In a good common sense decision, the Florida appellate court for the Third District reversed and remaded a foreclosure summary judgment yesterday in the case of Ruscalleda v. HSBC Bank US. In this remarkable case, we see once again the Keystone Cops incompetence and disorganization of mortgage servicers in bringing foreclosure suits.
On October 8, 2008, American Home Mortgage Servicing (AHMS) filed suit alleging that it was the owner and holder. One week later, HSBC, as trustee, filed suit against the same defendants also claiming to be the owner and the holder of the SAME mortgage indebtedness. The suits were brought in different courts in the same circuit.
The defendants, acting pro se failed to realize that they were being simultaneously sued by two separate entities, both of which averred to the court that they were the owner and holder of the same mortgage.
The defendants answered the AHMS suit, but didn't file a separate answer to the HSBC suit. Later, they retained counsel and their attorney discovered the two suits. Their attorney also initiated discovery and sought to consolidate both suits before the same judge.
HSBC filed a motion for summary judgment and then AHMS dismissed its suit the day before a hearing. The judge hearing the suit in which the defendant's hadn't answered granted a motion for summary judgment despite the self-contradictory averments before two courts and the existence of outstanding unanswered discovery requests.
The appellate court seemed not to be amused and correctly reversed and remanded.
The case is styled:
Ruscalleda v. HSBC Bank US, No. 3D09-997, COURT OF APPEAL OF FLORIDA, THIRD DISTRICT, 2010 Fla. App. LEXIS 13619, September 15, 2010, Opinion Filed.You can read the decision at LexisOne OR:
I have stated before the importance of conducting discovery. When outstanding discovery is unanswered, it is almost always ERROR to grant a summary judgment. Here the unanswered discovery was compounded by an inherently confusing situation. Hopefully the defense counsel will ask for and obtain sanctions!