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Foreclosure Defense Cases
Below is a list of Florida case law, we use to help defend Florida foreclosure cases.
1. McLean, Appellant v. JP Morgan Chase Bank National Association, Appellee, 79 So.3d 170 (2012)
In May 2009, Chase filed a two-count foreclosure action against Appellant for defaulting on his note and mortgage. Appellant (McLean) appealed final judgment of foreclosure entered in favor of JP Morgan Chase.
The mortgage was assigned to Chase three days after Chase filed the foreclosure complaint. The original note contained an undated special endorsement to Chase, but the affidavit filed in support of summary judgment did not state when the endorsement to Chase was made. The affidavit, which was dated after the lawsuit was filed, did not state when Chase became the owner of the note, or whether Chase was the owner of the note before suit was filed. The party seeking foreclosure must show that it has standing to foreclose when the complaint is filed. Therefore, Chase failed to submit any record evidence proving that it had the right to enforce the note on the date the complaint was filed.
The appellate court concluded that the trial court erred in entering summary judgment in Chase’s favor.
2. Servedio, Appellant v. U.S. Bank National Association, Appellee, 46 So.3d 1105 (2010)
Appellee argued on appeal that it presented to the trial court a copy of the original note and an affidavit of ownership at the summary judgment hearing but admitted, that the documents were not filed with the clerk of the court until several days after the entry of summary judgment. The documents were not part of the record at the time the motion for summary judgment was granted, so it couldn’t be determined whether the trial court considered those documents in rendering its decision.
The appeals court reversed the entry of final summary judgment in favor of appellee and remanded for further proceedings.
3. Frost, Appellant v. Regions Bank, Appellee, 15 So.3d 905 (2009)
Regions bank (Appellee) filed a mortgage foreclosure action against the Frosts (Appellants). The Frosts’ answer stated that the bank failed to satisfy the condition precedent of providing notice of the alleged default and a reasonable opportunity to cure.
Appellee filed a motion for summary judgment, along with other documents. Appellants did not file any papers or affidavits in response. Instead, at the hearing on the motion, Appellants argued that the bank failed to address their affirmative defenses. The circuit court did not discuss the lack of notice and opportunity to cure defense. The court granted the bank’s motion for summary judgment and entered a written final judgment of foreclosure. This appeal followed.
The bank did not establish that the Frosts’ lack of notice and opportunity to cure defense was legally insufficient, did not refute appellants defense, and did not address it in its’ complaint, motion for summary judgment, etc.
Because the bank did not meet its burden to refute the Frosts’ lack of notice and opportunity to cure defense, the bank is not entitled to final summary judgment of foreclosure.
4. Lizio, Appellant v. Kevin McCullom and Wayna McCullom, Appellees, 36 So.3d 927 (2010)
Appellees executed a mortgage and a promissory note for $200,000 in favor of John Haner to purchase property. Subsequently, Haner died, and his estate assigned his interest in the note and mortgage to Appellant. At some point, appellant filed a foreclosure action against appellees and the trial court denied appellant’s motion for summary judgment.
On appeal, appellant possessed the original note, mortgage, and assignment executed by the personal representative of Haner’s estate. The note was payable to the late John Haner, and the assignment granted Haner’s rights under the note and mortgage to appellant. Thus, appellant “held” the note, which granted him standing to seek foreclosure of the mortgage.
The trial court erred in granting appellees’ motion for involuntary dismissal of the motion for summary judgment. The court reversed and remanded for further proceedings.
5. Blue Star Investments, Inc., Appellant v. Johnson and BA Mortgage, LLC, Appellees, 801 So.2d 218 (2001)
Blue Star purchased a foreclosed home for $41,459.10; the appraised value of the home was $60,000. Eleven days after the sale, the mortgagor moved to set the sale aside. The mortgagor demonstrated that the mortgagee, BA Mortgage, LLC, had agreed to extend the date for the foreclosure sale, but no extension occurred. The trial court set aside the foreclosure sale, conditioned on the payment of the mortgage obligation in full. Blue Star timely appealed.
