Tuesday, December 13, 2011

Florida Supremes Send Shivers Thru Bankster Community; Kibosh Sneaky Effort To Buy Out Of Robosigning Litigation By Settling Case With Homeowner

In Tallahassee, Florida, Sunshine Slate reports:

  • In a split ruling likely to send shivers through the mortgage banking community, the Florida Supreme Court ruled Thursday that it will hear a case involving alleged “robo-signing” by a major mortgage lender even though parties in the individual case settled and asked that the case be dismissed.

  • In a 4-3 ruling, the state’s highest court said it will take up a case pitting a Palm Beach County homeowner against the Bank of New York Mellon even though the parties in July asked that the case be dropped.

  • The bank began foreclosure proceedings against homeowner Roman Pino, who filed a lawsuit contending that the bank had illegally back-dated documents in his case. In response, the bank dismissed its foreclosure proceeding. Pino’s lawyers contend the bank did so to avoid having to address the allegations of fraud.

  • The Fourth District Court of Appeal, ruled in favor of BNY Mellon’s motion to dismiss, but asked the state Supreme Court to review the case becausemany, many mortgage foreclosures appear tainted with suspect documents.”

  • In a group opinion, the majority on Thursday ruled that the issue was too important to allow it to be dropped, agreeing with the 4th DCA that the case, “may dramatically affect the mortgage foreclosure crisis in this State.”(1)

  • In dissent, Chief Justice Charles Canady said the court was overstepping its bounds by forcing them to continue their legal battle. “The parties to this proceeding have rights,” Canady wrote in a dissent joined by justices, Ricky Polston and Peggy Quince.

  • Justice Charles Canady wrote in a dissenting opinion. “They should not be dragooned into litigating a matter that is no longer in controversy between them simply because this Court determines that an issue needs to be decided.”

Source: Supremes: The “Robo-Signing” Show Must Go On.

See also, The Palm Beach Post: Florida Supreme Court will rule on Palm Beach County foreclosure case involving allegedly fraudulent bank documents.

For the ruling, see Pino v. Bank of New York, No. SC11-697 (December 8, 2011).

(1) In justifying proceeding forward with the case despite it having already settled, the majority expalined why it couldn't allow this case top escape their scrutiny, and then proceeded to cite Florida precedent for its authority to disregard the wishes of the parties to dismiss the case (bold text is my emphasis):

  • The issue we address is whether Florida Rule of Appellate Procedure 9.350 requires this Court to dismiss a case after we have accepted jurisdiction based on a question certified to be one of great public importance and after the petitioner has filed his initial brief on the merits.[1]

    This narrow question arose after the parties to this action filed a joint Stipulated Dismissal, which advised that they had settled this matter and stipulated to the dismissal of the review proceeding pending before this Court.

    It cannot be questioned that our well-established precedent authorizes this Court to exercise its discretion to deny the requested dismissal of a review proceeding, even where both parties to the action agree to the dismissal in light of an agreed-upon settlement.

    The question certified to us by the Fourth District Court of Appeal in this case transcends the individual parties to this action because it has the potential to impact the mortgage foreclosure crisis throughout this state and is one on which Florida's trial courts and litigants need guidance.

    The legal issue also has implications beyond mortgage foreclosure actions. Because we agree with the Fourth District that this issue is indeed one of great public importance and in need of resolution by this Court, we deny the parties' request to dismiss this proceeding.


  • The language of [Fla. R. App. P. 9.350(a)-(b)] does not impose upon the appellate court a mandatory obligation to dismiss a case following the filing of a notice of dismissal before a decision on the merits has been rendered.

    Rather, this Court has long recognized its discretion to retain jurisdiction over a matter and proceed with an appeal notwithstanding a litigant's timely filing of a notice of dismissal pursuant to rule 9.350, especially when the matter involves one of great public importance and is likely to recur. See Gregory v. Rice,
    727 So.2d 251, 252 n.1 (Fla. 1999) ("Mootness does not destroy this Court's jurisdiction when the questions raised are of great public importance or are likely to recur.").

