BAC FUNDING CONSORTIUM V. US BANK- The Liar Lender Game is Up!
Remember that case name because this case, which was released by the Florida Second District Court of Appeals on February 12, 2010, represents a stunning change in the legal landscape governing foreclosures. The full text of the opinion can be found here. This case is an absolute must read for any attorney practicing law, any homeowner in foreclosure and respectfully, any judge who presides over foreclosure cases.
As I’ve been screaming about on this blog, and as I plead in virtually all my foreclosure cases, a lender must present some kind of evidence to show they have any rights whatsoever to foreclose on a home. In the vast majority of cases, Plaintiff’s attorneys file pathetic foreclosure lawsuits with attached copies of notes and mortgages, but no documents that show the Plaintiff has any rights whatsoever to file the foreclosure case. The standard response from Plaintiffs attorneys has been, “Screw off, we say we have the right to take the home and we’re taking the home.” Unfortunately in far too many cases, and despite case law to the contrary, judges have often given in to these unsound positions, just as the trial court did in this case. This brand new opinion should help to eliminate these arguments because the appellate court reversed the trial court finding:
U.S. Bank’s complaint conflicts with its allegations concerning standing and the exhibit does not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not establish its entitlement to foreclose the mortgage as a matter of law.
But wait, there’s more oh so much more. When challenged, a bank will often come to court with the original note. Judges have been quite impressed with this and have responded….”Plaintiff has the original note, they must be entitled to foreclose”…..not so fast…
Moreover, while U.S. Bank subsequently filed the original note, the note did not identify U.S. Bank as the lender or holder. U.S. Bank also did not attach an assignment or any other evidence to establish that it had purchased the note and mortgage. Further, it did not file any supporting affidavits or deposition testimony to establish that it owns and holds the note and mortgage. Accordingly, the documents before the trial court at the summary judgment hearing did not establish U.S. Bank’s standing to foreclose the note and mortgage, and thus, at this point, U.S. Bank was not entitled to summary judgment in its favor.
And that part of the opinion really is earth shattering because even if the lender comes marching into court with the original note, the appellate court is now saying that’s not enough. (I can hear plaintiff law firms across the state fabricating the evidence they need to comply with this new ruling right now.) The real irony of this opinion is that the stunning reversal did not come because a homeowner had a talented foreclosure defense attorney defending the case….no, the parties involved in this appeal were two banks fighting over the loans they had on the home…..how’s that for ironic justice.
It doesn’t matter where it came from, the opinion represents a watershed moment in foreclosure defense and is a tremendous victory for justice and the integrity of the court systems.
