Explaining Judge Rondolino’s Order – a case study on the issues we face

Posted on October 23rd, 2010 by Mark Stopa

If you’ve ever wondered what “foreclosure fraud” is all about or how a homeowner could possibly have legitimate defenses to a foreclosure lawsuit, take a close look at the Order of Dismissal from Judge Rondolino. 

The Plaintiff in this case is Deutsche Bank National Trust Company, as Trustee Under the Pooling and Servicing Agreement Dated as of May 1, 2001.  However, the Note and Mortgage attached to the Complaint are in the name of Maxwell Mortgage, Inc.  The Note contains no indorsement, and there is no allonge, no assignment of mortgage, and no other documentary evidence reflecting a transfer of the Note/Mortgage from Maxwell to Deutsche.  Hence, on the face of the Complaint, Deutsche has no basis to obtain a foreclosure.

After Judge Rondolino dismissed the case the first time, Deutsche filed an assignment of mortgage.  However, the assignment was not created until after the lawsuit was filed, and Florida law does not enable a plaintiff to acquire standing after filing suit.  See Progress Exp. Ins. v. McGrath Community Chiro., 913 So. 2d 1281 (Fla. 2d DCA 2005).  To circumvent this deficiency, Deutsche contends the Note was transferred to it before the suit was filed (even though the written assignment was done after) by some sort of “equitable assignment.”  However, as Florida law requires the pleading of facts, alleging an “equitable assignment” is insufficient without specifying the time, place, and manner of transfer.  In other words, where the written assignment post-dates the filing of the lawsuit, how could the “equitable transfer” have taken place beforehand? 

If this sounds like a lot of legal jargon, it is.  So here’s what’s really going on, both in this case and many others.

Banks don’t have their paperwork in order.  Banks, in this case Deutsche, file foreclosure lawsuits on a regular basis without the requisite paperwork.  When foreclosure cases go unchallenged, these deficiencies go unchallenged, so the banks generally get away with the deficient paperwork.  When foreclosure lawsuits are contested, by attorneys such as myself, banks and their lawyers often try to fix the problem after the fact.  That’s why I routinely see allegations like those in this case alleging an “equitable transfer,” without any factual basis, before the suit was filed even though the written assignment is dated after suit was filed.  Again, how could an “equitable transfer” have taken place before the suit was filed when the written assignment is dated months after?

Whether these types of allegations are permitted is the issue in thousands of Motions to Dismiss (and, ultimately, motions for summary judgment) in foreclosure cases throughout Florida.  Many judges, particularly senior judges, in their ongoing attempt to “push through” foreclosure cases, have denied Motions to Dismiss by homeowners, enabling Plaintiffs such as Deutsche to get away with conclusory allegations of “equitable transfer” without any factual basis. 

As you can see, Judge Rondolino is not one of these judges.  He believes Plaintiffs, even in foreclosure cases, should have to plead some facts in support of an alleged “equitable transfer” of the Note/Mortgage, particularly when the filing of suit precedes the date of the written assignment.  Obviously, I agree … but there’s more to it than that. 

The issue isn’t just whether Plaintiffs such as Deutsche should have to plead facts in support of the alleged equitable transfer … the issue is whether such facts exist.  Again, how could an “equitable transfer” have taken place before the suit was filed when the written assignment is dated months after?

Given his reference to “incacerative sanctions” (if Deutsche’s allegations are proven untrue), it seems Judge Rondolino shares the same belief that I do – in many of these cases, the requisite facts don’t exist.  In other words, it seems there was no “equitable transfer” before the suit was filed, yet Deutsche alleges otherwise to try to “push through” the foreclosure. 

This sounds complicated, but this is the issue in foreclosure cases throughout Florida.  Is the Plaintiff entitled to foreclose?  Can it establish standing as of the date it filed suit?  Is the bank’s paperwork in order?  Many times, the answer is “no,” and it’s good to see a judge call out the banks on these deficient filings.

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Defending a Foreclosure Case – Re-Visiting the Basics

Posted on October 23rd, 2010 by Mark Stopa

With foreclosure-related stories dominating national headlines on a daily basis, many lawyers, judges, and reporters have gotten knee-deep, if not neck-deep, in the foreclosure crisis.  Sometimes, we’re so immersed in the battle, so deep in the forest, it’s easy to forget that many Floridians are unaware of the basics when it comes to foreclosure defense.  Let’s take a step back, dispel some myths, and re-visit the basics:

1.  As a Florida homeowner, you don’t need to leave your home unless and until the bank *wins* a foreclosure lawsuit.  As such, even if you’re hopelessly behind on your mortgage, you don’t have to leave your home.  Even if the bank writes you a default letter and sends it by certified mail, files suit against you, and threatens you on the phone, you don’t have to leave your home.  You don’t need to leave your home unless and until the bank wins a foreclosure lawsuit against you. 

To put it differently, there’s a reason I chose the name of this website – www.stayinmyhome.com.   

Repeat after me:  “I have the right to ‘stay in my home’ unless and until the bank wins a foreclosure lawsuit against me.”

2.  As a Florida homeowner, you are entitled to have a foreclosure defense attorney represent you until the conclusion of your foreclosure lawsuit.  In my view, my job as a foreclosure defense attorney is quite simple – to do whatever I can, within the law and consistent with my ethical obligations as an attorney, to try to prevent banks from winning foreclosure lawsuits against my clients.  In any given case, my hope is that I can do a good enough job that the bank will offer my client a reasonable settlement offer and/or loan modifications that it otherwise would not offer.  I’ve said this when I started practicing foreclosure defense and I still believe it – if you give up, you’re going to get foreclosed, but if you fight your foreclosure case, you at least give yourself a chance to avoid foreclosure. 

3.  Many non-lawyers think it’s easy for a bank to win a foreclosure lawsuit.  That’s not necessarily so.  When foreclosure defense attorneys such as myself force lawyers to prove their entitlement to foreclose in court, banks sometimes struggle to meet their burden of proof.  Every case is different, and there’s no way to know for sure how any particular case will play out in court.  That said, it’s possible the bank’s lawsuit will get dismissed.  It’s possible, once you retain a competent and reputable foreclosure defense attorney, that the bank will be hesitant to go to court altogether.  It’s possible the court will deny the bank’s motion for summary judgment and force the bank to prove its entitlement to foreclosure at trial (which would extend the duration of the foreclosure lawsuit and, hence, your time in your home).  The court process, candidly, can be a bit uncertain.  In my view, though, uncertainty is better than giving up and accepting foreclosure on your home. 

As we’ve seen with the huge, national stories in recent weeks, nobody knows for sure what the future will bring.  If you give up, foreclosure is all but set in stone.  But if you defend your foreclosure lawsuit, you just may be able to stay in your home, perhaps for a long time, or even avoid foreclosure altogether.

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