To vacate a foreclosure sale, the trial court must find “(1) that the foreclosure sale bid was grossly or startlingly inadequate; and (2) that the inadequacy of the bid resulted from some mistake, fraud or other irregularity in the sale.” Cueto v. Mfrs. & Traders Trust Co., 791 So.2d 1125, 1126 (Fla. 4th DCA 2000) (quoting Mody v. Cal.Fed. Bank, 747 So.2d 1016, 1017-18 (Fla. 3d DCA 1999)).
The court decided that the first requirement was not met in that the purchase price was not grossly or startlingly inadequate. Therefore, the court reversed the order setting aside the foreclosure sale.
6. Riggs, Appellant v. Aurora Loan Services, LLC, Appellee, 36 So.3d 932 (2010)
Appellee filed a mortgage foreclosure action against Appellant, alleging that it was the “owner and holder” of the underlying promissory note.
The note had an indorsement in blank with the hand printed signature of Humberto Alday, an agent of the indorser, First Mangus. The circuit court granted summary judgment in favor of Aurora over Riggs’s objections that Aurora’s status as lawful “owner and holder” of the note was not conclusively established by the record evidence.
Aurora’s possession of the original note, indorsed in blank, was sufficient under Florida’s UCC to establish that it was the lawful holder of the note, entitled to enforce its terms. Therefore, the 4th DCA affirmed that Appellee sufficiently established that it was the holder of the note.
7. State Street Bank and Trust Company, Appellant v. Hartley Lord, Boca Grove Plantation Property Owners Association, Inc., and Boca Grove Golf and Tennis Club, Inc., Appellees, 851 So.2d 790 (2003)
Mortgagee by assignment, Appellant, State Street Bank, pursued a mortgage foreclosure in the absence of proof that either the mortgagee, or its assignor, ever had possession of the missing promissory note. A summary judgment was entered in favor of the mortgagor, Appellee, Hartley Lord.
Section 673.3091 provides, in part:
(1) A person not in possession of an instrument is entitled to enforce the instrument if:
(a) The person was in possession of the instrument and entitled to enforce it when loss of possession occurred;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
The court concluded that State Street was unable to meet the requirement of section 673.3091. Although State Street alleged in its pleading that the original documents were received by it, the record established that State Street never had possession of the original note and, further, that its assignor, EMC, never had possession of the note and, thus, was not able to transfer the original note to State Street.
Florida requires possession either by the assignor at the time of loss or by the person seeking to enforce the note. The 4th DCA affirmed the trial court’s decision.
8. Arsali, Appellant v. Chase Home Finance, LLC., Amy Wilson, and Christopher Manning, Appellees, 79 So.3d 845 (2012)
The circuit court issued a final judgment of mortgage foreclosure in favor of Chase Home Finance, LLC, and against Amy Wilson, Christopher Manning, and other defendants. The judgment set a public sale of the property. The sale took place as scheduled and was purchased.
A few days later, the defendants moved to vacate the foreclosure sale and certificate of sale. As grounds, the defendants alleged that Chase offered the defendants the opportunity to reinstate the loan, provided they paid a certain amount. The defendants agreed to the bank’s terms and sent a cashier’s check for the amount to Chase’s attorney. Under the terms of the settlement, Chase should have cancelled the sale and arranged to have the lawsuit dismissed, but Chase’s attorney failed to do so. The inadequacy of the sale price was not asserted as a ground to set aside the sale. The purchaser of the property assigned its interests to Appellant, Arsali.
Arsali’s argued the circuit court did not hold an evidentiary hearing, so that it could not have determined that the sale price was grossly inadequate. There was no dispute that the bank and the defendants had settled the case and that their agreement provided that the foreclosure sale should have been cancelled. Based on these facts, only if a grossly inadequate sale price was necessary to obtain this relief would Arsali have been entitled to the evidentiary hearing he sought. Surprise, accident, or mistake are independent grounds sufficient to set aside a foreclosure sale, therefore it was not necessary for the trial court to hold a hearing to take evidence on the adequacy of the foreclosure sale price.
