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THIS WEBSITE IS FOR SALE

THIS WEBSITE IS FOR SALE

Greetings everyone,

After 9+ years, I am selling this site that is very well established. I feel the site is best suited for those who practice in defending homes i.e. attorney(s)/forensic auditors/debt consultants/non-profit/ etc.. Ultimately, I would like to find 1 or a group of attorneys that might want to pool in together from across the country. 1,000’s of hours have been carefully dedicated to what the site has grown to become today and for its historical participation of exposing the truth behind massive fraudulent paperwork.

Serious inquiries only. I will consider staying on to continue managing the website.

For more information, please email me at info@stopforeclosurefraud.com

 

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in featured, STOP FORECLOSURE FRAUD4 Comments

AFTER 9.5 YEARS … TIME TO SAY GOODBYE

AFTER 9.5 YEARS … TIME TO SAY GOODBYE

After 9.5 years it’s time to say goodbye. This will be the final post and will be shutting down on or before July 18, 2019.

I thank all of you who have followed this website.

~

Be Well.

Damian

 

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD15 Comments

TFH 7/7 | What Every Homeowner Needs To Know About The Myths And Realities Of Truth-In-Lending Act (TILA) Rescission Rights As A Defense To Foreclosure

TFH 7/7 | What Every Homeowner Needs To Know About The Myths And Realities Of Truth-In-Lending Act (TILA) Rescission Rights As A Defense To Foreclosure

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

.

Sunday – July 7, 2019

What Every Homeowner Needs To Know About The Myths And Realities Of Truth-In-Lending Act (TILA) Rescission Rights As A Defense To Foreclosure

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There is perhaps no more important homeowner defense against foreclosure than the TILA right of rescission, yet at the same time no other consumer protection remedy has been the subject of more confusion and controversy in federal and state courts, as well among commentators.

It is little wonder then that homeowners as well as foreclosure defense attorneys and foreclosure judges remain uncertain with respect to many of the most significant TILA rescission related issues.

On today’s show John and I present an overview of the Truth-In-Lending Act, the reasons for the confusion, and discuss some of the most pressing issues in TILA litigation today in order to strengthen our listeners’ understanding and successful use of rescission as a superior foreclosure defense weapon, including an examination, time permitting, of the following topics:

1. The 1968 TILA statutory framework, its successes and failures, as drafted and amended, as a legislative disclosure enforcement strategy.

2. The TILA statutory right to rescind, 15 USC Section 1635, as amended and as enacted, and its many unanswered questions.

3. The difference between common law rescissions and TILA rescissions.

4. The labyrinth of the administrative decision making aftermath, usurping legislative powers, and the United States Supreme Court’s reaction to it.

5. The controversy surrounding how TILA rescission rights are initiated by borrowers.

6. The controversy surrounding how TILA rescission rights are voluntarily waived by borrowers.

7. The controversy surrounding how TILA rescission rights are voluntarily granted by creditors.

8. The controversy surrounding how TILA rescission rights are involuntary terminated by operation of law.

9. The controversy surrounding how TILA rescission rights are extended by state laws providing for rescission in recoupment.

10. The controversy surrounding how TILA rescission rights are proven in litigation.

Join John and me this Sunday, not only for a summary of existing TILA case law, but for an enhanced understanding of what to expect in future judicial interpretations of the applicability of the TILA rescission remedy that may impact many of our listeners’ foreclosure cases.

Gary

———————

GARY VICTOR DUBIN
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Email: gdubin@dubinlaw.net.

Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

Past Broadcasts

EVERY SUNDAY
3:00 PM HAWAII 
6:00 PM PACIFIC
9:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

The Foreclosure Hour 12

image: Video Hive

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Reg X Does Not Prevent Rescheduling a Foreclosure Sale

Reg X Does Not Prevent Rescheduling a Foreclosure Sale

Consumer Financial Services LAW MONITOR –

The Eleventh Circuit’s most recent decision regarding Regulation X, 12 C.F.R. § 1024.1, et seq., of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601, et seq., will come as a relief to mortgage lenders and borrowers alike—although not to the individual plaintiff in Landau v. RoundPoint Mortgage Servicing Corp. Relying on the plain language of Regulation X and the consumer-protection purpose of RESPA, the Court held that a mortgage servicer is not prevented from rescheduling a previously-ordered foreclosure sale while considering a borrower’s loss-mitigation application.

Factual Background

After Rachel Landu’s mortgage became seriously delinquent, her lender filed a foreclosure action in Florida state court. In February 2016, the lender obtained a final judgment, and the court scheduled the foreclosure sale for June 2, 2016. Then, RoundPoint began servicing the loan and offered Landu a trial mortgage modification.

After Landu accepted, the original lender moved to reschedule the foreclosure sale, explaining that the loan was now “in active loss mitigation.” Landu promptly filed suit, arguing that the motion to reschedule the foreclosure sale violated both Regulation X and the Fair Debt Collection Practices Act.

[Consumer Financial Services LAW MONITOR]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Veteran files suit against Nationstar Mortgage after home placed in foreclosure

Veteran files suit against Nationstar Mortgage after home placed in foreclosure

West Virginia Record-

A veteran residing in Charleston alleges that a mortgage servicer failed to modify a loan and placed his home into foreclosure.

John T. Baldy II filed a complaint in Kanawha Circuit Court against Nationstar Mortgage LLC, doing business as Mr. Cooper, alleging breach of contract and other counts.

The suit states that the plaintiff obtained a Veterans Administration loan for the purchase of a home on March 29, 2006. The plaintiff was married when he secured the loan but in 2007, the suit states the couple divorced. The plaintiff alleges the servicing and loan were assigned to the defendant in 2015.

The plaintiff alleges he experienced a hardship in 2017 that made it difficult to pay the loan and in September 2017, the defendant offered a loan modification that he accepted. He alleges the defendant breached the agreement and refused to modify the loan and that the defendant insisted the plaintiff’s ex-wife’s signature was needed on the modification documents. The plaintiff alleges there is no requirement in the law or contract for his ex-wife’s signature because she has no interest in the property.

[WEST VIRGINIA RECORD]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Wells Fargo Bank, N.A. v. Pierce | Hawaii ICA – there is a genuine issue of material fact as to whether Wells Fargo was entitled to enforce the subject Note at the time this foreclosure action was commenced… the Circuit Court’s summary judgment ruling in favor of Wells Fargo must be vacated.

Wells Fargo Bank, N.A. v. Pierce | Hawaii ICA – there is a genuine issue of material fact as to whether Wells Fargo was entitled to enforce the subject Note at the time this foreclosure action was commenced… the Circuit Court’s summary judgment ruling in favor of Wells Fargo must be vacated.

Congratulations to DUBIN LAW OFFICES!

CAAP-17-0000553sdo by DinSFLA on Scribd

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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TFH 6/30 | What Every Homeowner Needs To Know About Surviving In Foreclosure Court (originally broadcast on November 8, 2015)

TFH 6/30 | What Every Homeowner Needs To Know About Surviving In Foreclosure Court (originally broadcast on November 8, 2015)

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

.

Sunday – June 30, 2019

What Every Homeowner Needs To Know About Surviving In Foreclosure Court (originally broadcast on November 8, 2015)

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Foreclosure system personnel, including judges and their law clerks, continue to fail to understand that the average or above average, even well educated homeowner, is bewildered by often archaic and unexplained foreclosure processes and procedures.

The result is frequently a complete breakdown in civil justice, not only interfering with securing just results in foreclosure court, but also triggering an aftermath of disrespect for the entire American legal system.

On today’s show we focus, time permitting, on what really controls in foreclosure litigation, and how homeowners with that improved knowledge might be better prepared, having as a result an increased chance of surviving in foreclosure court.

We therefore briefly identify in checklist form set forth below at least 25 dominant areas of acquired knowledge guaranteed to increase survival rates in foreclosure court for our listeners, every one of which topics could easily justify its own one hour radio show, many of which in fact have already been examined in depth on our past broadcasts posted in the archives section of our website.

1. Understanding and adjusting to the fact that you are not welcome in foreclosure court and the reasons why.

2. Understanding that foreclosure litigation is insanely expensive and why you need to marshal your financial resources from family and friends and retirement funds to survive foreclosure unless you no longer want to keep your home.

3. Understanding why you need a lawyer to survive in foreclosure court and how much a competent foreclosure defense attorney costs.

4. Understanding how to and how not to find a competent foreclosure defense attorney.

5. Understanding how and why you must research the reported (published and unpublished) foreclosure opinions that your foreclosure judge has written in past cases.

6. Understanding how and when you may need to research and seek to disqualify your foreclosure judge based on appearances of ethical impropriety.

7. Understanding what summary judgment hearings are all about and how you can defeat a lender’s summary judgment motion.

8. Understanding legendary frivolous foreclosure defenses such as those based on admiralty law and sovereignty, and why you should avoid them.

9. Understanding how loan modification applications impact foreclosure cases.

10. Understanding how to and how not to prepare legal motions and memoranda.

11. Understanding why judges do not and are ethically not allowed to read letters sent to them by pro se parties.

12. Understanding why the selection of various foreclosure defense strategies depends upon whether or not you have equity at risk in foreclosure court, and if so, how much equity there is in relationship to the market value of your property.

13. Understanding if you qualify for and how to secure a short sale to avoid a deficiency judgment.

14. Understanding how “cash for keys” works during and at the end of a foreclosure case.

15. Understanding how and when to appeal and if so how to make necessary record objections to support your appeal.

16. Understanding how and when a stay bond pending appeal can and should be requested and awarded.

17. Understanding specific foreclosure fraud defenses, such as those based on false appraisals, false loan applications, false notes, false mortgages, false mortgage assignments, false deeds of trust, false endorsements, false allonges, false notarization, and false deficiency judgments.

18. Understanding how to determine if an alleged original promissory note is genuine.

19. Understanding how to determine if a rubber stamp bearer note endorsement or allonge is genuine.

20. Understanding the impact of non-recourse default insurance on your foreclosure case.

21. Understanding the affirmative foreclosure defense of unjust enrichment.

22. Understanding the importance of discovering the contractual and the financial relationship between a foreclosing plaintiff and its loan servicers.

23. Understanding the importance of challenging and how to challenge loan general ledgers in foreclosure court.

24. Understanding why you need to audit a notary‘s licensure status.

25. Understanding why and in what circumstances the note follows the mortgage instead of the mortgage following the note.

Listen to this Sunday’s Foreclosure Hour, originally broadcast on November 8, 2015, yet prophetically fully applicable today, to increase your odds of surviving in foreclosure court.

Gary

———————

GARY VICTOR DUBIN
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Email: gdubin@dubinlaw.net.

Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

Past Broadcasts

EVERY SUNDAY
3:00 PM HAWAII 
6:00 PM PACIFIC
9:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

The Foreclosure Hour 12

image: Video Hive

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

‘It’s Starting to Look Political’: Appeals Court Reverses Attorney Fees for Homeowner in Foreclosure Case

‘It’s Starting to Look Political’: Appeals Court Reverses Attorney Fees for Homeowner in Foreclosure Case

The appellate panel found that because homeowner Farshadi Faramarz had argued U.S. Bank N.A. and Nationstar had no standing to sue him under the contract, that took away his right to fees from those parties under that same contract. The Fourth District Court of Appeals relied on Nationstar v. Glass, which has a shaky history.

LAW-

A homeowner who prevailed in a foreclosure case missed out on an award of $104,700 in attorney fees and costs Wednesday, when the Fourth District Court of Appeal reversed a trial court’s order allowing it.

The appellate panel found that because Farshadi Faramarz had used a lack of standing defense to get the lawsuit dismissed, that took away his right to fees.

Repeating a line from a previous opinion, the Fourth DCA stressed that “the borrower cannot have it both ways,” meaning they can’t claim the financial institution lacks standing, but then use contractual links to obtain attorney fees from that same plaintiff.

