As hundreds of thousands of foreclosure cases are being filed against homeowners in Florida, it’s time to take a moment to ask the question, “Does the company who has filed the suit even have the right to file suit againt the homeowner?” If the lender who originally sold the mortgage to the homeowner is the same party that is now seeking to foreclose, chances are pretty good that the homeowner owes the money to that lender and accordingly, that lender probably has the right to file a foreclosure against the homeowner.
In the vast majority of foreclosure cases filed however, the Plaintiff who filed the lawsuit did not sell the original loan to the homeowner and in many cases the homeowner has never made a payment to the company suing him and has never even heard of the company that is suing him. In these cases it is absolutely essential that the homeowner, his attorney and the court ask the important question, “Does the company who filed this foreclosure lawsuit have the right to sue the homeowner?” In most foreclosure cases, a copy of a mortgage is attached to a poorly drafted lawsuit which makes the general allegation that the Plaintiff owns and holds the note and mortgage. Shockingly in the vast majority of foreclosure cases the copy of the mortgage and the general allegation are the only two things brought before the court a the time the lawsuit is filed.
The disturbing thing about this practice is that the mortgage that is attached to the lawsuit is a public record and anyone in the world can print up a copy of that mortgage, staple it to a poorly drafted lawsuit then file suit against an uneducated consumer. Unfortunately several appelate cases, two recent and others from decades ago, suggest that a company need not be in posession of documents that prove their right file foreclosure at the time they file the case. The most recent and frequently cited case is WM SPECIALTY MORTGAGE v. SALOMON, 874 So.2d 680 a 2004 case from the Fourth District of Florida. In this case, WM Specialty filed a foreclosure case against a homeowner on December 3, 2002. In discovery an assignment of mortgage suggested that the assignment was executed on November 25, 2002, but the notary signature was not signed until January 3, 2002. Based on this fact the Defendant sought to have the case dismissed on the grounds that as of the date of filing, the Plaintiff did not own the mortgage and thus was not entitled to foreclosure against the homeowner. The appelate court ruled that while the formal assignment of mortgage may not have occured until January 3, 2002, an “equitable assignment” of the mortgage occured prior to filing suit and thus WM Specialty had the right to file suit on that date. While there are many things I find troubling about the WM Specialty ruling, I find it particularly interesting that the only other case the court uses to support this ruling is a case called Johns v. Gillian, a Florida Supreme Court case from 1938! 1938!
The practical result of the WM Specialty ruling is a law firms engaging in the pattern or practice of filing suit against a homeowner prior to being in posession of any real proof that the Plaintiff has the right to file the suit. Sometime later an assignment of mortgage may be produced, but there are often some interesting elements to those assignments that can prove problematic for the Plaintiff if you know exactly what to look for. There are also interesting distinctions between WM Specialty and Johns and the facts that are presented in many of today’s foreclosure cases that may permit an experienced attorney to use these cases against the Plaintiff!
Stay tuned for more information, or visit my website at www.mattweidnerlaw.com to learn more!
