You Won't Believe What Decided the Fate of Foreclosure Cases at the 4th DCA
Sun Jan 11, 2015 by Oppenheim Law on Florida Law News
The following article was published in the Daily Business Review and written by Samantha Joseph. The South Florida Law Blog has republished exerpts by Roy Oppenheim.
Will botched paperwork affect the outcome of foreclosure appeals? It depends on the judges.
The decisions in three cases came down to paperwork and procedure Wednesday before the Fourth District Court of Appeal.
Roy Oppenheim: “There are many areas of inconsistency with foreclosure law right now,” he said. “The judges themselves are coming up with different rationale based on the same facts, which makes for wildly different outcomes.”
For BAC Home Loans Servicing LP, botched documentation at the height of the robo-signing scandal cost it a foreclosure judgment when the court ruled the lender failed to prove standing to sue homeowner Rosanie Joseph.
The appeals court reversed a foreclosure judgment issued by Palm Beach Circuit Judge Diana Lewis since there was no evidence to show Taylor Bean & Whitaker Mortgage Corp. owned the mortgage when filing to foreclose on Joseph in July 2009.
The 2008 mortgage issued by Key Mortgage Associates was attached to the lawsuit, but no note or assignments accompanied the filing by Ocala-based Taylor Bean, a leading wholesale mortgage lender. The company reported the note was lost or stolen.
Taylor Bean, one of the spectacular bankruptcies of the housing crash, later assigned the note to BAC, which picked up the foreclosure ball.
In trial, BAC produced the original note and mortgage. The note offered two endorsements by the same person, Erica Carter-Shaw as a Key Mortgage attorney and Taylor Bean “E.V.P.” Neither endorsement was dated.
“A party must establish its standing to bring a mortgage foreclosure complaint by establishing an assignment or equitable transfer of the note and mortgage prior to instituting the complaint,” Judge Martha Warner wrote for the unanimous panel. Judges Carole Taylor and Mark Klingensmith concurred.
No File Review
A different panel split in similar litigation: Gafoor Jaffer and Nina Jaffer v. Chase Home Finance.
The homeowners claimed Chase attached a mortgage note payable to a third party without any proof of transfer and used an amended foreclosure complaint that failed to state a cause of action. However, the Jaffers waived the question of Chase’s standing by failing to respond to the lawsuit before default was entered.
Chase conceded some of its employees signed affidavits about the loan documents without first reviewing the loan file.
But the Fourth DCA upheld summary judgment issued by Broward Circuit Judge Sandra Perlman.
In the 2-1 unsigned decision, Judges Spencer Levine and Klingensmith concurred. Judge Burton Conner dissented, citing Chase’s failure to file an accurate copy of the mortgage note.
Deutsche Bank National Trust Co. wasn’t as lucky when it moved to overturn Broward Circuit Judge Kathleen Ireland’s ruling in favor of homeowner Theresa Boglioli.
The lender came out on the losing end after Boglioli argued Deutsche Bank executed the mortgage transfer after filing its foreclosure complaint against her and included a blank, undated endorsement among its documentation.
Judges Cory Ciklin, Jonathan Gerber and Levine issued the unsigned opinion.
Attorneys say the decisions may further complicate already-lengthy and expensive foreclosure litigation.
“Normally you see discrepancies of this nature within different circuits. But what we’re seeing in the Fourth is discrepancies among themselves,” said foreclosure defense attorney Roy Oppenheim of Weston. “It just makes this more complex. When there is cloudiness, it just creates more ambiguity and delays the conclusion of the foreclosure mess. In the end it doesn’t help anybody when you have inconsistent rules.”
With varying opinions coming for appellate panels, Oppenheim expects a rise in requests for full court review.
“There are many areas of inconsistency with foreclosure law right now,” he said. “The judges themselves are coming up with different rationale based on the same facts, which makes for wildly different outcomes.”