Foreclosure AppealsForeclosure Defense Florida

Attempting to Bedazzle The Court With Facts Not Related to Foreclosure Will NOT Carry The Day!

Florida courts are suffering from a terrible and debilitating sickness right now….and it’s a sickness that has plagued the entirety of the third branch for many years now. Bowing to pressures placed upon the entirety of the judicial system by the legislative and executive branches (who in turn are owned by corporate interests), the judicial branch bows and serves the directives handed down to them by these corporate interests.

Anyone who spends time in the Star Chamber world of Florida’s foreclosure courts…courtrooms that are often broom closets or other rooms that do not show the dignity that our judicial system was entitled to, and anyone who has seen foreclosure “trials” that ignore the most fundamental rules of evidence and have procedures that short circuit the due process that in prior eras we thought applied equally to all parties knows that this is true.

The larger rights of the citizens of this state are very much in jeopardy because our judicial system has surely lost its way.

But every once in a while, there are some glimmers of hope, like this appeal from Florida’s Second District Court of Appeal called Sorrell v. US Bank.

The very best quote from this case comes at the end:

And attempting to bedazzle the trial court with documents establishing all sorts
of facts unrelated to standing at the inception of the case will not carry the day.

Michael Sorrell appeals the final judgment of foreclosure entered against
him and in favor of U.S. Bank National Association after a bench trial. Because U.S.
Bank failed to prove that it had standing to foreclose at the inception of the case, we
must reverse.

In light of the wealth of current case law on this issue, it should no longer
be a surprise to a foreclosure plaintiff that it must prove that it had standing to foreclose
on the date the original complaint was filed. See, e.g., Corrigan v. Bank of Am., N.A.,
41 Fla. L. Weekly D345 (Fla. 2d DCA Feb. 5, 2016) (en banc); Tomlinson v. GMAC
Mortg., LLC, 173 So. 3d 1121, 1122 (Fla. 2d DCA 2015) (quoting Focht v. Wells Fargo
Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013)); Vidal v. Liquidation Props., Inc.,
104 So. 3d 1274, 1276 (Fla. 4th DCA 2013) (quoting McLean v. JP Morgan Chase Bank
Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012)). To have standing to foreclose,
the plaintiff must own or hold the note at issue. See May v. PHH Mortg. Corp., 150 So.
3d 247, 248 (Fla. 2d DCA 2014); Khan v. Bank of Am., N.A., 58 So. 3d 927, 928 (Fla.
5th DCA 2011). Standing to foreclose by one other than the original lender can be
established through evidence of an assignment or equitable transfer of the note and
mortgage completed before the complaint is filed. See Focht, 124 So. 3d at 310;
Joseph v. BAC Home Loans Servicing, LP, 155 So. 3d 444, 446-47 (Fla. 4th DCA
2015). Standing cannot be established by simply filing a note with an undated
indorsement or allonge months after the original complaint was filed. See Focht, 124
So. 3d at 310; Cutler v. U.S. Bank Nat’l Ass’n, 109 So. 3d 224, 226 (Fla. 2d DCA 2012)
(noting that if the bank could not establish that the undated allonge took effect prior to
the complaint being filed, then it would not have standing to bring the foreclosure
action). And attempting to bedazzle the trial court with documents establishing all sorts
of facts unrelated to standing at the inception of the case will not carry the day.

2D14-3883

One Comment

  • Mark Bowen says:

    I guess I could trace it back through citations, but why don’t you identify the case here? “this case”; what case?

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