foreclosure

There are just so many horrible things that are happening in the space of Florida foreclosures but that’s a dead horse that’s been beat now for far too many years on this blog. Florida’s courts have been directed to clear the foreclosure backlog….with no regard for the long term consequences of the integrity of the judicial process.  The case below is an illustration of this particular point.  Before trial, we alerted both the court and JPMorgan’s attorneys that the mortgage at issue in this case had not been issued by the alleged originating party.   The error probably did not rise to the level of being fraud, but it was certainly a problem that should have been addressed before the court.  The problem is in this case the court determined that such issues were of no concern. And so this appeal of a very bad foreclosure final judgment follows:

 

The Homeowner’s case began with testimony from Mr. Fierce.  Mr. Fierce testified that E-Loans had no connection to the Homeowner’s property as either the lender or the mortgage holder.  And Mr. Fierce testified that even though the note identifies E-Loans as the “lender,” this was not correct.  Mr. Fierce also testified that E-Loans never took a security interest in the Homeowner’s property. And without objection, his previously filed affidavit was admitted into evidence.

The Homeowner also testified that she remembered receiving a copy of the complaint and noting that a copy of the note was not attached to it.  She further testified that she went to the clerk’s office and a copy of the complaint that was filed there also did not have a copy of the note attached to it.  Finally, the Homeowner testified that E-Loans did not take a mortgage out on her house.

After the Homeowner rested its case, the trial court allowed the Bank to reopen its case and recall Mr. Fierce to the stand.  Over the Homeowner’s completeness objection, the trial court admitted a power of attorney into evidence purportedly signed by Mr. Fierce and purportedly allowing Leddy to endorse notes on E-loans behalf.  This document, however, only applied to certain “loans” which were unidentifiable from the document:

At the close of evidence, the Homeowners argued that the Bank was not entitled to foreclose because E-Loans’s name was on the note.  After taking the matter under advisement, the court entered judgment in the Bank’s favor even though it had previously entered the order “amending” the plaintiff’s name.  After her timely motion for rehearing was denied, the Homeowner appealed.

Initially, the trial court erred in applying the Evidence Code in this case.  First, the note should have been excluded on authenticity grounds since the endorsement was neither not presumed authentic or, if such a presumption exists, was burst by the testimony at trial.  Furthermore, the Bank did not even lay a business records predicate for the majority of its documents.  But even if it had, its witness was singularly unqualified to do so.  Finally, the judgment figures document should have been excluded on summary evidence grounds.

And even if the documents were admissible, the evidence is insufficient to support a finding that either the Bank or JPMorgan had standing.  First the named mortgagee expressly repudiated the contract and therefore there was no valid mortgage to foreclose.  Second, even if there was a valid mortgage, the Bank did not prove that it had standing at inception.  Finally, even if the Bank had standing at inception, its own witness’s testimony proved that it lacked standing at the time of trial.  And if JPMorgan was actually “substituted” as party-plaintiff, the court erred in granting judgment to a non-party and erred in granting judgment where there was no evidence of JPMorgan’s standing when judgment was actually entered.

Patel (2D15-5283) Initial Brief

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One Comment

  • Ann Smith says:

    I’m pretty sure that my mortgage, Decision One/CW/BOA/BONY/MERS and anyone who I forgot to mention who was included in my pre-Lis Pendins filed mortgage assignment, was never legally securitized. My loan number doesn’t appear in the PSA for the loan pool, CUSIP and tranch it falls into according to my “mortgage assignment”. Thanks to the BONY vs CW/BOA settlement, I was able to ascertain this specific information on my loan. In fact, before the BONY lawsuit was settled, I was able to log into BONY’s investor website and see when the deposits were initially deposited into the trust. That was four months after I signed the mortgage and two months after the PSA closing deadline.
    I believe that this is why I have never been approved for a modification nor was able to close on a BOA cooperative short sale. It’s most likely why my original FC in Jan 2009 was dismissed w/o prejudice for failure to appear in July 2011, and has not been refiled to this day. From what I’ve read, after BONY settled w BOA, the sold off tranches of default loans to glorified debt collectors, like my latest servicer, “SPS”. Tye CUSIP for my loan no longer is found on the Moody website, and the servicer has been sending me mortgage statements for three years. The title went to the HOA in 2012, and in all of the time pissed away by the fraudsters, I’ve purchased and paid off an owner financed property. Since its been eight years since my original date of default, my credit report no longer includes this delinquent account, giving me a 730 score ?. Screw them all.

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