Foreclosure Case Law Update
For a short period of time in Florida, pretender lenders and their attorneys had a field day in Florida courts, obtaining foreclosure judgments and title to property based on the flimsiest of evidence. Now courts are aware of many of the problems with these files and lenders can no longer count on a free ride to the foreclosure auction. Below is a sampling of case headnotes from recent circuit court opinions that denied foreclosure. Judges in circuits across the state are now standing up for consumers (or at least for the rule of law) and requiring lenders to prove their right to claim the relief they seek. A sampling of the headnotes follows:
Mortgages — Foreclosure — Stay — Foreclosure action is stayed until mortgagor has been afforded mitigation and modification opportunities of home affordable modification program
Mortgages — Foreclosure — Standing — Motion for final judgment of foreclosure denied — Plaintiff that did not become holder of note until after suit was filed did not have standing to bring action — Even if assignment could confer standing retroactively, assignment is deficient where jurat does not indicate that it was signed in presence of notary, and assignor does not have documented authority to assign mortgage — Further, motion for summary judgment is deficient where supporting affidavit was signed by person whose only demonstrated authority is to assign and release liens, not by individual with corporate authority and demonstrated knowledge.
Mortgages — Foreclosure — Complaint — Plaintiff has failed to state cause of action where partial terms sheet attached to foreclosure complaint omits details as to who gets paid, when and where payment is due, and amount of payment — Further, assignment that is dated after filing of suit is at variance with complaint — Complaint dismissed with leave to amend.
Mortgages — Foreclosure — Standing — Motion to dismiss is granted with leave to file new or amended complaint to allege that plaintiff is owner and holder of note and mortgage and to allege additional facts that support that allegation.
Mortgages — Foreclosure — Where note filed by plaintiff is endorsed but does not name entity to which it is made payable, plaintiff failed to plead in complaint that it is owner of note or mortgage, mortgage names entity other than plaintiff as mortgagee, plaintiff has filed assignment of mortgage executed and recorded after complaint was filed, and complaint does not demonstrate equitable assignment of mortgage to plaintiff before complaint was filed, plaintiff must amend complaint to allege that it is owner and holder of note and mortgage and identify documents upon which it relies to establish that it holds and owns note and mortgage