foreclosure filed by Deutsche Bank against William Waldorf. The lower court decision was based on Deutsche’s failure to provide the court with a summary final judgment package prior to the hearing.

A foreclosure judgment in favor of HSBC Bank USA against Gary C. Richards was reversed by the District Court of Appeal of Florida, Fifth District. The appeals court said that HSBC had not conclusively shown that it was the holder of the note.

A court order denying a motion to vacate a foreclosure sale by HSBC Bank USA, N.A., was reversed and remanded on Aug. 22 by the District Court of Appeal of Florida, Fourth District. The decision in the foreclosure case against Marie and Michael Nixon was based on the court’s recent decision in Simonson v. Palm Beach Hotel Condominium Assn because no notice of sale was published prior to the sale as required by section 45.031(3), Florida Statutes (2012), and it was error to refuse to vacate the sale.

When Margarita Gascue moved to vacate final judgment of foreclosure by HSBC Bank USA, N.A., the trial court denied her motion. But when she filed an appeal with the District Court of Appeal of Florida, Fourth District, the trial court’s decision was reversed and the case was remanded. HSBC originally filed a complaint to foreclose on the mortgage and to enforce lost loan document in November 2007, and the borrower’s attorney failed to show up for a hearing on a March 2009 motion for summary judgment.

Gascue’s motion to vacate final judgment of foreclosure alleging, among other things, excusable neglect, was denied by the trial court then reversed by the appeals court on Aug. 29. The decision said, “Since Gascue filed the rule 1.540(b) motion within the requisite one-year period after entry of the final summary judgment with facts that seem to indicate excusable neglect, we reverse the order denying relief under rule.”

A summary final judgment of foreclosure in favor of Deutsche Bank National Trust Co. was appealed by Harvey Good and Monica Cornejo. The pair claims that the trial court erred in granting summary final judgment because Deutsche failed to negate their affirmative defenses. The District Court of Appeal of Florida, Fourth District, found the summary judgment was improper because Good and Cornejo established a genuine issue of material fact regarding their affirmative defenses. The decision was reversed.

A Florida Circuit Court in Pinellas County recently dismissed the foreclosure action filed by Deutsche Bank against Aida and Howard Hayes, a press release from Paladin Securitization Auditors said. A securitization audit performed by the Cheyenne, Wyoming, firm reportedly “unraveled a web of forged signatures, robo-signing, and foreclosure process.”


Mortgage Daily Staff


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