Boston Globe-

When Guillermo Galindo lost his two-family Revere home to foreclosure in 2009, the soft-spoken Colombian thought he had finally freed himself from the flood of threatening collection letters from his lender and a ballooning, untenable debt.

All of his savings, scraped together over years delivering medicine for local pharmacies, were gone, along with the home he bought in 2005 for $410,000. Devastated, the 54-year-old immigrant, along with his wife and 3-year-old daughter, packed their belongings and moved into a small apartment, hoping to rebuild.

But that hope evaporated in a matter of months, when Galindo received a letter from a lawyer saying he owed $136,547 on the family home he’d left behind.

[BOSTON GLOBE]

Clouded Titles-

The Rhode Island courts seem to have a propensity to give Mortgage Electronic Registration Systems, Inc. (“MERS”) credence to do whatever it wants in that State primarily because the Borrowers of MERS-originated Mortgages did not understand what they were signing when they let MERS into their contract. Since then, MERS and its attorneys have maintained (albeit successfully in most cases) that because the Borrowers let them in by contract, they are subject to the enforcement provisions of that contract, especially when MERS gets involved. A new ruling issued today appears to throw a monkey wrench into MERS’s contractual rights, as follows:

continue reading [CLOUDED TITLES]

Capital and Main-

Last May, I wrote in Capital & Main about Ocwen, the non-bank mortgage servicing company that abused California homeowners by failing to honor signed agreements, illegally imposing fees and violating state regulations. In fact, when asked, a top-level Ocwen representative had never heard of the state’s groundbreaking consumer protection law, the Homeowner Bill of Rights (HBOR). The Ocwen rep said the company had no training for HBOR and no process established to conform to it.

It should come as no surprise, then, that Ocwen ignores its responsibilities to state regulators, the same way it ignores rules for dealing with homeowners. The California Department of Business Oversight alleges that Ocwen failed to deliver the agency documents showing Ocwen’s compliance with HBOR, despite 10 separate requests over 18 months, a subpoena and even a judicial order.

After imposing two comically low fines of $1,000 each, Commissioner of Business Oversight Jan Lynn Owen made a formal notice of intent to suspend Ocwen’s business license in California for one year. That would mean the company would have to immediately sell the servicing rights to more than 378,000 homes, with a principal balance of $95 billion. Nearly one in six loans Ocwen services are in California.

[CAPITAL AND MAIN]

Buzz Feed-

Is JPMorgan too big? The question has been asked frequently by critics since the 2008 financial crisis lead to America’s largest bank getting even bigger — and paying out more than $20 billion in fines and penalties. And while being too big to fail attracts concern from one group of naysayers, doubts about its size have gained new credence after the bank announced today its profit fell by 6.6% in its most recent quarter compared to a year ago.

Earlier this month, a high-profile analyst report said the bank could be worth more broken up into pieces than it is today. That, plus worries about new regulatory requirements, has investors worried; JPMorgan stock fell 3.45% today to $56.81 today and is down 9.25% so far this year.

JPMorgan is unquestionably a behemoth: $2.6 trillion in assets, $757 billion worth of loans, $1.4 trillion in deposits, 241,000 employees all over the world, exposed to $65 trillion worth of derivatives trades. It has long argued that its size gives it unique advantages for its customers and shareholders, as well as healthily gushing revenue streams — $94.2 billion in 2014, $96.6 billion in 2013.

[BUZZ FEED]

H/T Street Insider

 January 13, 2015

CONTACT: FOR FURTHER INFORMATION CONTACT: Investors: Stephen Swett T: (203) 614-0141 E: shareholderrelations@ocwen.com Media: Sard Verbinnen & Co. Margaret Popper/David Millar T: 212-687-8080

You can read the ruling here: Jesinoski v. Countrywide | SCOTUS – A borrower exercising his right to rescind under the Act need only provide written notice to his lender within the 3-year period, not file suit within that period. Section 1635(a)’s unequivocal terms—a borrower “shall have the right to rescind…

Bloomberg-

The U.S. Supreme Court gave homeowners more ability to cancel their mortgages if lenders don’t provide the required disclosures, in a setback for the banking industry.