9. Chrestensen, Appellant v. Eurogest, Inc. and Estner, Appellees, 906 So.2d 343 (2005)
Appellant appealed a final order dismissing with prejudice her amended complaint seeking a post-foreclosure deficiency judgment, based upon the alleged expiration of the statute of limitations period. The 4th DCA reversed the order, holding that the statute of limitations for a deficiency judgment does not begin to run until the foreclosure judgment and subsequent foreclosure sale, not at the default date of the underlying mortgage note.
In the present case, the foreclosure judgment was entered on October 4, 1999, and the foreclosure sale took place on October 19, 1999. Since the deficiency action was filed on August 26, 2003, it was well within the statutory period of five years.
10. Parsons and DeFalco, Appellants v. Whitaker Plumbing of Boca Raton, Inc., Appellee, 751 So.2d 655 (1999)
Appellee filed an action against appellants to foreclose on a mechanic’s lien for plumbing work performed on appellants’ property. The trial court entered a final judgment of foreclosure finding that Whitaker held a lien on appellants’ property for $3,117.43, including interest and costs and the court reserved jurisdiction to award attorney’s fees.
Appellants exercised their statutory right of redemption by paying the total amount due plus a clerk’s fee. The clerk issued a certificate of redemption, and canceled the previously scheduled sale.
Appellee made a motion for attorney’s fees, in which the court entered an amended final judgment of foreclosure, awarding Appellee $12,000 in attorney’s fees and setting a foreclosure sale to satisfy this debt. Appellants argued that this amended final judgment was improper, because of their redemption of the property. The trial court overruled this objection.
The 4th DCA affirmed this ruling because Section 713.29 “fees may properly be taxed after the entry of a final judgment in a lien foreclosure action.” See NCN Elec., Inc. v. Leto, 498 So.2d 1377 (Fla. 2d DCA 1986). The court’s determination of attorney’s fees after the lien foreclosure judgment avoids the necessity of both sides presenting evidence on fees at the initial trial, which is an “efficient expenditure of judicial and litigant time, money and effort.” NCN Elec., 498 So.2d at 1378.
11. Maya Marca Condominium Apartments, Inc., Appellant v. O’Rourke, Appellee, 669 So.2d 1089 (1996)
Appellant brought an action seeking foreclosure and a money judgment, alleging past due condominium assessments and fees. The court entered a summary judgment and a foreclosure sale was held at which the association was the highest bidder. However, the condo, was subject to a large first mortgage which was also in foreclosure, and the sale pursuant to that foreclosure closed out the interest of the association.
The association then brought a personal judgment, but after conducting a deficiency hearing the trial court refused to enter a judgment. The association appealed, arguing that a denial of a deficiency is an abuse of discretion where there is no legal or equitable basis for it. The 4th DCA concluded that the court erred as a matter of law and remanded for entry of a judgment in the full amount of the assessment, along with attorney’s fees and costs.
12. Mizner Bank, Appellant v. Adib, Glendale Federal Bank, Federal Savings Bank, Appellees, 588 So.2d 325 (1991)
The appellant foreclosed its mortgage on a parcel of property which it then purchased at the foreclosure sale. After the sale the appellant moved for a deficiency judgment which the trial court found was appropriate. The trial court did not, however, award the appellant the full value of the deficiency as reflected by an appraisal which showed the fair market value of the property within ten days of the foreclosure sale. The 4th DCA reversed because the appraisal of the property was done a year prior when the property value was much higher.
The only relevant date to the amount of a deficiency judgment is the date of the foreclosure sale. Therefore, the court found that it was erroneous for the trial court to consider the appellee’s appraisal, which was irrelevant, being one year old at the time of foreclosure sale.
