Florida Appeals Court "Deep-Sixes" Rubber-Stamped Foreclosure Judgment; Kicks Case Back To Trial Court For Further Proceedings

Another rubber-stamping trial judge has ostensibly been caught with egg on his face by a state appeals court in a mortgage foreclosure action. This time, a three-judge panel of Florida's 2nd District Court of Appeal "threw the flag" on Sarasota County Circuit Court Robert B. Bennett, Jr. for what should be the equivalent of a 15-yard penalty (and subject to a league fine) in a National Football League game.

In a unanimous decision, the appellate court reversed a summary judgment of foreclosure in favor of a lender which was granted, according to the court, "[d]espite the lack of any admissible evidence that U.S. Bank validly held the note and mortgage[.]"

The facts in the case, as copied & pasted from the court's written opinion [except for the addition of the footnote and bold text, which is my own handiwork], follows:

• On December 14, 2007, U.S. Bank filed an unverified mortgage foreclosure complaint naming the Jean-Jacqueses and BAC as defendants.(1) The complaint included one count for foreclosure of the mortgage and a second count for reestablishment of a lost note. U.S. Bank attached a copy of the mortgage it sought to foreclose to the complaint; however, this document identified Fremont Investment and Loan as the "lender" and Mortgage Electronic Registrations Systems, Inc., as the "mortgagee." U.S. Bank also attached an "Adjustable Rate Rider" to the complaint, which also identified Fremont as the "lender."

• Rather than answering the complaint, BAC responded by filing a motion to dismiss based on U.S. Bank's lack of standing. BAC argued that none of the attachments to the complaint showed that U.S. Bank actually held the note or mortgage, thus giving rise to a question as to whether U.S. Bank actually had standing to foreclose on the mortgage. BAC argued that the complaint should be dismissed based on this lack of standing.

• U.S. Bank filed a written response to BAC's motion to dismiss. Attached as Exhibit A to this response was an "Assignment of Mortgage." However, the space for the name of the assignee on this "assignment" was blank, and the "assignment" was neither signed nor notarized. Further, U.S. Bank did not attach or file any document that would authenticate this "assignment" or otherwise render it admissible into evidence.

• For reasons not apparent from the record, BAC did not set its motion to dismiss for hearing. Subsequently, U.S. Bank filed a motion for summary judgment. At the same time, U.S. Bank voluntarily dismissed its count for reestablishment of a lost note, and it filed the "Original Mortgage and Note" with the court. However, neither of these documents identified U.S. Bank as the holder of the note or mortgage in any manner. U.S. Bank did not file the original of the purported "assignment" or any other document to establish that it had standing to foreclose on the note or mortgage.

• Despite the lack of any admissible evidence that U.S. Bank validly held the note and mortgage, the trial court granted summary judgment of foreclosure in favor of U.S. Bank. BAC now appeals, contending that the summary judgment was improper because U.S. Bank never established its standing to foreclose.

For the rest of the appellate court's opinion, including its ruling reversing the trial judge and its analysis of the Florida law applied in this case, see BAC Funding Consortium Inc. v. Jean-Jacques, et ano., Case #2D08-3553 (February 12, 2010).(2)

(1) Listed as attorney for the foreclosing lender in this case is Florida Default Law Group, PL, of Tampa, Florida. This outfit has attained some level of notoriety as an alleged foreclosure mill law firm/"foreclosure factory."

(2) I remind my friends in Florida that, to the extent this ruling constitutes binding precedent in future cases, it is binding not only on the trial courts within the jurisdiction of the 2nd District Court of Appeal, but probably on all trial courts throughout Florida. See Pardo v. State, 596 So. 2d 665 (Fla. 1992), in which the Florida Supreme Court stated:

• This Court has stated that "the decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court." Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980). Thus, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts. Weiman v. McHaffie, 470 So. 2d 682, 684 (Fla. 1985). The purpose of this rule was explained by the Fourth District in State v. Hayes:

• "The District Courts of Appeal are required to follow Supreme Court decisions. As an adjunct to this rule it is logical and necessary in order to preserve stability and predictability in the law that, likewise, trial courts be required to follow the holdings of higher courts--District Courts of Appeal. The proper hierarchy of decisional holdings would demand that in the event the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court be required to follow that decision. Alternatively, if the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it. Contrarily, as between District Courts of Appeal, a sister district's opinion is merely persuasive." 333 So. 2d 51, 53 (Fla. 4th DCA 1976) (footnote and citations omitted).

I trust my friends throughout Florida who are appealing rubber-stamped foreclosure judgments in scenarios similar to the one in BAC Funding will try to get some "mileage" out of this ruling.