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There are very, very bad things happening in this country.  One of the worst things that permeates this entire country and which is destabilizing the entire world is the blatant fraud that is the very foundation of the world’s financial system.

Our government has lost control of the financial system. The banks rigged the game and bought off all the players.

Specifically as it relates to Foreclosure cases, at some point in time we will all wake up the horrifying reality that no one, not anyone…knows who is actually taking possession of hundreds of millions of dollars of mortgage payments….and where that money is going.

That’s the real issue that bubbles below the surface…right beneath the surface, but that will rear its head…

Eventually.

But now for the opinion….

A plaintiff who is not the original lender may establish standing to
foreclose a mortgage loan by submitting a note with a blank or special endorsement, an
assignment of the note, or an affidavit otherwise proving the plaintiff’s status as the
holder of the note.1 McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173
(Fla. 4th DCA 2012). But standing must be established as of the time of filing the
foreclosure complaint. Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acq. Corp., 51
So. 3d 1176, 1179 (Fla. 2d DCA 2010); McLean, 79 So. 3d at 173. Thus, Wells Fargo’s
submission of a postfiling assignment of the note and mortgage does not establish that
it had standing when it filed the lawsuit. See Gonzalez v. Deutsche Bank Nat’l Trust
Co., 95 So. 3d 251, 253 (Fla. 2d DCA 2012); McLean, 79 So. 3d at 173.

Wells Fargo alternatively argues that it established standing by submitting
the original note endorsed in blank. See Cutler v. U.S. Bank Nat’l Ass’n, 109 So. 3d
224, 225-26 (Fla. 2d DCA 2012); Everhome Mortg. Co. v. Janssen, 100 So. 3d 1239,
1240 (Fla. 2d DCA 2012); Green v. JPMorgan Chase Bank, N.A., 109 So. 3d 1285,
1288 (Fla. 5th DCA 2013). As with the assignment, however, Wells Fargo did not
submit the original note until several months after it had filed the complaint. To
establish standing as the holder of a note endorsed in blank, a party must be in
possession of the original note. See § 671.201(21)(a), Fla. Stat. (2007) (defining
“holder” as “[t]he person in possession of a negotiable instrument that is payable either
to bearer or to an identified person that is the person in possession”); Everhome, 100
So. 3d at 1240; Green, 109 So. 3d at 1288. Thus, Wells Fargo was required to submit
evidence that it was in possession of the original note with the blank endorsement at the
time it filed the complaint to establish standing. See Green, 109 So. 3d at 1288.

Wells Fargo noted that the trust in which Focht’s mortgage loan was held
was created years before Wells Fargo filed the foreclosure action. But the record does
not reflect that, at the time the trust was created, Focht’s mortgage loan was an asset of
the trust. Thus, a genuine issue of material fact remains regarding standing that
precludes the entry of summary judgment. See Cutler, 109 So. 3d at 226 (reversing
summary judgment where a plaintiff who was not the original lender filed a claim to
reestablish a lost note with its foreclosure claim and subsequently found and filed the
original note but failed to present evidence establishing when the plaintiff became the
proper holder of the note); McLean, 79 So. 3d at 174 (same).

Accordingly, we reverse the final judgment in case number 2D11-4511
and remand for further proceedings, and we dismiss as moot the appeal in case number
2D11-4980. We also certify a question based on some of the same concerns
articulated by Judge Altenbernd in his concurrence. We recognize that trial courts have
been overwhelmed by foreclosure filings and that the number is mounting.2 See In re
Amendments to Fla. R. Civ. P. 1.490, 113 So. 3d 777, 778 (Fla. 2013). And the
supreme court has taken action to relieve the backlog of foreclosure cases by various
means within its authority. See id. at 779; In re Certification of Need for Additional
Judges, 29 So. 3d 1110, 1115-16 (Fla. 2010).

9 Comments

  • Bob Hurt says:

    Matt:

    What’s YOUR problem with the ruling? Do you believe the bank will not eventually establish standing? If the court asked the borrower “Did you take out a loan and make payments and stop paying, and receive proper notice of acceleration and fail to pay and receive notice of foreclosure and a subpoena and lawsuit?” what do you imagine the borrower will answer?

    The court has the duty to redress the injury and there is no question WHOM the borrower must pay (see the mortgage security instrument). Why would YOU vote not to allow the bank to foreclose if the borrower breached the note and admitted it? ESPECIALLY if the bank produces the note indorsed in blank?

