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Maybe David will prevail over big banks after all?

Mon Apr 20, 2015 by on Florida Law News

David and Goliath fresco on medieval house wall,Regensburg, Bavaria, Germany. Medieval center of Regensburg is a UNESCO World Heritage Site.

David and Goliath fresco on medieval house wall,Regensburg, Bavaria, Germany. Medieval center of Regensburg is a UNESCO World Heritage Site.

Things are looking up for Florida homeowners still in foreclosure in 2015. As demonstrated by recent decisions, Florida courts are beginning to hold banks to a higher standard when it comes to proving standing. Standing is an essential element that the banks must prove in a foreclosure action. Without proper standing, the bank does not have the legal right to foreclose.

 “At the inception of the lawsuit”

In order to prove standing the bank must prove through admissible evidence that it holds the note and mortgage or is acting as the note holder’s authorized representative at the inception of the lawsuit, the key phrase being “at the inception of the lawsuit.” For a long time banks have attempted to initiate lawsuits without proper evidence of standing, and then proceed to file the evidence at some later time. This later evidence is usually undated and makes it difficult to ascertain whether or not the bank had the right to foreclose at the beginning of the lawsuit.

Banks to Provide Evidence

Thankfully Florida courts have begun to catch onto this little trick by more stringently requiring banks to provide evidence that they owned the note and mortgage at the date of the filing of the complaint. When the loan and mortgage are transferred and the plaintiff in a lawsuit is substituted, it is important for the bank to show competent evidence that it has standing to foreclose. Already in 2015, at least five appellate decisions concerning standing have been in favor of the homeowner.

-Diana Jelic v. LaSalle Bank, National Association

-Taoufiq Seffar v. Residential Credit Solutions, Inc.

-Osoroi v. U.S. Bank National Association

-Matthews v. Federal National Mortgage Association

-Lloyd v. The Bank of New York Mellon

Will David Prevail

National Lender Denied

But wait, the good news doesn’t end there. A national lender was recently denied relief in both the trial court and the First District Court of Appeals because it filed a foreclosure action while having “unclean hands”. The doctrine of “unclean hands” dictates that the bank is not entitled to relief because they engaged in some sort of wrongdoing. The court not only dismissed the foreclosure action but also granted the homeowner’s counterclaims and awarded punitive damages to the homeowner.

-Bank of America, N.A. v. Pate

The favorable rulings from Florida courts on both the standing and unclean hands issues should give hope to homeowners still in foreclosure. They should show Americans that there is something they can do to defend homes and defend the legal system from abuse.

David and Goliath

Needless to say, the slingshot is aimed at Goliath, and he may soon be on his way down.

In the Trenches,

Roy Oppenheim

 

Tags: banks, First District Court of Appeals, Florida Homeowners, florida law news, foreclosure, real estate defense attorney

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