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
Trial victory by a pro se defendant.  The appellate court refused to give the bank a second bite a the apple.,%202013/2D12-2209.pdf
Quote 0 0
Trial victory by a pro se defendant.  The appellate court refused to give the bank a second bite a the apple.,%202013/2D12-2209.pdf

This is a terrific decision, but Fla Pro Se somewhat garbles the summary of what  happened.

The defendant lost the case at trial and appealed.  Upon appeal, the Court of Appeals reversed and rendered based upon evidentiary insufficiency.

This is a terrific outcome and a good read.  But it is not a case about a defendant winning at trial.  This case was won on appeal.

Correa v. U.S. Bank, Case No. 2D12-2209  (Fla. 2nd DCA August 9, 2013)

Thanks for posting!
Quote 0 0
This is the atty that deserves to be "quoted" and given "credit":

Victory on Appeal – Foreclosure Lawsuit Dismissed!!

Florida’s Second District Court of Appeal issued a this written opinion today that I can only characterize as the biggest win of my career, one that will set precedent in foreclosure lawsuits throughout Florida for years to come.  But enough about me - let’s explain what happened and how homeowners can learn from today’s ruling.

In 2007, U.S. Bank filed a foreclosure lawsuit against Tamara Correa in Hillsborough County.  Ms. Correa did not retain counsel, as she represented herself throughout the course of the lawsuit.  Despite little opposition from a pro se homeowner, the bank let the case languish for four years.   Perhaps unsurprisingly, she lost at trial, as the Court entered a Final Judgment of Foreclosure.

At that point, Ms. Correa did a couple of things correctly – important things.  First, she contacted me immediately after the trial was over – soon enough for me to file a Notice of Appeal.  This is a mistake made by many homeowners – they wait too long to seek help, preventing them from obtaining appellate relief they otherwise may have been entitled to receive.  Second, Ms. Correa brought a court reporter to the trial, and gave me a copy of the transcript.

It’s never advisable to handle a foreclosure trial on your own.  However, if you want to have any chance of appealing, you must have the transcript.  After all, if you can’t show the appellate court what happened at trial, you can’t possibly show the appellate court that the trial judge ruled incorrectly.

With the transcript in hand, I reviewed what happened at trial and came to the conclusion Ms. Correa had a meritorious appeal.  I saw two winner issues: (i) the bank did not prove the terms of the lost Note, as required by Fla. Stat. 673.3091, and (ii) the court did not give the required 30-days’ notice of trial.  So I drafted this Initial Brief, laying out those arguments.

I spent a large portion of the brief asking the Second District not only to reverse, but to remand with instructions to dismiss the case.  In other words, I didn’t think the bank should get a second trial, a second chance to prove its case.  Rather, I argued that because the case languished for years against a pro se homeowner, had numerous continuances, and went to trial only after prodding from the judge, the bank shouldn’t get a second bite at the apple.

Today, the Second District agreed with these arguments.  The opinion is important in a few key respects.

First, this case lays out the requirements for a bank to prove a lost note claim in a foreclosure case.  Evidence at trial is required.

Second, the case provides important precedent for the argument that when a bank does not present sufficient evidence at trial, a dismissal should result.  No new trial.  No second bite at the apple.  When the bank can’t prove its case at trial, it’s foreclosure case dismissed, homeowner prevails.

Third, and perhaps most significantly, the opinion lends hope to all homeowners.  Defenses are available in foreclosure cases, even at trial and even on appeal.

Read the opinion.  In foreclosure-world, they don’t get any better than this.

Quote 0 0
Pam wrote:

This is a terrific decision, but Fla Pro Se somewhat garbles the summary of what  happened.

While it seems just an oversight, if you are going to proceed Pro Se you really can't make mistakes like that.  Your failure to read and understand the decisions will end up being an "epic fail" when you try to write any type of brief.  I've seen many arguments lost not because it was the incorrect argument, but because the Pro Se used the wrong cases or selectively "read between the lines" of a decision and tried to torture the language until it confessed a supporting statement.  This rarely works when the judge reads it.  

You can't proceed Pro Se and just have a lack of attention to detail.  Its a quick way to lose.  Read the rules and cases.  They say what they say and mean what they mean.   
Quote 0 0
FlaProSe wrote:
Trial victory by a pro se defendant.  The appellate court refused to give the bank a second bite a the apple.,%202013/2D12-2209.pdf

Let me also add, while the appellate court did not give the bank a second bite at the apple in this case, it seems they may be able to just refile and start over.


Singleton v. Greymar Associates, 882 So. 2d 1004 - Fla: Supreme Court 2004,10

We agree with the position of the Fourth District that when a second and separate action for foreclosure is sought 1007*1007 for a default that involves a separate period of default from the one alleged in the first action, the case is not necessarily barred by res judicata.

While it is true that a foreclosure action and an acceleration of the balance due based upon the same default may bar a subsequent action on that default, an acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue.

We conclude that the doctrine of res judicata does not necessarily bar successive foreclosure suits, regardless of whether or not the mortgagee sought to accelerate payments on the note in the first suit. In this case the subsequent and separate alleged default created a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action.

It may be a topic worth more research.....
Quote 0 0

Nice victory but this decision only allows homeowners to win a battle, not the war.  The lack of the second bite at the apple deals with the case at hand, no ability to amend the complaint. The remand directs dismissal but not "with prejudice" therefore, unless the trial court enters a dismissal with prejudice (unlikely), once the lender gets its ducks in a row it will simply re-file.  Nice delay to the homeowner but certainly not a final victory.  Eventually the homeowner will be out on the street.  But in the meantime the homeowner gets to stay put so kudos for that.

At the time of trial in this case, the lost note claim had languished with minimal prosecution for over four years. Counsel for U.S. Bank should have been fully aware of its burden to reestablish the lost note and fully prepared to meet that burden, yet it made minimal effort to address this issue even after prodding by the trial court. There is simply no reason to afford it a second opportunity to prove its case. Accordingly, we reverse and remand with directions for the trial court to enter an involuntary dismissal of the complaint. Reversed and remanded with directions.


Quote 0 0
Write a reply...