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.
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William A. Roper, Jr.
Several years ago, I created several discussions thread here at the Forum to assist in the research and discussion of some of the equitable defenses to a judicial foreclosure.  These threads included:

Equitable Defenses -- Research Aid (12/14/07 at 01:32 PM)
http://ssgoldstar.websitetoolbox.com/post?id=2360792

Some Ohio Clean Hands Cases (12/14/07 at 12:06 PM)
http://ssgoldstar.websitetoolbox.com/post?id=2360618

"He Who Seeks Equity Must Do Equity" (02/08/08 at 10:11 PM)
http://ssgoldstar.websitetoolbox.com/post?id=2483356

*

I since received several messages from Forum participants who found this information to be very helpful and I had in mind to extend and elaborate the information available within these thread, while creating several new additional threads to look at clean hands cases in other jurisdictions.  Regrettably, an overseas deployment with the National Guard intruded and precluded me from continuing this work in 2008.

Given the volume of Florida's foreclosure activity, it is particularly urgent to identify and collect Florida clean hands cases.  This thread is intended as a focal point for such a discussion.

"In Tampa & J. Ry. Co. v. Catts, 79 Fla. 235, 247, 85 So. 364, 367, we quoted from Pomeroy on equity jurisprudence as follows:

    "`He who comes into equity must come with clean hands.'

    "`It (the maxim) assumes that the suitor, asking the aid of a court of equity, has himself been guilty of conduct in violation of the fundamental conceptions of equity, and therefore refused him all recognition and relief with reference to the subject-matter or transaction in question.  It says that whenever a party, who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right, or award any remedy.' Vol. 1, Pomeroy, third edition, par. 397."

It must be remembered that here we are talking about principles relating to remedies.  The mortgage has been satisfied.  The legal rights of the parties have become fixed.  The question we are considering is whether equity will lend its aid to restore the mortgage to verity and enforce its payment.  In our judgment the scales of justice are sharply inclined in favor of the appellees.  Loss must be suffered by one or the other.  We agree with the lower court that the greater fault lies with appellant."
United Service Corp. v. Vi-An Constr. Corp., Supreme Court of Florida, Special Division A., 77 So. 2d 800; 1955 Fla. LEXIS 3310, Jan. 25, 1955; Rehearing Denied Feb. 22, 1955.
http://scholar.google.com/scholar_case?case=4953493469993575430


"The equitable doctrine of "unclean hands" provides that: "one who has acted in bad faith, resorted to trickery and deception, or been guilty of fraud, injustice or unfairness will appeal in vain to a court of conscience, even though in his wrongdoing he may have kept himself strictly within the law." Matter of Garfinkle, 672 F.2d 1340, 1346, n. 7 (11th Cir.1982), (quoting Peninsula Land Co. v. Howard, 149 Fla. 772, 6 So.2d 384, 389 (1941))"
Continental Group, Inc. v. KW PROPERTY MANAGEMENT, 622 F. Supp. 2d 1357 - Dist. Court, SD Florida 2009
http://scholar.google.com/scholar_case?case=2154462538569975113


"As it is an equitable remedy, a party seeking such a lien must do so with clean hands. Epstein, 915 So.2d at 1275.  The clean hands doctrine "applies not only to fraudulent and illegal transactions, but to any unrighteous, unconscientious, or oppressive conduct by one seeking equitable interference in his own behalf."  Dale v. Jennings, 90 Fla. 234, 107 So. 175, 180 (1925).  Nonetheless, a party asserting unclean hands "must prove that he was injured in order for the unclean hands doctrine to apply."  McCollem v. Chidnese, 832 So.2d 194, 196 (Fla. 4th DCA 2002)."
Tribeca Lending Corp. v. Real Estate Depot, Inc., No. 4D09-885, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 42 So. 3d 258; 2010 Fla. App. LEXIS 10336; 35 Fla. L. Weekly D 1568, July 14, 2010, Decided.
http://scholar.google.com/scholar_case?case=5888254030375172317