[LAW.COM]

 

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Maine Creates Mortgage Servicer Duty of Good Faith

Maine Creates Mortgage Servicer Duty of Good Faith

JDSUPRA-

Maine is joining the ranks of states whose requirements for mortgage servicers may exceed those of the CFPB’s Mortgage Servicing Rules.  Effective September 19, Senate Paper 415 (2019 Me. Laws 363) creates a mortgage servicer duty of “good faith,” meaning honesty in fact, and the observance of reasonable commercial standards of fair dealing.  This duty applies to the servicing of a residential mortgage (including in any related foreclosure action).  Further, the measure applies the duty to existing provisions of Maine law relating to the conduct of foreclosure mediation, permitting a court to impose sanctions on a servicer who fails to participate in good faith in mediation.

What Activities Are Covered?

“Servicing,” for purposes of the new requirement, means any combination of:

  • receiving a periodic payment from an obligor under the terms of an obligation, including an amount received for an escrow account;
  • making or advancing payments to the owner of an obligation on account of an amount due from the obligor under a mortgage servicing loan document or a servicing contract;
  • making a payment to the obligor under a home equity conversion mortgage or reverse mortgage;
  • evaluating the obligor for, or communicating with the obligor with respect to, loss mitigation;
  • collecting funds from a homeowner for deposit into, and making payments out of, an escrow account; and
  • taking any other action with respect to an obligation that affects the obligor’s payment or performance of the obligation or that relates to enforcement of the obligation.)

What Entities Are Covered?

While the duty of good faith applies broadly, certain entities are exempt.  For purposes of the new requirement, a “mortgage servicer” is a person responsible for:

  • receiving scheduled periodic payments from an obligor pursuant to the terms of a mortgage, including amounts for escrow accounts;
  • making or advancing payments to the owner of the loan or other third parties with respect to amounts received from the obligor pursuant to a loan servicing contract; and
  • evaluating obligors for loss mitigation or loan modification options.

The term includes a person that holds, owns, or originates a mortgage loan obligation if the person also services the obligation.  However, among others, the term does not include a “supervised financial organization,” a “financial institution holding company,” a “credit union service organization,” or a subsidiary of any such entity.  Accordingly, for purposes of the good faith requirement, the term is limited to non-depository entities (i.e., state-licensed servicers).

Penalties

The measure creates substantial penalties for a servicer’s failure to act in good faith.  A violation in connection with a foreclosure action may be remedied by dismissal or stay of the action, or by the imposition of other sanctions that the court deems appropriate for so long as the violation continues.  For violations more generally, an injured homeowner or obligor may recover actual damages and the costs and attorney’s fees incurred in bringing such an action.  Additionally, statutory damages of up to $15,000 are available if the servicer has engaged in a pattern or practice of violating the duty of good faith.  The measure further prohibits a servicer from charging a loan owner for, or adding to the amount of the obligation, any attorney’s fees or other costs incurred as the result of its violation of the duty of good faith.

[View source.]

[JDSUPRA]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Maui County Officials Consider Recruiting Miami Litigator Bruce Jacobs in Affordable Housing Fight

Maui County Officials Consider Recruiting Miami Litigator Bruce Jacobs in Affordable Housing Fight

DBR-

A Miami lawyer’s efforts to rectify and bring attention to the city’s affordable housing crisis are beginning to be noticed by public officials around the country.

Kelly King, who serves as council chairwoman in Hawaii’s County of Maui, has publicly expressed interest in retaining foreclosure defense attorney Bruce Jacobs in her own municipality’s efforts to hold banking institutions accountable for issuing predatory loans and causing an upsurge in foreclosures. On Thursday King sent a letter to Miami Commissioner Ken Russell commending Jacobs’ work as well as the city of Miami’s legal actions against Bank of America and Wells Fargo.

“Your efforts have helped local governments across the United States address issues relating to housing in their communities,” King wrote. She also cited Jacobs and Miami’s collaboration in the creation of a public fund dedicated toward affordable housing. As outlined in the city’s resolution establishing the Foreclosure Sanctions Affordable Housing Trust Fund, money for the account will be supplied by sanctions and awards granted to Jacobs against money lenders or their attorneys in foreclosure cases.

King’s letter referenced Maui County’s own legal scuffles with Bank of America and included a draft for a resolution forming a public fund similar to the one engineered by Jacobs and Miami.

[DAILY BUSINESS REVIEW]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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TFH 6/23 | The 68 Mostly Under Used Affirmative Defenses That Can Save Your Home From Foreclosure And You And Your Family From Eviction

TFH 6/23 | The 68 Mostly Under Used Affirmative Defenses That Can Save Your Home From Foreclosure And You And Your Family From Eviction

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

.

Sunday – June 23, 2019

The 68 Mostly Under Used Affirmative Defenses That Can Save Your Home From Foreclosure And You And Your Family From Eviction

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The importance of defensive pleadings is often overlooked by homeowners in foreclosure and by foreclosure defense attorneys.

In court, Pleadings consist of Plaintiff’s Complaint, the Defendant’s Answer including Affirmative Defenses, any Defendant’s Counterclaims and Defendant’s Cross-Claims against other Defendants and any Defendant’s Third-Party Complaints, and opposing Answers and Replies.

Today we concentrate on the many Affirmative Defenses that can be included in Defendant’s Answer that in individual foreclosure cases may be available to homeowners sued for foreclosure.

Affirmative Defenses are those sets of facts not contained in the Complaint that if proven will either diminish or completely block the foreclosure relief requested by the Plaintiff in the Complaint.

The pleading rules in different jurisdictions importantly differ, especially in federal courts which have abandoned “notice pleading” in favor of more detail demanding “plausibility pleading” requirements. Determine which pleading rules apply to your case.

However, in most but not all federal district courts, Affirmative Defenses are still governed by notice pleading standards, which means that in most state courts and in most federal district courts a homeowner need only to list by name without elaborating on his or her Affirmative Defenses.

All Affirmative Defenses relied upon by homeowner Defendants will need to be proven however in court during the duration of a foreclosure case, and generally Defendants have the burden of proof regarding Affirmative Defenses, which moreover if not plead in the Answer are generally considered waived.

Also, courts have the discretion generally to consider Affirmative Defenses as Counterclaims and Counterclaims as Affirmative Defenses despite how they may be formally labeled, and the burden of proof regarding some Affirmative Defenses is placed on the Plaintiff and not on the Defendant by statute or by caselaw, depending on the jurisdiction.

For all of the above reasons, it is important for homeowners sued for foreclosure or for eviction following a nonjudicial foreclosure to prepare their defense well in advance and to be as specific and as complete in their defensive pleadings.

That means that a foreclosure Defendant must carefully determine based on his or her facts which Affirmative Defenses fit his or her facts and can be proven perhaps with the aid of discovery before listing them in his or her Answer.

Several of the Affirmative Defenses overlap in their defensive scope, the better procedure being in such situations to list all that apply notwithstanding potential duplication.

Third-Party Complaints and how they might improve chances of defeating foreclosures will be the topic of a future Foreclosure Hour.

Listed before are at least 68 Affirmative Defenses available in most jurisdictions in defense against foreclosure, discussed, time permitting, on this Sunday’s radio broadcast.

1. Statute of limitations

2. Standing

3. Breach of contract

4. Promissory estoppel

5. Adhesion

6. Mutual mistake

7. Unilateral mistake

8. Breach of covenant of good faith and fair dealing

9. Unfair and deceptive acts and practices

10. Unconscionability

11. Illegality

12. In pari delecto

13. Breach of fiduciary duty

14. Unclean hands

15. Equitable estoppel

16. Coercion

17. Duress

18. Usury

19. Fraud

20. Fraud in the factum

21. Intentional misrepresentation

22. Negligent misrepresentation

23. Fraudulent concealment

24. Anticipatory breach and repudiation

25. Securities fraud

26. Unjust enrichment

27. Recoupment

28. Offset

29. Setoff

30. Failure of consideration

31. Force majeure

32. Merger doctrine

33. Restraint of trade

34. Improper venue

35. Lack of subject matter jurisdiction

36. Lack of personal jurisdiction

37. Parole evidence rule

38. Payment

39. Insufficiency of service of process

40. Release

41. Novation

42. Res judicata

43. Collateral estoppel

44. Undue influence

45. Discharge in bankruptcy

46. Lack of capacity

47. Lack of exhaustion of administrative remedies

48. Splitting of causes of action

49. Lack of consideration

50. Accord and satisfaction

51. Failure to mitigate damages

52. Lack of necessary parties

53. Lack of indispensable parties

54. Absence of contractual conditions precedent

55. Statute of frauds

56. Laches

57. Impossibility of performance

58. Waiver

59. Marital status discrimination

60. Truth in Lending Act (TILA) violations

61. Home Ownership and Equity Protection Act (HOEPA) violations

62. Racketeering Influenced and Corrupt Organizations Act (RICO) violations

63. Fair Debt Collection Practices Act (FDCPA) violations

64. Real Estate Settlement Procedures Act ( RESPA) violations

65. Home Equity Conversion Mortgage (HECM) violations

66. Attorney abandonment

67. Failure to state a claim upon which relief can be granted

68. All other affirmative defenses listed in all other pleadings in the case

Please join John and me this Sunday to learn, time permitting, about these largely overlooked foreclosure affirmative defenses, each of which can be further researched by our listeners by surfing the Internet.

The list of 68 Affirmative Defenses will be posted on our website www.foreclosurehour.com with the audio recording of this Sunday’s show shortly after this Sunday’s radio broadcast, heard live in Honolulu on KHVH-AM News Radio at 3:00 p.m., and heard live on the iHeart Radio App on the Internet at 6:00 p.m. Pacific Time and 9:00 p.m. Eastern Time (the audio of the live broadcast repeats on the IHeart Radio App immediately following the live broadcast).

Gary

———————

GARY VICTOR DUBIN
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Email: gdubin@dubinlaw.net.

Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

Past Broadcasts

EVERY SUNDAY
3:00 PM HAWAII 
6:00 PM PACIFIC
9:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

The Foreclosure Hour 12

image: Video Hive

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Wilmington Savings Fund Society v. Akehi | HAWAII ICA – DUBIN LAW OFFICES HAS BEAT THE POPE!!!

Wilmington Savings Fund Society v. Akehi | HAWAII ICA – DUBIN LAW OFFICES HAS BEAT THE POPE!!!

CAAP-18-0000477sdo by DinSFLA on Scribd

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Second Department Demonstrates Limitations to Distressed Real Estate Investors Litigating Foreclosures

Second Department Demonstrates Limitations to Distressed Real Estate Investors Litigating Foreclosures

Law-

A new development in real estate acquisitions from distressed homeowners involves investors approaching homeowners in foreclosure and offering to purchase the deed from the owner/mortgagor. After purchasing the deeds, investors have then chosen to litigate with the foreclosing banks on the merits of the mortgage in the hopes of settling for a lesser amount than the amount due or having the case dismissed which may result in the accelerated debt deemed time barred and the mortgage unenforceable. A recent decision in the Appellate Division, Second Department, Citimortgage v. Etienne, 2019 NY Slip Op 03564 (2d Dep’t 2019) shows the limits of the ability of a subsequent owner attempting to assert defenses personal to the original owner/mortgagor in a pending foreclosure proceeding. The decision is instructive to remind practitioners regarding “personal defenses” and standing of other parties to appeal decisions.

In Etienne, the borrower executed a promissory note in favor of the bank in 2009 which was secured by a mortgage against a property in Kings County. Default occurred in 2010. In November 2012, the borrower transferred title to the subject property to the defendant OKL Property Corp. The bank filed a foreclosure against the borrower and OKL in 2012. The borrower filed an answer denying the allegation in the complaint and asserted several defenses, including lack of standing and failure to comply with the notice requirements in RPAPL 1304. OKL filed an answer asserting that it was the record owner of the premises and asserted that the plaintiff lacked standing to commence the action as their second affirmative defense. Etienne, at 1 and 2.

The plaintiff moved for summary judgment and an order of reference. The former owner and borrower on the note, Etienne, did not oppose the plaintiff’s motion. The subsequent owner, OKL, opposed the plaintiff’s motion and cross-moved for summary judgment dismissing the complaint on the grounds that the plaintiff lacked standing to commence the proceeding as well as that plaintiff failed to comply with the notice requirements of RPAPL 1304. In an order issued in May 2016, the court granted the plaintiff’s motion for summary judgment and an order of reference and denied OKL’s cross motion. OKL appealed the judgment. Etienne, at 2.