The dispute centered on the three-year deadline for borrowers seeking to rescind their mortgages. The justices today said unanimously that borrowers don’t have to file suit within three years and instead can meet the deadline by sending a letter to lenders.

The issue is one that the banking industry says has arisen frequently in recent years with borrowers who are in default on their mortgages and are facing foreclosure.

The Supreme Court ruling is a victory for Larry and Cheryle Jesinoski, who in 2007 refinanced their Eagan, Minnesota, home for $611,000 with Countrywide Home Loans Inc., now part of Bank of America Corp. (BAC)

[BLOOMBERG]

FORBES-

California regulators are seeking to suspend the mortgage license of Ocwen Financial, after the servicing giant did not adequately respond to repeated information requests into its compliance with the state’s Homeowner Bill of Rights. Suspension proceedings began in October, Tom Dresslar, a spokesperson for the California Department of Business Oversight told Forbes on Tuesday.

“Since the early part of last year, we have been asking Ocwen to provide the information we need to determine their compliance with the Homeowners Bill of Rights. They have repeatedly failed to comply with those requests,” Dresslar said. “At this point, we are seeking a suspension of their license. This matter is before an administrative law judge.”

After a series of complaints tied to Ocwen’s servicing of mortgages in California, state regulators began investigating the company to ensure its compliance with the California Homeowners Bill of Rights, a set of laws to protect against abusive foreclosure practices, in addition to the state’s Residential Mortgage Lending Act. According to a report from The Los Angeles Times, California examiners asked Ocwen to provide information on 1,320 mortgage loans under investigation. However, Ocwen repeatedly failed to respond.

[FORBES]

SUPREME COURT OF THE UNITED STATES

Syllabus

JESINOSKI ET UX.

v.

COUNTRYWIDE HOME LOANS, INC., ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 13–684. Argued November 4, 2014—Decided January 13, 2015

Exactly three years after borrowing money from respondent Countrywide Home Loans, Inc., to refinance their home mortgage, petitionersLarry and Cheryle Jesinoski sent Countrywide and respondent Bank of America Home Loans, which had acquired Countrywide, a letterpurporting to rescind the transaction. Bank of America replied, refusing to acknowledge the rescission’s validity. One year and one daylater, the Jesinoskis filed suit in federal court, seeking a declarationof rescission and damages. The District Court entered judgment onthe pleadings for respondents, concluding that a borrower can exercise the Truth in Lending Act’s right to rescind a loan, see 15 U. S. C. §1635(a), (f), only by filing a lawsuit within three years of the datethe loan was consummated. The Jesinoskis’ complaint, filed four years and one day after the loan’s consummation, was ineffective. The Eighth Circuit affirmed.

Held: A borrower exercising his right to rescind under the Act need only provide written notice to his lender within the 3-year period, not filesuit within that period. Section 1635(a)’s unequivocal terms—a borrower “shall have the right to rescind . . . by notifying the creditor . . . of his intention to do so” (emphasis added)—leave no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind. This conclusion is not altered by §1635(f), which states when the right to rescind must be exercised, but says nothing about how that right is exercised. Nor does §1635(g)—which states that “in addition to rescission the court may award relief . . . not relating to the righ to rescind”—support respondents’ view that rescission is necessarily a consequence of judicial action. And the fact that the Act modified the common-law condittion precedent to rescission at law, see §1635(b), hardly implies that the Act thereby codified rescission in equity. Pp. 2–5. 729 F. 3d 1092, reversed and remanded. SCALIA, J., delivered the opinion for a unanimous Court.

Bloomberg-

The U.S. Supreme Court dealt a blow to Royal Bank of Scotland Group Plc and Nomura Holdings Inc. (8604), refusing to derail federal government lawsuits that seek billions of dollars over the sale of risky mortgage-backed securities.

The justices today turned away an appeal by four banks, including units of RBS and Nomura, in a case stemming from the collapse of two credit unions that owned more than $1.7 billion in those securities.

High court review might have helped RBS fight off a separate suit by the Federal Housing Finance Agency over $32 billion in mortgage-backed securities. RBS now is likely to settle that case for at least $1.7 billion, according to Elliott Stein and Alison Williams, analysts with Bloomberg Intelligence. Nomura may settle a smaller FHFA lawsuit against it as well.