"Although the unclean hands defense may be asserted in foreclosure cases when the parties are in privity, see, e.g., Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th DCA 1995); Lamb v. Pike, 659 So.2d 1385, 1387 (Fla. 3d DCA 1995), privity is not an essential element of the equitable defense.  Unclean hands may be asserted by a defendant who claims that the plaintiff acted toward a third party with unclean hands with respect to the matter in litigation.  See Yost v. Rieve Enters., Inc., 461 So.2d 178 (Fla. 1st DCA 1984) ("There is no bar to applying the doctrine of unclean hands to a case in which both the plaintiff and the defendant are parties to a fraudulent transaction perpetrated on a third party."); see also Hauer v. Thum, 67 So.2d 643, 645 (Fla.1953) ("It would matter not that the [defendants] were parties to the fraudulent transaction nor that the fraud was perpetrated upon a third party."); Marin v. Seven of Five Ltd., 921 So.2d 699, 700 (Fla. 4th DCA 2006) ("Generally, the conduct constituting the unclean hands must be connected with the matter in litigation.") (citation omitted)."
Quality Roof Servs. v. Intervest Nat'l Bank, No. 4D08-3382, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 21 So. 3d 883; 2009 Fla. App. LEXIS 16086; 34 Fla. L. Weekly D 2205, October 28, 2009, Decided,  Released for Publication November 13, 2009.
http://scholar.google.com/scholar_case?case=2031519821063683955


"A lender can be estopped from foreclosing on an accelerated basis, however, where the borrower establishes that the lender has unclean hands.  See Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th DCA 1995)."
City First Mortg. Corp. v. Barton, No. 4D06-4419, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 988 So. 2d 82; 2008 Fla. App. LEXIS 10848; 33 Fla. L. Weekly D 1785, July 16, 2008, Decided,  Released for Publication August 29, 2008.Rehearing denied by City First v. Barton, 2008 Fla. App. LEXIS 13005 (Fla. Dist. Ct. App. 4th Dist., Aug. 29, 2008)
http://scholar.google.com/scholar_case?case=13802610153250322485


"In this case, there are too many unresolved fact issues and too many potentially unanswered unethical questions which bear on whether the Gazis should be entitled to relief by a court of equity.  A party seeking justice in a court of equity must have "clean hands."  Here someone has misled the court."
Cicoria v. Gazi, Case No. 5D04-753 , COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT, 901 So. 2d 282; 2005 Fla. App. LEXIS 6111; 30 Fla. L. Weekly D 1112, April 29, 2005, Opinion Filed ,  Released for Publication May 18, 2005.
http://scholar.google.com/scholar_case?case=13536443124974880576

"This is especially so since the Galindos, who caused the mortgage they now hold as assignees to go into default in the first instance, appear to have less than clean hands.  See Limner v. Country Pines Condo. Ass'n, Inc., 709 So.2d 154 (Fla. 4th DCA 1998)(confirming that the unclean hands doctrine applies to the equitable remedy of foreclosure); Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th DCA 1995)(holding that a "foreclosure action is an equitable proceeding which may be denied if the holder of the note comes to the court with unclean hands or the foreclosure would be unconscionable"); Lamb v. Pike, 659 So.2d 1385, 1387 (Fla. 3d DCA 1995) (stating that unclean hands is a valid equitable defense to a foreclosure action); Sponder v. Equity Capital Co., 248 So.2d 251, 252 (Fla. 3d DCA 1971)(finding that a junior mortgagee with unclean hands should be denied the equitable relief of foreclosure)."
Carroll & Assocs., P.A. v. Galindo, CASE NO.: 3D03-916, CONSOLIDATED: 3D02-1345 , COURT OF APPEAL OF FLORIDA, THIRD DISTRICT, 864 So. 2d 24; 2003 Fla. App. LEXIS 17613; 28 Fla. L. Weekly D 2676, November 19, 2003, Opinion Filed ,  Released for Publication January 23, 2004. Rehearing denied by Carroll & Assocs., P.A. v. Galindo, 2004 Fla. App. LEXIS 2284 (Fla. Dist. Ct. App. 3d Dist., Jan. 23, 2004)
http://scholar.google.com/scholar_case?case=9614691788053856215


