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
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. …””
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?
Clearly, this Court is pro-bank!
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?
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.