NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DEBORAH E. FOCHT,
Appellant,
v.
WELLS FARGO BANK, N.A., SUCCESSOR
BY MERGER TO WELLS FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION,
AS TRUSTEE, IN TRUST FOR THE
HOLDERS OF STRUCTURED ASSET
SECURITIES CORPORATION –
AMORTIZING RESIDENTIAL
COLLATERAL TRUST MORTGAGE PASS
THROUGH CERTIFICATES, SERIES
2002-BC10,
Appellee.
Opinion filed September 25, 2013.
Appeal from the Circuit Court for Sarasota
County; Charles E. Williams, Judge.
Deborah E. Focht, pro se.
Jeffrey S. Lapin of Lapin & Leichtling, LLP,
Coral Gables, and Ronnie H. Bitman of
Powell & Pearson, LLP, Winter Park, for
Appellee.
EXCERPT:
. . .
We note that the supreme court has not applied this standing principle in
the exact context presented in this case. And we question whether, in light of the
ongoing foreclosure crisis in this State, the supreme court would adhere to this principle
in cases in which a plaintiff has acquired standing by the time judgment is entered.
Accordingly, we certify the following question as one of great public importance:
CAN A PLAINTIFF IN A FORECLOSURE ACTION CURE
THE INABILITY TO PROVE STANDING AT THE
INCEPTION OF SUIT BY PROOF THAT THE PLAINTIFF
HAS SINCE ACQUIRED STANDING?
. . .
The trial courts have been overwhelmed by foreclosure filings. In many of
these civil lawsuits the defendants, under a duty to plead in good faith, should be
expected to admit that they received the money, signed the notes and mortgages, and
failed to make the payments. They may often have legitimate affirmative defenses, but
the delayed production of the original note and mortgage in a case where the note and
mortgage are in default should not justify a dismissal of the legal proceeding.
Presumably, our mandate requires the dismissal of this foreclosure action,
which in turn will undo the foreclosure sale. Ms. Focht will regain possession of her
property and apparently continue her free use of the duplex while the lender continues
to make advances to cover the expenses typically paid from escrow. Our certified
question of great public importance is dispositive of this appeal and worthy of
consideration by the supreme court.
-9-
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