""A court may, under equitable principles, refuse to award a deficiency decree because to do so would be wholly inequitable, or, if one is awarded, the amount of the deficiency may be materially reduced on equitable principles." Maudo, Inc. v. Stein, 201 So.2d 821, 823 (Fla. 3d DCA 1967); see also Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th DCA 1995)(stating that "[a] foreclosure action is an equitable proceeding which may be denied if the holder of the note comes to the court with unclean hands or the foreclosure would be unconscionable").  The appellate court should defer to a trial court's well-reasoned equitable findings.  See Vanguard Constr. Co. v. Lewis State Bank, 348 So.2d 72 (Fla. 1st DCA 1977).

Nevertheless, the conduct constituting the unclean hands, which the court uses as a basis to reduce the deficiency judgment, must generally be connected with the matter in litigation and must affect the adverse party.  See Pennington v. Pennington, 390 So.2d 809, 810 (Fla. 5th DCA 1980). A court of equity is not "`an avenger of wrongs committed at large by those who resort to it for relief.'" McIntosh v. Hough, 601 So.2d 1170, 1172 (Fla.1992)(quoting Miller v. Berry, 78 Fla. 98, 82 So. 764, 765 (1919)); see also Dale v. Jennings, 90 Fla. 234, 107 So. 175, 180 (1926).  The fact that a party's conduct is disreputable is entirely irrelevant where the party asserting unclean hands is not the target of, and has taken no action in reliance on that conduct, however disdainful of that conduct a court may be.  See McIntosh, 601 So.2d at 1172-73.  A party must prove that he was injured in order for the unclean hands doctrine to apply. See Sandusky v. First Nat'l Bank of Sikeston, 299 Ark. 465, 773 S.W.2d 95 (1989)."
McCollem v. Chidnese, CASE NOS. 4D01-3262 & 4D01-3265 , COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 832 So. 2d 194; 2002 Fla. App. LEXIS 17540; 27 Fla. L. Weekly D 2555, November 27, 2002, Opinion Filed.
http://scholar.google.com/scholar_case?case=6376103588650723341


"Parties must come to courts of equity with clean hands as equity does not condone concealment of affirmative misconduct.  See generally Department of Revenue v. David, 684 So.2d 308 (Fla. 1st DCA 1996); Hoffman v. Foley, 541 So.2d 145 (Fla. 3d DCA 1989)."
Secretary of Veterans Affairs v. Tejedo, CASE NO. 3D98-2113, COURT OF APPEAL OF FLORIDA, THIRD DISTRICT, 774 So. 2d 709; 2000 Fla. App. LEXIS 13540; 25 Fla. L. Weekly D 2459, October 18, 2000, Opinion Filed ,  On Rehearing En Banc Reported at: 774 So.2d at 712.
http://scholar.google.com/scholar_case?case=18257740390799096959


"A foreclosure action is an equitable proceeding which may be denied if the holder of the note comes to the court with unclean hands or the foreclosure would be unconscionable.  Federal Sav. & Loan Ins. Corp. v. Two Rivers Assocs., Inc., 880 F.2d 1267, 1272 (11th Cir.1989).  Moreover, in Stevens v. Len-Hal Realty, Inc., 403 So.2d 507 (Fla. 4th DCA 1981), this court reversed a final summary judgment of foreclosure where substantial fact issues existed as to the mortgagor's affirmative defense of tortious interference."
Knight Energy Servs. v. Amoco Oil Co., CASE No. 94-1812., COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 660 So. 2d 786; 1995 Fla. App. LEXIS 9908; 20 Fla. L. Weekly D 2157, September 20, 1995, Filed ,  Released for Publication October 6, 1995. Petition for Review Denied February 22, 1996, Reported at: 1996 Fla. LEXIS 395.
http://scholar.google.com/scholar_case?case=5231998060146414441


