IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1D11-3356
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Opinion filed
WELLS FARGO BANK, N.A., AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2005-5 ASSET-BACKED CERTIFICATES, SERIES 2005-5,
Appellant,
v.
WILLIAM BOHATKA, ET AL.,
Appellee.
Opinion filed April 22, 2013.
An appeal from the Circuit Court for Santa Rosa County.
Hon. Marci L. Goodman, Judge.
Jason F. Joseph and Danielle Delucca, Gladstone Law Group, P.A., Boca Raton, for Appellant.
Sharon Delene Regan, Regan & Roark, Pensacola, and Gregory B. Wilhelm, Law Offices of Martinez & Wilhelm, PA, Gulf Breeze, for Appellee.
MAKAR, J.
EXCERPTS:
Based upon its inspection, the trial court found no indicia that an attachment to the original note had been made and therefore granted dismissal of the bank’s complaint with prejudice. It stated:
This is my ruling; Motion to Dismiss granted. Nothing was attached. There is no endorsement. There is no allonge, and there cannot be any allonge affixed before filing, so dismissal is with prejudice. I also suspect that this document [the allonge] was created to defeat the defendants’ motion. I want to preserve the originals by a separate order. … please draft a separate order that the original documents will remain in the court file and will not be removed without my authorization by anyone. I reserve the right to send them to the attorney general for investigation of this activity by plaintiff and its counsel.
6
[…]
but the Appeals Court found:
Finally, we do not suggest that it was improper for the court and the parties to address in a critical way how the bank was to establish its basis for standing to foreclose on the note at issue. Given the potential for fraud in post-dating addenda and other purported documents of transfer, it is laudable for courts and others to be sensitive to potential abuses. On the record before us, however, we see nothing—particularly at this initial stage of this litigation—that would justify the trial court’s reaction in commandeering the originals of the mortgage and the allonge for delivery to the Office of the Attorney General for its review.
[…]
This can be a good thing Now it can go to the Florida Supreme Court where it can become rule of law if the Supreme court rules for the people and not the banks. The Supreme
Courts have generally ruled by rule of law and not bank law. So I dont see this as a loss unless the Supreme court rules badly. I see it as a possible win for all of Florida if the case is put before the Florida Supreme Court and the Supreme Court rules by the rule of law. It appears to me most Supreme Courts are not corrupted like the lower courts.