13. Action Realty and Investments, Inc., Appellant v. Grandison and Mortgage Electronic Registration Systems, Inc., Appellees, 930 So.2d 674 (2006)
The Lender filed an action to foreclosure its mortgage on Grandison’s home. Within the ten-day time permitted for filing objections to the sale, Grandison filed an objection to the foreclosure sale and a motion to vacate. She argued that the lender’s mistakes and oversight in failing to respond with a payoff number justified vacating the foreclosure sale. At the hearing, Appellant argued that it was a BFP, the price at the foreclosure sale was not grossly inadequate, and the party with the most fault should suffer the loss. The court concluded that the lender was culpable for failing to deliver the payoff figures in time to stop the foreclosure sale. Thus, the court viewed the lender as being at fault for the mortgagor losing her right of redemption. The court vacated the foreclosure sale, and Appellant appealed.
The 4th DCA decided the judicial sale price was not grossly inadequate and there were no irregularities in the sale process. The court reversed the trial court’s order vacating the sale and remanded with instructions to reinstate the certificate of sale and for further proceedings thereon.
14. Freemon, Appellant v. Deutsche Bank Trust Company Americas, Appellee, 46 So.3d 1202 (2010)
Appellant failed to answer the appellee’s complaint to foreclose the mortgage on her home and a default judgment of foreclosure was rendered. Appellant moved for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). She claimed that the affidavit of indebtedness attesting to the amounts due on the mortgage and note was not made on the personal knowledge of the affiant. She also asserted that the affidavit in support of the motion for summary judgment was fraudulent. The trial court denied relief.
Appellant’s motion does not demonstrate fraud or show why any of the alleged facts would entitle her to relief sufficient to set aside a default judgment. Appellant did not contend that she did not default on her mortgage, nor did she allege that the amounts due and owed, set forth in the affidavit and incorporated in the final judgment, were incorrect.
The 4th DCA affirmed the trial court’s order denying the motion for relief from final judgment.
15. Rothschild Reserve International, Inc., Appellant v. Silver, Appellee, 830 So.2d 224 (2002)
Appellant Rothschild, the borrower, purchased a home from appellee for $600,000, paying $100,000 down and giving a $500,000 one-year mortgage to Rothschild. When the year passed and the borrower did not pay, the lender filed a foreclosure action. The parties agreed to a settlement of the foreclosure action. Appellant tried to argue the settlement was a mortgage.
Section 697.01(1), Florida Statutes (2000) provides that “all instruments of writing, conveying property for the purpose of securing the payment of money, are deemed mortgages subject to foreclosure.” The trial court held that this statute does not apply when a deed is given to secure the payment of money as part of a settlement of a mortgage foreclosure action. The 4th DCA affirmed the trial court’s decision.
16. Thompson, Appellant v. Bank of New York, Appellee, 862 So.2d 768 (2003)
Appellee moved for summary judgment on its foreclosure claim. Appellant attempted to move for leave to file an amended answer and counterclaim involving fraud on the part of Appellee. The trial court granted summary judgment without allowing the Appellant to file amended affirmative defenses. Appellant insufficiently pled the defense of fraud. The 4th DCA decided the trial court did not abuse its discretion since the defense was not pled with sufficient particularity. Without the affirmative defense, nothing in the record precluded summary judgment of foreclosure.
“As a general rule, `[l]eave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.'” N. Am. Speciality Ins. Co. v. Bergeron Land Dev., Inc., 745 So.2d 359, 362 (Fla. 4th DCA 1999) (quoting Life Gen. Sec. Ins. Co. v. Horal, 667 So.2d 967, 969 (Fla. 4th DCA 1996)); see also Kiriakidis v. Kiriakidis, 855 So.2d 208 (Fla. 4th DCA 2003).
A proposed amendment is futile where it is insufficiently pled. The court in this case denied the motion to amend because Appellant’s allegations of fraud were “conclusory in their content, and lacking in any real allegations of ultimate fact showing fraud on the part of the Bank of New York.” Such defenses were insufficient as a matter of law.
17. Carmen Valcarcel and Victor Valcarcel, Appellants v. Chase Bank USA, Appellee, 54 So.3d 989 (2010)
Appellee, Chase, had filed a foreclosure action against the Appellants, the Valcarcels. The trial court dismissed without prejudice Appellee’s foreclosure action against the Appellants, not on the merits but because of misconduct of counsel for Appellee. Appellants then filed a Motion for Attorneys’ Fees and Costs asserting that they were entitled to costs and attorney’s fees as the prevailing party. The trial court concluded that the order of dismissal was not a judgment and denied the motion for fees and costs. The Appellants appealed.