"Throughout these proceedings, defendants have maintained that plaintiffs' own actions have ousted and prevented defendants from rebuilding their home, which ultimately prevented them from being able to make mortgage payments.  For example, in their affirmative defenses, defendants have alleged that plaintiffs defrauded the court at the initial ex parte hearing where plaintiff was appointed receiver, interfered with construction contracts, and misused insurance proceeds.  These allegations are supported by competent record evidence and, taken as true, may provide defendants valid equitable defenses to the foreclosure action.[2]  See Star Lakes Estates Ass'n v. Auerbach, 656 So.2d 271, 272 (Fla. 3d DCA 1995) (Schwartz, C.J., specially concurring) (summary judgment in foreclosure action precluded by "substantial, unresolved defenses that ... the action was barred under the clean hands doctrine"); Indianapolis Morris Plan Corp. v. Portela, 364 So.2d 840, 841 (Fla. 3d DCA 1978) (plaintiff "was without clean hands and the trial court did not abuse its discretion in refusing to lend equity powers to enforce the mortgage"); Campbell v. Werner, 232 So.2d 252, 256-57 (Fla. 3d DCA 1970) ("foreclosure on an accelerated basis may be denied where ... payment was not made due to ... excusable neglect coupled with some conduct of the mortgagee which in measure contributed to the failure to pay when due... ."); Overholser v. Theroux, 149 So.2d 582, 583 (Fla. 3d DCA 1963) ("A court of equity has the power of relieving a mortgager from the effect of an operative acceleration clause in a mortgage where the default of the mortgagor is the result of some unconscionable or inequitable conduct of the mortgagee... .") (quoting 22 Fla. Jur., Mortgages, § 214); Lieberbaum v. Surfcomber Hotel Corp., 122 So.2d 28, 28-29 (Fla. 3d DCA 1960) ("There can be no doubt of the right of a chancellor to deny foreclosure based upon an acceleration where there are substantial equities in the case which render the acceleration unconscionable.")."
Lamb v. Pike, CASE No. 94-2914, COURT OF APPEAL OF FLORIDA, THIRD DISTRICT, 659 So. 2d 1385; 1995 Fla. App. LEXIS 9577; 20 Fla. L. Weekly D 2081, September 13, 1995, Filed ,  Released for Publication September 29, 1995.
http://scholar.google.com/scholar_case?case=6133824598747996402


"I agree entirely with the opinion of the court.  I would point out also that, in the unlikely event that the appellees do not succeed on the notice issue, they have also raised substantial, unresolved defenses that the plaintiff brought and maintained this action for ulterior purposes and in bad faith so that the action was barred under the clean hands doctrine.  See Hensel v. Aurilio, 417 So.2d 1035, 1038 (Fla. 4th DCA 1982); Cross v. Federal Nat'l Mortgage Ass'n, 359 So.2d 464, 465 (Fla. 4th DCA 1978); Campbell v. Werner, 232 So.2d 252, 256 (Fla. 3d DCA 1970)."
From the concurring opinion of Chief Judge SCHWARTZ in Star Lakes Estates Ass'n v. Auerbach, CASE No. 94-2704 , COURT OF APPEAL OF FLORIDA, THIRD DISTRICT, 656 So. 2d 271; 1995 Fla. App. LEXIS 6716; 20 Fla. L. Weekly D 1455, June 21, 1995, Filed ,  Released for Publication July 7, 1995.
http://scholar.google.com/scholar_case?case=197733762009189903