    This is all very simple and clear cut. You have only one way to help the borrower – find out where, when, and how the lender or lender’s agents injured the borrower at the inception of the loan. If you find causes of action there, you can make the foreclosure disappear for good, and get your client a cram-down or wad of money. But if you win a temporary dismissal of the foreclosure, the client will still lose the house, so why bother?

    • neidermeyer says:

      Bob ,

      Matt never replies to comments here ,,,, that said I think his “disturbing” notation refers to the fact that this means that virtually all foreclosures in the state are now up in the air and anyone that bought a foreclosure property is now subject to eviction if the original owner steps forward.

      What I find “disturbing” is the obvious disgust on the part of the appeal board that “had to” find in favor of the defendant just because Wells came up with some (probably faked and obviously untimely) documents showing a transfer… Documents which I must add still do not prove standing because there is no evidence submitted to show consideration.

      What’s disturbing is the disdain for the law the judges have.

      • Pro se says:

        What disturbing is that in the eyes of the judges it is ok for the banks to get a property for free but is it not ok for a homeowner to keep his/her house. Windfall for an entity that paid nothing for the note is ok…

  • eric says:

    And there is no question WHOM the borrower must pay(see the mortgage security instrument)….. Trying not to chuckle too hard about this. With all the undeniable fraud, robosigning, and questions as to WHOM notes were assigned to, WHOM actually collected the money the borrower paid (and if funds were distributed to the actual lender on the loan), and WHOM the borrower ultimately really owes on his “note”, (and I use that term loosely…… BTW we should include any offsets, i.e, credit default swaps or PMI that may have paid off the actual lender on the “loan”) it is very, very far from simple and clearcut, and borrowers who lack the resource to afford good counsel get shafted daily. To the extent that a bank may very possibly be getting a windfall from a loan it incurred no actual loss from, while not being a holder in due course or representing the actual lender for the money lent, I find the courts comments ignorant, self serving, and disturbing given what has gone on in Florida that they have turned blind eye too……Thank you, now that I have vented, I feel MUCH better. HAND.

  • Signed says:

    Bob,
    We did in fact sign a traditional mortgage. We DID NOT sign a securitized mortgage. The two are not one in the same…the latter was designed specifically not to be able to identify the owner.
    Bob, now let me get this right…at the time of our payoff…we send to a trust that has been closed, no longer has an address nor phone number…and has no accounting?

  • Looking In says:

    I think his problem is that the judges have certified the question of standing as one of great importance.

    ================================

    Google the Ohio case FHLMC v Schwartzwald. It is on point to this case.

  • Anonymous Poster says:

    No,, I don’t think that’s what this opinion says. A bona fide purchaser of a property has legal right too; and once certain time periods have expired the prior borrower forfeited all rights to appeal/challenge fraud/etc. Believe it or not, an appeal usually has to be within a mere 20 days from the court order you’re appealing; a very short amount of time and before the new purchaser takes possession. Courts are also VERY reluctant to overturn purchases long after unless some real true fraud can be shown. Remember, these cases are in equity (or what is fair).

    Bob, it is a win-win. The homeowner get to live mortgage free for years, and the lawyer makes a fee. the case is dismissed and the homeowner stays more years free and the lawyer makes another fee. It is all foreclosure delay in the end not defense despite the representations by certain vocal defense lawyers. Ask how many free houses these lawyers have gotten for their clients and you can count them on 1 hand. Other than that, it is all delaying the inevitable.

    In the end, the homeowner loses the house, sells it, or modifies the loan; the latter 2 options being settlement. The real ultimate “wins,” and I use that term loosely, for the homeowner are far and few between. The bank will eventually prove their case, even if it is not the first go. Only in the rarest of circumstance does the homeowner really win in court.

  • r stolte says:

    The U.S. Supreme Court in 1872 got it right – The plaintiff must own both the mortgage and the note prior to filing a foreclosure suit. This is a requirement in certain other states such as NY that has a refined judicial system. If Fl is to cut down on its massive foreclosure fraud, the huge backlog clogging the courts, the despicable treatment of victims, and the unnecessary hit to the economy, it would adopt the SCOTUS ruling sooner rather than later.

    • Anonymous Poster says:

      This is already case law in Florida too. See McLean vs. JPMorgan Chase 4th DCA opinion from I believe 2012.

      The banks (or Plaintiff’s counsel) will just make up some bogus affidavit that they owned the note or had it in their vault before the foreclosure was filed.

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