[LAW.COM]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Nonjudicial Foreclosure Not Regulated by the FDCPA

Nonjudicial Foreclosure Not Regulated by the FDCPA

JD Supra-

On March 20, 2019, the U.S. Supreme Court ruled unanimously in Obduskey v. McCarthy & Holthus LLP, 17-1307, 2019 WL 1264579 (U.S. Mar. 20, 2019), that nonjudicial foreclosure is not subject to regulation under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (the “FDCPA”).

The FDCPA applies to a “debt collector,” which is defined in section 1692a(6) as any person or entity who “regularly collects or attempts to collect, directly or indirectly, debts owed . . . or due another.” Section 1692a(6) provides that the “term [debt collector] also includes any person who uses [the mail or interstate commerce] in any business the principal purpose of which is the enforcement of security interests.”

Another section of the FDCPA, section 1692f(6), governs the conduct of a debt collector in repossessing property nonjudicially. Although section 1692f(6) applies to nonjudicial foreclosure, it does not impose all of the FDCPA’s regulations on those who merely enforce security interests. Instead, section 1692f(6) prohibits only certain activities, such as threatening to repossess without any intention of actually doing so, or in cases when the party threatening to repossess has no right to do so.

In Obduskey, a lender retained a law firm to conduct a nonjudicial foreclosure on Colorado residential property after the homeowner defaulted on the mortgage secured by the property. In response to the foreclosure notice, the homeowner attempted to invoke rights under section 1692h, which obligates a debt collector to “cease collection” activities until it provides the debtor with a “verification of the debt.” The law firm proceeded with the nonjudicial foreclosure and the homeowner sued in federal court, claiming that the law firm failed to comply with the FDCPA’s verification procedure. The district court dismissed the complaint on the ground that the law firm was not a debt collector within the meaning of the FDCPA. The U.S. Court of Appeals for the Tenth Circuit affirmed on appeal, holding that merely enforcing a security interest through nonjudicial foreclosure is not governed by the FDCPA.

[JDSUPRA]

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Posted in STOP FORECLOSURE FRAUD0 Comments

Deutsche Bank Faces Criminal Investigation for Potential Money-Laundering Lapses, Including Jared Kushner Linked Transactions

Deutsche Bank Faces Criminal Investigation for Potential Money-Laundering Lapses, Including Jared Kushner Linked Transactions

NYT-

Federal authorities are investigating whether Deutsche Bank complied with laws meant to stop money laundering and other crimes, the latest government examination of potential misconduct at one of the world’s largest and most troubled banks, according to seven people familiar with the inquiry.

The investigation includes a review of Deutsche Bank’s handling of so-called suspicious activity reports that its employees prepared about possibly problematic transactions, including some linked to President Trump’s son-in-law and senior adviser, Jared Kushner, according to people close to the bank and others familiar with the matter.

The criminal investigation into Deutsche Bank is one element of several separate but overlapping government examinations into how illicit funds flow through the American financial system, said five of the people, who were not authorized to speak publicly about the inquiries. Several other banks are also being investigated.

[NEW YORK TIMES]

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Blair v. EMC MORTGAGE, LLC | Ind: Court of Appeals – EMC waited an unreasonable time to accelerate its Note and Mortgage. By doing so and by failing to make demand within a reasonable time, its rights are time-barred.

Blair v. EMC MORTGAGE, LLC | Ind: Court of Appeals – EMC waited an unreasonable time to accelerate its Note and Mortgage. By doing so and by failing to make demand within a reasonable time, its rights are time-barred.

 

Dean Blair and Paula Blair, Appellants/Cross-Appellees-Defendants/Counterclaimants,
v.
EMC Mortgage, LLC., Appellee/Cross-Appellant-Plaintiff/Counterclaim Defendant.

No. 18A-MF-808.
Court of Appeals of Indiana.
June 12, 2019.
Appeal from the Vanderburgh Superior Court Trial Court Cause No. 82D07-1207-MF-3333, The Honorable Richard G. D’Amour, Judge.

Robert R. Faulkner, Evansville, Indiana, Attorney for Appellants.

David J. Jurkiewicz, Nathan T. Danielson, Christina M. Bruno, Bose McKinney & Evans LLP, Indianapolis, Indiana, Attorneys for Appellee.

KIRSCH, Judge.

Dean and Paula Blair (“the Blairs”) appeal the trial court’s order that foreclosed their interest in two mortgaged properties and that entered a money judgment for EMC Mortgage, LLC (“EMC”). The Blairs raise eight issues, but we reach only one: whether the trial court erred in granting only partial relief to the Blairs on their statute-of-limitations defense.[1]

On cross appeal, EMC raises one issue: whether the trial court erred in not entering summary judgment for EMC where the Blairs’ request for more time to respond to EMC’s motion for summary judgment was not timely.

We reverse.

Facts and Procedural History

On December 21, 1992, the Blairs signed a promissory note in the principal amount of $110,300.00 in favor of United Companies Lending Corporation (“UCLC”) (“the Note”). Appellants’ App. Vol. 2 at 57-60. The Note contained an optional acceleration clause, which allowed UCLC to decide whether to accelerate the loan balance following a default. Id. at 58. The Note was secured by a mortgage (“the Mortgage”) on two properties, one at 916 Wortman Road, Evansville, Indiana and the other at 2237 Herbert Avenue, Evansville, Indiana. Id.at 62; Tr. Vol. II at 23-24. The Mortgage gave UCLC the option to accelerate the Mortgage upon default of the Note. Appellants’ App. Vol. 2 at 64-65. On November 17, 1993, the Blairs sued UCLC and its agent, John Ash (“Ash”), alleging breach of contract and various torts, including fraud and intentional infliction of emotional distress (“the Ash lawsuit”). Appellants’ App. Vol. 3 at 15-23, 95.

The monthly installment payment on the Note was $1,469.36. Tr. Vol. II at 48-49. After making regular payments on the Note for approximately two-and-one-half years, the Blairs defaulted, making their last payment on June 19, 1995. Id. at 35-36. On August 27, 1997, the Blairs filed a Chapter 13 bankruptcy case (“the Blair Bankruptcy”), which automatically stayed the Ash lawsuit. Appellants’ App. Vol. 3at 24. On December 16, 1997, the bankruptcy court lifted the bankruptcy stay as to UCLC, allowing it to proceed with its foreclosure action in state court. Id. at 24-25. On October 31, 1998, the trial court in the Ash lawsuit granted UCLC leave to file its counterclaim for foreclosure against the Blairs. Id. at 96.

UCLC filed for Chapter 11 bankruptcy on March 1, 1999 (“the UCLC bankruptcy”). Id. at 28; 96-97. On July 20, 2000, the Note and Mortgage were assigned to EMC. Appellants’ App. Vol. 2 at 67. About six weeks later, on September 23, 2000, the bankruptcy court entered an order approving an asset purchase agreement involving many of UCLC’s assets, including the Note and Mortgage in this case. Id.at 106-11. When EMC bought the Note and Mortgage on September 23, 2000, the Ash lawsuit and the Blair bankruptcy were still pending. Id. at 95-99. On October 2, 2003, the Blairs obtained their bankruptcy discharge. Appellants’ App. Vol. 3 at 78.

Meanwhile, Ash failed to appear in the Ash lawsuit to contest his liability, and on March 14, 2007, the Blairs obtained a default judgment against him for $300,000.00. Id. at 97-98, 126. Although it had purchased the Note from UCLC in 2000, EMC was never named as a defendant in the Ash lawsuit. Id. at 95-99. On June 19, 2007, six years after the Note and Mortgage were assigned to EMC, EMC recorded the assignments. Appellants’ App. Vol. 2 at 67.

On June 18, 2009, nearly six years after the Blairs received their bankruptcy discharge, EMC sought to reopen the Blairs’ bankruptcy by filing a “Complaint for Declaratory Judgment,” asking the bankruptcy court to clarify the extent, validity, and priority of EMC’s lien, as well as the impact of the Blairs’ partial bankruptcy discharge on EMC’s ability to collect the indebtedness due under the Note and Mortgage. Appellants’ App. Vol. 3 at 75.

On January 6, 2012, EMC and the Blairs filed a Joint Stipulation and Joint Motion to dismiss EMC’s Complaint for Declaratory Judgment, stipulating the following:

a. The lien provided for by the terms of the Mortgage survives and is unaffected by the Blair Bankruptcy;

b. The Note and Mortgage at issue herein were not discharged in the [Blair] Bankruptcy;

. . .

e. There has been no determination in the Blair Bankruptcy if EMC Mortgage is the true party in interest as it relates to the enforcement of the Note and Mortgage[.]

Id. at 84-85.

JPMorgan Chase Bank, N.A. (“Chase”) began servicing the loan for EMC on April 1, 2011, and, three days later sent the Blairs a default notice. Pl.’s Ex. 4 at 52. The notice gave the Blairs an opportunity to cure their loan defaults and informed them that the entire loan balance would be accelerated, and foreclosure proceedings would begin if the Blairs did not do so. Id. at 53.

On July 5, 2012, EMC filed its foreclosure lawsuit. Appellants’ App. Vol. 2 at 5, 50. EMC sought a personal judgment against the Blairs for the outstanding principal balance, interest, attorney fees, expenses, and costs and a judgment declaring that EMC’s Mortgage is a valid and enforceable first priority lien against the mortgaged properties. Id. at 52-53.

On September 27, 2012, the Blairs filed their answer to the complaint and raised affirmative defenses and counterclaims. The Blairs alleged that the assignment of the Note and Mortgage from the original lender, UCLC, to EMC was void because the assignment occurred almost two months before the bankruptcy court authorized the sale of UCLC’s assets to EMC:

According to Exhibit 1 to the EMC bankruptcy complaint, UCLC assigned the note and mortgage . . . almost two months prior to the date of the only order of the UCLC Delaware Bankruptcy Court which could have approved the transfer.

. . . .

Even if UCLC had ever been the real party in interest, its attempted transfer to EMC is void because, at the time it was made, it had not been authorized by the Delaware Bankruptcy Court.

Id. at 73, 75.

On May 1, 2014, EMC filed a motion for summary judgment on its complaint and the Blairs’ counterclaim with supporting designated evidence and supporting brief. Appellants’ App. Vol. 2 at 9; Appellee’s App. Vol. II at 3, 7, 29. Neither EMC’s motion for summary judgment, nor its supporting brief addressed the Blairs’ counterclaim that UCLC’s assignment of the Mortgage and the Note was void because it was made two months before the bankruptcy court approved the sale of UCLC’s assets to EMC. Appellee’s App. Vol. II at 7-28.

On June 4, 2014, the trial court made a docket entry indicating that the Blairs had failed to file a timely response to EMC’s motion for summary judgment and that summary judgment was granted to EMC. Appellants’ App. Vol. 2 at 9. On June 5, 2014, the Blairs filed a motion seeking additional time to respond to EMC’s May 1, 2014 summary judgment motion. Id. Despite previously indicating that EMC was granted summary judgment, the trial court, on June 5, 2014, granted the Blairs’ request for more time to respond to EMC’s motion for summary judgment. Id. at 10. On June 12, 2014, EMC tendered a proposed summary judgment order, but the trial court did not enter it. Id. On December 18, 2014, the Blairs filed their response to EMC’s motion for summary judgment and filed their own motion for summary judgment. Id. at 12. On the same day, the trial court gave leave to the Blairs to amend their answer by interlineation, allowing the Blairs to raise a statute-of-limitations defense. Id. at 12, 131. On January 27, 2016, the trial court denied both motions for summary judgment. Id. at 15.

On June 16, 2016, EMC filed an in rem motion for summary judgment, together with supporting designated evidence. Id. at 18. On August 18, 2016, the Blairs filed their (1) response to EMC’s in rem summary judgment motion, and (2) their own motion for summary judgment, together with a supporting designation of evidence. Id. at 19.

On October 6, 2016, the trial court entered an order holding that EMC’s complaint was barred by the applicable statute of limitations. Id. at 134-72. The order also denied the Blairs’ motion for summary judgment. On November 7, 2016, EMC filed a motion to correct error. Id. at 20. On February 3, 2017, the trial court granted the motion, thus reversing its ruling on the statute of limitations issue and setting the matter for trial. Id. at 21.

