Not A Time To Fold
Just because the mortgage is in default and the foreclosure action has begun doesn't mean that it is time to fold
FOR decades, when troubled homeowners and banks battled over delinquent mortgages, it wasn't a contest.
On top of that, Courts... took banks at their word when the lenders said they owned the mortgage notes underlying troubled properties...
[B]anks and borrowers still do battle over foreclosures on an unlevel playing field that exists in far too many courtrooms. But some judges are starting to scrutinize the rules-don't-matter methods used by lenders and their lawyers in the recent foreclosure wave. On occasion, lenders are even getting slapped around a bit.1
In today's economic environment thousands of Broward County homeowners are "underwater" meaning they owe more money than their homes are worth. It's easy to be an arm chair quarterback and say they should have known better. It's also easy to forget that rather than their loans remaining with local banks, they usually were provided by zealous mortgage brokers looking to maximize their fees before selling the loans to another entity which packaged them to investors who bought them as mortgage backed securities. While the big players in this colossal waste of wealth have been supported for making rational decisions such as intentionally defaulting, entering bankruptcy, seeking stimulus lifelines, etc., the homeowners have been accused of immoral conduct for prematurely defaulting or defending their delinquent positions in court.
Our society is use to criminal defense lawyers standing firm and demanding that prosecutors "prove their case" when representing clients who everyone one knows "did it." When weaknesses emerge in criminal cases, it is expected the lawyers will take advantage and minimize the damage to their clients. Foreclosure defense lawyers are increasingly demanding that creditors "prove their case." However, in a court system swamped by new case filings, foreclosure defendants have yet to receive the type of understanding and tolerance generally afforded to accused criminals. Nevertheless, the pendulum may be beginning to swing in the debtors' direction.
One of the consistent legitimate issues raised by debtors is whether the Plaintiff, seeking to part the defendant from his property, legally owns the note and mortgage. After years of frenzy at the lending trough this is by no means an academic question. This past month in BAC Funding Consortium Inc. v. Jean-Jacques, No. 2D08-3553, 2010 Fla. App. LEXIS 1447, (2nd DCA, Feb. 12, 2010) the court reversed a summary judgment which had been granted in favor of U.S. Bank National Association, the trustee of a securitized trust. U.S. Bank had contended it was entitled to prevail, because it had filed the original note with the court. Id. pp. 6. It maintained that it had no obligation to file an assignment of the note or the mortgage. Id. p 7. An invalid assignment was in the court file which among other things was not authenticated. Id. p. 2. The note identified a different entity, Fremont Investment, as the lender. Id. p. 1. No evidence was presented to show that U.S. Bank "had purchased the note and mortgage" Id. p. 7. The court stated that
U.S. Bank was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor. Whether U.S. Bank did so through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer, it was nevertheless required to prove that it validly held the note and mortgage it sought to foreclose...
U.S. Bank failed to establish its status as legal owner and holder of the note and mortgage...
Before homeowners are separated from their property, they need to confirm that the proper party is obtaining relief at their expense. While this process unfolds many homeowners are given an opportunity to get back on their financial feet and become current with their obligation or to find feasible living alternatives. Regardless of motive foreclosure defendants have a right to their day in court. As is noted in BAC Funding
Given the vastly increased number of foreclosure filings in Florida's courts over the past two years, which volume has taxed both litigants and the judicial system and increased the risk of paperwork errors, it is especially important that trial courts abide by the proper standards and apply the proper burdens of proof when considering a summary judgment motion in a foreclosure proceeding.
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