Bank’s “You Snooze, You Lose” Approach Culminates in Oppenheim Law’s Victory in Foreclosure Appeal

The Oppenheim Law team recently secured an appellate victory for our clients in the matter of Wells Fargo Bank, National Association as Trustee v. Rafael Liy and Melany Liy, a foreclosure matter in Broward County.

Our clients originally prevailed at the trial level when the court entered an order dismissing the foreclosure suit at trial. The bank appealed the dismissal with the Fourth District Court of Appeal. This culminated in a victory for our client on May 31, 2018, when the appellate court affirmed the order of dismissal.

The case embodies that well-known phrase, “you snooze, you lose.”  Having snoozed, the bank did, in fact, lose.

On the first day of trial, the foreclosing bank appeared with previously undisclosed trial exhibits. The foreclosing bank’s attorney at the time stated there were no other documents upon which the bank would rely at trial—a representation the bank would come to regret. The court continued the trial to a later date to afford us time to review the additional documents.  However, the foreclosure court held the bank to its promise, and entered an order stating that the bank would not be permitted to bring any new evidence at the next foreclosure trial date.

This order became a colossal hassle for the bank, which continually tried to bring in new documents at subsequent trial dates and hearings. Having initially snoozed on production of documents at the first foreclosure trial, the bank repeatedly lost in its efforts to have the court accept additional evidence. The bank repeatedly, and through different attorneys, tried to vacate the order so as to permit presentation of new evidence.  However, each judge (several judges appeared in this case), upheld the order and refused to allow new evidence, even when asked to reconsider.

The effect of the bank’s snooze-fest was substantial. On the final day of the foreclosure trial, the court ruled in favor of our clients because the bank failed to present sufficient evidence to show it had mailed a default notice and that the legal description of the mortgage and deed should be reformed. These are two important issues that, when raised in foreclosure appeals these days, do not always generate borrower-friendly decisions. In our case, they did.

The appellate court ratified the lower court’s foreclosure ruling, and affirmed the order of dismissal “per curium”, which essentially means there was no need to elaborate as to why our clients deserved to prevail.

Sometimes, hitting the snooze button is actually good for you.

From the trenches,

Roy Oppenheim