[BLOOMBERG]

Clouded Titles-

NO ONE GETS A FREE HOUSE!

That includes you too, Mr. Banker! If you can prove you own the mortgage and the note because you shredded (spoliated) or lost your paperwork, then you can’t foreclose. It’s that simple. Yet daily, judicial state courts are cutting corners by allowing manufactured “crap” to be entered as evidence with no questions asked. If you can even show bearer paper, whether you own the note or not, you seemingly get a “go pass” to take the house. This may not be the “norm” for much longer. Why? Because many Americans are waking up and the ones with money to fight are getting smarter. Knowledge is power folks and the reason I started Chain of Title Assessment Workshops up in the first place is to start the educational process into the “who, what, when, where and why” we are faced with this mortgage foreclosure dilemma in the first place.

The fact that homeowners and their attorneys do not rebut the foreclosure mill attorney’s slanderous comments made in court (i.e., “These people are deadbeats, your Honor!”; “These people just want a free house, your Honor!”, etc.) with, “Defendant’s counsel reserves the right to behave and make slanderous comments in the same manner as the Plaintiff’s (bank’s) counsel is doing!” shows a lack of chutzpah on the part of the foreclosure defense attorney. Further, if the judges are going to allow fraud to be committed upon their courts, then they should be unseated and not allowed to serve on the bench. A prime example of the type of action to reduce foreclosure tyranny was in the Florida court of Judge Diana Lewis (who was replaced by Jessica Tictin, a former foreclosure defense attorney) in the last election. Judges need to understand that when confronted with foreclosure issues (robosigning, fraudulent documents, notary fraud, computer-manipulated documentation, etc.) they need to allow discovery and thus stop attempting to “clear the dockets” in the name of judicial expediency. But then again, this is why we have appellate courts. This is why there is no free house. Anyone with equity in their home, especially substantial equity, can certainly understand why planning an appeal from the beginning is the most important part of the legal process. Just simply throwing claims of fraud on paper proves nothing without evidence. Retaining auditors to do various “independent examinations” of your records is NOT evidence either (and can and will be tossed out as evidence), because these audits and examinations rely on multiple sources which have to be deposed and this is where the fight in the civil realm can be costly.

read more [CLOUDED TITLES]

NY POST-

Ocwen may be getting rid of Chairman Bill Erbey, but not its problems.

The embattled mortgage servicer could face an onslaught of “legal actions” from state and federal regulators this year after the company admitted to a slew of internal problems that led to the downfall of its founder and chairman, according to a research report.

The legal pressure could come from as many as 49 state regulators, the Consumer Finance Protection Bureau and the monitor of the National Mortgage Settlement, Deutsche Bank analyst Ying Shen wrote in a Wednesday report.

[NEW YORK POST]

NEW YORK — Attorney General Eric T. Schneiderman today announced that the first loans have been closed in the New York State Mortgage Assistance Program (NYS MAP), bringing tangible relief to New York homeowners at immediate risk of losing their homes. NYS MAP provides loans to families who are struggling to avoid foreclosure by offering them a way, for example, to pay off back property taxes or a second mortgage – debts that have kept them from receiving a mortgage modification. With a MAP loan – of up to $40,000 – families are able to stay in their homes. The program is an enhancement to the Attorney General’s Homeowner Protection Program (HOPP), which provides struggling borrowers with free legal and housing counseling services, and has served more than 35,000 homeowners across the state since the launch of the program in October 2012.

“For families across New York, receiving a NYS MAP loan will means they are going to be approved for a mortgage modification and that they are going to be able to stay in their homes. It’s hard to imagine a better investment in our communities and homeowners who are continuing to struggle in the aftermath the foreclosure crisis,” Attorney General Schneiderman said. “We know that our Homeowner Protection Program has had real results, helping thousands of families keep their homes. I’m pleased that our Mortgage Assistance Program is now starting to send a lifeline to families in need.”

