Wednesday, November 30, 2011

The Fumbles In Foreclosure Cases Continue For One Palm Beach County Trial Judge As Florida Appeals Court Boots Back Another Blown Ruling

Another Florida trial judge fumbled the ball on a summary judgment motion in a foreclosure action. In this case, the foreclosing bankster failed to attach an assignment of mortgage to its foreclosure complaint, and neglected to submit the assignment thereafter. As expected, and possibly figuring that the filing of an appeal of her ruling was unaffordable for the homeowner, Palm Beach County Circuit Judge Meenu T. Sasser disregarded the failure to submit the mortgage assignment and, as has become common, she proceeded to issue an erroneous ruling granting summary judgment in favor of the bankster.

However, the screwed over homeowner did, in fact, appeal, and in a ruling not unlike similar earlier rulings by Florida appeals courts, reversed(1) and booted the case back to Sasser.(2)

For the ruling, see Duke v. HSBC Mortgage Services, LLC, No. 4D09-5183 (Fla. App. 4th DCA, November 23, 2011).

(1) According to the court:

  • The Dukes argued that at the time the foreclosure complaint was filed, the mortgage was held by First NLC, not appellee, HSBC. In its complaint, HSBC alleged it owned and held the note and mortgage at the time the complaint was filed. “When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint.” BAC Funding Consortium Inc. v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010).

    Here, HSBC alleged in its complaint that it “now owns and holds the Note and Mortgage,” but an assignment was not attached to the complaint, supporting HSBC’s position. Instead, the mortgage attached to the complaint showed First NLC as the lender, creating discrepancies between the complaint and the attached exhibit.

    Thus, at the time of the argument on the summary judgment motion, genuine issues of material fact existed as to whether HSBC was the proper owner and holder of the note and mortgage where First NLC was named on the mortgage and evidence of an assignment was not included.

    We therefore reverse the trial court’s order granting summary judgment because genuine issues of material fact remain in dispute regarding the owner and holder of the note and mortgage at the time the complaint was filed.

(2) For other posts on earlier screw-ups by this judge, see:

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