Focht v. Wells Fargo Bank | FL 2DCA - Concurring Judge: "...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. ..."

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Focht v. Wells Fargo Bank | FL 2DCA – Concurring Judge: “…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. …”

Focht v. Wells Fargo Bank | FL 2DCA – Concurring Judge: “…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. …”

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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3 Responses to “Focht v. Wells Fargo Bank | FL 2DCA – Concurring Judge: “…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. …””

  1. Rad says:

    Clearly, this Court is pro-bank!

  2. Marcie says:

    Wow! So the appellate court is blaming the homeowner. They don’t even question the fact that these banks likely don’t even own the Note and Mortgage and discovery will show that they didn’t.

    Most of these banks held notes and signed them in blank because they wanted to multiple pledge them to multiple securitized trusts. Now they want to foreclose and make more money on the backs of homeowners. Why aren’t judges getting this?

  3. Virginia collusion says:

    I actually had an attorney tell me ‘if we try cases like this it will literally collapse the economy.’

    They ALL get it. Another attorney admitted if he took my case he would face sanctions.

    They ALL get it. Many attorneys did these ‘closings’ and now are running scared.

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