Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
William A. Roper, Jr.
In yet another appellate decision on conditions precedent, the Florida Court of Appeals for the Second District overturned a decision of the Circuit Court for Charlotte County.  The decision is:
Konsulian v. Busey Bank, N.A, No. 2D10-2163 (Fla. App. 2nd Dist. 2011)
http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2011/June/June%2001,%202011/2D10-2163.pdf

This decision was handed down today (June 1, 2011).

I would expressly note that litigants in other states might want to take particular note of conditions precedent cases in other jurisdictions where the express language of the mortgage provision is given.  In many instances, this language is uniform across jurisdictions.  While an out of state case may NOT be authoritative in YOUR jurisdiction, the case is more influential when the facts are IDENTICAL.

If the language in YOUR mortgage is identical to that in a published conditions precedent decision elsewhere, discuss with your attorney the advisability and desirability of citing the out of state decision and noting the identical contractual language!

In Konsulian, the Court expressly quoted this mortgage language:
22. Acceleration; Remedies. Lenders shall give
notice to the Borrower prior to acceleration following
Borrower's breach of any covenant or agreement in this
Security Instrument (but not prior to acceleration under
Section 18 unless Applicable Law provides otherwise). The
notice shall specify: (a) the default; (b) the action required to
cure the default; (c) a date, not less than thirty (30) days
from the date the notice is given to Borrower, by which the
default must be cured; and, (d) that the failure to cure the
default on or before the date specified in the notice may
result in an acceleration of the sums secured by this Security
Instrument, foreclosure by judicial proceeding and sale of the
Property. The notice shall inform Borrower of the right to
reinstate after acceleration and the right to assert in the
foreclosure proceedings the non-existence of a default or
any other defense of Borrower to acceleration and
foreclosure. If the default is not cured on or before the date
specified in the notice, a Lender, at its option, may require
immediate payment in full of all sums secured by this
Security Instrument by judicial proceeding. Lender shall be
entitled to collect all expenses incurred in pursuing the
remedies provided in this Section 22, including, but not
limited to all attorneys' fees and costs of title evidence.

Compare this to YOUR mortgage.
Quote 0 0
Bill
William A. Roper, Jr. wrote:
In yet another appellate decision on conditions precedent, the Florida Court of Appeals for the Second District overturned a decision of the Circuit Court for Charlotte County.  The decision is:
Konsulian v. Busey Bank, N.A, No. 2D10-2163 (Fla. App. 2nd Dist. 2011)
http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2011/June/June%2001,%202011/2D10-2163.pdf

This decision was handed down today (June 1, 2011).

I would expressly note that litigants in other states might want to take particular note of conditions precedent cases in other jurisdictions where the express language of the mortgage provision is given.  In many instances, this language is uniform across jurisdictions.  While an out of state case may NOT be authoritative in YOUR jurisdiction, the case is more influential when the facts are IDENTICAL.

If the language in YOUR mortgage is identical to that in a published conditions precedent decision elsewhere, discuss with your attorney the advisability and desirability of citing the out of state decision and noting the identical contractual language!

In Konsulian, the Court expressly quoted this mortgage language:
22. Acceleration; Remedies. Lenders shall give
notice to the Borrower prior to acceleration following
Borrower's breach of any covenant or agreement in this
Security Instrument (but not prior to acceleration under
Section 18 unless Applicable Law provides otherwise). The
notice shall specify: (a) the default; (b) the action required to
cure the default; (c) a date, not less than thirty (30) days
from the date the notice is given to Borrower, by which the
default must be cured; and, (d) that the failure to cure the
default on or before the date specified in the notice may
result in an acceleration of the sums secured by this Security
Instrument, foreclosure by judicial proceeding and sale of the
Property. The notice shall inform Borrower of the right to
reinstate after acceleration and the right to assert in the
foreclosure proceedings the non-existence of a default or
any other defense of Borrower to acceleration and
foreclosure. If the default is not cured on or before the date
specified in the notice, a Lender, at its option, may require
immediate payment in full of all sums secured by this
Security Instrument by judicial proceeding. Lender shall be
entitled to collect all expenses incurred in pursuing the
remedies provided in this Section 22, including, but not
limited to all attorneys' fees and costs of title evidence.


Compare this to YOUR mortgage.


This language is the same language that is used in my mortgage.  I have a single family Fannie Mae/Freddie Mac UNIFORM INSTRUMENT.  It would appear that this is going to be the common language for a LOT of people.
Quote 0 0
William A. Roper, Jr.
Quote:
Bill said:
This language is the same language that is used in my mortgage. I have a single family Fannie Mae/Freddie Mac UNIFORM INSTRUMENT. It would appear that this is going to be the common language for a LOT of people.


Right.  They had me at Section "22. Acceleration; Remedies."  I didn't bother to go and look myself, because I already KNEW the answer.
Quote 0 0
William A. Roper, Jr.

Ann created a new thread to share a recent blog post by Matt WEIDNER:


Foreclosure Case Killer(Konsulian)- The Default Letter

http://ssgoldstar.websitetoolbox.com/post?id=5349498


I am also reposting the link to WEIDNER's Blog here:

http://mattweidnerlaw.com/blog/2011/06/foreclosure-case-killerkonsulian-the-default-letter/


As can be readily seen, we were discussing the Konsulian decision here at the MS Fraud Forum more than a week before Matt picked it up.  He, no doubt, has a very busy litigation schedule.

Note our emphasis on Paragraph 22, which was picked up in WEIDNER's post, whether independently or by our lead.  Imitation is the sincerest form of flattery!
Quote 0 0
William A. Roper, Jr.
See also my related thread:

"The Conditions Precedent Affirmative Defense"

http://ssgoldstar.websitetoolbox.com/post?id=5059262

Quote 0 0
William A. Roper, Jr.
The Konsulian decision is now online at Google Scholar.  The Google Scholar version has hyperlinks to other cited decisions:

http://scholar.google.com/scholar_case?case=11691673313128615861


Quote 0 0
Write a reply...