The trial court conducted a bench trial on January 2, 2018. Tr. Vol. II at 1. Albert Smith, Jr. (“Smith”), a mortgage banking research officer for Chase, was the sole witness to testify on behalf of EMC. Id. at 15-64; 119-22. Smith testified that as of December 7, 2017, the total payoff amount for the Note was $493,333.81. Id. at 34.

Smith also testified that EMC sought clarification about the status of the loan by filing a declaratory action in the Blair Bankruptcy case. Id. at 29. EMC filed that action on June 18, 2009, almost six years after the Blairs received their partial discharge in bankruptcy court. Appellants’ App. Vol. 3 at 75. Smith did not explain why EMC waited six years after the Blairs’ partial bankruptcy discharge to seek such clarification.

On March 7, 2018, the trial court issued its final order. The court granted partial relief to the Blairs on their statute of limitations defense. The court ruled that EMC’s July 5, 2012 complaint violated the ten-year statute of limitations in Indiana Code section 34-11-2-11 for installment payments and unpaid interest that accrued before July 3, 2002, and for the escrow payments that EMC advanced before July 3, 2002. Appellants’ App. Vol. 2 at 42. As to the Note, the court ruled that EMC’s complaint violated the six-year statute of limitations in Indiana Code section 34-11-2-9 for delinquent payments before July 3, 2006. Id. at 43.

To the degree that the trial court denied the Blairs’ statute-of-limitations defense, it rejected the Blairs’ claim that EMC did not invoke the acceleration clause in a reasonable time:

Indiana law is clear that “if an installment loan contract or promissory note has an optional acceleration clause, . . . a creditor may (but is not required) to declare all future installments on the loan immediately due and payable after a debtor’s default.” Smither v. Asset Acceptance, LLC, 919 N.E.2d 1153, 1160 (Ind. Ct. App. 2010). Furthermore, the Note in this case explicitly provides that, “Even if, at time a time which I [Borrower] am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have a right to do so if I am in default at a later time.” Note, ¶ 6(D).

. . . .

And while it is true that “`a party is not at liberty to stave off operation of the statute [of limitations] inordinately by failing to make demand,” Smither v. Asset Acceptance, LLC, 919 N.E.2d 1153, 1160 (Ind. Ct. App. 2010) (quoting Curry v. U.S. Small Bus. Admin., 679 F. Supp. 966, 969-70 (N.D. Cal. 1987), a person who fails to exercise an optional acceleration clause on an installment contract (where demand is not necessary to perfect a cause of action) is not “stav[ing] off operation of the statute of limitations . . .” Id. Rather, the statute of limitations begins to run on each individual installment as it becomes due, just as it would in any other installment contract absent acceleration.

Id. at 38-39.

The March 7, 2018 final order entered judgment for EMC on the Mortgage in the amount of $193,359.00 plus prejudgment and post-judgment interest, attorney fees, and costs and entered judgment on the Note for EMC in the amount of $76,758.00 plus prejudgment and post-judgment interest, plus attorney fees and costs. Id. at 45. It also foreclosed the Mortgage and ordered a sheriff’s sale for both the Herbert Avenue and Wortman Road properties. Id. The Blairs now appeal, and EMC cross-appeals.

Discussion and Decision

I. EMC’s Cross Appeal

We first address EMC’s cross appeal because it raises a potentially dispositive issue. EMC argues that the trial court should have abided by its June 4, 2014 entry, which entered summary judgment for EMC because the Blairs failed to file a timely request for more time to respond to EMC’s motion for summary judgment. EMC argues that, by allowing the case to proceed, the trial court violated a bright line rule that states that a trial court shall enter summary judgment for the movant when the non-movant fails to file a timely response or a timely request for more time to file a response. EMC concedes, however, that this bright line rule comes into play only when the movant has made a prima-facie showing that it is entitled to summary judgment. The Blairs respond that their request for more time to respond to EMC’s motion for summary judgment was timely because EMC served its motion to the wrong zip code and because the envelope in which EMC served its motion was post-marked five days later than the service date.

Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is appropriate when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. On review of a trial court’s decision to grant or deny summary judgment, this Court applies the same standard as the trial court. We must determine whether there is a genuine issue of material fact requiring trial, and whether the moving party is entitled to judgment as a matter of law. Neither the trial court nor the reviewing court may look beyond the evidence specifically designated to the trial court.

A party seeking summary judgment bears the burden to make prima facie showing that there are no genuine issues of material fact and that the party is entitled to judgment as a matter of law. Once the moving party satisfies this burden through evidence designated to the trial court pursuant to Trial Rule 56, the nonmoving party may not rest on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial.

Coffman v. PSI Energy, Inc., 815 N.E.2d 522, 526 (Ind. Ct. App. 2004) (emphasis added) (internal citations omitted). If the non-movant fails to meet its responsive burden, a trial court shall enter summary judgment. Sheehan Constr. Co. v. Cont’l Cas. Co., 938 N.E.2d 685, 689 (Ind. 2010). “[A] party who fails to bring an interlocutory appeal from the denial of a motion for summary judgment may nevertheless pursue appellate review after the entry of final judgment.” Keith v. Mendus, 661 N.E.2d 26, 35 (Ind. Ct. App. 1996).

After a summary judgment motion is filed, “[a]n adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits.” Ind. Trial Rule 56(C). The trial court may alter the time limits set forth in Trial Rule 56 “[f]or cause found . . . upon motion made within the applicable time limit.” Ind. Trial Rule 56(I). When service is accomplished by mail, three calendar days are added to an adverse party’s response deadline. Ind. Trial Rule 6(E).

EMC is correct that courts have no discretion to alter the time limits of Trial Rule 56, and courts cannot consider summary judgment filings made after the expiration of the time limitations set forth in Trial Rule 56. See Borsuk v. Town of St. John,820 N.E.2d 118, 123 n.5 (Ind. 2005) (“When a nonmoving party fails to respond to a motion for summary judgment within 30 days by either filing a response [or] requesting a continuance . . ., the trial court cannot consider summary judgment filings of that party subsequent to the 30-day period.”); see also Desai v. Croy, 805 N.E.2d 844, 848-49 (Ind. Ct. App. 2004). Thus, EMC contends that, because the Blairs did not file a timely response and because it made a prima-facie showing in its motion for summary judgment, the trial court should have adhered to its June 4, 2014 entry that EMC was entitled to summary judgment.

Here, we find that EMC was not entitled to summary judgment because it failed to make a prima-facie showing that summary judgment was proper. EMC failed to make this showing both here on appeal and in its motion, supporting brief, and designated evidence filed in the trial court. On appeal, EMC asserts that it made a prima-facie showing in the trial court, but its appellate brief does not summarize the claims in its foreclosure complaint, describe the allegations in its motion for summary judgment, point to relevant designated evidence, or make a legal argument as to why it was entitled to judgment as a matter of law. EMC’s appellate brief also fails to discuss the Blairs’ affirmative defenses and counterclaims upon which EMC also sought summary judgment. As a result, EMC fails to satisfy its burden to make a cogent argument in support of its claim that the trial court should have entered summary judgment for EMC. Thus, EMC has waived this issue. See Basic v. Amouri, 58 N.E.3d 980, 984 (Ind. Ct. App. 2016).

Waiver notwithstanding, EMC’s motion for summary judgment, supporting brief, and designating materials did not establish a prima facie case that EMC was entitled to summary judgment. Its motion and supporting materials did not address the Blairs’ counterclaim that the assignment of Mortgage and Note from UCLC to EMC was void.

The Blairs’ counterclaim alleged:

According to Exhibit 1 to the EMC bankruptcy complaint, UCLC assigned the note and mortgage . . . almost two months prior to the date of the only order of the UCLC Delaware Bankruptcy Court which could have approved the transfer.

. . . .

Even if UCLC had ever been the real party in interest, its attempted transfer to EMC is void because, at the time it was made, it had not been authorized by the Delaware Bankruptcy Court.

Appellants’ App. Vol. 2 at 73, 75. Thus, because EMC did not make a prima-facie showing that it was entitled to summary judgment on the Blairs’ counterclaim, the burden did not shift to the Blairs to designate facts demonstrating the existence of a genuine issue for trial and to demonstrate that EMC was not entitled to judgment as a matter of law. See Coffman, 815 N.E.2d at 526. Hence, the question of whether the Blairs’ request for more time to respond to the motion for summary judgment was timely was irrelevant.

II. The Blairs’ Appeal

The trial court’s March 7, 2018 final order made specific findings of fact and conclusions thereon. In reviewing such an order, we apply a two-tiered standard of review, determining whether (1) the evidence supports the findings, and (2) the findings support the judgment. See Sullivan Builders & Design, Inc. v. Home Lumber of New Haven, Inc., 834 N.E.2d 129, 134 (Ind. Ct. App. 2005). We will set aside the trial court’s findings only if they are clearly erroneous. Id. A finding is clearly erroneous only if no facts in the record support the finding either directly or by inference. Id. We do not reweigh the evidence, and we consider the evidence most favorable to the judgment, drawing all reasonable inferences in favor of the judgment. Id. We need not defer to the trial court’s conclusions of law, however, and a judgment is clearly erroneous if it relies on an incorrect legal standard. See Freese v. Burns, 771 N.E.2d 697, 701 (Ind. Ct. App. 2002).

The Blairs argue that EMC’s foreclosure action is barred by the applicable statutes of limitations because EMC did not accelerate the Note and Mortgage within a reasonable time. The statute of limitations on a note is six years from the date that the cause of actions accrues, and the statute of limitations on a mortgage is ten years from the date the cause of action accrues. See Ind. Code § 34-11-2-9; Ind. Code § 34-11-2-11. The Blairs observe that EMC filed its 2012 foreclosure action approximately seventeen years after the Blairs made their last payment in 1995 and note that EMC filed its 2009 Complaint for Declaratory Judgment in the bankruptcy court to seek clarification about the status of the Note and Mortgage more than eleven years after UCLC was granted relief from the automatic stay issued in the Blair Bankruptcy.

The purpose of a statute of limitation is to encourage the prompt presentation of claims. Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 689 (Ind. Ct. App. 2006). Statutes of limitation spare the courts from litigation of stale claims and prevent a person from defending a case after memories have faded, witnesses have died or disappeared, and evidence has been lost. Id.

Actions to enforce promissory notes “must be commenced within six (6) years after the cause of action accrues.” Ind. Code § 34-11-2-9. Actions to foreclose mortgages “must be commenced within ten (10) years after the cause of action accrues.” Ind. Code § 34-11-2-11. The determination of when a cause of action accrues is generally a question of law. Imbody v. Fifth Third Bank, 12 N.E.3d 943, 945 (Ind. Ct. App. 2014). Where, as here, an installment contract contains an optional acceleration clause, the statute of limitations to collect the entire debt does not begin to run immediately upon the debtor’s default. See Smither, 919 N.E.2d at 1160. Instead, the statute generally begins to run only when the creditor exercises its option to accelerate. Imbody, 12 N.E.3d at 945. If an installment loan contract or promissory note has an optional acceleration clause, a creditor may declare all future installments on the loan immediately due and payable upon the debtor’s default. Id. However, “a party is not at liberty to stave off operation of the statute [of limitations] inordinately by failing to make demand.” Smither, 919 N.E.2d at 1160. In such cases, the time for demand is a reasonable time and a matter of the parties’ expectations. Id.

