The Times They Are A-Changin’: District Courts of Appeal Start Reversing Foreclosure Judgments

As a tribute to Bob Dylan’s 70th birthday today, his song “The Times They Are A-Changin” captures the spirit of the social and political upheaval happening in today’s Florida courts. Despite a swollen pipeline of more than half a million pending foreclosure cases, Florida’s appellate courts are starting to send a clear message that banks will not succeed in trampling the Constitutional rights of homeowners.

The times they are a-changin’. And it’s about time.

Florida District Courts of Appeal are ruling in favor of homeowners when procedural due process has been violated as well as in cases where the trial court improperly granted summary judgment in favor of a bank based on lawyers’ assertions that have no evidentiary support on the record.

Recent decisions from the 1st, 3rd, 4th and 5th District Courts of Appeal can provide hope to homeowners and South Florida foreclosure defense attorneys that banks will be forced to start playing by the rules, or risk having their judgments reversed on appeal.

For example, the 5th DCA reversed a summary judgment decision in favor of a bank last month for a lack of evidence on the foreclosing bank’s standing to sue. The Court of Appeal found that documents submitted at trial contradicted the bank’s mere allegations that it was the holder of the note, and therefore allowed to foreclose.

“Taken together, these decisions are powerful evidence that Florida’s appellate courts are increasingly receptive to foreclosure defendants’ complaints that some trial courts are not holding foreclosure plaintiffs to the requirements of Florida Civil Procedure – and perhaps that they are also paying attention to the widely reported improprieties in the mortgage lending industry,” said Dan Bushell, a South Florida appellate attorney, on his blog, Florida Appellate Review.

We have seen the pace of foreclosure proceedings drastically slow in the past months due to the court’s heightened documentation standards. These recent decisions by the District Courts should pump the breaks even more on the banks’ steamroll approach to foreclosing South Florida homeowners. Banks better take note.

From the trenches,
Roy Oppenheim, P.A.