For a short period of time in Florida, pretender lenders and their attorneys had a field day in Florida courts, obtaining foreclosure judgments and title to property based on the flimsiest of evidence. Now courts are aware of many of the problems with these files and lenders can no longer count on a free ride to the foreclosure auction. Below is a sampling of case headnotes from recent circuit court opinions that denied foreclosure. Judges in circuits across the state are now standing up for consumers (or at least for the rule of law) and requiring lenders to prove their right to claim the relief they seek. A sampling of the headnotes follows:
Mortgages — Foreclosure — Stay — Foreclosure action is stayed until mortgagor has been afforded mitigation and modification opportunities of home affordable modification program
Mortgages — Foreclosure — Standing — Motion for final judgment of foreclosure denied — Plaintiff that did not become holder of note until after suit was filed did not have standing to bring action — Even if assignment could confer standing retroactively, assignment is deficient where jurat does not indicate that it was signed in presence of notary, and assignor does not have documented authority to assign mortgage — Further, motion for summary judgment is deficient where supporting affidavit was signed by person whose only demonstrated authority is to assign and release liens, not by individual with corporate authority and demonstrated knowledge.
Mortgages — Foreclosure — Complaint — Plaintiff has failed to state cause of action where partial terms sheet attached to foreclosure complaint omits details as to who gets paid, when and where payment is due, and amount of payment — Further, assignment that is dated after filing of suit is at variance with complaint — Complaint dismissed with leave to amend.
Mortgages — Foreclosure — Standing — Motion to dismiss is granted with leave to file new or amended complaint to allege that plaintiff is owner and holder of note and mortgage and to allege additional facts that support that allegation.
Mortgages — Foreclosure — Where note filed by plaintiff is endorsed but does not name entity to which it is made payable, plaintiff failed to plead in complaint that it is owner of note or mortgage, mortgage names entity other than plaintiff as mortgagee, plaintiff has filed assignment of mortgage executed and recorded after complaint was filed, and complaint does not demonstrate equitable assignment of mortgage to plaintiff before complaint was filed, plaintiff must amend complaint to allege that it is owner and holder of note and mortgage and identify documents upon which it relies to establish that it holds and owns note and mortgage
Tweet this!
Foreclosure Case Law Update: Matthew Weidner Law « Dinsfla Mortgage Foreclosure Fraud Blog // Mar 10, 2010 at 9:32 PM
[...] Siurce: Matthew Weidner Law Blog [...]
Matt,
Thanks for the re-cap. So many of the pleading deficits some Judges are only now catching simply did not exist before when foreclosure actions were fully pled and documented upfront. When I was involved in forclosure cases in the 1980’s and 90’s plaintiffs were proud to lay out their proof of loan ownership and their identity in the complaint. That they now play this game of hide and seek not only in their complaints but in discovery should alert any judge of serious due process problems that if ignored and not corrected will simply cloud our real estate title records. I call it “fundamental non-disclosure”. As a dirt lawyer writing title for the past 30 years the title defect caused by these deficit complaints are apparent on their faces and are never cured with the type of authentication necessary to clear marketable title standards. The conclusory form affidavit offered to and relied on by the judge, unwittingly, not only fails marketability standards, but fails to meet the test for admissability as evidence. Add this to the fact that the plaintiff never offers up proof of its chain of ownership of the mortgage loan in any other fashion and or fails to even sufficiently identify itself or it’s principal, the note owner, and the title to this property becomes even more obscured. Were I a judge I would simply make the plaintiffs, at inception of the suit, come out of the woods and declare themselves clearly and lay out the chain of mortgage loan ownership, with definition.
That they don’t do it voluntarily, upfront – like the good old days -should be a warning, and a prompt for a judge to ask the simple and direct one word question: Why?
JEDTI
G.
Wake up….wrong jurisdiction, wrong arguments no backroud in the field. Why not blame the judges where you don’t know what your doing.
Get the facts and make the right arguments
I had a mediation last week in which the Plaintiff’s difficulty in proving its case went a long way toward settling the case. That wouldn’t have happened a year ago. In the end, both sides were happy. The rapidly evolving nature of foreclosure law makes these cases really interesting to mediate!
-Ken
This is great stuff Matt!
Thank you for assembling it here…
Is there any chance you could post the names in these cases, so that we could look them up, learn from them & use them as case-law?
Keep up great work!
The State of Foreclosures is Lucky to have you!!!
Robin_Hood
Is there any was you might share the case cites on these orders? Thanks.
Anonymous // Apr 15, 2010 at 4:57 PM
[...] [...]