Recently in Summary Judgment Category

February 29, 2012

Florida 4th District Court of Appeals Dismisses Chase Complaint

reversed1.jpgRecently, Florida foreclosure defense attorneys have been scrutinized for not using "sophisticated" defenses against Plaintiff banks in foreclosure actions. One of the lynchpins of this foreclosure mess is that banks have been sloppy in the documentation they rely upon in order to show they have the right to foreclose. The Notes and Mortgages submitted to Courts may not be properly endorsed, if endorsed at all. Meaning Banks cannot prove they have standing to foreclose on the home in question. The Florida 4th District Court of Appeal heard the case of Robert McLean v. J.P. Morgan and Chase Bank the week of February 8th, which addressed this very issue.

The case was brought to challenge an award of Summary Judgment for Chase Bank at the trial level (Circuit Court). The 4th DCA reversed the trial court's ruling and, concluded the Court erred in entering Summary Judgment where the record lacked sufficient evidence to show Chase had standing to foreclose at the time the lawsuit was filed. The Court noted that a crucial element in any mortgage foreclosure action is that the party seeking foreclosure MUST demonstrate it has standing to foreclose. Standing may be established by either a properly endorsed Note, an Assignment of Mortgage, or an equitable (non-physical) transfer of the mortgage prior to filing of the Complaint. The Court noted that even in the absence of a valid written Assignment of Mortgage, the "mere delivery of a note and mortgage with intent to pass title will vest the equitable interest in the person whom it was delivered" so that dismissing a Bank's complaint would be error. Thus, a party must establish standing to foreclose on the mortgage prior to the complaint being filed.

In McClean, the Assignment of Mortgage was executed three days after the case was originally filed. Thus, Chase did not acquire standing to foreclose until 3 days after the suit was initiated. There are no sophisticated defenses necessary in cases such as this one where the bank fails to prove they acquired the right to enforce the Note before filing the suit. Click here to read the full opinion: McLean v. JP Morgan.pdf

This may be the exact theory your bank is using in your foreclosure case, and one a Jacksonville Foreclosure Defense Attorney's may be easily able to identify. In order to evaluate your case, it is important to seek out the help of an attorney early on; many times, these consultations are free. Contact a Jacksonville Foreclosure Defense Attorney's today.

January 10, 2012

Judge Sanctions HSBC

Thumbnail image for hsbc.jpgA judge of the Supreme Court of New York has ordered HSBC to pay a penalty of $10,000. HSBC allegedly filed a false document and then claimed they knew nothing about it. Supreme Court Justice Arthur Schack's opinion compared HSBC's defense to the false document to what many remember from Sgt. Schultz in Hogan's Heroes "I know nothing."

A senior vice president of HSBC later submitted a sworn affidavit stating that HSBC had no knowledge of the loan in question and placed blame of the false document on the loan servicer. Nonetheless, Judge Schack stood behind his decision stating HSBC is still responsible for the actions of its agents. Shapiro DiCaro & Barak, a Rochester-based law firm who represented HSBC in this matter, was also ordered to pay $5,000 for its involvement.

This isn't the first instance of Judge Schack sanctioning HSBC. Earlier this year, Judge Schack caught lawyers for HSBC filing documents signed by "robo-signers" who supposedly worked for HSBC but were in actuality employed by the loan servicer.

There has been so much fraud regarding loan documents in foreclosure actions filed by the banks, it is imperative that you contact a Jacksonville Foreclosure Lawyer or a Jacksonville Foreclosure Defense Lawyeror risk becoming a victim of an improper foreclosure.

October 11, 2011

What Options do you have if a Final Judgment of Foreclosure is entered against you without Notice or a Hearing?

question.jpgEven if you have retained an attorney to defend your foreclosure, a Final Judgment of Foreclosure could be entered against you without Notice of a Hearing. Of course, your first thought is your attorney has not done what you hired them to do. But, that is not necessarily or probably the case when defending a foreclosure in Florida.

How could this happen? In Duval County, Florida and the surrounding counties, judges who handle foreclosures rotate. This means that the judge who hears a motion may or may not be the judge who hears the next motion in the same case. Therefore, a Final Judgment of Foreclosures could be entered where a replacement judge did not realize that the presiding judge had ordered a continuation of the summary judgment hearing and signed the Final Judgment Order even though no one attended the hearing.

