15 Dec Florida – Plaintiff Must Prove Ownership at Time Foreclosure is Filed
In the latest foreclosure decision out of Florida, the 4th District Court of Appeal, in the case of McLean v. JP Morgan Chase, ruled that the plaintiff in a foreclosure must prove it owns and holds the note at the time the foreclosure case is filed.
In the McLean case, the appellate court reversed the trial courtâ€™s entry of summary final judgment in favor of the bank because the bank failed to provide evidence that, at the time the case was filed, it â€œobtained its rights and standing to proceed in this causeâ€ prior to the filing date. Instead, it presented to the trial court an Assignment of Mortgage dated three days AFTER the case was filed.
The trial judge, apparently not understanding the basic concept of chronology, denied the homeownerâ€™s motion to dismiss the case and granted the bankâ€™s motion for summary judgment. In reversing this decision, the 4th DCA said:
While it is true that standing to foreclose can be demonstrated by the filing of the original note with a special endorsement in favor of the plaintiff, this does not alter the rule that a partyâ€™s standing is determined at the time the lawsuit was filed. Stated another way, the plaintiffâ€™s lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed. Thus, a party is not permitted to establish the right to maintain an action retroactively by acquiring standing to file a lawsuit after the fact. [Cites omitted]
While this ruling may seemingly state the obvious that you can’t put the cart before the horse, please understand that many Florida trial judges treat foreclosure cases differently. They tend to allow plaintiff lawyers to â€œdumb downâ€ the practice of law.
Iâ€™m not saying plaintiffâ€™s lawyers are stupid. To the contrary, they are smart enough to know that most foreclosures are impossible to win by applying 150 years of Florida real estate law. So, they have waged a campaign to convince trial judges to relax Florida Statutes, Florida case law, the Rules of Evidence and Rules of Procedure. Because of the sheer volume of uncontested foreclosure cases winding their way through Floridaâ€™s courts, it is easier for these judges to â€œclear out the backlogâ€ by forgetting the stuff they learned in their first year of law school. Sadly, many lawyers defending homeowners allow the â€œdumbing downâ€ because they, too, forgot (or never learned) how to litigate. Many are converted real estate lawyers with little or no trial practice.
Just a couple of days ago, I attended a hearing where the judge accepted as evidence an unproved allegation in the plaintiffâ€™s motion. This essential factual element was just â€œpresumedâ€ because the plaintiffâ€™s lawyer said so, even as I vigorously demanded that the plaintiff lawyer provide some piece of evidence to back up the assertion. Call it â€œpar for the course.â€
Fortunately, albeit reluctantly at times, the appellate courts routinely reverse these horrid trial court decisions, but if the trial judges continue to ignore Florida appellate decisions favoring homeowners (and the 150 years of jurisprudence), who cares?
Many trial judges forget that their job is simply to interpret the laws on the books. Instead, they often ignore the laws because they fear â€œgiving a homeowner a free house.â€ This is known a â€œlegislating from the bench.” Our American democracy is based upon the notion of â€œseparation of powers,â€ wherein government is divided into the executive, legislative and judicial branches, each with separate and independent powers and areas of responsibility so that no one branch has more power than the other branches. When a trial judge factors his social view into his decision, he has essentially stolen power from the state legislature.
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