Using funds from the National Mortgage Settlement, the Attorney General launched NYS MAP in two stages, first opening up the program to families in Long Island in late September, and then to families across the rest of the state in mid-October. In just over three months, the program has received 146 applications from every corner of the state. This includes: 50 from New York City, 41 from Long Island, 14 from Monroe County and the surrounding area, 10 in the Hudson Valley, seven in the Capital Region, and four in Buffalo and the surrounding area. Since mid-November, NYS MAP has already been able to approve 26 loans, including nine on Long Island, six in Monroe County and the surrounding area, and five in New York City.

Azeez Ruheem Smith,who lives in Brentwood, Long Island, fell on hard times when his wife passed away from breast cancer — leaving him as the sole provider for his three children. When Smith suffered a temporary loss of employment, he fell behind on his mortgage and the bank moved to foreclose. Smith found his way to the Economic Opportunity Counsel, a HOPP provider in Suffolk County. The group helped him apply for a NYS MAP loan. The loan provided Smith with just over $17,000, enough to settle the mortgage arrears and terminate his foreclosure proceedings.

“Without the support of the Attorney General and the funding for HOPP and NYS MAP we would not be able to assist homeowners in such a meaningful and efficient way,” said Carol Yopp, a Senior Housing Counselor at Long Island Housing Partnership. “The fact that my client submitted his full application on November 20th and the loan was closed by December 15th proves just how nimble and effective this program is at keeping New York families in their homes.”

Mary Gammariello, of Rochester, NY, also defaulted on her mortgage loan because of mounting medical bills resulting from her cancer treatments, causing her to go into foreclosure. Once she got in touch with The Housing Council, she was able to apply to NYS MAP. Her $29,000 loan will pay off her mortgage loan in full, ensuring she can stay in her home.

While working to ameliorate the effects of housing crisis, Attorney General Schneiderman’s office discovered that many families were being denied mortgage modifications as a result of small outstanding debts. Even families with reliable income streams are often denied modifications because of outstanding debts, such as unpaid property taxes, a series of missed mortgage payments, or delinquent second- or third-mortgage liens that need to be satisfied before a first mortgage holder will grant a modification. By filling the gap for families, the NYS MAP program is empowering consumers to negotiate with their mortgage holders and ultimately remain in their homes.

Eligible loan uses include, but are not limited to, paying off arrears including mortgage payments or unpaid interests and fees; paying down second or third mortgages; satisfying property tax liens or other liens that might lead to loss of homeownership; and supplying borrowers with a “matching” fund to achieve principal reduction or other beneficial first lien modification terms.

Consumers are eligible to apply for loans of varying amounts, but not to exceed $40,000 per borrower, and the Attorney General anticipates that the program will have the capacity to disburse several hundred NYS MAP loans over the next 12 months. In all cases, a NYS MAP Loan will result in homeownership retention at the time the loan is made.

The Attorney General Program is working with the Center for New York City Neighborhoods (CNYCN), as well as the Empire Justice Center, to assist in the operations of NYS MAP. Both agencies are contracted by the Office of the Attorney General to assist with the administration of the HOPP and NYS MAP.

“Together with the Empire Justice Center and HOPP agencies across the state, we’ve launched a program that helps keep New Yorkers in their homes, and in their neighborhoods. A NYS MAP loan can make all the difference for a family fighting to keep their home,” said Christie Peale, Executive Director of the Center for NYC Neighborhoods. “If you’re behind on your mortgage, now is the time to act. Call the AG’s hotline and get high-quality help today.”

To access NYS MAP, homeowners will work with an existing HOPP counselor or legal aid provider to complete the application. The Attorney General’s office launched the website www.nysmap.org where prospective applicants can find out about the program and get connected to a HOPP lawyer or counselor. Consumers can also contact the New York Attorney General Consumer hotline at 855-HOME-456.

source: http://www.ag.ny.gov

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11111
________________________
D.C. Docket No. 2:11-cv-00938-AKK

CURTIS J. COLLINS,

Plaintiff-Appellant,

versus

EXPERIAN INFORMATION SOLUTIONS, INC.,
Defendant-Appellee.

________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(January 5, 2015)

Before MARTIN, JULIE CARNES and BLACK, Circuit Judges.