We applied these principles in Heritage Acceptance Corp. v. Romine, 6 N.E.3d 460 (Ind. Ct. App. 2014). In 2005, Romine bought a used Pontiac Firebird from Royal Motors on an installment contract. Id. at 461. The contract stated that Heritage would be Royal Motors’ assignee. Id. The contract included an acceleration clause, which allowed Royal Motors to demand immediate payment of all remaining payments upon Romine’s default. Id. at 462. Romine defaulted, making his last payment in May of 2007. Id. Six years later, in April of 2013, Heritage invoked the acceleration clause and demanded that Romine pay the entire amount owned. Id.Romine could not pay, and Heritage sued Romine in small claims court. The trial court entered judgment for Romine because Heritage did not commence its action within the four-year statute of limitations set forth in Indiana Code section 26-1-2-725. Id. at 464. Our court affirmed, concluding that Heritage did not invoke the acceleration clause within a reasonable time:

Here, Heritage waited until early April 2013 to exercise its right to demand full payment under the optional acceleration clause. Romine had tendered his last payment almost six years earlier. . . . We conclude, as did the Court in Smither, that waiting after these events have occurred to exercise an optional acceleration clause is unreasonable. Thus, Heritage’s long-delayed attempt to exercise the acceleration clause did not prevent the four-year statute of limitations from taking effect, and its complaint is barred.

Id. at 464.

Heritage relied on Smither, 919 N.E.2d at 1153. Smither obtained a credit card from a bank and ran up a debt of $1,700.00 before he stopped making payments in February 2000. Id. The bank continued to send him monthly billing statements. Id. In December 2001, Asset Acceptance, LLC (“Asset”), bought the loan from the bank and in May of 2006, requested full payment of the debt under the contract’s optional acceleration clause and sued Smither. Id.

Asset prevailed on summary judgment, and Smither appealed. A panel of this court noted that the contract had an optional acceleration clause, but Asset did not exercise the clause until May 2006, by which time Smither had been in default for over six years and the statute of limitations had run. Id. at 1161. The court stated that “waiting until after the statute of limitations has passed following default before making demand for full and immediate payment of a debt is per se an unreasonable amount of time to invoke an optional acceleration clause and cannot be given effect.” Id. at 1161-62. The court also noted, “a party is not at liberty to stave off operation of the statute [of limitations] inordinately by failing to make demand.” Id. at 1161. Thus, Smither concluded that Asset’s long-delayed exercise of the acceleration clause did not prevent the statute of limitations from taking effect. Id. at 1162.

EMC attempts to distinguish Smither by arguing that it deals with significantly different facts, noting that the credit card account at issue in Smither was “more akin to an open account or unwritten contract than a promissory note or installment loan contract.” Appellee Br. at 36 (quoting Smither, 919 N.E.2d at 1161). Accordingly, EMC posits, Smither found it unclear whether it “ought to incorporate the law regarding optional acceleration clauses into this case.” Id. (quoting Smither, 919 N.E.2d at 1161).

We disagree with EMC’s contention that Smither does not apply here because a panel of this court recently applied Smither to a case involving a mortgage and promissory note, as does the case before us today. See Stroud v. Stone, No. 18A-CC-1722, 2019 WL 1496836 (Ind. Ct. App. Apr. 5, 2019). In Stroud, Stone on April 29, 2003, deeded two properties, including a mobile home park, to Heartland Homestead LLC (“HH LLC”). Id. at *2. Stroud was one of two partners in HH LLC. Id. Fifth Third Bank (“Fifth Third”) financed part of the purchase price and took a first mortgage on the properties. Id. Stone received cash at the closing and a $100,000.00 promissory note. Id. The promissory note contained an acceleration clause. Id. at *3. The promissory note was secured by an “Open-End” Mortgage, which, despite that designation, required the specified amount for installment payments of $833.33 per month beginning June 1, 2003 until the amount was paid in full by the maturity date of July 1, 2013. Id. Because the mobile home park was not as profitable as Stroud had hoped, he made his last payment in May of 2008, and Fifth Third filed a foreclosure action on October 31, 2008. Id. To avoid foreclosure, Stroud hatched a complicated scheme that would eventually result in creation of the Heartland Land Trust (“the Trust”), which would buy the properties from Fifth Third. Id. at *3-*6. Those efforts fell through, and on February 23, 2016, Stone initiated an action on the promissory note, suing Stroud, HH LLC, and the Trust for, inter alia, repayment of the promissory note. Id. at *14. In finding that Stone did not file suit within a reasonable time and that his action on the promissory note was time barred, the Stroud panel observed that Stone waited nearly eight years after Stroud had defaulted to demand payment, two years beyond the six-year statute of limitations under Indiana Code section 34-11-2-9. Id.This was a period the court found was “a per se unreasonable amount of time to wait before invoking an acceleration clause.” Id. (quoting Smither, 919 N.E.2d at 1161-62).

Guided by Stroud, we find that EMC delayed an unreasonable amount of time by waiting until April of 2011 to invoke the acceleration clause. Tr. Vol. II at 35-36. Sixteen years earlier, in June of 1995, the Blairs had defaulted. Pl.’s Ex. 4 at 52. In December of 1997, the bankruptcy court lifted the stay that had prevented UCLC from seeking foreclosure against the Blairs, and in August of 1998, the trial court in the Ash lawsuit had granted leave to UCLC to pursue a foreclosure action. Appellants’ App. Vol. 3 at 24-25, 96. The rights to the Note and the Mortgage were assigned to EMC in 2000. Appellants’ App. Vol. 2 at 67. At that time, EMC could have taken its first steps to pursue its rights under the Note and Mortgage, but it did not. Considering that the Blairs had defaulted five years earlier, this would have been the prudent course for EMC to have taken.

Even more puzzling is EMC’s decision to wait until June of 2009 to file its Complaint for Declaratory Judgment. Appellants’ App. Vol. 3 at 75. This was nearly six years after the Blairs received their bankruptcy discharge. Id. at 78. During his trial testimony on behalf of EMC, Smith did not explain why EMC waited six years to seek such clarification. On appeal, EMC likewise offers no explanation for this delay. EMC’s decision to wait six years after the Blairs received their partial bankruptcy discharge to seek clarification about the status of the Note and Mortgage was unreasonable, and this delay did not prevent the statutes of limitations from taking effect. See Heritage Acceptance Corp., 6 N.E.3d at 464. EMC waited an unreasonable time to accelerate its Note and Mortgage. By doing so and by failing to make demand within a reasonable time, its rights are time-barred. Smither, 919 N.E.2d at 1160.

Reversed.

Riley, J., and Robb, J., concur.

[1] To the extent that the trial court granted relief to the Blairs on their statute-of-limitations defense, EMC does not challenge that ruling. Appellee’s Br. at 32.

 

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11th Circuit: Motion to reschedule foreclosure does not violate RESPA

11th Circuit: Motion to reschedule foreclosure does not violate RESPA

Lexology-

On June 11, the U.S. Court of Appeals for the 11th Circuit affirmed the dismissal of a RESPA action against a mortgage servicer, concluding that rescheduling a foreclosure sale is not a violation of Regulation X’s prohibition on moving for an order of foreclosure sale after a borrower has submitted a complete loss-mitigation application. According to the opinion, a consumer’s home was the subject of an order of foreclosure, and the mortgage servicer subsequently approved a trial loan-modification plan for a six-month period. The servicer filed a motion to reschedule the foreclosure sale so that the sale would not occur unless the consumer failed to comply with the modification plan during the trial period. The consumer filed suit, alleging that the servicer violated Regulation X––which prohibits loan servicers from moving for an order of foreclosure sale after a borrower has submitted a complete loss-mitigation application––because the servicer rescheduled the foreclosure sale instead of cancelling it. The district court dismissed the action.

On appeal, the 11th Circuit agreed with the district court, concluding that the consumer failed to state a claim for a violation of Regulation X. The appellate court reasoned that Regulation X does not prohibit a servicer from moving to reschedule a foreclosure sale as that motion is not the same as the “order of sale,” a substantive and dispositive motion seeking authorization to conduct a sale at all, as referenced in Regulation X. Moreover, the appellate court argued that the consumer’s interpretation of the prohibition is inconsistent with the consumer protection goals of RESPA because it would disincent loan servicers from offering loss-mitigation options and helping borrowers complete loss-mitigation applications, if a foreclosure sale has already been scheduled. Lastly, the appellate court noted that the motion to reschedule is consistent with the CFPB’s commentary that, “[i]t is already standard industry practice for a servicer to suspend a foreclosure sale during any period where a borrower is making payments pursuant to the terms of a trial loan modification,” rejecting the consumer’s argument that the servicer should have cancelled the sale altogether.

[LEXOLOGY]

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Quicken Loans settles with Federal Housing Authority in fraudulent lending case

Quicken Loans settles with Federal Housing Authority in fraudulent lending case

CNN-

The Justice Department on Friday dismissed a lawsuit against Quicken Loans, after the company agreed to a $32.5 million settlement with the United States government. The agreement resolved years-long dispute over the company’s participation in a Federal Housing Administration lending program.

The government alleged in a 2015 lawsuit that Quicken Loans knowingly approved hundreds of loans insured by the FHA to unqualified borrowers. When the borrowers defaulted, the company profited off the loans ?— and cost the government millions, the complaint said.
Quicken Loans did not admit any wrongdoing as part of the settlement. Of the settlement funds, $25.5 million will go to recouping government losses, with another $7 million designated as interest on that amount, according to a statement Friday from a mediator who worked on the case, Judge Gerald Rosen.
[CNN]
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Posted in STOP FORECLOSURE FRAUD0 Comments

Chicago appeals court poised to decide if key Supreme Court decision applies to federal class actions

Chicago appeals court poised to decide if key Supreme Court decision applies to federal class actions

Cook County Record-

The U.S. Court of Appeals for the Seventh Circuit is poised to become the first appeals court in the country to decide whether a landmark U.S. Supreme Court decision could stop additional plaintiffs from joining class action lawsuits in states where they don’t live.

At issue is the Supreme Court’s decision in Bristol Meyers Squibb v. Superior Court of CaliforniaIn that decision, the justices found non-residents couldn’t join a class action claim against a defendant whose principal presence was determined to be in a different state. The decision overrruled the California Supreme Court, which had determined out-of-state plaintiffs could join a mass action against pharmaceutical company Bristol Meyers Squibb.

In the new case heading to the Seventh Circuit court in Chicago, appeals judges have been asked to weigh in on whether the same principle excluding out-of-state plaintiffs from class actions in state courts should also extend to the federal courts.

Federal district courts in various parts of the country have split on the matter, but a judge in the Northern District of Illinois in Chicago found in the case of Mussat v. IQVIA Inc. that federal courts lacked jurisdiction over non-resident class members because the defendant was not incorporated, or had its main headquarters, in Illinois.

[COOK COUNTY RECORD]

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IL Appeals panel says lawyer can’t hide ID of third party paying legal bills for businessman fighting judgment enforcement

IL Appeals panel says lawyer can’t hide ID of third party paying legal bills for businessman fighting judgment enforcement

Cook County Record-

A state appeals panel determined lawyers have no ability to keep from a court the identity of third parties paying legal bills for a client contesting attempts to uncover assets as part of an effort to enforce a judgment.

Michael Margules, Edward Amaral and Mosholou, Inc., registered a 2017 California Superior Court judgment of $1.675 million against John Beckstedt and When 2 Trade Group LLC in Cook County and filed citations to discover assets. When they didn’t like the response to the citations, they issued a third-party citation to discover assets against Richard Steck, the lawyer for Beckstedt and When 2 Trade, specifically seeking to discover who was paying for Steck’s services.

Steck said a third party had asked him to represent the debtors, and declined to reveal that party’s identity, citing both attorney-client privilege and the Illinois Rules of Professional Conduct. Margules, Amaral and Mosholu then asked Cook County Judge Michael Otto to force Steck to name the third party. Otto granted that motion and held Steck in contempt. He levied a fine of $25 per day until Steck complied with the ruling. Steck moved to reconsider, prompting Otto to stay the contempt order pending his anticipated appeal to the First District Illinois Appellate Court.

[COOK COUNTY RECORD]

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Seniors were sold a risk-free retirement with reverse mortgages. Now they face foreclosure.

Seniors were sold a risk-free retirement with reverse mortgages. Now they face foreclosure.

USA TODAY-

In a stealth aftershock of the Great Recession, nearly 100,000 loans that allowed senior citizens to tap into their home equity have failed, blindsiding elderly borrowers and their families and dragging down property values in their neighborhoods.

In many cases, the worst toll has fallen on those ill-equipped to shoulder it: urban African Americans, many of whom worked for most of their lives, then found themselves struggling in retirement.

Alarming reports from federal investigators five years ago led the Department of Housing and Urban Development to initiate a series of changes to protect seniors. USA TODAY’s review of government foreclosure data found a generation of families fell through the cracks and continue to suffer from reverse mortgage loans written a decade ago.

[USA TODAY]

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GREEN EMERALD HOMES, LLC v. 21st MORTGAGE CORPORATION | FL 2DCA – 21st Mortgage failed to present legally sufficient evidence of the amount due. We reverse and remand for the trial court to enter an order of involuntary dismissal, which was the remedy Green Emerald properly sought in the trial court.

GREEN EMERALD HOMES, LLC v. 21st MORTGAGE CORPORATION | FL 2DCA – 21st Mortgage failed to present legally sufficient evidence of the amount due. We reverse and remand for the trial court to enter an order of involuntary dismissal, which was the remedy Green Emerald properly sought in the trial court.

GREEN EMERALD HOMES, LLC, Appellant,
v.
21ST MORTGAGE CORPORATION, a Delaware corporation authorized to transact business in Florida, Appellee.

Case No. 2D17-2192.
District Court of Appeal of Florida, Second District.

Opinion filed June 7, 2019.
Appeal from the Circuit Court for Hillsborough County; William P. Levens, Senior Judge.

Mark P. Stopa of Stopa Law Firm, Tampa (withdrew after briefing); Latasha Scott of Lord Scott, PLLC, Tampa; Richard J. Mockler of Stay In My Home, P.A., St. Petersburg (substituted as counsel of record); and Angela L. Leiner of The Law Office of Angela L. Leiner, P.A., St. Petersburg, for Appellant.

Leslie S. White and Tim W. Sobczak of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A., Orlando, and Dariel Abrahamy of Greenspoon Marder, P.A., Boca Raton, for Appellee.

SALARIO, Judge.

Green Emerald Homes, LLC appeals from a final judgment of foreclosure in favor of 21st Mortgage Corporation. Although Green Emerald was not a party to the mortgage the judgment foreclosed, it was the owner of the property subject to the mortgage at the time the complaint and lis pendens were filed and was a named defendant in the case. 21st Mortgage argues that we must affirm because, as a nonparty to the mortgage who purchased the property after the mortgage was recorded, Green Emerald lacks standing to dispute the legal sufficiency of its proof of the amount due, an element of the foreclosure cause of action. We reject that argument, find 21st Mortgage’s proof of the amount due legally insufficient, and reverse and remand for entry of a judgment of involuntary dismissal.

I.

In 2007, Rosalie Reid executed a note in favor of American Residential Lending, Inc. evidencing a debt of $186,000 and secured by a mortgage on real property. In 2014, 21st Mortgage filed a civil action to foreclose the mortgage based on Ms. Reid’s default of her payment obligations on the note. A lis pendens was filed on the same day. In addition to Ms. Reid, the foreclosure complaint and lis pendens named Green Emerald as a defendant and alleged that Green Emerald was the owner and was in possession of the property subject to its mortgage. The complaint requested a judgment “foreclosing the Defendants’ interest in the Property made the subject of the Mortgage.” In sum, then, the complaint named Green Emerald as a defendant and sought a judgment foreclosing its ownership interest in the mortgaged property.

Ms. Reid failed to answer the complaint, and she was ultimately the subject of a clerk’s default. Green Emerald did file an answer in which it denied the bulk of 21st Mortgage’s allegations and asserted several affirmative defenses. It admitted, however, 21st Mortgage’s allegation that Green Emerald was the owner of the property and was then in possession of it. From there, the case proceeded in the more-or-less normal course to a nonjury trial on 21st Mortgage’s claim for foreclosure.

At the beginning of trial, 21st Mortgage challenged Green Emerald’s “standing” to defend the lawsuit on the basis that it was not a party to the note and mortgage. It argued that because Green Emerald was not a party to the note and mortgage, it “should not be able to contest practically anything here” and that although Green Emerald had pleaded defenses, “there’s no standing for this particular defendant.” It asked the court to strike Green Emerald’s defenses, to hold that it was estopped from defending the case, or “otherwise provide extreme light, little weight to any arguments or objections here today.”

The trial court asked how Green Emerald came into possession of the property, and Green Emerald replied that it had “obtained title to the property and is the record owner.” Green Emerald reminded the court that its status as the owner of the property was established by the pleadings for purposes of the action. See, e.g., Gen. Accident Fire & Life Assurance Corp. v. Means, 362 So. 2d 135, 136 (Fla. 2d DCA 1978) (holding that there was “no issue” as to coverage under an insurance policy where coverage was alleged in the complaint and admitted in the answer). Throughout the case, no one ever disputed that Green Emerald owned the mortgaged property at the time of the filing of the foreclosure complaint and lis pendens.

21st Mortgage’s lone witness at trial was Whit Reed, a “legal team leader” for 21st Mortgage who worked with loans in default. Through this witness, 21st Mortgage admitted the original note and mortgage, default letter, and payment history. Mr. Reed also testified about a proposed final judgment 21st Mortgage had tendered to the trial court. That testimony revealed that 21st Mortgage had included in the amount-due finding of the proposed final judgment $77,270 more in principal indebtedness than was reflected by the trial evidence. Mr. Reed testified that the principal increase was most likely the result of a modification agreed to by Ms. Reid and a prior loan servicer. He further testified that a change in principal like the one reflected in the proposed final judgment could not be accomplished without a separate written agreement and, therefore, that there had to be a written agreement on that point somewhere, but that he did not have it with him. 21st Mortgage never disputed or clarified Mr. Reed’s testimony. Nor did it produce the likely loan modification (or any other document) or offer any other admissible evidence of its terms.

Green Emerald moved for an involuntary dismissal at the close of evidence. It argued, among other things, that 21st Mortgage failed to provide sufficient evidence of the amount due under the note—specifically, that without any evidence of the loan modification Mr. Reed testified to, 21st Mortgage could not prove the amount due. 21st Mortgage responded that Green Emerald lacked standing to challenge the amount due because it was not a party to the note or mortgage. The trial court denied Green Emerald’s motion but—recognizing the lack of evidence of the principal amount contained in the proposed final judgment—removed the additional $77,270, and it entered a judgment in favor of 21st Mortgage that foreclosed Green Emerald’s interests in the property and directed that the property be sold at a public sale. Green Emerald timely filed a notice of appeal.

II.

Green Emerald argues that we should reverse because 21st Mortgage failed to adduce legally sufficient proof of the amount due under the note and mortgage. We review the trial court’s legal conclusions de novo and its factual findings for competent substantial evidence. See Corya v. Sanders, 155 So. 3d 1279, 1283 (Fla. 4th DCA 2015) (“After a nonjury trial, review of trial court decisions based on legal questions are reviewed de novo and those based on findings of fact from disputed evidence are reviewed for competent, substantial evidence.”).

A.

As it did in the trial court, 21st Mortgage maintains on appeal that Green Emerald lacks standing to challenge the sufficiency of the evidence of the amount due under the note because it was not a party to the note and mortgage. The amount due under the note is an element of the foreclosure cause of action. See Ernest v. Carter, 368 So. 2d 428, 429 (Fla. 2d DCA 1979)Liberty Home Equity Sols., Inc. v. Raulston, 206 So. 3d 58, 60 (Fla. 4th DCA 2016)Bank of Am., N.A. v. Delgado, 166 So. 3d 857, 859 (Fla. 3d DCA 2015). The notion that a party named as a defendant in a civil action has no standing to require that the plaintiff prove the elements of its cause of action is a novel one, and we have been unable to find any other area where the law says that a named defendant must have standing to require that the plaintiff prove its case.

Requiring a named defendant to have standing to hold the plaintiff to its proof is quite out of line with the conventional understanding of standing that prevails in civil litigation. Standing is usually regarded as an attribute the claimant—not the defendant—must possess before it can open the courthouse doors and have its suit decided. See, e.g., Rogers & Ford Constr. Corp. v. Carlandia Corp., 626 So. 2d 1350, 1352 (Fla. 1993) (“The determination of standing to sue concerns a court’s exercise of jurisdiction to hear and decide the cause pled by a particular party.”); Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So. 2d 1281, 1284-85 (Fla. 2d DCA 2005) (explaining that standing is an obligation of the claimant in a civil case and stating that “the plaintiff’s lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed”). The requirement of standing ensures that a claimant seeking a judgment from a court has a “sufficient interest in the outcome of litigation which will warrant the court’s entertaining it.” Gen. Dev. Corp. v. Kirk, 251 So. 2d 284, 286 (Fla. 2d DCA 1971). As applied to foreclosure cases, standing has been deemed to require (loosely stated) that the claimant seeking a foreclosure judgment have the right to enforce the note secured by the mortgage it seeks to foreclose. See § 673.3011, Fla. Stat. (2014); Verizzo v. Bank of N.Y. Mellon, 220 So. 3d 1262, 1264 (Fla. 2d DCA 2017).

Our court has not previously—in foreclosure cases or otherwise— restricted a named defendant’s right to demand that the plaintiff prove its cause of action based on a case-by-case or issue-by-issue analysis of the defendant’s standing to defend.[1] That would raise serious concerns of procedural due process. Consider the circumstances here. It is undisputed in this case that Green Emerald owns the property secured by the mortgage 21st Mortgage seeks to enforce. A titleholder is regarded by the law as an indispensable party to a foreclosure action, and 21st Mortgage doubtless named Green Emerald in the foreclosure complaint in this case for that reason. See Oakland Props. Corp. v. Hogan, 117 So. 846, 848 (Fla. 1928) (“One who holds the legal title to mortgaged property is not only necessary, but is an indispensable, party defendant in a suit to foreclose a mortgage.”); U.S. Bank Nat’l Ass’n v. Bevans, 138 So. 3d 1185, 1188 (Fla. 3d DCA 2014) (holding that the legal titleholder is an indispensable party to a foreclosure complaint without whom the litigation cannot proceed). Before Green Emerald could be stripped of its ownership of the subject property—the all-but-certain effect of the foreclosure judgment 21st Mortgage sought and obtained—it was unquestionably entitled to procedural due process. See Dep’t of Law Enf’t v. Real Prop., 588 So. 2d 957, 964 (Fla. 1991) (“Property rights are among the basic substantive rights expressly protected by the Florida Constitution.”); Adhin v. First Horizon Home Loans, 44 So. 3d 1245, 1254 n.6 (Fla. 5th DCA 2010) (explaining that due process protects the property interests of a subsequent purchaser of mortgaged property); Metro. Dade Cty. v. Sokolowski, 439 So. 2d 932, 934 (Fla. 3d DCA 1983) (“[A] property interest falls within the protections of procedural due process.”).

In the context of civil litigation, “[d]ue process mandates that in any judicial proceeding, the litigants must be afforded the basic elements of notice and [an] opportunity to be heard.” Shlishey the Best, Inc. v. CitiFinancial Equity Servs., Inc., 14 So. 3d 1271, 1273 (Fla. 2d DCA 2009) (quoting E.I. DuPont De Nemours & Co. v. Lambert, 654 So. 2d 226, 228 (Fla. 2d DCA 1995)). The right to be heard “includes more than simply being allowed to be present and to speak”; it includes the right to meaningfully introduce evidence, cross-examine witnesses, and be heard on questions of law. Vollmer v. Key Dev. Props., Inc., 966 So. 2d 1022, 1027 (Fla. 2d DCA 2007); see also Baron v. Baron, 941 So. 2d 1233, 1236 (Fla. 2d DCA 2006) (holding that a father had a due process right to introduce evidence, cross-examine witnesses, and be heard on questions of law with respect to a mother’s emergency motion to place their child in a therapeutic boarding school); Glary v. Israel, 53 So. 3d 1095, 1098-99 (Fla. 1st DCA 2011) (holding that a nonparty who was subject to an order compelling it to turn over funds to a receiver had a due process right to present evidence, cross-examine witnesses, and be heard on questions of law); Brinkley v. County of Flagler, 769 So. 2d 468, 472 (Fla. 5th DCA 2000) (holding that the owner of animals subject to a forfeiture order had a due process right to present evidence, cross-examine witnesses, and be heard on questions of law). Under the conception of standing asserted by 21st Mortgage, Green Emerald—or anyone else who purchases real property subsequent to the recording of a mortgage encumbering that property, for that matter—would not receive any of these long-recognized elements of procedural due process. It would be forced largely if not entirely to sit silent, regardless of the insufficiency of the plaintiff’s proof, while the property to which it holds title is foreclosed and sold at auction.

