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Foreclosure Defense Florida


In the matter of US Bank v. Marion, Florida’s 2nd District Court of Appeals reversed Judge Campell’s Order dismissing a foreclosure case because it was not verified properly.   Sounds bad for the cause of justice and foreclosure defense…right?


The most important holding of the opinion comes from the last paragraph and can be restated as follows:

The trial court has the authority to require a plaintiff in a foreclosure action to provide additional information concerning the person signing the verification. The trial judge may require that the person signing the verification be within or otherwise submit to the jurisdiction of the court.

Okay, so that is not exactly what the trial court said, but this is PRECISELY how this opinion CAN AND SHOULD BE READ.   The appellate court is recognizing the very real problems with the failure of plaintiffs in foreclosure cases to show that they have any admissible proof of their authority to act on behalf of shadowy entities that are not properly identified.
So while the issue addressed by the appellate court in this case may at first appear to be relatively narrow…the larger message is far more significant…..
Our state’s elected circuit court judges have the authority to inquire into the authority of the parties that appear before them and may demand proof of agency and contractual relationships. (I would actually take it one step further and say that they have an obligation to do so when these issues are properly brought before them)
usbank v. marion

One Comment

  • Shawn Newman says:

    Here in Washington State, the law requires a declaration of beneficiary [RCW 61.24.030]. The law assumes the Note Holder is the beneficiary on the DOT. However, the declarations I’ve seen go beyond the definition of Note Holder in the Note to include the following boilerplate:
    ” I, the undersigned, declare under penalty of perjury based on review of the applicable business records of the servicing agent or beneficiary maintained in the ordinary course that: BANK OF AMERICA, N.A. is the beneficiary (as defined by RCW 61.24.005(2)) and actual holder of the promissory note or other obligation secured by the deed of trust or has requisite authority under the RCW 62A.3-301 to enforce said obligation for the above mentioned loan account.”
    These are dated and purportedly signed by an Assistant Vice President (ala MERS).
    I’ve raised issues with both the form (state law requires the place signed to be designate) and content. I’ve also done background searches (via social media and on the signers. In one case, involving OCWEN, the signer was terminated the same month the declaration was signed. I found her resume on the net and it states she is an assistant fork lift operator. No joke. In another by BofA, the signer [Victoria Rosa Cuglieri] lives in rural PA.

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