Recently, 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.