The trend continues to hold — lenders are losing on the appellate level when questions of standing arise in Florida foreclosure litigation. In the most recent series of lawsuits, several assignments were dated after foreclosure litigation had begun.
In Bank of America v. Delgado, Bank of America appealed a final judgment entered in favor of the borrowers. The trial court ruled that the bank failed to prove the amount due on the note.
The bank argued that it was thwarted from proving the amount of indebtedness because the trial court improperly excluded the loan payment history from evidence.
The appellate court agreed with the lender.
BofA appealed the denial of its motion to vacate the trial court’s dismissal of BNA’s foreclosure action against Edward Lukas with prejudice in Bank of America v. Lukas. The appellate court reversed, explaining that the lender had properly dismissed its count of reestablishment of a lost note prior to trial and was only operating under the foreclosure count. As such, BNA was not required to amend its complaint in order to properly place the original note before the court.
Jelic v. LaSalle Bank dealt with standing. The appellate court found merit in the homeowner’s argument that the bank lacked standing to foreclose at the time the complaint was filed because one of the assignments was dated six months after the bank filed for foreclosure. The trial court found that the lender had standing. The appellate court reversed.
Balch v. LaSalle Bank also dealt with standing. The appellate court reversed and remanded. First, there was no evidence indicating when the special indorsement in favor of Washington Mutual Bank was placed onto the note, the appellate court said. Secondly, the assignment is insufficient to establish standing, as the assignment was executed after the complaint was filed.
Another standing case was Farkas v. U.S. Bank. The appellate court reversed, agreeing with the borrower who said that the bank lacked standing because it was not the owner or holder of the note when the suit was filed because the assignment was dated one day after the foreclosure lawsuit was filed.
In U.S. National Bank v. Cratou, the lender challenged an order dismissing its foreclosure suit as a sanction for its failure to be ready for trial. In the weeks prior to the trial date, the lender sought to continue the case, citing its desire to amend the complaint to name additional defendants, including the homeowners’ association, and the recent health problems of defendants’ counsel. The day before trial, defendants’ counsel filed his own motion to continue the case due to his recent hospitalization. Neither the defendants nor their counsel appeared for the trial.
The trial court, however, refused to continue the case and, instead, dismissed the suit as a sanction for the plaintiff’s failure to be ready for trial. The dismissal was an abuse of the trial court’s discretion, the appellate court ruled.
The appellate court in Residential Mortgage Loan Trust v. Smith ruled that proceedings could resume after the trial court issued a provisional order of dismissal based upon 10 months of inactivity in the lawsuit.
Vasilevskiy v. Wachova Bank dealt with a defective notice of default. The mortgage required that Wachovia Bank, N.A., provide the borrowers written notice of the default and an opportunity to cure the default within 30 days from the date of the notice. The notice sent to the homeowners specified a date that was only twenty eight days after the date of the notice.
When the borrowers failed to cure the default, the lender filed suit. The trial court granted Wachovia’s motion for summary judgment. The appeals court, however, concluded that the breach of contract was not material because the borrowers never attempted to cure the default. As a result, the borrowers could not claim that they were harmed by the failure to abide by the terms of the contract.
In Wells Fargo v. Donaldson, the appellate court reversed an involuntary dismissal of a foreclosure because the record supported the denial of Wells Fargo’s technical admissions in the underlying mortgage foreclosure suit filed against Melissa M. Donaldson.
