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If you've read any of our blogs you're probably aware of the recent and unsettling trend of Courts letting banks slide by even when they fail to satisfy even the most elementary of foreclosure rules. The reasons for this are vast but it's mainly due in large part to the overwhelming number of foreclosure cases bogging down our courts and the subsequent political pressure placed on Judges to cure this growing problem. As a result, I've started to notice Courts routinely looking the other way when the Bank fails to follow even the most fundamental of procedural rules.


Some Judges Don’t Stick to the Law as Closely as Others

I was in Court a couple a months ago in a county that shall go unnamed and the parties were there on our Motion to Dismiss the Complaint. In this case, the Plaintiff filed their Complaint and attached a copy of the Mortgage and a Note. However, the copy of the Note attached to the Complaint was for a wholly separate borrower, NOT my client or anyone related to the case at hand. It listed a completely different name, address and date of execution. Clearly, the bank was foreclosing on the subject Mortgage due to a failure to pay the Note which the Complaint stated was, "attached as Exhibit "A". The painfully clear problem was that the Note the bank attached, which they were relying on as a basis for their lawsuit, was signed by different borrowers with different material terms. We sought to have the Complaint dismissed and were even willing to give the Bank 30 days to amend their Complaint allowing them the opportunity to attach the correct Defendant's Note. However, the Judge Denied our Motion despite our zealous attempts to convince him otherwise and told us we were "arguing over semantics." The Court stated that due to the fact that the Plaintiff produced the correct Note months later in their discovery production, that our point was moot and would only act to slow down the case. While granting our Motion would've technically delayed the bank's ability to take my clients home, respectfully, they are not semantics, they are the Florida Rules of Civil Procedure and should be adhered to. As you can imagine, this type of ruling can be disheartening when you are in Court advocating for your clients rights and still, even the clearest of arguments is rendered ineffective.


The Judge Can Make or Break a Good Foreclosure Defense

Thankfully, today brought a breath of fresh air. At this Motion to Dismiss hearing, the Judge followed the plain letter of the law and the case was dismissed, much in the way the previous scenario should have been. As it pertained to this hearing, the Plaintiff was not the original named Lender. The Plaintiff did attach the correct Mortgage and Note but, the Note was devoid of any type of endorsement and there was NO Assignment of Mortgage attached to the original Complaint. These are the two requisite vehicles for which one entity can transfer its legal ability to sue (Standing) to another entity. Thus, without one of these two vehicles being present, the Plaintiff should be precluded from bringing the action. As such, we quickly moved to dismiss the case for Failure to State a Cause of Action citing FL Rule of Civil Procedure 1.130 coupled with long-standing Florida case law (specifically, Fladell v. Palm Beach County Canvassing  Board). Essentially the argument being that the bank failed to attach a Note with an endorsement nor an Assignment of Mortgage that would have transferred the right to sue from the original lender to the Plaintiff.  As such, the attached Mortgage and Note conflicted with Plaintiff's assertions that they were in fact the real party in interest. Once we laid out the clear rules, it was impossible for Plaintiff's counsel to refute the facts. After just a couple of minutes the Court rendered its decision and the case was dismissed! I guess the moral of the story is that even in a time when some Courts are giving Plaintiffs the fast-pass to foreclosure, there are still many judges who refuse to pass off the Florida Rules of Civil Procedure as mere "semantics"....and it's refreshing.At first glance you would not think home foreclosure and a personal injury would ever be related. It depends on how you look at it and what scenarios take place.

Created by Attorney Michael Stites & contributing editor Jared Speck on 9/10/2014

Some Judges Still Won’t Let the Bank Slide by