EXCERPT:

“Thus, by its plain terms, § 1681i(a) does not require communication to a third party; it provides a consumer reporting agency violates that provision if a consumer notifies the agency there is inaccurate information contained in his file and the agency does not conduct a reasonable reinvestigation into the matter. A file is simply the information retained by a consumer reporting agency. Thus, we hold that the plain language of the FCRA contains no requirement that the disputed information be published to a third party in order for a consumer to recover actual damages under § 1681i(a).”

[…]

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

DONALD WRIGHT JR. a/k/a
DONALD WRIGHT,
Appellant,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Morgan Stanley ABS Capital MSAC 2007-HE6, STATE OF FLORIDA, DEPARTMENT OF REVENUE, NATASHA A. COX, TANGELA MCINTOSH, UNKNOWN SPOUSE OF DONALD WRIGHT, JR, JOHN DOE, JANE DOE AS UNKNOWN TENANT(S) IN POSSESSION OF THE SUBJECT PROPERTY,
Appellees.

No. 4D13-3221

[January 7, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel Lazarus, Judge; L.T. Case No. CACE08033009.

Alexis Fields of the Ticktin Law Group, P.A., Deerfield Beach, for appellant.
Jeremy W. Harris, Masimba M. Mutamba, Khari E. Taustin, and Angela Barbosa Wilborn of Morris, Laing, Evans, Brock & Kennedy, CHTD, for appellee.

PER CURIAM.

We reverse the final judgment of mortgage foreclosure because Deutsche Bank (“the Bank”) did not establish that it had standing at the time it filed the complaint. A copy of the note attached to the complaint listed GE Money Bank as the lender. During trial, the Bank introduced the original note into evidence, which contained an undated endorsement in favor of the Bank by GE Money Bank. Darren Yassen, a representative of the Bank’s servicing agent, admitted that he did not know when the endorsement was placed on the note. The Bank did not present testimony from any other witnesses or present any evidence as to the date of the endorsement. Because the Bank did not present any evidence that it had standing at the inception of the lawsuit, reversal is warranted. See Boyd v. Wells Fargo Bank, N.A., 143 So. 3d 1128 (Fla. 4th DCA 2014); Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195 (Fla. 4th DCA 2012).

Reversed.

CIKLIN, GERBER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for New Century Home Equity Loan Trust Series 2005-C Asset Backed Pass Through Certificates,
Appellant,

v.

THERESA BOGLIOLI a/k/a Theresa Brunetto,
Appellee.

No. 4D13-2323

[January 7, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Kathleen Ireland, Judge; L.T. Case No. 08-63102 (11).

Elizabeth T. Frau and Christopher A. Ewbank of Ronald R. Wolfe & Associates, P.L., Tampa, for appellant.
Michael C. Klasfeld of Michael C. Klasfeld, P.A., Pompano Beach, for appellee.
PER CURIAM.

Appellant, Deutsche Bank, appeals the final judgment in favor of appellee, Theresa Boglioli, in a mortgage foreclosure action. Because appellant failed to present competent, substantial evidence at trial to prove it had standing at the time it filed the complaint, we affirm the final judgment.

Appellant filed with the trial court the original note bearing an undated, blank endorsement, an assignment of note bearing an undated, blank endorsement, and an assignment of mortgage executed after the date of the complaint for “value received” on a date prior to the filing of the complaint. At trial, appellant’s sole testifying witness was unable to testify as to when the note was endorsed, and failed to introduce a pooling and servicing agreement that she claimed was the method through which appellant acquired the assignment of note. The witness also acknowledged that the grantor of the assignments was in bankruptcy but did not know filed with the trial court the original note bearing an undated, blank endorsement, an assignment of note bearing an undated, blank endorsement, and an assignment of mortgage executed after the date of the complaint for “value received” on a date prior to the filing of the complaint. At trial, appellant’s sole testifying witness was unable to testify as to when the note was endorsed, and failed to introduce a pooling and servicing agreement that she claimed was the method through which appellant acquired the assignment of note. The witness also acknowledged that the grantor of the assignments was in bankruptcy but did not know the specifics of those proceedings. At the conclusion of trial, the circuit court granted appellee’s motion for a directed verdict, entering final judgment in favor of appellee upon finding that the alleged assignments to appellant were “during the pendency of the Granter’s bankruptcy and therefore of no force or effect.” The record on appeal does not contain competent, substantial evidence regarding the bankruptcy proceedings to support the trial court’s ruling. However, the evidence at trial failed to demonstrate that appellant had standing to foreclose at the time it filed suit. See Klemencic v. U.S. Bank Nat’l Ass’n, 142 So. 3d 983, 984 (Fla. 4th DCA 2014); Bristol v. Wells Fargo Bank, Nat’l Ass’n, 137 So. 3d 1130, 1132 (Fla. 4th DCA 2014); Vidal v. Liquidation Props., Inc., 104 So. 3d 1274, 1276-78 (Fla. 4th DCA 2013); Hall v. REO Asset Acquisitions, LLC, 84 So. 3d 388 (Fla. 4th DCA 2012). Accordingly, we affirm the final judgment under the “tipsy coachman” doctrine1 based on appellant’s failure to demonstrate it had standing to foreclose at the time it filed the complaint.

