Monday, March 8, 2010

Florida Appeals Court Boots Another Rubber-Stamped Foreclosure Case; Docs Supporting Judgment Filed Late, Failed To Establish Legal Standing

Florida's 2nd District Court of Appeal struck again and reversed another trial judge for allowing a lender steamroll a foreclosure action against a financially strapped property owner.(1) In this case, the trial judge rubber-stamped a foreclosure judgment for a lender despite the fact that the property owner argued, among other things:

  • that his response to the lender's foreclosure complaint was not yet due in accordance with the agreement for enlargement of time,(2)

  • that the Bank did not timely file the necessary loan documents on which it relied in support of its motion for summary judgment,(3) and

  • that the documents were insufficient to establish that the Bank was the owner and holder of the note and mortgage.(4)

For the court's ruling, see Verrizzo v. Bank of New York, Case No. 2D08-4647 (Fla. Ct. App., 2nd DCA, March 3, 2010).

(1) Last month, it kicked back another foreclosure judgment improperly allowed to go forward by a trial judge. See Florida Appeals Court "Deep-Sixes" Rubber-Stamped Foreclosure Judgment; Kicks Case Back To Trial Court For Further Proceedings.

(2) A motion to enlarge time is a request to extend the amount of time a defendant gets to respond to a lawsuit. Go here for a sample of a Motion to Enlarge Time, and here for links to other useful foreclosure defense documents.

(3) In ruling that the documents were filed late, the appeals court, applied Rule 1.510(c) of the Florida Rules of Civil Procedure and observed (alteration in the original):

  • Rule 1.510(c) requires that the movant "serve the motion at least 20 days before the time fixed for the hearing[] and shall also serve at that time copies of any summary judgment evidence on which the movant relies that has not already been filed with the court." Further, cases have interpreted the rule to require that the movant also file the motion and documents with the court at least twenty days before the hearing on the motion. See Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800, 800 (Fla. 4th DCA 1989); Marlar v. Quincy State Bank, 463 So. 2d 1233, 1233 (Fla. 1st DCA 1985); Coastal Caribbean Corp. v. Rawlings, 361 So. 2d 719, 721 (Fla. 4th DCA 1978). The promissory note and assignment constituted a portion of the evidence that the Bank relied on in support of its motion for summary judgment, and it is undisputed that the Bank did not attach those documents to the complaint or serve them at least twenty days before the hearing date. In fact, although the Bank's notice of filing bears a certificate of service indicating that the notice was served on August 18, 2008, the notice and the documents were not actually filed with the court until August 29, 2008, the day of the summary judgment hearing.

(4) In kiboshing the foreclosure judgment on these grounds, the appeals court stated:

  • In addition to the procedural error of the late service and filing of the summary judgment evidence, those documents reflect that at least one genuine issue of material fact exists. The promissory note shows that Novastar endorsed the note to "JPMorgan Chase Bank, as Trustee." Nothing in the record reflects assignment or endorsement of the note by JPMorgan Chase Bank to the Bank of New York or MERS. Thus, there is a genuine issue of material fact as to whether the Bank of New York owns and holds the note and has standing to foreclose the mortgage. See Mortgage Electronic Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007) (recognizing that the owner and holder of a note and mortgage has standing to proceed with a mortgage foreclosure action); Philogene v. ABN Amro Mortgage Group, Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006) (determining that the plaintiff "had standing to bring and maintain a mortgage foreclosure action since it demonstrated that it held the note and mortgage in question").

No comments: