Working the space of consumer defense, particularly in foreclosure cases we see that the judicial system exists not to promote fairness or justice…but to serve the interests of banks and corporations.
I really see no need to qualify that statement anymore…particularly here in Florida where we see over and over again…particularly at the trial court level…where the only rule is…
THE BANKS WIN.
Among lawyers we talk about how there is only one set of rules for foreclosure and it’s not the Florida Rules of Civil Procedure….
THE BANKS WIN.
The attached motion, my latest filed in Florida’s Second District Court of Appeals demonstrates this principal. We go to trial, the bank is completely incompetent…and they deserved to lose the case….but the court refused to hold the banks and their incompetent law firm accountable. And so now…we continue on…a case languishing….and it will continue to languish until it is fully and finally resolved….but more appeals will follow on these issues.
This case was tried at a non-jury trial on September 4, 2015. At the close of evidence, the Homeowner argued that the case should be dismissed, in part, because the Bank failed to join the indispensible parties to its mortgage foreclosure count and failed to present any evidence to support its mortgage reformation count:
- WEIDNER (counsel for the Homeowner): In any case, we’ll get into that. The point is, they have not established the elements they need in their case in chief currently based on their own pleading. When you read the mortgage, Judge, that mortgage contains the parties that they need to join. They did not join them.
Secondarily, as to this issue of legal description. Their complaint admits that they have a problem with their legal description. And they have just asked you to reform something or take notice of a legal description that there was absolutely no testimony at all about what legal description they want you to reform.
And the Homeowner also supplemented her oral argument with a written closing statement again arguing that there was no evidence regarding the mortgage reformation count and that the Bank failed to join indispensible parties to the foreclosure action. The Homeowner supplemented this closing the next day with the Fourth District’s decision in CitiBank, N.A. v. Villanueva, 174 So. 3d 612 (Fla. 4th DCA 2015) since the holding of that case was directly on point with the Homeowner’s failure to join indispensible parties argument.
Rather than dispute any of the points the Homeowner made in her closing, the Bank would subsequently appear to concede them. Indeed, as to the Homeowner’s indispensible party argument, the Bank admitted that the subject property was jointly owned by the Homeowner and Nicholas Hodgins – an individual who the Bank admitted was not named in the complaint or served with process. And as for the Homeowner’s reformation argument, the Bank incredulously argued that “[t]he correct legal description is undisputed” and attached several purported “exhibits” – an unauthenticated purported “final judgment” and several unauthenticated quit claim deeds – that it never introduced into evidence. In fact, the Bank went so far as to argue that two of the unauthenticated deeds “must also be reformed” despite never even pleading for this in its complaint.
Worse still, the Bank filed a post-trial motion seeking to add Nicholas Hodgins alleging that it “later discovered” Mr. Hodgins had an interest in the property despite acknowledging that this interest stemmed from a quit claim deed recorded sixteen years ago.
The Homeowner immediately moved to strike portions of the Bank’s trial memorandum arguing that a closing argument is limited to facts or evidence adduced at trial, not hidden documents that were not subject to the test of cross-examination.
Despite these clear defects in the Bank’s case, the trial court nevertheless entered judgment in its favor while also entering an order granting the Bank’s motion to add Mr. Hodgins as a party and “abating” the action until Mr. Hudgins is served.
The Homeowner timely moved for rehearing, requesting that the trial court vacate its judgment and involuntarily dismiss the action. Importantly, the Homeowner never requested a new trial, nor did the Bank ever file a motion for rehearing requesting a new trial.
And while the trial court did vacate its judgment in the order under review, it did not grant the Homeowner the relief she requested – dismissal. The order also required “the parties” (and thus, presumably, the Homeowner) to “provide process to Nicholas Hodgins,” concluding simply that “[w]hen appropriate, the Parties shall contact this Court to set a date for hearing to determine which issues shall be reheard.”