Affirmed.

CIKLIN, GERBER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

BRIAN KELLY a/k/a BRIAN K. KELLY,
Appellant,

v.

BANKUNITED, FSB,
Appellee.

No. 4D14-2359
[January 7, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Cynthia Imperato, Judge; L.T. Case No. CACE09-010729 (11).
Kirk J. Girrbach of Guardian Law Group of Florida, P.A., Fort Lauderdale, for appellant.
Gary M. Carman and Richard F. Danese of Gray Robinson, P.A., Miami, for appellee.
FORST, J.

Appellant Brian Kelly appeals the order denying his amended motion for attorneys’ fees in an underlying foreclosure action. We find merit in Appellant’s argument that, upon Appellee BankUnited’s voluntary dismissal of the underlying foreclosure action, Appellant is the prevailing party below for purposes of entitlement to attorneys’ fees under section 57.105(7), Florida Statutes. Accordingly, we reverse the trial court’s order.

Appellee filed a foreclosure complaint against Appellant for defaulting on a loan. Appellant filed an answer and affirmative defenses, including a request for the trial court to “award costs and reasonable attorney fees as provided by 15 U.S.C. 1640(a) & (e), Fla. Statutes, Section 57.105, and the mortgage and note, and such other relief as this Court deems just and proper.”

Final summary judgment was entered in favor of Appellee. Appellant filed an appeal of that judgment. During the pendency of the appeal, the subject property was sold to a third party by a short sale agreement entered into by Appellant and Appellee.1 Because of the short sale, Appellee moved to cancel the foreclosure sale, vacate the final summary judgment, dismiss the action, and return the original note and mortgage, which the trial court granted. However, neither party petitioned this court to dismiss Appellant’s appeal of the final summary judgment before attempting to dismiss the action below.

Over a year after the short sale, we reversed the order of final summary judgment and remanded the case to the trial court for rehearing on Appellee’s motion for summary judgment. Kelly v. BankUnited, FSB, 125 So. 3d 981 (Fla. 4th DCA 2013). On remand, Appellant moved for attorneys’ fees and costs in the trial court, arguing that he is the prevailing party in the case and entitled to fees under the terms of the mortgage document and section 57.105(7). Upon a magistrate’s recommendation, the trial court continued the motion until it could rehear Appellee’s motion for summary judgment pursuant to our mandate. In a separate order, the trial court recognized that Appellee had voluntarily dismissed the case because of the short sale agreement.

After a hearing on his original motion for attorneys’ fees, Appellant amended his motion and it again came before the court. The trial court denied Appellant’s amended motion, which is the subject of the instant appeal.

Generally, a trial court’s ruling on a motion for attorneys’ fees is reviewed for abuse of discretion; “[h]owever, where entitlement depends on the interpretation of a statute or contract the ruling is reviewed de novo.” Mihalyi v. LaSalle Bank, N.A., 39 Fla. L. Weekly D2269, at *1 (Fla. 4th DCA Oct. 29, 2014).

Initially, we note that Appellant’s request for fees in his answer to Appellee’s complaint was sufficient to place Appellee on notice of Appellant’s intent to seek attorneys’ fees in the action. See Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991). We also note that Appellee’s attempt to voluntarily dismiss the case in the trial court while the final summary judgment order was pending on appeal is a nullity and therefore does not factor in the analysis below. See Equibank, N.A. v. Penland, 330 So. 2d 739, 739-40 (Fla. 1st DCA 1976).

