With foreclosure trials and foreclosure summary judgments whipping though courts more quickly than ever before, it’s critical that consumers have some idea what rules are in place that our courts are considering.
Now, it’s so important to understand that the book attached below is old, very old in legal terms….and that some of the cases and issues discussed ARE COMPLETELY NON APPLICABLE AS A RESULT OF SUBSEQUENT COURT RULINGS.
This emphasizes even more importantly that experienced foreclosure defense attorneys need to be consulted in order to understand whether you are potentially accomplishing foreclosure delay, mortgage modification, short sale or any other option.
That being said, the courts of this nation are still (in theory at least) responsible to THE PEOPLE and THE PEOPLE are entitled to know what is happening inside their courtrooms.
As most of you know, I’m uniformly pleased with the way consumers are treated in this area of the state, and see very few examples of properly represented not being treated fairly.
The judges in this state are suffering under massive pressures, but from where I sit, in many ways they are balancing the interests of the law and practical reality. But just consider some of these issues identified:
1. Foreclosure is the enforcement of a security interest by judicial sale of
collateral. All mortgages shall be foreclosed of equity. § 702.01, Fla. Stat. (2010).
(a) Mortgage: any written instrument securing the payment of money or
advances including liens to secure payment of assessments for condominiums,
cooperatives and homeowners’ associations. § 702.09, Fla. Stat. (2010).
A mortgage creates only a specific lien against the property; it is not a
conveyance of legal title or of the right of possession. § 697.02, Fla. Stat. (2010); Fla.
Nat’l. Bank & Trust Co. of Miami v. Brown, 47 So. 2d 748 (1949).
(b) Mortgagee: refers to the lender; the secured party or holder of the
mortgage lien. § 721.82(6), Fla. Stat. (2010).
(c) Mortgagor: refers to the obligor or borrower; the individual or entity who
has assumed the obligation secured by the mortgage lien. § 721.82(7), Fla. Stat.
(2010). The mortgagor holds legal title to the mortgaged property. Hoffman v.
Semet, 316 So. 2d 649, 652 (Fla. 4th DCA 1975).
3. To foreclosure the mortgage lien and extinguish equities of redemption,
secured parties must file a civil action. § 45.0315, Fla. Stat. (2010).
1. Must be the owner/holder of the note as of the date of filing suit. Jeff-Ray
Corp. v. Jacobsen, 566 So. 2d 885 (Fla. 4th DCA 1990); see also, WM Specialty
Mortgage, LLC v. Salomon, 874 So. 2d 680, 682 (Fla. 4th DCA 2004).
(a) The holder of a negotiable instrument means the person in possession of
the instrument payable to bearer or to the identified person in possession. §
671.201(21), Fla. Stat. (2010).
(1) Endorsement in blank – where unsigned and unauthenticated, an original
note is insufficient to establish that the plaintiff is the owner and holder of the note.
Must have affidavits or deposition testimony establishing plaintiff as owner and holder.
Riggs v. Aurora Loan Services, LLC, 2010 WL 1561873 (Fla. 4th DCA 4/21/10).
(b) The holder may be the owner or a nominee, such as a servicer, assignee or
a collection and litigation agent. Rule 1.210(a), Fla. R. Civ. P. (2010) provides that an
action may be prosecuted in the name of an authorized person without joinder of the
party for whose benefit the action is brought. See also, Kumar Corp. v. Nopal Lines,
Ltd., 462 So. 2d 1178, 1184 (Fla. 3d DCA 1985).
(c) Plaintiff’s nominee has standing to maintain foreclosure based on real party
in interest rule. Mortgage Electronic Registration Systems, Inc. v. Revoredo, 955 So.
2d 33 (Fla. 3d DCA 2007), (MERS was the holder by delivery of the note); Mortgage
Elec. Registration Systems, Inc. v. Azize, 965 So. 2d 151 (Fla. 2d DCA 2007);
Philogene v. ABN AMRO Mortgage Group, Inc., 948 So. 2d 45 (Fla. 4th DCA 2006).
1. Note – Lender is required to either present the original promissory note or give
a satisfactory explanation for the lender’s failure to present it prior to it being
enforced. Nat’l. Loan Investors, L.P. v. Joymar Associates, 767 So. 2d 549, 550 (Fla.
3d DCA 2000).
(a) A limited exception applies to lost, destroyed or stolen instruments. Id.
2. A lost promissory note is a negotiable instrument. § 673.1041(1), Fla. Stat.
(2008); Thompson v. First Union Bank, 643 So. 2d 1179 (Fla. 5th DCA 1994).
(a) Loss or unintentional destruction of a note does not affect its validity or
3. Reestablishment of the lost note – An owner of a lost, stolen or destroyed
instrument may maintain an action by showing proof of his ownership, facts that
prevent the owner from producing the instrument and proof of the terms of the lost
instrument. § 673.3091(2), Fla. Stat. (2004); Lawyer’s Title Ins. Co., Inc. v. Novastar
Mortgage, Inc., 862 So. 2d 793, 798 (Fla. 4th DCA 2004); Gutierrez v. Bermudez, 540
So. 2d 888, 890 (Fla. 5th DCA 1989).