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trial attorneySo how long does a foreclosure trial last?  Well, in this case a trial was held in October 2015 and we just got our final judgment in favor of Defendant…yesterday, August 17, 2016.  The thing that infuriates me about this particular trial is the fact that the plaintiff screwed up their case when they failed to introduce a mortgage modification at trial. I spent the whole trial begging them to introduce the modification over and over and over. And the judge spent the whole trial asking the bank attorney to introduce the modification….the bank attorney refused.  But in a move that infuriated me at the time…the judge ignored all that and granted a Final Judgment of Foreclosure for the bank.

The very next day….the very next day, the appellate court issued their opinion in Kuehlman:

As argued by Borrower, because the parties entered a modification agreement following Borrower’s alleged breach of the original mortgage, Lender could only foreclose by alleging and proving a breach of the modification agreement. It failed to plead that theory. Nor was the theory tried by consent.

And continuing one after the other appellate courts across the state adopt the same legal positions:

At trial, the Plaintiff admitted that the note and mortgage had been modified but they failed to introduce or prove up the modification of mortgage.  By failing to introduce and prove up the modification of mortgage, Plaintiff failed to present a prima facie case for foreclosure. Nowlin v. Nationstar Mortg., LLC, 193 So. 3d 1043 (Fla. 2d DCA 2016); Rattigan v. Central Mortg. Co., __ So. 3d __, 2016 WL 3087705 (Fla. 4th DCA June 1, 2016); Kuehlman v. Bank of America, 177 So3d 1282 (Fla.5th DCA 2015).

The infuriating thing about this particular case was the bank attorney, having failed to do their job…decided that they should instead try to blame me for their wrongdoing…filing a motion that is full of potshots at me.  The full memo is here…it’s just another piece of garbage bank pleading that improperly tries to shift the blame away from bank error.  STRONG MEMO

The fallback argument they took *(I think recognizing that the court would not respond to their absurd arguments that somehow I had something to do with their wrongdoing at trial.) was that even though the bank’s attorney made tactical decisions that were wrong at trial…the court should just ignore all that and allow them to get a do-over or get a mulligan. The court rejected that argument and instead adopted the Final Judgment language I drafted, in its entirety:

Having failed to prove their case at trial, the Court finds that Plaintiff is not entitled to a do-over or mulligan when it comes to trial. Pain Care First of Orlando, LLC v. Edwards, 84 So. 3d 351, 355 (Fla. 5th DCA 2012) (Reversing damages award but finding new trial unwarranted because “[h]aving proceeded to judgment on legally insufficient proof, Appellee does not get a do-over.”); J.J. v. Dep’t of Children & Families, 886 So. 2d 1046, 1050 (Fla. 4th DCA 2004) (“No statute or rule permitted the trial court to give the [plaintiff] a “do-over” after a three and a half-day trial.”).

Plaintiff’s failure to present a prima facie case warrants dismissal. May v. PHH Mortg. Corp., 150 So. 3d 247, 249 (Fla. 2d DCA 2014) (“The bank’s failure to prove a prima facie case warrants dismissal.”).

In argument of this case on rehearing, after I realized the court recognized that the bank was wrong…I just sat back and let the pleadings and sound legal argument to the work. It remains terribly frustrating that bank attorneys are permitted to run roughshod over basic arguments and legal principles…that banks are permitted to continue to raise just grotesquely frivolous arguments…at least in this case, the court rejected those arguments.

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