    For example, in Holly v. Auld,
    450 So.2d 217 (Fla. 1984), this Court addressed the merits of a question certified to be of great public importance even after the respondent settled with the petitioners and the respondent's attorney filed a suggestion of mootness with this Court. Id. at 218 n.1. Notably, the respondent's attorney never filed a brief in opposition. Id. at 221 (Ehrlich, J., dissenting). Framing the issue as one of mootness, the Court stated that "[i]t [was] well settled that mootness does not destroy an appellate court's jurisdiction . . . when the questions raised are of great public importance or are likely to recur." Id. at 218 n.1 (majority opinion) (citing Pace v. King, 38 So.2d 823 (Fla. 1949); Tau Alpha Holding Corp. v. Bd. of Adjustments, 171 So. 819 (Fla. 1937)).

    Given that the district court properly certified its question as one of great public importance, and noting that the situation at issue would occur again, this Court retained jurisdiction and addressed the merits of the case despite the parties' settlement of the matter. Id.Similarly, in State v. Schopp,
    653 So.2d 1016 (Fla. 1995), this Court held that "[e]ven where a notice of voluntary dismissal is timely filed, a reviewing court has discretion to retain jurisdiction and proceed with the appeal." Id. at 1018.

    We expressly rejected the appellant's argument that since his rule 9.350(b) notice of voluntary dismissal was filed before the district court of appeal's decision became final, his appeal had to be dismissed as a matter of right. Id. Importantly, we noted this Court's power to retain jurisdiction where the case presents a question of public importance. Id.

    In yet another instance, this Court in Bell v. U.S.B. Acquisition Co.,
    734 So.2d 403 (Fla. 1999), ruled upon an issue of great public importance even after noting that the parties had settled their claims and filed a joint stipulation of dismissal in this Court. Id. at 405 n.1. Deciding the merits of the case notwithstanding the parties' settlement and joint stipulation of dismissal, this Court held: "As we have done in the past, we exercise our discretion to retain jurisdiction in this case because we consider this issue to be of great public importance." Id.; see also Enter. Leasing Co. v. Almon, 559 So.2d 214, 215 n.* (Fla. 1990) (retaining jurisdiction in order to resolve the conflict issue presented after the parties settled and stipulated to the dismissal of the case prior to the scheduled oral argument); Ervin v. Capital Weekly Post, Inc., 97 So.2d 464, 466 (Fla. 1957) (retaining jurisdiction to consider issue of public importance where appellees sought dismissal prior to initial decision).3

    In the present case, it is true that the parties have filed a notice of stipulated dismissal pursuant to rule 9.350 notifying this Court that this matter has been settled. Although the issues underlying this litigation may be moot as to the parties involved, our precedent clearly establishes that mootness does not defeat appellate jurisdiction, and a reviewing court has the discretion to retain jurisdiction over a case to decide the merits notwithstanding a notice of dismissal filed by the parties denoting a settlement of their dispute.

    At issue in this case is whether the plaintiff in a mortgage foreclosure action (here, BNY Mellon) may be subject to sanctions for filing what is alleged to be a fraudulent assignment of mortgage where the plaintiff filed a notice of voluntary dismissal before the trial court had the opportunity to rule on the motion for sanctions. As reflected above, the Fourth District certified this issue to be one of great public importance, and in doing so, noted that "many, many mortgage foreclosures appear tainted with suspect documents" and that Pino's requested remedy, if imposed, "may dramatically affect the mortgage foreclosure crisis in this State." Pino, 57 So. 3d at 954-55.

    The issue also has broader implications and presents questions outside of the mortgage-foreclosure context. Moreover, Pino, the petitioner to the instant review proceeding, has already filed his initial brief on the merits in this Court.Consistent with the rationale undergirding our prior precedent, we conclude that these circumstances fully support this Court's decision to exercise its discretion to retain jurisdiction over and decide the merits of this important case.

    To adopt the dissent's interpretation of rule 9.350(a)—that the act of the parties' stipulation for dismissal is binding on the Court—would require us to recede from our past decisions recognizing just the opposite. Instead, we adhere to our precedent and, accordingly, exercise our discretion to deny the parties leave to dismiss this review proceeding.

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