Happy Thanksgiving from Florida’s Fourth District
Florida’s Fourth District Court of Appeal issued two wonderful opinions today, just in time for Thanksgiving.
In Duke v. HSBC Mortgage Services, LLC, the court reversed an order granting a bank’s motion for summary judgment. The facts in that case were like those I see in many foreclosure cases: the note did not have an indorsement, and was apparently lost, so HSBC relied on an Assignment of Mortgage for the requisite standing. But the assignment post-dated the filing of the complaint. In reversing the summary judgment, the Fourth District explained:
genuine issues of material fact remain in dispute regarding the owner and holder of the note and mortgage at the time the complaint was filed.
This is yet another illustration of how foreclosure defense attorneys can appropriately defend foreclosure cases. The issue in this case wasn’t whether the homeowner was behind on mortgage payments. The issue was HSBC’s ability to prove its entitlement to foreclosure. This is not an anomaly, folks – fact-patterns like this exist in countless foreclosure cases throughout Florida.
A second case from the Fourth District is perhaps even more powerful. In Venture Holdings & Acquisitions Group, LLC v. A.I.M. Funding Group, LLC, the Fourth District not only reversed a summary judgment of foreclosure, it directed the lower court to dismiss the case outright! As the court explained:
An assignment of a promissory note or mortgage, or the right to enforce such, must pre-date the filing of a foreclosure action. Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 856 (Fla. 4th DCA 1990). A party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing. … Here, before A.I.M. filed any of the foreclosure actions below, A.I.M. assigned the promissory note and mortgage to a third party as collateral for a loan. Thus, A.I.M. did not have standing to foreclose on any of the properties at the time it filed suit.
In so ruling, the Fourth District distinguished those defendants who had properly defended the case (and were entitled to be dismissed as defendants) from those who did not properly defend, (were defaulted, and were not entitled to be dismissed). This ruling, of course, again illustrates the importance of defending a foreclosure suit from its inception.
The moral of these two decisions? The bank’s obligation to prove its standing to foreclose is well-established in Florida law. And even if the bank appears to be the “right” bank to sue, that’s not the end of the inquiry – the bank had to be the “right” bank to sue as of the date the foreclosure lawsuit was filed.
Mark Stopawww.stayinmyhome.com
Posted in Main | 4 Comments »
Dear Mark,
As you demonstrated in your motion to dismiss my foreclosure case,
you correctly pointed out to the court that the lender who brought suit against
me “merely alleges it is entitled to enforce the note and mortgage” but does claim
to actually own and hold the note. All the more reason why all homeowners need
high-quality legal representation from the inception (as you have stated)!
Thank you very much for your vigorous defense of my case and all
foreclosure cases you passionately represent!
Chris
Thank you, Chris. The kind words are much appreciated.
Thats great news Mark
Thanks again Mark. My case; note attached to complaint has no endorsement, original filed later does. Assignment from MERS is dated after the complaint and has no effective date (line is blank). The judge gave the Plaintiff 20 days to prove it had standing at inception or he will dismiss the case. It will be interesting to see what they come up with; if anything.