That would be a tough pill to swallow with any named defendant in a civil suit, and it is even more so here in light of a titleholder’s status as an indispensable party to a foreclosure suit. See Bank of N.Y. Mellon v. Burgiel, 248 So. 3d 237, 238 n.1 (Fla. 5th DCA 2018)Citibank, N.A. v. Villanueva, 174 So. 3d 612, 613 (Fla. 4th DCA 2015). An indispensable party is one who is “so essential to a suit that no final decision can be rendered without their joinder.” Hertz Corp. v. Piccolo, 453 So. 2d 12, 14 n.3 (Fla. 1984). As we explained in Department of Revenue ex rel. Preston v. Cummings, 871 So. 2d 1055, 1058 (Fla. 2d DCA 2004), an indispensable party is one “whose interest will be substantially and directly affected by the outcome of the case” or “whose interest in the subject matter is such that if he is not joined[,] a complete and efficient determination of the equities and rights between the other parties is not possible.” (first quoting Amerada Hess Corp. v. Morgan, 426 So. 2d 1122, 1125 (Fla. 1st DCA 1983); then quoting Allman v. Wolfe, 592 So. 2d 1261, 1263 (Fla. 2d DCA 1992)).

If the owner of property subject to a mortgage foreclosure action is so important as to be indispensable to a just adjudication, due process surely requires that the owner be permitted to defend the suit. See Ezem v. Fed. Nat’l Mortg. Ass’n, 153 So. 3d 341, 345 (Fla. 1st DCA 2014) (holding that a nonparty to a foreclosure action claiming to be a co-owner of the property subject to that action, although not a party to the mortgage securing it, was entitled to intervene because “[a]t the minimum, he is entitled to a hearing on his claimed interest”); cf. Villanueva, 174 So. 3d at 614 (holding that a foreclosure judgment was void where the subsequent purchasers of the subject property were not joined to the foreclosure litigation). If only the party to the note and mortgage is relevant, and the titleholder is nothing more than a set piece with no right to defend of any substance, there is no point in making the final resolution of a mortgage foreclosure action contingent on the titleholder being joined to the litigation.

In sum, then, a titleholder named as an indispensable party in a foreclosure suit has a due process right to defend the suit in the same way any other named party to civil litigation has a due process right to defend. It is not as a general proposition required to demonstrate that it has “standing” to assert a particular issue in the way of defense to the plaintiff’s claim for foreclosure.

B.

There are, however, two aspects of substantive foreclosure law that are commonly asserted to limit the types of issues and defenses a subsequent purchaser may raise. The first is that that an owner who acquired title to the property after a facially valid mortgage on that property has been recorded is estopped from disputing the validity of that mortgage. See CCM Pathfinder Palm Harbor Mgmt., LLC v. Unknown Heirs, 198 So. 3d 3, 7 (Fla. 2d DCA 2015) (holding that a subsequent purchaser “is `estopped from contesting the validity of the mortgage'” (quoting Eurovest, Ltd. v. Segall, 528 So. 2d 482, 483 (Fla. 3d DCA 1988))). The reason the law imposes this estoppel is that a purchaser subsequent to the recorded mortgage has constructive notice of the mortgage and could elect to assume the mortgage as a part of the purchase. Eurovest, 528 So. 2d at 483. When it declines that election, the purchaser “may not defend . . . on grounds which would be unavailable to him had he assumed payment of the mortgage.” Id. (holding that a subsequent purchaser was estopped from asserting the affirmative defense of want of consideration); see also Irwin v. Grogan-Cole, 590 So. 2d 1102, 1104 (Fla. 5th DCA 1991).

The second frequently cited rule that limits the kinds of defenses a subsequent purchaser can assert is that a subsequent purchaser who is not a party to the mortgage contract generally cannot assert rights under the contract that belong to the parties. See LaFaille v. Nationstar Mortg., LLC, 197 So. 3d 1246, 1247 (Fla. 3d DCA 2016); Clay Cty. Land Trust No. 08-04-25-0078-014-27, Orange Park Tr. Servs., LLC v. JPMorgan Chase Bank, Nat’l Ass’n, 152 So. 3d 83, 84 (Fla. 1st DCA 2014).[2] This is an extension to the mortgage foreclosure context of the hornbook contract law rule that a person who is neither a party to nor an intended third-party beneficiary of a contract has no rights under the contract to enforce. See Greenacre Props., Inc. v. Rao, 933 So. 2d 19, 23 (Fla. 2d DCA 2006) (“As a general rule, a person who is not a party to a contract cannot sue for a breach . . . even if the person receives some incidental benefit from the contract. A third party must establish that the contract either expressly creates rights for them . . . or that the provisions of the contract primarily and directly benefit the third party or a class of persons of which the third party is a member.”). The application of this general contract principle in the mortgage foreclosure context makes perfect sense because “we are to interpret and apply the provisions of mortgages the same way we interpret and apply the provisions of any other contract.” Green Tree Servicing, LLC v. Milam, 177 So. 3d 7, 12-13 (Fla. 2d DCA 2015).

The cases have sometimes loosely characterized the substantive rules that subsequent purchasers are estopped from contesting the validity of facially valid mortgages and cannot assert contract rights they do not own as related to a foreclosure defendant’s “standing” to defend. See, e.g., Rouffe v. CitiMortgage, Inc., 241 So. 3d 870, 872 (Fla. 4th DCA 2018); Clay Cty. Land Tr., 152 So. 3d at 84. But we should recognize these rules for what they are: limitations on the rights of particular parties in the foreclosure process imposed by substantive law. Their scope is confined to the limited subject areas they cover—disputes as to the validity of mortgages and the rights of nonparties to enforce contract provisions. On their face, they do not represent a determination that a subsequent purchaser lacks standing to contest practically anything a plaintiff might assert in a foreclosure case or that a subsequent purchaser must tie each and every matter it asserts by way of defense to some interest that gives it standing to assert that specific matter.[3] See Wilmington Tr., N.A. v. Alvarez, 239 So. 3d 1265, 1266 n.1 (Fla. 3d DCA 2018) (rejecting the argument that a subsequent purchaser “lack[ed] standing” to assert the statute of limitations as a defense to a foreclosure case); 3709 N. Flagler Drive Prodigy Land Tr. v. Bank of Am., N.A., 226 So. 3d 1040, 1042 (Fla. 4th DCA 2017) (holding that a subsequent purchaser may challenge a foreclosure plaintiff’s standing to foreclose because otherwise “a subsequent purchaser would never have the ability to defend against the taking of a bona fide interest in the property through a foreclosure sale”).

Green Emerald’s insistence that 21st Mortgage prove the required element of the amount due does not implicate either the validity of the mortgage or an effort to enforce provisions in a mortgage contract to which Green Emerald is not a party. Green Emerald is not saying that 21st Mortgage’s mortgage is invalid; it is saying that where the plaintiff’s own witness has testified as to the existence of a loan modification as the basis for its computation of the amount due, proof of that agreement’s terms is indispensable to proof of the amount due.[4] Nor is Green Emerald trying to assert any right that inured only to Ms. Reid’s benefit under the mortgage contract; it is asking the court to determine whether 21st Mortgage’s proof of the amount due under the note is legally sufficient to get a judgment that forecloses its interest in the mortgaged property. This is litigation defense 101—requiring the claimant to prove the elements of its case—not the assertion of some right that Green Emerald either does not have or is estopped by law from asserting.

We recognize that we have decided cases addressing a subsequent purchaser’s ability to intervene in a pending foreclosure action that hold that there is no right to intervene and that those cases sometimes speak in terms of the purchaser’s standing. Those cases have no bearing with regard to a subsequent purchaser who took title prior to the foreclosure litigation and has been named as a defendant in that litigation. First and foremost, those cases involve subsequent purchasers who acquired the mortgaged property after the foreclosure complaint and lis pendens were filed, not before. See, e.g., Bank of N.Y. Mellon for Certificateholders CWALT, Inc. v. HOA Rescue Fund, LLC, 249 So. 3d 731, 733-34 (Fla. 2d DCA 2018); Ventures Tr. 2013-I-H-R v. Asset Acquisitions & Holdings Tr., 202 So. 3d 939, 942-43 (Fla. 2d DCA 2016); Bonafide Props. v. Wells Fargo Bank, N.A., 198 So. 3d 694, 695 (Fla. 2d DCA 2016)Market Tampa Invs., LLC v. Stobaugh, 177 So. 3d 31, 32 (Fla. 2d DCA 2015). Because they purchase property with constructive if not actual notice of the fact that the property is subject to a foreclosure suit, the law treats purchasers pendente lite—pending litigation—accordingly and holds that they have no right to insert themselves into the pending litigation to which they were not previously a party. See Rutledge, 230 So. 3d at 552 (“Rutledge is a subsequent purchaser who was at least constructively aware of Wells Fargo’s recorded lis pendens when he purchased the property.”); Bonafide Props., 198 So. 3d at 695 (affirming an order denying a subsequent purchaser’s motion to intervene because “it is undisputed that [it] acquired its rights to the property four years after Wells Fargo initiated the foreclosure action and filed its notice of lis pendens”); see also Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So. 3d 1087, 1091 (Fla. 2d DCA 2015) (holding that purchaser subsequent to lis pendens “took the property subject to the outcome of the litigation . . ., including the foreclosure sale”). In contrast to a purchaser pendente lite, a party who owns the mortgaged property at the time the foreclosure action and lis pendens are filed is an indispensable party to the litigation. Bevans, 138 So. 3d at 1188. Our court has (rightly) never held that a subsequent purchaser in that situation lacks the right to insist that the plaintiff that has haled the purchaser into court prove the elements of its case.

Furthermore, the questions on a motion to intervene are whether a nonparty has an interest in litigation that entitles it to intervene and whether as a matter of judicial discretion it should be permitted to intervene. See generally Union Cent. Life Ins. Co. v. Carlisle, 593 So. 2d 505, 507-08 (Fla. 1992). One major consideration applicable to the intervention by purchasers pendente lite is that allowing intervention invites the unnecessary protraction of litigation by a nonparty who knew full well at the time it took title that the property was in foreclosure. See Bymel v. Bank of Am., N.A., 159 So. 3d 345, 347 (Fla. 3d DCA 2015) (“Allowing [a purchaser pendente lite] to intervene would unnecessarily prolong the foreclosure action.”). To say that a nonparty to litigation does not have an interest sufficient to justify intervention because of when they acquired their interest or that intervention is not advisable under the facts out of concern for delay says nothing about whether a party named as a defendant by the plaintiff and actually joined in the litigation should be permitted to defend itself fully.

We also recognize that other courts have held that a subsequent purchaser has “standing” to contest the amount due because the computation of the amount due bears directly on its right of redemption—i.e., its right to cure the mortgagor’s indebtedness by paying everything that is due. See Clay Cty. Land Tr., 152 So. 3d at 85; see also § 45.0315, Fla. Stat. (2014); Beauchamp v. Bank of N.Y., 150 So. 3d 827, 828 (Fla. 4th DCA 2014). But that analysis proceeds from the assumption, which we think unwarranted, that a subsequent purchaser lacks standing to do anything in defense of a foreclosure case unless it can relate it to a right or interest specific to subsequent purchasers. As we have explained in this opinion, a subsequent purchaser has an ownership interest in property and as a matter of due process is entitled to defend in accord with its rights and obligations under applicable substantive law.

Accordingly, we hold that as the owner of the mortgaged property who took title before the filing of the lis pendens, Green Emerald was entitled to insist that 21st Mortgage present competent substantial evidence of the amount due under the note.[5] We now turn to whether it did so.

III.

In a foreclosure case, the amount due under the note must be proved by competent substantial evidence. Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So. 3d 280, 281 (Fla. 2d DCA 2014)E & Y Assets, LLC v. Sahadeo, 180 So. 3d 1162, 1163 (Fla. 4th DCA 2015). 21st Mortgage’s failure to produce a loan modification its own witness testified must have existed left it unable to meet that burden.