On the merits of whether Appellant was the prevailing party below for purposes of section 57.105, we find our recent decision in Mihalyi controlling. In that case, we held, “A plaintiff’s voluntary dismissal makes a defendant the ‘prevailing party’ within the meaning of subsection 57.105(7), even if the plaintiff refiles the case and prevails.” Mihalyi, 39 Fla. L. Weekly D2269, at *1; see also Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 919 (Fla. 1990) (“In general, when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party. A determination on the merits is not a prerequisite to an award of attorneys’ fees where the statute provides that they will inure to the prevailing party.” (internal citation omitted)).

As Appellee voluntarily dismissed the foreclosure action against Appellant on remand from the reversal of final summary judgment, Appellant is the prevailing party for purposes of section 57.105(7), which entitles him to attorneys’ fees and costs pursuant to the provisions in the mortgage document. Thus, we reverse the order denying Appellant’s motion for attorneys’ fees and remand for the trial court to grant the motion and conduct further proceedings as necessary.

Reversed and remanded with instructions.

LEVINE and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

ROSANIE JOSEPH,
Appellant,
v.

BAC HOME LOANS SERVICING, LP,
Appellee.

No. 4D12-4137

[January 7, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Diana Lewis, Judge; L.T. Case No. 502009CA025638.

Andrea H. Duenas of Law Office of A. Duenas, P.A., Lantana, and Brian K. Korte of Korte & Wortman, P.A., West Palm Beach, for appellant.
J. Randolph Liebler and Tricia J. Duthiers of Liebler, Gonzalez & Portuondo, Miami, for appellee.
WARNER, J.

A homeowner appeals a final judgment of foreclosure, arguing that the note and mortgage holder failed to prove its standing to foreclose at the time of the filing of the complaint. We agree that the plaintiff produced no evidence to show that it owned the note or mortgage on the date of the filing of the complaint. We thus reverse.

The homeowner executed a note and mortgage to Key Mortgage Associates in 2008. On July 21, 2009, Taylor, Bean & Whitaker Mortgage Corporation filed its complaint for foreclosure and attached the mortgage, but no note or assignments. Taylor Bean claimed the note was lost or stolen and sought to establish its terms. It alleged, however, that it owned the note. Subsequently, Taylor Bean transferred the note and mortgage to BAC Home Loans Servicing, LP and BAC was substituted as the party plaintiff into the foreclosure suit. The homeowner filed an answer alleging a lack of standing to file the foreclosure complaint.

After BAC dropped the count to reestablish the lost note, the parties proceeded to trial where BAC produced the original note and mortgage which contained the name of Key Mortgage Associates as the lender. There were no assignments entered into evidence. The note in evidence contained two endorsements on the last page. The first stated “pay to the order of Taylor, Bean & Whitaker Mortgage Corp.” and was signed by Erica Carter-Shaw as attorney-in-fact for Key Mortgage Associates. The second was an endorsement in blank also signed by Erica Carter-Shaw as “E.V.P.” of Taylor Bean. Importantly, neither of the endorsements on the note was dated. BAC’s representative testified at trial that he had no knowledge when the endorsements were signed and placed on the note. At the close of the plaintiff’s case, the homeowner moved for involuntary dismissal,1 contending that BAC had failed to prove the standing of Taylor Bean on the date the complaint was filed. The trial court denied the motion. After presentation of the defense, the court entered final judgment of foreclosure for BAC. From this judgment, the homeowner appeals.

A party must establish its standing to bring a mortgage foreclosure complaint by establishing an assignment or equitable transfer of the note and mortgage prior to instituting the complaint. McLean v. JP Morgan Chase Bank, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). Whether a party has standing to bring an action is a question of law to be reviewed de novo. Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC, 87 So. 3d 14, 16 (Fla. 4th DCA 2012).