"An additional ground to sustain the trial court's denial of Prentice's quiet title remedy is that, based on the facts found by the trial court, Prentice did not come into court with "clean hands."  Slay v. Department of Revenue, 317 So.2d 744 (Fla. 1975); Henry v. Ecker, 415 So.2d 137 (Fla. 5th DCA 1982), rev. denied, 429 So.2d 5 (Fla. 1983).  He knew the title to the property was in the corporation, but he proffered the individually-executed note and mortgage to the South Carolina court with the intent that it be accepted as a valid, binding legal instrument.  Pigate and the South Carolina court accepted them as valid.  Prentice thus achieved relief from the contempt proceeding by misrepresenting the status of the proffered security.  Should another court now permit him to claim the mortgage is invalid, blissfully ignoring his earlier misrepresentations?  Good conscience, and the proper application of equitable principles dictate a firm "no way.""
Prentice v. Pigate, Case No. 90-2555, Court of Appeal of Florida, Fifth District, 588 So. 2d 5; 1991 Fla. App. LEXIS 9443; 16 Fla. L. Weekly D 2524, September 26, 1991, Filed ,  Released for Publication November 14, 1991. ,  Rehearing Denied October 25, 1991.
http://scholar.google.com/scholar_case?case=15537065383400291869


"As noted, the Barnes either had to disprove Adam Smith's defense of unclean hands or establish its legal insufficiency.  Howdeshell v. First Nat'l Bank, 369 So.2d 432 (Fla. 2d DCA 1979).  The sparse support the Barnes offered to bolster their motion for summary judgment was clearly insufficient to negate the defense.  While the Barnes argue that Adam Smith's defense is merely a paper issue and is thus legally unacceptable, we cannot determine the merit of this contention based on the evidence before us.  Thus, because neither party has adequately supported its contentions, we find it prudent to reverse so as to permit the true facts to be developed.  See, e.g., Frazier v. Schenck, 503 So.2d 444 (Fla. 2d DCA 1987); Buckel Corp. v. Fidelity & Deposit Co., 370 So.2d 824 (Fla. 2d DCA 1979)."
Adam Smith Enterprises, Inc. v. Barnes, Case No. 88-1957, Court of Appeal of Florida, Second District, 539 So. 2d 549; 1989 Fla. App. LEXIS 1230; 14 Fla. L. Weekly 663, March 8, 1989, Filed.
http://scholar.google.com/scholar_case?case=10981245801660738059


"It is certainly beyond question that "one who comes into equity must come with clean hands else all relief will be denied him regardless of the merits of his claim. It is not essential that the act be a crime; it is enough that it be condemned by honest and reasonable men." Roberts v. Roberts, 84 So.2d 717, 720 (Fla. 1956)"
Ocean View Towers, Inc. v. First Fidelity Sav. & Loan Asso., No. 87-0127, Court of Appeal of Florida, Fourth District, 521 So. 2d 325; 1988 Fla. App. LEXIS 949; 13 Fla. L. Weekly 649, March 9, 1988, Filed.
http://scholar.google.com/scholar_case?case=10973893273339403595


"The appellant came into a court of equity.  The record supports a finding of usury and, therefore, he was without clean hands and the trial court did not abuse its discretion in refusing to lend equity powers to enforce the mortgage.  Dale v. Jennings, 90 Fla. 234, 107 So. 175 (1925); Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105 (1944); Brenner v. Smullian, 84 So.2d 44 (Fla. 1955); Bella Isla Construction Corporation v. Trust Mortgage Corporation, 347 So.2d 649 (Fla.3d DCA 1977); Continental Mortgage Investors v. Sailboat Key, Inc., 354 So.2d 67 (Fla.3d DCA 1977).

The court also would have been right in declining to enforce the mortgage as being against the public policy of this State, having found civil usury.  Sherbill v. Miller Manufacturing Company, 89 So.2d 28 (Fla. 1956); Davis v. Ebsco Industries, Inc., 150 So.2d 460 (Fla.3d DCA 1963); Bond v. Koscot Interplanetary, Inc., 246 So.2d 631 (Fla.4th DCA 1971).  We have not overlooked the case of Staros v. Avalon Shores, Inc., 249 So.2d 448 (Fla.1st DCA 1971), but by its very decision it indicates that a chancellor has the discretion to deny foreclosure."
Indianapolis Morris Plan Corp. v. Portela, No. 78-207 , Court of Appeal of Florida, Third District, 364 So. 2d 840; 1978 Fla. App. LEXIS 17069, November 28, 1978
http://scholar.google.com/scholar_case?case=1130316923473490512
[NOTE:  State usury statutes as applied to loans on the security of real esate was generally preempted by the Federal Depository Institutions Deregulation and Monetary Control Act of 1980.]


"We have examined the record in the light of appellants' contentions and find that there is substantial evidence to support the findings of the trial judge, and ample law to support her actions in refusing to enforce a mortgage which she found upon competent evidence to have been brought to the court with unclean hands.  See Wasman v. Rubinson, 341 So.2d 802 (Fla.3d DCA 1977); and VAC Development Corp. v. Castillo, 346 So.2d 116 (Fla.3d DCA 1977).  See also the discussion in Dale v. Jennings, 90 Fla. 234, 107 So. 175, 180 (1926)."
Pelle v. Glantz, Nos. 76-1505, 76-1690, Court of Appeal of Florida, Third District, 349 So. 2d 732; 1977 Fla. App. LEXIS 16551, August 23, 1977
http://scholar.google.com/scholar_case?case=2563250789717982296


"Where a plaintiff's affidavits do not contradict affirmative defenses raised by the opponent of the motion for summary judgment, the plaintiff is not entitled to a summary judgment even though his supporting affidavits may have made out a sufficient case based on the pleadings alone.  See Emile v. First National Bank of Miami, Fla.App. 1961, 126 So.2d 305; Harrison v. McCourtney, Fla. App. 1962, 148 So.2d 53, 56; and, Underwriters Insurance Company v. Sisung, Fla. App. 1965, 174 So.2d 461."
Pompano Paint Co. v. Pompano Beach Bank & Trust Co., No. 1228, Court of Appeal of Florida, Fourth District, 208 So. 2d 152; 1968 Fla. App. LEXIS 5734, March 19, 1968.
http://scholar.google.com/scholar_case?case=10574117882531598759


"The chancellor deemed that the plaintiffs had not come into the court of equity with clean hands and that such court, being a vehicle for affirmatively enforcing the requirements of conscience and good faith, would close its door to those tainted with inequitableness or bad faith relative to the matter in which relief is sought. Precision Instrument Manufacturing Co. v. Automotive Maintenance Machinery Company, 324 U.S. 806, 65 S.Ct. 993, 89 L.Ed. 1381.

. . . It is true that a court of equity is not an avenger of wrongs committed at large and that the misconduct complained of must be connected with the matter in litigation and concern the opposite party.  Miller v. Berry, 78 Fla. 98, 82 So. 764.  Also, it is not essential that those who invoke equity should have led blameless lives since the doctrine of clean hands is not a judicial strait jacket.  Roberts v. Roberts, Fla. 1956, 84 So.2d 717.  However, there is no bar to apply the doctrine in a case in which the plaintiff and defendant are both parties to a fraudulent transaction or where the fraud is perpetrated on a third party.  Hauer v. Thum, Fla. 1953, 67 So.2d 643.  Furthermore, the misconduct which in equity soils the hands of a litigant so as to bar him from the aid of a chancellor need not be a crime, Roberts v. Roberts, supra, nor even actionable fraud. Busch v. Baker, 79 Fla. 113, 83 So. 704.  It is enough that it be condemned by honest and reasonable men.  Roberts v. Roberts, supra."
Faber v. Landman, No. 1675., District Court of Appeal of Florida, Second District., 123 So. 2d 405; 1960 Fla. App. LEXIS 2438, June 22, 1960; Rehearing Denied July 20, 1960.
http://scholar.google.com/scholar_case?case=5518319109832997622


For an interesting discussion of the clean hands doctrine within the context of a domestic relations matter:

""With regard to applying the doctrine of unclean hands, such is discretionary with the chancellor and may be done when the misconduct of the plaintiff is connected with the matter in litigation, concerns the adverse party or parties, and is such as is condemned by honest and reasonable men.  Landman v. Faber [Faber v. Landman], 123 So.2d 405 (CA 2d-1960) citing Miller v. Berry, 78 Fla. 98, 82 So. 764 and Roberts v. Roberts, (Fla. 1956), 84 So.2d 717.  Those who seek to invoke the aid of a court of equity are not required to have led blameless lives and the doctrine of clean hands is not a judicial strait jacket.  Roberts v. Roberts, supra.  A chancellor is required to be tolerate [sic] of human weaknesses and errors and to not withhold decreeing enjoyment of rights because the litigant is less than a saint.  However, when one calls upon a court of equity to enforce rights arising solely out of a marriage relationship in favor of one who has twice treated the marriage as no longer subsisting by the contracting of bigamous marriages followed by connubial cohabitation of substantial duration, and who has otherwise been a philanderer, he must also show some extenuating circumstance to explain or excuse such misconduct.  None appears here. It is even more reprehensible when the party claims to be an active minister of the gospel called to teach and lead others to morality and righteousness.  It is my view that this is a case where the doctrine of unclean hands is applicable and bars the Court from acting in favor of plaintiff Nedd."
Nedd v. Starry, No. D-188., District Court of Appeal of Florida, First District., 143 So. 2d 522; 1962 Fla. App. LEXIS 3061, July 17, 1962.
http://scholar.google.com/scholar_case?case=17909981499923910052


See also:

Marin v. Seven of Five, Ltd., No. 4D04-4037 , COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 921 So. 2d 699; 2006 Fla. App. LEXIS 2562; 31 Fla. L. Weekly D 415, February 8, 2006, Decided , Review dismissed by Seven of Five, Ltd. v. Marin, 933 So. 2d 1154, 2006 Fla. LEXIS 1362 (Fla., June 13, 2006)
http://scholar.google.com/scholar_case?case=857444891502008822

*

While this post does NOT purport to be a comprehensive study of all recent Florida "clean hands" cases, it is probably sufficiently complete as to inform a study of the topic as to major Florida appellate cases from the past five decades.  Some earlier and contemporary clean hands cases are cited within the text of these decisions, which can be used for further investigation and inquiry.

For inquiry as to significantly older decisions in Florida and elsewhere, take a look at the thread "Equitable Defenses -- Research Aid" (12/14/07 at 01:32 PM) mentioned above.

Those with knowledge of other interesting Florida cases discussing the clean hands doctrine are encouraged to post text from such cases and links to the decision within this thread.

NOTE: I AM NOT AN ATTORNEY AND THIS IS NOT LEGAL ADVICE!
Quote 0 0
George Burns
Mr Roper

I find your threads and opinions to be the most valuable that I have ever seen on any subject on any forum anywhere, and I do thank you.

However, since they are spread out over so much time and topics, they are difficult to find. I think that many of the people who could benefit from reading your postings most likely have limited computer research skills, and so I wonder if it is possible for you to do a compilation  possibly grouped by State and topic etc.

I think that if you do, it would be fair to charge a fee say $15.

Any opinions, anyone ??
Quote 0 0
Yeah, let's see how good he is and put him to the test.  Hey Roper, try California land of the judges who wear Bank of America t-shirts under their robes
Quote 0 0
marco
William,
I have some recent OH case(s) ..Are you still in OH...or are you now in FL. I just wanted to know if you could send an email address/verification
Thanks
FRAUDclosed in OH
Quote 0 0
Quote:
marco said:
William,
I have some recent OH case(s) ..Are you still in OH...or are you now in FL. I just wanted to know if you could send an email address/verification
Thanks
FRAUDclosed in OH


marco:

I am not in either Florida nor Ohio.  The original post of Ohio cases on clean hands was made at a time when several frequent Forum participants facing foreclosure were from Ohio.  The Ohio Federal case dismissals, clearing the dockets were then still underway.