The trial court erred in denying the Appellants’ motion for attorney’s fees and costs based upon its finding that the order was not a judgment. Although the dismissal order was not an adjudication on the merits, the Appellants are still considered the prevailing party. They are entitled to an award of attorney’s fees because the action against them was dismissed. The 4th DCA reversed and remanded to the trial court to determine the amount of attorney’s fees that should be awarded to the Appellants.
18. Quality Roof Services, Inc., Appellant v. Interest National Bank, Appellee, 21 So.3d 883 (2009)
Appellee filed for foreclosure action against the owner of an uninhabitable, damaged apartment complex. Appellant had done maintenance and repairs to the complex. Appellant filed a claim of lien against the complex for unpaid invoices. When Appellee filed its foreclosure action, Appellant was joined as a defendant because of its recorded claim of lien. Before the hearing for summary judgment, Appellant moved to amend its answer in order to address its allegation against Appellee for unclean hands. The trial court believed the amendment would be futile and disallowed it.
In ruling on a motion for leave to amend, “all doubts should be resolved in favor of allowing an amendment, and the refusal to do so generally constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.” Cason v. Fla. Parole Comm’n, 819 So.2d 1012, 1013 (Fla. 1st DCA 2002)
The 4th DCA stated the trial court should have allowed Appellant to assert its affirmative defense of unclean hands. The trial court decision was reversed and remanded.
19. Alejandre and Terron, Appellants v. Deutsche Bank Trust Company Americas, Appellee, 44 So.3d 1288 (2010)
Appellee filed an amended complaint with the necessary documentation alleging that it was entitled to foreclose on the property in question. In Appellants answer to the amended complaint, they asserted affirmative defenses. In moving for summary judgment, Appellee did not address any of the pending affirmative defenses. Nonetheless, the trial court granted its’ motion for summary judgment, which Appellants appealed.
When a party raises affirmative defenses, “[a] summary judgment should not be granted where there are issues of fact raised by [the] affirmative defense[s] which have not been effectively factually challenged and refuted.” Cufferi v. Royal Palm Dev. Co., 516 So.2d 983, 984 (Fla. 4th DCA 1987).
The 4th DCA decided the trial court’s entry of summary judgment was improper. Appellee moved for summary judgment, but in that motion, it failed to address affirmative defenses raised by the mortgagor, Alejandre. Because Appellee failed to address Alejandre’s affirmative defenses, it did not meet its burden on summary judgment. Therefore, the trial court’s entry of summary judgment was erroneous. Reversed and remanded for further proceedings.
20. VOSR Industries, Inc. and Florida Industries Investment Corporation, Appellants v. Martin Properties, Appellee, 919 So.2d 554 (2005)
During the foreclosure action, the mortgagor had entered into negotiations with Appellee in attempt to save the property. When the documentation and loan processing could not be completed in time, Appellee agreed to buy the property at the judicial sale and conveyed it back to the mortgagor. Appellee succeeded in becoming the buyer at the foreclosure sale, with a bid covering the sums due in the final judgment of foreclosure. The Clerk issued a certificate of sale to Appellee.
After, the mortgagor timely filed an objection to the sale. A few days after the objection had been clarified, the court entered an order denying the objection. Two days after the order overruling the objection was entered but before the issuance of a certificate of title, the mortgagor reached an agreement assigning its right of redemption to VOSR Industries, who then arranged for another entity to tender on its behalf the amount due under the final judgment of foreclosure. The Clerk refused to accept the check and issued the certificate of title in the name of Appellee. VOSR promptly filed a motion and sought an order setting aside the sale and confirming its exercise of the right of redemption.
The 4th DCA reversed the trial court’s decision, concluding that VOSR properly exercised its right of redemption by causing cleared funds to be tendered in its name to the Clerk. For the tender to be effective, VOSR was not required to tender a check from its own account or drawn in its own name. The record establishes that the funds were tendered with the consent of the mortgagor and VOSR. There was no reason for the trial court to deny the effect of the redemption.