This could also happen where no hearing is scheduled, noticed, or cancelled when opposing counsel, for unknown reasons, sends a judge a proposed Final Judgment of Foreclosure without a hearing, does not notify your attorney, and the judge signs the order. How does a judge sign a Final Judgment of Foreclosure without notice and without a hearing? There is no answer! But, there is something you can do!

If a Final Judgment of Foreclosure has been entered against you without notice or a hearing, contact a Florida Foreclosure Defense Lawyer or a Jacksonville Foreclosure Defense Lawyer today for a complimentary case review to see if an attorney can help you get the Final Judgment of Foreclosure set aside. An attorney may be able to file a Motion to stop the Foreclosure and set the motion for hearing prior to the sale date. If the judge vacates the final judgment, you can continue to defend your foreclosure.

March 28, 2011

"Banksters" causing nearly 1 in 5 Florida Homes to be Unoccupied

chart_florida_vacancy_rates.gifRecent housing numbers show that Florida has the highest percentage of unoccupied homes with nearly 20% of homes in the state being vacant!! The Census Bureau data uncovered that 1.6 million homes, or 18%, are sitting vacant. That percentage accounts for a 63% drop in occupancy rate the last 10 years. The mortgage bubble and the growing population made Florida one of the nations hottest real estate markets, but the amount of unoccupied homes threatens to make Florida one of the most depressed markets for decades.

The hardest hit county in Florida has consistently been Collier County, where 32% of home sitting empty. Real estate industry insiders predict that home prices in these areas will takes decades to recover to their pre-bust levels, with Naples (Collier County) not expected to recover until the late 2030's. Collier is followed by Lee County (30%) and Sarasota County (23%) as counties with an over 20% vacancy rate. The other usual suspects the nations highest foreclosure rates also had high vacancy rates: Arizona (16%), Nevada (14%), California (8%).

It seems as though each day brings new news about the depths of the foreclosure crisis, especially here in Florida. If you are facing a Florida Foreclosure Lawsuit, contact a Jacksonville Foreclosure Lawyer or a Florida Foreclosure Defense Lawyer today to see what foreclosure defenses may be available to you and possibly keep you in your home.

November 6, 2010

South Florida Judges now requiring "Foreclosure Mills" to Adhere to Rules

Thumbnail image for speedy_trail.jpgWith news reports of "robo-signing" of sworn affidavits from many of the nations largest mortgage lenders, some South Florida judges are now forcing banks to follow the Florida rules of civil procedure! Rule 1.510(e) requires lenders who file a motion for summary judgment that contains a supporting affidavit to attach the paperwork on which the sworn statements are based, to the affidavit. Palm Beach County chief judge Peter Blanc stated, "if the foreclosure affidavits are accurate, and they are based on person knowledge, it shouldn't be too time consuming for the evidence to be printed and attached."

Not attaching the paperwork to the affidavits is a problem mainly for those homeowners that do not contest the foreclosures, but the rule applies foreclosures across the board. In Palm Beach County alone about 80% of foreclosures are uncontested, meaning thousands of homeowners have been foreclosed without the lender having to follow this critical rule. This issue is usually not a problem for homeowners who are represented by a competent attorney because their attorney will object to this practice.

It seems as though at least one Florida Judicial Circuit is catching on to the practices of mortgage lenders and their "foreclosure mill" attorneys, Florida homeowners can only hope that this knowledge spreads statewide. If you are facing an Orange Park foreclosure lawsuit, contact a Jacksonville Foreclosure Lawyer or a Florida Foreclosure Lawyer today.

August 9, 2010

Just Announced 5th DCA Case is a Victory for Homeowners

fl_seal.jpgThe Florida 5th District Court of Appeals recently announced that a trial court abused its discretion when it denied a homeowners motion to amend their answer after the lender filed its motion for summary judgment. When the homeowners received the foreclosure complaint from their lender, they filed a short, informal answer with the trial court within the 20 days allotted by Florida Law. Amazingly, seven months passed before the homeowners received the next communication from their lender, a motion for summary judgment.

One week later, the homeowners newly hired Lawyer filed a motion to amend the homeowners' brief answer to include the necessary defenses to fight the foreclosure action. The trial court held a hearing on the homeowners' motion to amend their answer and the lenders' motion for summary judgment where it ruled to deny the motion to amend and to grant the motion for summary judgment. The homeowners appealed the decision and the 5th DCA overturned the decision by ruling the trial court abused its discretion by not allowing the amended answer. The 5th DCA stated, "public policy further favors the liberal granting of leave to amend where the failure to do so will likely prevent the cause from being resolved on its merits."

This decision marks a very important victory for homeowners facing a Florida Foreclosure Lawsuit. The time period for responding to a foreclosure complaint is very short and this decision means that homeowners are not bound to the bare bones answers that they are sometimes forced to file because of the short response time. Keep in mind that there are several defenses to a Florida Foreclosure Lawsuit that are time sensitive so it is in your best interests to contact a Jacksonville Foreclosure Lawyer today to examine your case.

July 20, 2010

Are the new "Rocket Docket" Foreclosure Courts beneficial for Homeowners?

rocket-docket.jpgAs a part of the Florida Supreme Court's order that all Judicial Circuits create a dedicated foreclosure process to deal with the backlog of foreclosure cases clogging the state court system, the courts have received a one-time allotment of $6 million dollars to hire and staff the new foreclosure courts. While the cry from many people is that the courts need to do something to deal with this backlog more quickly, the question of "do creating these "rocket dockets" actually help the homeowners?" is often overlooked.

In most Judicial Circuits in Florida, the court has thousands of Motions for Summary Judgment waiting to be heard. A Motion for Summary Judgment is a proceeding where the mortgage lender asks the court to hear a case without requesting a full trial. Requesting a Motion for Summary Judgment has been an effective tactic in most cases because homeowners rarely appear at the hearing because they do not know their legal rights. Increasing the speed in which foreclosure courts deal with cases can lead to sloppy practice and issues being missed. This method of practice really only benefits one side, foreclosure plaintiffs.

The best way to prevent getting "lost in cracks" and avoiding this rush to judgment is to contact a Florida Foreclosure Lawyer today to discuss your case. A Florida Foreclosure Lawyer is trained to identify defenses to your Florida Foreclosure Lawsuit to ensure that you are not one of the victims of the foreclosure crisis.

To read more on this check out Matthew Weidner's foreclosure blog chronicling new developments in foreclosure.

June 30, 2010

Motion for Summary Judgment Granted in Favor of Chase Home Finance Overturned

Chase Home Finance was granted a motion for summary judgment against homeowners John and Freddy Gonzalez. The homeowners appealed the ruling. On appeal, the judge found that Chase met its burden for summary judgment against Freddy, but held that summary judgment was improperly granted against John.

John claimed that his ownership interest was acquired by virtue of Warranty Deed dated March 8, 2006, which was recorded in the Miami Dade County public records. While Chase's complaint stated that the mortgage was executed on March 15, 2006. "Parties claiming title superior to the lien of a mortgage being foreclosed are not proper parties to the foreclosure suit." If John's assertions were true he would have had an interest in the property prior to the mortgage, and therefore his interest in the property would be superior to that of Chase's. Therefore, Chase can only enforce its mortgage against the mortgagor, Freddy, but not against John.

This is just more proof that you should not just allow a bank to foreclose on your home without a fight. There are many defenses to a Florida foreclosure lawsuit. Contact a Florida Foreclosure Lawyer or Jacksonville Foreclosure Defense Lawyer if you are facing or considering a Florida foreclosure lawsuit. If you would like to read the ruling from this case you can access it at the Florida 3rd District Court of Appeals website, case number 3D09-2015 filed on June 16, 2010 or here

June 20, 2010

Pro Se homeowner loses 4th DCA appeal of summary judgment granting foreclosure

Thumbnail image for notice_foreclosure.jpgIn a recent 4th DCA opinion affirmed a trial court decision granting a summary judgment in favor Aurora Loan Services allowing them to foreclose on a Florida homeowner. In its foreclosure complaint, Aurora alleged that it was the "owner and holder" of the note and was the proper party to bring the foreclosure action. The homeowner, appearing without an attorney, argued that Aurora was not the proper party and the mortgage was payable First Magnus Financial Corporation not Aurora Loan Servicing and that Aurora did not produce evidence to show that it truly owned the mortgage and note.

In its decision the Court stated, "the borrower did not contest that the note at issue was the one he executed in the underlying mortgage transaction." There may have been a genuine question about the authenticity of the note Aurora provided but due to the legal inexperience of the homeowner he did not know to raise that defense.

While it is possible to successfully defend your Florida Foreclosure Lawsuit by going pro se, the likelihood of prevailing is very very low. Without the proper form, knowing what defenses to raise and what questions to ask courts may have no choice but to rule in favor of the banks. It is important to contact a Florida Foreclosure Lawyer or a Jacksonville Foreclosure Lawyer to fight your Florida Foreclosure Lawsuit the best way possible in order to save your home.