If you have some more recent Ohio clean hands cases, I would encourage you to append these to the thread:

Some Ohio Clean Hands Cases (12/14/07 at 12:06 PM)
http://ssgoldstar.websitetoolbox.com/post?id=2360618

I had in mind to supplement that thread with some additional cases as well as Google Scholar links.  But why don't you post the cases you found with your reaction first?
Quote 0 0

I'm fighting a foreclosure in S. Indiana, where appraisal fraud is key to my counter claim. I've got a hearing on Aug 26th re: the issue of "severability" while atempting to overturn the Court's Order prohibiting a jury trial. Any suggestions which might support my argument?

Quote 0 0
Bill
Fred Weaver wrote:

I'm fighting a foreclosure in S. Indiana, where appraisal fraud is key to my counter claim. I've got a hearing on Aug 26th re: the issue of "severability" while atempting to overturn the Court's Order prohibiting a jury trial. Any suggestions which might support my argument?


There is no case law in Indiana that supports your position.  Foreclosure is a proceeding in equity. 

This was challanged in Lucas v. U.S. Bank, N.A., 932 N.E.2d 239 (Ind. Ct. App. 2010).  The Indiana Appellate court decided that Lucas WAS entitled to a jury trial.  This was then accepted by the Indiana Supreme Court.  We are waiting for the Supreme Court Decision on whether or not you can have a jury trial on your counter claims in a foreclosure. 

http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdigjh&searchTerm=iaeY.hLba.ZCaS.babW&searchFlag=y&l1loc=FCLOW



Wednesday, March 30th

  • 9:00 AM - Misty Davis v. Animal Control - City of Evansville (82S01-1102-CV-77) - After her son was injured by an unrestrained Rottweiler, Davis brought an action against the City of Evansville, among others. The trial court granted summary judgment to the defendants, holding they were entitled to law enforcement immunity. A divided panel of the Court of Appeals reversed, holding the defendants were not entitled to immunity. Davis v. Animal Control - City of Evansville, No. 82A01-0911-CV-527 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transferthe case and has assumed jurisdiction over the appeal.

    ILB: This is a 2-1, Aug. 27, 2010 NFP COA opinion - at issue was the City of Evansville's claim of immunity for injuries Davis sustained from a dog bite relating to the action or inaction of Animal Control. From the dissent: "To me, the underlying action is one for the failure to enforce the section of the Evansville Municipal Code relating to the regulation of dangerous animals and falls squarely within the immunity set forth at IC 34-13-3-3(8)."

  • 9:45 AM - Mary Beth & Perry Lucas v. U.S. Bank, N.A., et al. (28S01-1102-CV-78) - When the bank instituted a foreclosure action and the defendants filed counterclaims against the bank and third-party claims against the loan servicer based on federal and state statutory law and state common law, the trial court denied the defendants' request for a trial by jury on their claims. In this interlocutory appeal, the Court of Appeals reversed and held that the defendants are entitled to a trial by jury on their legal claims. Lucas v. U.S. Bank, N.A., 932 N.E.2d 239 (Ind. Ct. App. 2010), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

    ILB: This was an Aug. 11, 2010 COA opinion. From the opinion: "While a foreclosure action is essentially equitable and it is well settled that equitable claims are tried to a court rather than to a jury, the fact that a cause contains a foreclosure action does not necessarily draw the entire cause into equity. Indeed, when, as here, the essential features of the cause are not equitable, a party is entitled to a jury trial on the legal claims."

    http://indianalawblog.com/archives/2011/03/ind_decisions_u_204.html

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