Tuesday, May 7, 2013

Florida Appeals Court Reinstates Foreclosure Action Where Earlier Dismissal With Prejudice Was Due To Conduct Of Now-Replaced Foreclosure Mill; Neither Bankster Nor New Counsel Engaged In Any Wrongdoing Or Act Of Disobedience

In West Palm Beach, Florida, the South Florida Sun Sentinel reports:

  • A Central Florida judge overreacted when he dismissed one of the foreclosure cases in the robo-signing scandal involving Plantation attorney David Stern, an appeals court ruled this week.

    The 4th District Court of Appeal reinstated the case, National City Bank v. Ronetta White, after determining that Stern had been replaced as a lawyer by PNC Bank, the bank that originally held the mortgage on White's Okeechobee home.

    Stern ran the largest foreclosure practice in Florida, handling more than 100,000 cases statewide. But it was accused in 2010 of engaging in robo-signing, affixing signatures to documents without notarization and without knowing whether the information contained in the documents was correct.

    An Okeechobee judge dismissed the White foreclosure in early 2012 to penalize the bank for failing to keep its counsel-of-record documents up-to-date. The appeals court reversed that decision on Wednesday.(1)
Source: Appeals court reinstates David Stern foreclosure case (Plantation lawyer involved in robo-signing scandal had been replaced, court finds).

For the ruling, see National City Bank v. White, 4D12-469 (Fla. App. 4th DCA May 1, 2013).

(1) The court concluded its ruling with the following excerpt:
  • In this case, the trial court dismissed this case for the Bank’s confiscatory wasting of the trial court’s time. Although the factors set forth above which apply to counsel may have been met as to DJS in this case, it does not appear that the client was personally involved in any act of disobedience or that there was any real prejudice to Okeechobee County for the delay. Delay after the second summary judgment hearing was primarily due to the trial court’s rejection of the stipulations for substitution of counsel.

    Because the trial court did not grant any of the three attempts by WWR to be substituted, the Bank was without counsel. Hub Fin. Corp. v. Olmetti, 465 So. 2d 618, 619 (Fla. 4th DCA 1985).

    Here, there is no contention that the client or its new counsel was involved in any wrongdoing or act of disobedience. Further, no prejudice to Okeechobee County appears in the record. The delay after the second summary judgment motion was, at least in part, a result of the delay in accepting the Stipulation for Substitution.

    The Bank had no way to represent itself until new counsel was accepted. Most essentially, however, the trial court failed to consider the Kozel factors in deciding to dismiss the case with prejudice.

    Clearly, there was no finding here of a deliberate disregard of court directives by either counsel or client and there is an insufficient record to support a sanction against the client of dismissal with prejudice.

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