June 19, 2010

Citimortgage and their "Foreclosure Mill" lawyers have Final Summary Judgment reversed

The Florida 4th DCA recently reversed a trial courts final Summary Judgment of foreclosure where the complaint, filed by David J. Stern, P.A. as the representative of Citimortgage, stated in its affidavit that all conditions required to accelerate the mortgage note had been fulfilled and that final Summary Judgment was the appropriate action.

The 4th DCA ruled that Citimortgage's statements in its affidavit were not sufficient to overcome the homeowner's affirmative defense that Citimortgage did not "provide him with notice of the acceleration pursuant to paragraph 22 in the mortgage." Citimortgage provided no proof other than the statements in its affidavit and therefore reversal was appropriate.

In many cases foreclosure lawsuits filed by "foreclosure mills" are incomplete or not properly plead and therefore raise specific defenses which allow you to save your home. A Jacksonville Foreclosure Defense Lawyer is trained to spot these defenses and will work with you to get the best outcome in your Florida Foreclosure Lawsuit.

June 18, 2010

Don't trust the Banks when they tell you the Foreclosure Sale on your home is Cancelled

A recent Florida trial court ruling shows the type of lies that some Banks have used to victimize some Florida homeowners. In that case, a Final Summary Judgment of Foreclosure was entered by the court in January 2010 and the home was sold in March 2010. Before the sale took place, the homeowner was convinced by representatives of the bank not to oppose the motion for Final Summary Judgment and not to attend the hearing on the motion for foreclosure sale or to attend the actual sale because the case would not continue because her loan modification was still under review! The Bank even sent her a letter before the sale and a letter after the sale requesting more documentation for her loan modification

After the sale took place the homeowner received the Certificate of Sale the homeowner called the Bank and was told that the sale had taken place by mistake! The homeowner then filed a timely objection to the sale and a motion to set aside the sale and foreclosure.

The trial court ruled that the foreclosure judgment be canceled, that the foreclosure sale be set aside and advised homeowners not to rely on statements made in telephone conversations with banks when there are legal documents that contradict those statements.

If you are facing a Florida Foreclosure Lawsuit and the potential sale of your home you should contact a Florida Foreclosure Lawyer as soon as possible. In most cases a foreclosure sale of your home is not the best option and there are defenses that can be raised which can help you stay in your home.

June 18, 2010

Victory for Florida Homeowners: 3rd DCA overturns Final Judgment of Foreclosure

On June 9 the 3rd DCA, reversed a trial court order in a case brought by Shapiro and Fishman, representing HSBC Bank USA, where the trial court denied a motion to continue final summary judgment and denying a motion to transfer the foreclosure action. The trial court failed to grant the homeowners motion to transfer the foreclosure to the division where a separate foreclosure action was pending where a different bank was attempting to foreclose on the same mortgage!

The 3rd DCA stated that the trial court "abused its discretion" by denying the motion and reversed the final judgment of foreclosure and remanded the case with instructions to reinstate the case in the division where the separate foreclosure was located and to allow the homeowners to answer the complaint and assert appropriate defenses.

In almost all Florida Foreclosure Cases there are defenses that will allow you to protect your home. Contact a Florida Foreclosure Lawyer or a Jacksonville Foreclosure Lawyer for a consultation to help you understand your rights.

May 31, 2010

Another victory for Florida homeowners: 2nd DCA reverses another Motion for Summary Judgment

On May 28, 2010 the 2nd DCA reversed a lower court decision for Summary Judgment to quiet title and ejectment in favor of Ed Bebb, Inc. In order for Summary Judgment to be granted the Plaintiff must prove that the Defendant cannot raise any genuine issues of material fact. In this instance Ed Bebb, Inc. filed and was granted its Motion for Summary Judgment before the defendant could even file its Answer to the Complaint!

The 2nd DCA stated that it appears that the lower court used the wrong standard in granting Ed Bebb's Motion for Summary Judgment and reversed its ruling. By not allowing the Defendant the opportunity to raise the necessary factual issues and defenses the Court improperly entered the order for ejectment of the Defendant.

Hopefully this type of judicial thinking is becoming a growing trend. If you have been served with a Florida Foreclosure Lawsuit or anticipate being served with one in the future, contact a Jacksonville Foreclosure Defense Lawyer to help identify any genuine issues or defenses that may be available to you.