Blog Posts of Interest Related to Foreclosure Defense (by Larry Tolchinsky):
- Wigod v. Wells Fargo: the Federal Court Case That Allows State Law Claims Against Foreclosing Banks For Failed HAMP Modification
- Florida Home Owners Who Do Nothing or Procrastinate Put Themselves at Risk of Bank’s Default Judgment. Florida Foreclosure Defense Means Filing an Answer at a Minimum to Protect Rights.
- Florida Foreclosure: If Your Florida Home is Facing Foreclosure, or If You Have an Underwater Mortgage, Then Do Not Procrastinate. Delay by Home Owners Often Means Loss or Harm
- The Need to be Savvy and Smart With Underwater Mortgages or Foreclosure Defenses Is Very Important In 2012
- Florida Foreclosure Defense and The Stigma of Foreclosure: David Cassidy Understands What Fellow Underwater Mortgage Florida Home Owners Fighting Bank Foreclosures Are Feeling – And So Should Your Foreclosure Defense Lawyer
- Florida Foreclosure Defense – Negotiating Loan Modifications With Banks Is Still Tough: Banks Try to Get Balloon Payments Instead of Cutting Home Loan Amounts and Reducing Mortgage Principal
- Foreclosure Defense Needs a Courtroom: Movement to Take Judicial Review From Foreclosure Process Means The Florida Home Owner Would Lose Right to Fight Foreclosure Before a Judge
- Florida Foreclosure Nuts and Bolts: What Happens in a Florida Home Foreclosure – The Florida Foreclosure Process in 10 Steps
- Banks Cannot Legally Foreclose Upon Real Estate Loans They Don’t Own or Can’t Prove They Own
- What is HAFA? – Can HAFA Help? – Deficiency Judgment Relief
- Can the Bank Garnish My Wages During a Florida Foreclosure?
- Homeowners Are Not to Blame for the Foreclosure Mess
- Suspected Lender Fraud Opens Doors for Homeowners Who Have Lost Their Homes to Claim Wrongful Foreclosure
- Charges against Goldman Sachs can Help Foreclosure Defenses on Main Street
- Lenders Beware – Foreclosure Lawsuits are Going to Trial!
- Foreclosure Defenses are stopping Mortgage Foreclosures
- Can the Bank Garnish my Wages after Foreclosure if they are seeking a Deficiency Judgment against me?
- Prime Borrowers in Florida are most at risk for a Deficiency Judgment
- Florida Deficiency Judgments – What is Fair Market Value?
- Walking away from your Home Mortgage – Not without Consequences
- Florida Deficiency Judgments – The Rest of the Story
- Deficiency Judgments in Florida
- Renters’ Foreclosure – Know Your Rights
- Estate is Liable for Mortgage Deficiency, Not Heirs
Want to Know More?
To learn more about Larry and his qualifications:
HAMP Lawsuits – Loan Modification Lawsuit: Borrowers Sue Banks for Failing to Do the Right Thing With Trial Period Plan Loan Modifications – Lenders Fail To Follow HAMP Requirements or Honor deals they offer Borrowers
Florida Mortgage Loan Modifications Denials and Modification Appeals: Submission and Re-Submitting of Loan Documents To Get Your Deal Done
Florida Bank Reject Your Loan Modification? It Seems to be Happening to Lots of South Florida Homeowners: What’s Up? Home Owners Are Suing Banks for Failed Modifications
Also Read: Setting Aside a Foreclosure Judgment
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In The Press:
Larry Tolchinsky contributed to a Channel 10 news story regarding deficiency judgments and short sales. Watch the video here
Larry Tolchinsky contributed to a recent USAToday article regarding deficiency judgments. Read the article here
Larry Tolchinsky contributed to a recent Bloomberg.com article regarding deficiency judgments. Read the article here
Larry Tolchinsky contributed to a recent CNNMoney.com article regarding deficiency judgments. Read the article here