The trial court erred in denying the motion for directed verdict, as BAC failed to prove that Taylor Bean had standing to bring the foreclosure proceeding on the date it filed the complaint. It did not present any evidence of when Taylor Bean came into possession of the note. In McLean, we pointed out that standing is determined at the time the lawsuit is filed. 79 So. 3d at 173. We explained that if a note does not name the plaintiff as payee, then it must bear a special endorsement in favor of the plaintiff or a blank endorsement. Id. Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff or proof of ownership to show its status as a holder of the note. Id. Even where an assignment of mortgage occurs after suit is filed, the plaintiff may establish standing to foreclosure at the inception of the suit by showing that the endorsement of the note occurred prior to the inception of the suit. Id. at 174. If the note or allonge shows on its face that the endorsement occurred before the filing of the complaint, that is sufficient. Moreover, if the note and mortgage are assigned, an equitable transfer may have occurred so that standing may be conferred.

In this case, however, BAC offered no proof as to when Taylor Bean was assigned the note and mortgage. The endorsement on the note was undated, no assignments of mortgage were introduced, and the bank representative had no knowledge of when Taylor Bean acquired the note and mortgage. Although BAC argues that its predecessor, Taylor Bean, had standing under section 673.3011(2), Florida Statutes, to enforce a negotiable instrument, we disagree that it proved such standing. That section allows enforcement by a “nonholder in possession of the instrument who has the rights of a holder.” Even assuming Taylor Bean was a loan servicer (as opposed to an owner of the note, as it alleged in its complaint), BAC still failed to prove that Taylor Bean acquired possession of the note prior to the filing of the foreclosure complaint.

Without proof of standing, BAC failed to prove its entitlement to foreclose as of the date of the filing of the complaint. The trial court erred in failing to direct involuntary dismissal of the complaint at the close of BAC’s case. We reverse for the trial court to enter such a dismissal.

Reversed and remanded with directions to vacate the final judgment and enter a dismissal of the complaint.
TAYLOR and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.

They ALL need to be shut down…ALL OF THEM. Funny how Goldman is pointing fingers especially after their “shitty deals”!

FORTUNE-

Goldman’s lead banking analyst said that JPMorgan could be worth 25% more than what it is today if it were broken up into four parts. Applying the same calculations and logic, maybe it should follow its own advice?

Goldman Sachs to JPMorgan Chase: Time to break up.

Goldman says that JPMorgan JPM -3.10% would be worth as much as 25% more if it were split into different pieces. Goldman advocates a “complete breakup” of the nation’s largest bank, and says the boost in returns from a split would far out weigh the synergies that JPMorgan claims it gets from its current size.

[FORTUNE]

Clouded Titles

Old news? Not really!

Despite the fact this video appears to have been aired in Orlando over 5 months ago, the impact of its topical conversation is certainly being felt on a national scale. See the video at the link below (you may have to copy and paste this link into your browser if it doesn’t work here):

http://www.wftv.com/videos/news/video-osceola-county-set-to-take-on-fraudulent/vCcNp4/

The auditor you saw featured in the video (Hector Acosta) ran “point” on the forensic examination, which was initially conducted from July 14, 2014 through July 18, 2014 and took five (5) months to process all of the information into a report nearly 800 pages in length. There will be a press conference held later in January to announce the findings of the report. As expected, they were troublesome. I will save the glory for the Clerk of the Circuit Court, Armando Ramirez, who is the first Clerk in the United States to take on such a task. This was not just a simple “audit” because in Florida, the Circuit Clerks of their respective court records also maintain all of the county real property records; thus, the task compared what each said about specific cases and how the recorded documents were utilized in the court filings to tie the mortgages together with the notes.

[CLOUDED TITLES]

9NewsNBC-

The Trustees office has over $1 million to return to former Denver homeowners whose houses sold for more money than was owed to lenders. The money comes from proceeds at foreclosure auctions above the amount owed to lenders by former homeowners.

If a house was sold to a third-party investor at The Denver Public Trustee’s auction, it is possible that the winning bid was for more than what the homeowner owed. This is called an “overbid” which results in excess funds. By Colorado statute, excess funds must be distributed.

The Denver Clerk’s office has amounts from overbids that range from $25 to over $240,000 for over 50 people. Overbids are happening primarily because of Colorado’s booming real estate market.

[9NEWS NBC]