As we explained in Wolkoff, a foreclosure plaintiff typically proves the amount due “through the testimony of a competent witness who can authenticate the mortgagee’s business records and confirm that they accurately reflect the amount owed on the mortgage.” 153 So. 3d at 281 (emphasis added). Here, Mr. Reed’s testimony established without contradiction that at some point a document, most likely a loan modification agreement, was executed that changed the terms of the original note. Without the loan modification or other admissible evidence of its contents, it is not possible to determine the basis for 21st Mortgage’s computation of the principal, interest, or other charges folded into the total amount due in the final judgment because the record is simply silent on what (after modification) the borrower’s obligations in this regard were. Cf. Werb v. Green Tree Servicing, LLC, 231 So. 3d 483, 484 (Fla. 4th DCA 2017) (holding that the bank failed to prove the amount due where its only evidence was a witness’s testimony that the figure in a proposed final judgment, which had not been admitted into evidence, comported with the bank’s records; but it did not show how interest and additional fees were calculated). The trial court’s reduction of the claimed principal amount due did not cure this problem; the fact remains that there was no evidentiary basis to determine what the borrower in fact owed. We note that on appeal, not even 21st Mortgage has argued that its evidence of the amount due was legally sufficient.

IV.

21st Mortgage failed to present legally sufficient evidence of the amount due. We reverse and remand for the trial court to enter an order of involuntary dismissal, which was the remedy Green Emerald properly sought in the trial court.[6] See Tracey v. Wells Fargo Bank, N.A., 264 So. 3d 1152, 1161-65 (Fla. 2d DCA 2019) (holding that a new trial is generally improper upon a reversal based on the insufficiency of the evidence absent exceptional circumstances and harmonizing this court’s prior opinions on the scope of remand under this rubric).

Reversed and remanded with instructions.

ROTHSTEIN-YOUAKIM, J., Concurs.

VILLANTI, J., Concurring in part and dissenting in part.

VILLANTI, Judge, Concurring in part and dissenting in part.

I concur with that portion of the majority’s opinion that reverses the damages awarded in the final judgment because it is clear that 21st Mortgage failed to carry its burden of proof as to the amount of the judgment to which it was entitled. However, I cannot concur in the remainder of the opinion because, in my view, Green Emerald received all the process it was due.

It is true, as the majority points out, that Green Emerald held legal title to the property on the date that 21st Mortgage filed its foreclosure complaint. However, it is also clear from the record that Green Emerald took its title subject to 21st Mortgage’s prior recorded mortgage. Green Emerald had constructive, if not actual, notice of the recorded mortgage when it took title; yet it elected not to assume the mortgage, and it undertook no efforts to satisfy the mortgage debt so as to obtain clear title. Under Florida law, it is presumed that a buyer with notice of the mortgage took the mortgage debt into consideration in its purchase price of the property. See Spinney v. Winter Park Bldg. & Loan Ass’n, 162 So. 899, 903 (Fla. 1935) (quoting Ala.-Fla. Co. v. Mays, 149 So. 61, 64 (Fla. 1933)). And the titleholder has the right to either pay the mortgage debt or redeem the property rather than lose it to foreclosure. See § 45.0315, Fla. Stat. (2017) (“At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor’s indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure, or if no judgment, order, or decree of foreclosure has been rendered, by tendering the performance due under the security agreement, including any amounts due because of the exercise of a right to accelerate, plus the reasonable expenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney’s fees of the creditor.”). If Green Emerald wanted to obtain clear title to the property, it simply needed to exercise its right to pay the mortgage debt that it knew existed when it took title to the property. Hence, contrary to what the majority asserts, it was not “all but certain” that Green Emerald would be stripped of its ownership of the property by any foreclosure judgment 21st Mortgage sought and obtained. That was all but certain only if Green Emerald had no intention of ever paying the mortgage debt that it knew encumbered the property when it took title.

Of course, we know that many companies were formed in the wake of Florida’s foreclosure crisis to do just that—take title from distressed homeowners at little to no expense, put rent-paying tenants in those properties, and then collect rents while not paying the mortgages until such time as the bank could foreclose. See, e.g., Mortgages: Most Common Forms of Fraud, Mortgage & Real Estate Executives Rpt. (Feb. 15, 2019). Many of these companies spent portions of their rent collections actively fighting foreclosure proceedings brought by banks that held purchase-money mortgages from the now-absent former homeowners with no intention of ever paying a dime toward the mortgage debt that they knew encumbered the properties. In my view, the broad sweep of the majority’s opinion will simply encourage such companies to continue to take advantage of desperate homeowners.

We have previously held that “[t]he extent of procedural due process protection varies with the character of the interest and nature of the proceeding involved.” Carmona v. Wal-Mart Stores, E., LP, 81 So. 3d 461, 464 (Fla. 2d DCA 2011)(quoting Carillon Cmty. Residential v. Seminole County, 45 So. 3d 7, 9 (Fla. 5th DCA 2010)). We also noted that due process does not lend itself to a single, unchanging test. Instead, courts must “consider the facts of the particular case to determine whether the parties have been accorded that which the state and federal constitutions demand.” Id. The majority recognizes that a third party who takes title after the foreclosure complaint and lis pendens have been filed does not have the right to challenge any aspect of the foreclosure proceeding. I would hold that the same is true for a third party who takes title before a foreclosure complaint is filed, who has notice of the prior-recorded mortgage, and who fails or refuses to assume that mortgage or ensure that it has been satisfied. The title-taker is charged with notice of the mortgage in either situation, and we should not “reward” those who rush in and secure title from distressed homeowners before a foreclosure complaint is filed by providing them with more extensive due process protections. Regardless of the filing of a complaint, the legal interest held is the same—legal title subject to the prior-recorded mortgage and the bank’s concomitant right to foreclose if the mortgage is not paid. Therefore, since the scope of the interest is the same, the scope of the due process protections should be the same.

Further, as I suggested two years ago, I continue to believe that it would behoove the legislature to amend the foreclosure statutes to require that any foreclosure defendant wishing to raise any defense other than payment make the payments due under the existing note and mortgage into the registry of the court. See Shaffer v. Deutsche Bank Nat’l Tr., 235 So. 3d 943, 947 (Fla. 2d DCA 2017) (Villanti, J., concurring specially). Such a procedure would go a long way toward ensuring that the due process rights of both the bank and the holder of legal title to the property are protected during foreclosure litigation.

In sum, I agree with the majority that Green Emerald had the due process right to challenge the amount of the foreclosure judgment because the amount of that judgment directly affected Green Emerald’s statutory right of redemption. However, I disagree with the remainder of the decision, which essentially strips 21st Mortgage of its security under the guise of due process. Therefore, I would reverse only the damages awarded in the final judgment and remand for further proceedings on that issue alone.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

[1] We recognize that a foreclosure action is an action in rem or quasi in rem. See Aluia v. Dyck-O’Neal, Inc., 205 So. 3d 768, 773 (Fla. 2d DCA 2016). We also recognize that in some other proceedings against property, we have required a party who asserts an interest in the property to establish “standing.” See, e.g., In re Forfeiture of: $7464 + 2002 Cadillac Escalade, Identification No. 3GYEK63N02G222802, 872 So. 2d 1017, 1018 (Fla. 2d DCA 2004) (holding that only persons who have standing can participate in a forfeiture proceeding and that standing must be based on a claim to ownership of the property). Without undertaking to detail all of the ways in which a foreclosure proceeding may be different, we stress here that Green Emerald was a named defendant in the foreclosure suit and a judgment was sought against it, which gives it, as shown in the text, a due process right to defend the action.

[2] These cases involve allegations that a foreclosure plaintiff failed to comply with the default notice requirement of paragraph twenty-two of the standard residential mortgage contract. Because compliance with paragraph twenty-two is a condition precedent to a foreclosure suit, Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1284-85 (Fla. 2d DCA 2011), there might be an argument that the failure to comply with paragraph twenty-two may be asserted by a named defendant to the suit that is not a party to the mortgage. By citing these cases, we do not express an opinion on that question.

[3] We do not mean to imply that these are the only two respects in which the law might treat any specific purchaser subsequent to the recording of a mortgage differently from the borrower under the note and mortgage or from another type of subsequent purchaser, such as one who acquires title after the filing of a foreclosure action. It is possible, for example, that the law might recognize legally consequential distinctions in the facts and circumstances under which a subsequent purchaser took title that the generic use of the term “subsequent purchaser” might mask. We discuss the two rules identified in the text because they are the rules upon which 21st Mortgage relies and because they are the ones discussed in the Florida cases addressing the standing of subsequent purchasers. We express no opinion on any other possibility.

[4] This distinguishes the cases on which 21st Mortgage relies, all of which involved the assertion of some defense that went to the validity of the mortgage or its express terms. See Wells Fargo Bank, N.A. v. Rutledge, 230 So. 3d 550, 552 (Fla. 2d DCA 2017) (holding that a third-party purchaser lacked standing to argue that the borrower’s signature had been forged on the note and mortgage); CCM Pathfinder, 198 So. 3d at 7 (holding that a subsequent purchaser was bound by a provision in the mortgage contract waiving the statute of limitations for a foreclosure action); LaFaille, 197 So. 3d at 1247 (stating that subsequent titleholders could not assert a contract right that belonged only to the parties to the mortgage); Eurovest, 528 So. 2d at 483 (holding that a third-party purchaser was estopped from arguing that the mortgage was procured by fraud and without consideration).

[5] The dissent says that a subsequent purchaser receives all the process it is due when its participation is limited to protecting its statutory right of redemption because (1) a subsequent purchaser takes title subject to the mortgage and (2) some subsequent purchasers take advantage of borrowers in distressed situations. As to the first point, the law already limits the subsequent purchaser’s rights on the grounds that it takes title subject to the mortgage; it holds that a subsequent purchaser is estopped from disputing the validity of a facially valid mortgage. As we have shown, that principle does not translate into the rule the dissent wants—namely, that a subsequent purchaser, even though it owns the property and is named as a defendant, can be precluded from saying or doing anything in defense of a foreclosure action unless it can convince a judge that its action is tied to the right of redemption. As to the second point, if bad behavior by some subsequent purchasers is a problem, the extent to which it demands action and what action it demands are policy questions properly addressed to the legislature and not questions that we as law-trained judges have either the technical competence or the information-gathering tools to answer. See Bonafide Props., 198 So. 3d at 698 (Altenbernd, J., concurring) (noting that the practice of some subsequent purchasers buying distressed properties and putting rent-paying tenants in them likely has “a measure of good . . . that should be preserved” and “a measure of bad that ought to be regulated or prohibited” and explaining that “[t]his court is not a proper forum to make these determinations or to establish any needed rule of law”). The dissent concludes by saying that our decision “strips 21st Mortgage of its security under the guise of due process.” That is not a reasonable characterization; at most, we have required that 21st Mortgage do what virtually any other plaintiff who seeks a judgment against virtually any other defendant must do—prove the elements of its case. And although we cannot preemptively decide the issue, we note that because the law treats each payment default under a note and mortgage as a separate event for res judicata purposes, the smart money says that 21st Mortgage can and will file a new foreclosure action (as soon as tomorrow, if it wants) based on payment defaults subsequent to those involved here. See Provident Funding Assocs., L.P. v. MDTR, 257 So. 3d 1114, 1118 (Fla. 2d DCA 2018) (holding that a judgment in an initial foreclosure action did not bar a subsequent action based on different payment defaults under the same note and mortgage where “[t]he final judgment in the first foreclosure action did not make any determination that would invalidate the note and mortgage or preclude [the plaintiff] from ever suing upon the note and mortgage” and relying on Singleton v. Greymar Associates, Inc., 882 So. 2d 1004 (Fla. 2004), in support of that proposition).

[6] We note that 21st Mortgage has not argued that there are components of the amount due that were sufficiently proved notwithstanding the absence of evidence with regard to the loan modification to which its witness testified. See, e.g., Boyette v. BAC Home Loans Servicing, LP, 164 So. 3d 9, 10 (Fla. 2d DCA 2015).

 

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