Frequently in a mortgage foreclosure case, the lender will file the lawsuit to foreclose the mortgage, but then admit that they have lost the note which is the contract between the borrower and the lender. It has become a quite common practice among the Plaintiff’s foreclosure firms operating in the State of Florida to take a copy of a mortgage that any one in the world can access through public records, staple that copy to a two page, relatively generic complaint that states, “Plaintiff owns and holds the note and mortgage” then attempt to take the homeowner’s home based on these flimsy allegations and without any evidence which shows their right to foreclose.
In many cases, the Plaintiff goes through the effort to at least get a copy of the note (the contract that obliges the homeowner to repay the sum of money they’ve borrowed to a lender) and attach this copy to the lawsuit, but in many cases, the Plaintiff is either unable or unwilling to go forward with the effort to locate a copy of the note that is a key element in the case and they file the lawsuit either without a copy of the note, but with a one page piece of paper that states the general terms of the note. The information contained on this one page document appears to come from a computer screen or terminal where the basic information from the note was taken and recorded.
This practice has been largely accepted in courts across the state, although it is absolutely inappropriate and judges should not be accepting it. Fortunately, in a recent Order from Volusia County, Florida, the Plaintiff’s case was in fact dismissed because the statement of terms failed to state many of the basic and essential terms of the note such as to whom the amounts alleged to be due or payable and when and where such payment is due.
Questioning who is alleged to be owed money in a breach of contract suit and how much is a fundamental question and it is particularly true in a foreclosure case. Often the homeowner has been sending payments and dealing with one or more entities for months or years, but the name of the Plaintiff suing them is someone they’ve never heard of….i.e. “US Bank NA, as Trustee for the GMAP trust”. The Plaintiffs quite strenuously argue that they should be able file suit against anyone they wish without first showing that they have any right to do so, but this is a practice that is unfair and clearly improper. As judges become increasingly uncomfortable with the tactics employed by Plaintiff’s firms, you will see more cases being dismissed for this critical failure.
For a copy of the case and more information, visit my website at www.mattweidnerlaw.com