FLORIDA IBANEZ??

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

January Term 2011

ROMAN PINO,
Appellant,
v.
THE BANK OF NEW YORK MELLON,
Appellee.

No. 4D10-378

[February 2, 2011]

EN BANC

WARNER, J.

excerpts:

The defendant in a mortgage foreclosure action filed by BNY Mellon appeals
a trial court’s denial of his motion under Florida Rule of Civil Procedure
1.540(b) to vacate a voluntary dismissal. Th e notice was filed after the
defendant moved for sanctions against the plaintiff for filing what he alleged
was a fraudulent assignment of mortgage. Because the notice of voluntary
dismissal was filed prior to the plaintiff obtaining any affirmative relief from the
court, we affirm the trial court’s order.

BNY Mellon commenced an action to foreclose a mortgage against the
defendant. The mortgage attached to the complaint specified another entity,
Silver State Financial Systems, as lender and still another, Mortgage Electronic
Registration Systems, as mortgagee. The complaint alleged that BNY Mellon
owned and held the note and mortgage by assignment, but failed to attach a
copy of any document of assignment. At the same time, it alleged the original
promissory note itself had been “lost, destroyed or stolen.” The complaint was
silent as to whether the note had ever been negotiated and transferred to BNY
Mellon in the manner provided by law.1

<SNIP>

In response to this amendment, defendant moved for sanctions. He alleged
that the newly produced document of assignment was false and had been
fraudulently made, pointing to the fact that the person executing the
assignment was employed by the attorney representing the mortgagee, and the
commission date on notary stamp showed that the document could not have
been notarized on the date in the document. The defendant argued that the
plaintiff was attempting fraud on the court and that the court should consider
appropriate sanctions, s u c h as dismissal of the action with prejudice.
Concurrent with the filing of this motion, the defendant scheduled depositions
of the person who signed the assignment, the notary, and the witnesses named
on the document — all employees of Florida counsel for BNY Mellon — for the
following day. Before the scheduled depositions, BNY Mellon filed a notice of
voluntary dismissal of the action.

We conclude that this is a question of great public importance, as many, many mortgage foreclosures appear tainted with suspect documents.

We conclude that this is a question of great public importance, as many,
many mortgage foreclosures appear tainted with suspect documents. The
defendant has requested a denial of the equitable right to foreclose the
mortgage at all. If this is an available remedy as a sanction after a voluntary
dismissal, it may dramatically affect the mortgage foreclosure crisis in this
State. Accordingly we certify the following question to the Florida Supreme
Court as of great public importance:

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